The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.39941 of 2023 And I.A. No.19388 of 2023 (Through hybrid mode) The Management of M/s. Orissa Sponge Iron and Steel Ltd., Keonjhar …. Petitioner -Versus- The Presiding Officer, Labour Court, BBSR and others …. Opp. Parties Advocates appeared in this case: For Petitioner : Mr. Sudarshan Nanda, Advocate Mr. Sohan Mishra, Advocate Mrs. S. Pattanaik, Advocate Mr. A. Sahoo, Advocate Mr. S. Mishra, Advocate For Opp. Parties : Mrs. Suman Pattanaik, AGA (for O.P. nos.1 and 2) Mr. Amit Prasad Bose, Advocate (for O.P.no.3) Mr. P.K. Das, Advocate (for O.P. nos.4 to 6) CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO Page 1 of 16 J U D G M E N T ---------------------------------------------------------------------------- Dates of hearing: 7th and 28th February, 2024 and 29th April, 2024 Date of judgment: 29th April, 2024. ---------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Nanda, learned advocate appears on behalf of petitioner (management). He submits, there was settlement, found record in orders dated 20th October, 2020 and 9th November, 2020 made by co-ordinate Bench on writ petition WP(C) no.4090 of 2016 (parties’ own case). In spite thereof impugned orders dated 9th December, 2022 and 2nd September, 2023 were made by the Labour Court, disregarding the settlement, taken cognizance by the writ Court. In
Legal Reasoning
the circumstances, his client has challenged impugned orders. 2. Mrs. Pattanaik, learned advocate, Additional Government
Legal Reasoning
Advocate appears on behalf of opposite party nos.1 and 2. Mr. Bose, learned advocate appears on behalf of opposite party no.3 (union). He submits, his client was represented before co-ordinate Bench, when aforesaid orders were made. He submits further, some workmen did not accept the settlement and moved the Labour Court W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 2 of 16 to obtain impugned orders, in their favour, whereby the Labour Court purported to go beyond the settlement. 3. Impugned orders dated 9th December, 2022 and 2nd September, 2023 are orders made in proceedings instituted by 292 workmen under section 33-C (2) in Industrial Disputes Act, 1947, seeking computation of benefit in terms of money arising out of declaration that the lockout was illegal and unjustified, by award dated 30th December, 2015 in I.D. Case no.51 of 2013. On the writ petition moved (7th December, 2023) we had directed petitioner to apply for adding the workmen, at whose instance or in whose favour impugned orders were passed. We had made the direction because petitioner (management) has challenged impugned orders on contention that, as aforesaid, by memorandum dated 12th August, 2020 settlement was arrived at by agreement between the employer and workmen, otherwise than in the course of conciliation proceeding. It is binding on the workmen. 4. Mr. Nanda submits, his client had accordingly filed I.A. no.19388 of 2023 with prayer to add three workmen, in compliance of the direction in order dated 7th December, 2023. The workmen are firstly, the workman in favour of whom rest applicants-workmen W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 3 of 16 had filed Form-G. Second and third were the two workmen, who had deposed before the Labour Court in the computation proceeding. He submits further, Mr. Das, learned advocate is appearing for interveners-applicants (in IA no.290 of 2024), among whom applicant no.8 is one of said three workmen, to be added as parties. Copies of the application were served. The workmen, to be added, have also filed their counter/objection. 5. I.A. no.19388 of 2023 was allowed on the persons mentioned in the schedule, added as opposite party nos.4 to 6. Petitioner had leave to cause the amendment in Court, to be countersigned by Court Master. The application, though dealt with earlier, is formally
Decision
disposed of today. 6. On 28th February, 2024 Mr. Das had made submissions on behalf of his clients, the opposing workmen. Paragraphs-1 and 2 in our order dated 28th February, 2024 are record of his submissions, reproduced below. “1. Mr. Das, learned advocate appears on behalf of opposite party nos.4, 5 and 6 as well as applicant- interveners. He submits, the lock out was illegal. Accordingly award dated 30th December, 2015 was duly W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 4 of 16 made. Challenge thereto by WP(C) no.4090 of 2016 was disposed of on purported settlement. The settlement was not duly executed. His clients went before the labour Court for computation of their benefit pursuant to the award. Orders made in the proceeding have been impugned by the management in this writ petition. He submits, apart from all that has happened in litigation by said and another earlier writ petition, his clients applied for information under Right to Information Act, 2005. Office of Divisional Labour Commissioner replied that said office did not have any settlement in its record. Text of the answer given on communication dated 29th August, 2023 by the Public Information Officer is reproduced below. “With reference to the above subject, I am to say that the information you have sought by your RTI application which has been received by this office on dated 11.08.2023 is not available in this office as the agreement on dated 12.08.2020 between the management of Orissa Sponge Iron & Steel Ltd. and Orissa Sponge Iron Employees Union has not been registered in this office. Therefore the information you have sought by your RTI application is termed as „NIL‟.” W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 5 of 16 2. Mr. Das relies on sub-rule (5) in rule 64 of Orissa Industrial Disputes Rules, 1959 to submit, there is clear breach of this provision to see through the bogey of purported settlement.” (emphasis supplied) We by our said order dated 28th February, 2024, for purpose of verifying submission made on behalf of the opposing workmen, had made direction upon State. Paragraph-4 from said order dated 28th February, 2024 is reproduced below : “4. State will obtain instructions from the Government, concerned Labour Commissioner and Conciliation Officer regarding copy of settlement dated 12th August, 2020 filed with them or any of them. Affidavit answering Court‟s query is to be filed on adjourned date upon advance copies circulated.” Mrs. Pattanaik submits, affidavit dated 4th April, 2024 was filed. It will be sufficient for us to reproduce below opening passage in paragraph-5 thereof “5. That, admittedly though the settlement agreement was arrived at between the parties, the same was not registered W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 6 of 16 by the competent/appropriate authority because of certain infirmities noticed such as, …” On query from Court Mrs. Pattanayak points out from said affidavit, letter was sent enclosing copy of the settlement to the State Government but the letter contained infirmities. That is why the settlement was not registered by the Conciliation Officer. We do find disclosed in the affidavit letter dated 14th September, 2020 issued by the Divisional Labour Commissioner to the Labour Commissioner on subject, registration of said bipartite settlement agreement dated 12th August, 2020. 7. Mr. Das submits further, the union, who purportedly represented cause of the workmen, is not the real union. His clients are 292 in number, who applied to the Labour Court for computation of their benefit. Interest of the large number workmen could not be and was not represented by the purported union. On query from Court he submits, challenge was raised regarding identity of the union, by W.P.(C) no.14246 of 2022 (Sri Balaram Sahoo and others v. State of Orissa and others). Coordinate Bench by order dated 7th June, 2022 had directed Divisional Labour Commissioner-cum- Conciliation Officer, Keonjhar to consider his clients’ representation W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 7 of 16 regarding the bogus union. The representation remains pending. The omission confirms his clients’ contention of the union being bogus. In the circumstances there was no settlement, for enforcement as binding, under section 18. 8. Mr. Das submits further, signatories to the purported settlement dated 12th August, 2020 all retired prior to execution thereof. Drawing attention to paragraph-11 in counter filed by opposite party nos.4 to 6, he demonstrates the dates of retirement to be between 31st August, 2017 and 2nd July, 2020. He relies on judgment of the Supreme Court in State Bank of India Staff Association v. State Bank of India, reported in AIR 1996 SC 1685 for submission that an employee ceasing to be an employee cannot represent other employees. The declaration of law is clearly in favour of his clients inasmuch as signatories to the purported settlement, not being workmen at the time of execution of it, cannot be taken to have represented his clients to compromise with their entitlement directed in the award. He submits, the writ petition be dismissed. 9. Mr. Nanda reiterates his client’s position regarding the settlement, as had been duly arrived at on agreement between the W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 8 of 16 union and his client, otherwise than in conciliation proceeding. The agreement happened, when his client had challenged the award holding the lockout to be illegal and unjustified. On query from Court he submits, there were five duly authorized signatories to the settlement agreement. 10. We must address our minds to the sequence of events, for purpose of adjudication of the writ petition filed by the management. Petitioner has challenged impugned orders of the Labour Court because it decided to proceed with answering the question regarding amount of money, at which the benefit of the workmen having approached it, is to be paid to them. This exercise is in execution of direction in said award dated 30th December, 2015 holding the lockout to be illegal and unjustified. 11. The lockout, we have ascertained from appearing learned advocates, was on 14th October, 2012. Benefits accruing to the workmen on declaration of it being illegal and unjustified, are for the workmen, who were in employment by petitioner-management on that date. All five signatories to the agreement of settlement (by agreement dated 12th August, 2020) were in employment on the date of lockout. They were authorized to represent the workmen on W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 9 of 16 resolution adopted by minutes of General Body Meeting of Odisha Sponge Iron Employees’ Union held on 15th January, 2020. First signatory to the agreement of settlement was an employee on date of the authorization, after which and prior to the settlement, he retired. 12. We have also ascertained from the Bar that in all 310 members of the union signed the authorization dated 15th January, 2020. On query from Court Mr. Das submits, there were over 400 employees and he is representing 292 of them. On simple arithmetic, sum total of 310 and 292 workmen will make 602 of them, which is a number far exceeding number of workmen said to be working under petitioner-management as according to the opposing workmen, represented by Mr. Das. It is therefore clear that there are many workmen, who signed both, the authorization as well as petitions for execution in the Labour Court. 13. Writ jurisdiction of this Court has been invoked by petitioner-management for issuance of certiorari, to quash impugned orders of the Labour Court. In the judicial review we cannot embark on fact finding, as if at trial, regarding the controversy presented to us. In that context our above dissemination of the facts bearing on the sequence of events. It must also be remembered that the W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 10 of 16 workmen (opposite party nos.4 to 6) representing all 292 of them, have not impugned the authorization nor the settlement. They cannot obtain issuance of writ of certiorari in the petition filed by the management. 14. So we must confine ourselves to the case presented in the writ petition. It is simply that there had been a settlement, outside of conciliation proceeding, between the management and its workmen. The settlement was a good settlement, entered upon on behalf of the workmen by their authorized representatives. Section 18 mandates binding nature of such settlement, on all parties. As a consequence, there cannot be benefit computed in execution, de hors, over and above the settlement. Position taken on behalf of the management is, the benefits have been disbursed. On behalf of the union, same submission has been made. 15. Annexure-1 in the writ petition is the authorization dated 15th January, 2020. There were in all four agenda items. In it we find agenda no.2 was discussion and confirmation of present proposal of the management. The proposal, by resolution on the agenda item, was accepted. Agenda item no.3 was authorisation to sign the agreement on behalf of the union. Some seven persons were named W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 11 of 16 as authorized in that behalf. The minute bears signatures, as aforesaid, of 310 workmen. 16. Acting on this authorization, there was the settlement agreement dated 12th August, 2020. On behalf of the union, five out of seven persons authorized, signed. The first was said to be the president and there are four other signatories. At this juncture we reproduce below clause (b) under sub-rule (2) of rule 64. “(b) in the case of workmen, either by the President and Secretary of a trade union, or by five representatives of the workmen duly authorised in this behalf at a meeting of the workmen held for the purpose.” We also reproduce below sub-rule (5) in rule 64 and rule 65. (emphasis supplied) “(5) Where a settlement is arrived at between an employer and his workmen otherwise than in the course of conciliation proceedings before a Board or a Conciliation Officer, the parties to the settlement shall jointly send a copy thereof to the State Government, the Labour Commissioner, and the local Conciliation Officer having jurisdiction. W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 12 of 16 65. Register of settlement-The Conciliation Officers shall file all settlements effected under this Act in respect of disputes in the area within his jurisdiction in a register maintained for the purposes as in Form „L‟[and retained permanently]” Omission to register is an irregularity. It cannot be said to amount to nullify the settlement itself. 17. Section 18 makes a settlement between the management and workmen, arrived by agreement between the employer and workmen otherwise than in course of conciliation proceeding, to be binding on parties to the agreement. The workmen are parties to the agreement through the union. We have not been shown any document saying there was pronouncement of impeachment of authority of those authorized to accept the settlement on behalf of the workmen. Clause (b) under sub-rule (2) in rule 64 provides for execution of the agreement on behalf of workmen, either by the president and secretary of a trade union of workmen, or by five representatives of the workmen, duly authorized in this behalf at a meeting held for the purpose. Clearly the second contingency was employed for purpose of execution of settlement on behalf of the workmen. First signatory, though signed as president, four others joined in signing the W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 13 of 16 settlement. As such, it cannot be disputed that the five signatories were representatives of the workmen, duly authorized by said minutes dated 15th January, 2020. 18. In view of aforesaid and in absence of a pronouncement, obtained by opposing workmen that the signatories were not duly authorized to sign or represent the workmen, we cannot go behind the authorization nor the settlement. The workmen though filed aforesaid writ petition challenging the authorization but did not obtain adjudication, on settling for a direction. A paragraph from order dated 7th June, 2022 of coordinate Bench disposing of their WP(C) no.14246 of 2022 is reproduced below. “Considering the submissions made by the learned counsel for the respective parties and without going into the merits of the case, this writ petition is disposed of directing the opposite party no.3- Divisional Labour Commissioner-cum-Conciliation Officer, Keonjhar to consider the representation of the petitioners under Annexure-5 series within a period of four weeks from the date of production of the certified copy of this order after giving an opportunity of hearing to the petitioners and W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 14 of 16 communicate the result of such decision to the petitioners.” (emphasis supplied) 19. In State Bank of India Staff Association (supra) the Bank had refused to deal with office bearers of the trade union citing that they had retired. Addressing the controversy, it having reached the Supreme Court, there was finding also that rules governing staff associations of the Bank required triennial meeting of the Circle General Council to be held within 6 months from close of triennial term, unless precluded by law and extension of time requires approval of the Central Committee for election of office-bearers of the Circle Committee. No such approval of the Central Committee was placed on record. Election of the General Secretary was held to be bad on that count as well. These are distinguishing facts. The management has not sought to resile from the settlement on questioning authority of the signatories on behalf of the workmen. As aforesaid, present controversy at instance of the management is regarding whether a settlement is binding or not on its workmen. As also aforesaid, in the entire materials on record, we have not been able to find nor shown that there had been adjudication on the W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 15 of 16 authority of the legal representatives to have represented the workmen in the settlement. We have already made it clear that opposing workmen cannot obtain certiorari against the authorization in this writ petition of the management. The obvious overlap causing aggregate of 602 workmen, in a situation where according to the opposing workmen, there were only over 400 workmen, does not lend support the workmen’s cause, for us to investigate further. 20. Impugned orders are set aside and quashed. The writ petition is allowed and disposed of. (Arindam Sinha) Judge (M.S. Sahoo) Judge Dutta/Gs/jyostna Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: OHC Date: 01-May-2024 11:16:36 W.P.(C) no.39941 of 2023 and IA no.19388 of 2023 Page 16 of 16