This writ petition is filed with a prayer to quash order bearing No.SOA/CR-25/2017-18, dated 22.05.2018 (Annexure-K), passed by the Additional Labour Commissioner and Appellate Authority under the Industrial Employment (Standing Orders) Act, 1946.
2. Heard Shri Somashekar, learned advocate for the petitioner, Shri K.Subba Rao, learned Senior Advocate for Caveator/respondent No.1 and Shri A.C.Balaraj, learned High Court Government Pleader for Deputy Labour Commission.
3. Petitioner took over the management of NTTF Industries Limited under Section 25(FF) of the Industrial Disputes Act, 1947 ('I.D.Act' for short). The provisions of certified standing orders of NTTF Industries Limited were agreed to be continued by the new management. Employees Union of petitioner Company submitted a Charter of Demands which included enhancement of age of retirement from 58 to 60 years.
4. Pursuant to State Government enhancing the age of retirement, the Employees Union again submitted a request on 06.04.2017 to enhance the age of retirement to 60 years. The Management filed it's statement of objections to the proposed amendment. After hearing the parties, on 19.12.2017, Certifying Authority rejected the request for amendment. Employees Union challenged the same in appeal before the Appellate Authority, third respondent.
5. Petitioner filed it's statement of objections before the Appellate Authority also. By order dated 22.05.2018, the Appellate Authority allowed the appeal enhancing the age of retirement to 60 years. Feeling aggrieved, petitioner is before this Court.
6. Shri Somashekar, learned advocate for the petitioner, assailing the order passed by the Appellate Authority urged following contentions:
that the petitioner Company and the Employees are governed by the terms of settlement dated 26.12.2014, whereunder the Employees Union has agreed not to reopen any matter or raise any financial burden on the petitioner Company directly or indirectly;
that the Certifying Authority has rightly rejected the request for enhancement of age by a speaking order; and
that the Appellate Authority without considering the judgments of the Supreme Court of India and this Court relied upon by the petitioner Company, has allowed the appeal.
He urged that it is settled position of law that parties are bound by the terms of settlement.
7. In support of his contentions, Shri Somashekar placed reliance on the following authorities:
1. Rattan Lal Sharma Vs. Managing Committee, Dr.Hari Ram (Co-Education) Higher Secondary School, (1993) 4 SCC 10;
2. Barauni Refinery Pragatisheel Shramik Parishad Vs. Indian Oil Corporation Limited, (1991) 1 SCC 4;
3. ITI Ltd. and Others Vs. Venugopalan N. and Others, (2010) 3 LLJ 77 (Kant)]; and
4. M/s Kennametal India Limited Vs. Kennametal India Employees Association and others, (2011) 5 KarLJ 316.
8. Shri K.Subba Rao, learned senior advocate for Employees Union supporting the enhancement of age, argued:
that the Management is seeking to raise a contention with regard to the principles laid down in Barauni's case for the first time before this Court without urging either before the Certifying Authority or before the Appellate Authority and therefore estopped from raising the said contention;
that it is true that there existed a settlement between the Management and the Union but it expired on 31.12.2017 and the order passed by the Appellate Authority is after the expiry of validity period of terms of settlement;
that the enhancement of age is in parity with the global trend;
that the Government have amended the Standing Orders Act, increasing the age of retirement to 60 years; and
that employees would be put to serious prejudice if the management is permitted to urge the contention for the first time in the writ petition before this Court under Article 226 of the Constitution of India.
9. In support of his contentions, Shri Subbarao placed reliance on following authorities:
1. Sangram Singh Vs. Election Tribunal Kotah and another, (1955) AIR SC 425;
2. Filmistan(P) Ltd., Vs. Balkrishna Bhiwa and another, (1972) AIR SC 171; and
3. Union of India and others V. Keshab Lal Roy and others, (1996) 10 SCC 326.
10. I have carefully considered the submissions of learned Advocates for the parties and perused the material papers on record.
11. In the conspectus of facts recorded hereinabove, the point that arises for consideration of this Court is, whether petitioner can be permitted to urge the ground with regard to settlement between the Management and the Union for the first time in these proceedings?
12. Admittedly, the petitioner-Company have not raised the issue with regard to the settlement either before the Certifying Authority or before the Appellate Authority. Further, the agreement between the parties expired on 31.12.2017. The impugned order by the Appellate Authority has been passed on 22.05.2018.
13. Though, Shri Somashekar adverted to the authorities referred in paragraph No.7 above, he mainly stressed the point that, as held in Barauni (supra), the workmen are bound by the terms of settlement.
14. In reply, Shri K. Subbarao, learned Senior Advocate, placing reliance on Sangram Singh (supra) urged that High Court should not act as a Court of appeal. In the said decision, it is held as follows:
"14. That however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not and should not, act as Courts of appeal under Art. 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercise along recognized lines and not arbitrarily: and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as special as may be. Therefore, writ Petitioners should not be lightly entertained in this class of case."
15. Placing reliance on Filmistan(P) Ltd. (supra), Shri Subbarao argued that, unless the management had pleaded and argued the point with regard to settlement before the Certifying Authority and the Appellate Authority, it cannot be permitted to raise such a contention before this Court. In the said decision, it is held as follows:
"15.We have already pointed out that even in the writ petition, the workman who was represented by the same lawyer, who appeared for him before the Industrial Tribunal, did not make any grievance that the Industrial Tribunal omitted to consider his plea based upon the violation of Section 33(2)(b) proviso though it was argued before it. Under these circumstances, in our opinion, the High court was not justified in allowing the workman to raise this plea which really requires an investigation into facts and consideration of the explanation that may be offered by the management if there has been any delay.
16. The limits of the jurisdiction exercised by the High Court under Article 227 have been laid down by this Court in several cases. Some of the decisions bearing on the matter have been referred to by this Court in Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi. There was no such error on the record in the case before us, which justified interference by the High Court. We have already pointed out, by reference to the decision of this Court that the question whether an application for approval under Section 33(2)(b) proviso was made as part of the same transaction or at the same time when the action was taken, is a question of fact and will depend upon the circumstances of each case. The workman did not press the contention based upon Section 33(2)(b) proviso before the Industrial Tribunal and therefore he must be presumed to have abandoned that plea. In these circumstances there was absolutely no justification for the High court under Article 227 to consider this plea requiring investigation of facts and adjudicate upon the same. Considering from any point of view, the High Court was not justified in setting aside the order of the Industrial Tribunal."
16. In the next authority in Union of India (supra), relied upon by Shri. Subba Rao, it is held as follows:
"12. Mrs Issar then sought to contend that even in the case of ASL Railways there were some employees who had joined other companies which were then taken over by the Indian Railways and the past service of those employees was being counted for pensionary benefits. This contention was not raised before the Tribunal. No facts in this behalf are stated even in the application which was filed before the Tribunal. Had this contention been raised in the application filed before the Tribunal then the appellants herein would have had an opportunity of giving a reply. There has been no adjudication by the Tribunal as to whether the facts so alleged are correct or not. This contention cannot be allowed to be raised in this Court for the first time."
17. Further, it is
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also relevant to note that, the State Government, in exercise of powers conferred under sub-Section (1) of Section 15 of the Industrial Employment 'Standing Orders' Act, 1946, have made Rules called 'Karnataka Industrial Employment (Standing Orders) (Amendment) Rules, 2017' increasing the age of retirement to 60 years. The amended rules have been notified in the Gazette on 28.3.2017. 18. Thus, on facts, the management did not plead the aspect of settlement before the Certifying Authority and the Appellate Authority. The settlement with the workman was not in force as on the date of impugned order passed by the Appellate Authority. Further, the impugned order passed by the Appellate Authority is in parity with the amended Rules notified by the State Government. 19. In the facts of this case, I am of the considered view that Management cannot be permitted to urge the contention that the parties were governed by the settlement. 20. Resultantly, this Writ Petition fails and it is accordingly dismissed. No costs.