(1.) THIS is a petition under Art. 226 of the Constitution filed by Faridabad Glass works (Private) Limited (hereinafter called the Establishment). The petitioners is carrying on the business of glass works in Fairdabad Town, district Gurgaon, and has about 500 workmen on its roll. In this town, there exist two registered Unions of Glass Workers, namely, Glass and Ceramic Workers Union, respondent No. 2, and Bhargava Glass workers Union, respondent No. 3 (herinafter called the ceramics Union and the Bhargava Union, respectively). the workers of the establishment are mostly members of the one or the other Union. According to the allegations of the petitioner, on 3-1-1964, S. Karam Singh, president of the Ceramies Union, served the Establishment with a notice of demand relating to the payment of minimum wages to unskilled workers, increment in their wages and payment of dearness allowance to workmen and its linking with the cost of living index. On 7-4-1964 the Establishment wrote to the conciliation Officer, Bhiwani Circle, to intervene in this matter. During the pendency of the conciliation proceedings before the conciliation Officer, on 14-31964 the Management and its workmen, as represented by the Ceramics Union, entered into an arbitration agreement, duly signed by Shri K. L. Dhawan, General manager of the Establishment and S. Karam Singh, General Secretary of the ceramics Union, under S. 10-A of the Industrial Disputes Act, 1947 (hereinafter called the Act), in the prescribed form. The copies of this agreement were sent to the Conciliation Officer, Labour Commissioner, Punjab, and the Secretary to government, Punjab, Labour Department. The disputes raised in the demand notice were referred to the arbitration of Shri A. N. Gujral, a former Industrial tribunal, Punjab, living in C-II-41, Tilak Lane, New Delhi. On 17-3-1964 the manager of the Establishment forwarded three copies of the arbitration agreement together with the consent of the proposed Arbitrator, to the Labour Commissioner. Punjab, for publication in the Official Gazette. A letter, dated 13-4-1964 was received from the Conciliation Officer, addressed to the Establishment and S. Karam singh of the Ceramics Union asking the Manager of the Establishment to meet him on 17-4-1964 at 10-30 A. M. in the Office of the Faridabad Industries association at Faridabad to remove certain defects pointed out by the Labour commissioner, while returning the copies of the arbitration agreement to him. The objections raised were that (a) the complete address of the petitioner was not given, and (b) the letter of authority from the members authorising S. Karam singh to sign the agreement on their behalf was not enclosed. The petitioner's manager met the Conciliation Officer on 17-4-1964 and gave him that the details and orally pointed out to him that the arbitration agreement did not suffer from the defects pointed out by the Labour Commissioner. No further communication from the Government in this connection was then received. Meanwhile, the arbitrator entered on the reference and issued notices to the parties to appear before him. Those proceedings were still pending, when, in the meantime, on 104-1964 the Establishment received a copy of an order of Industrial Reference issued in the name of the Secretary to Government, Punjab, wherein the following disputes between the Establishment and the workmen were referred for adjudication to the Industrial Tribunal, Punjab:-
1. Whether the termination of services of Shri Amanant Machineman is justified and in order? If not, to what relief he is entitled to? 2. Whether the workmen should be paid any dearness allowance? If so, at what rate and with what details?
On the receipt of this order of reference, on the same day, the petitioner wrote a letter under the signatures of the General Manager of the Establishment and S. Karam Singh, General Secretary of the Ceramics Union, to the Secretary, Labour department, Government of Punjab, pointing out that the second dispute in the reference should not have been included therein, as it was the subject-matter of a previous reference to arbitration. This letter was followed by a telegram, which was sent on 11-7-1964 requesting for the early publication of the arbitration agreement in the official gazette. The Petitioner then received a copy of a letter, dated 5-8-1964 addressee by the Secretary to Government, Punjab, Labour and employment Department, to the General Secretary of the Ceramics Union, in which it was stated that the Government notification referring the dispute to the industrial Tribunal was dated 7-3-1964 and the reference had been made at the instance of the Bhargava Union. It was further stated that in view of that, it would not be conducive to refer the same demand to arbitration by publishing the arbitration agreement in the official gazette, as the same was already sub judice. Meanwhile, the Presiding Officer of the Industrial Tribunal, Punjab, respondent No. 1, who received the order of reference on or about 8-4-1964, issued notices to the petitioner and the President, bhargava Union, directing them to file their written statements. The General manager of the Establishment in his return, dated 5-5-1964 submitted that the demand in regard to the dearness allowance was already before the arbitrator and the dispute in respect of item No. (2) could not be gone into by respondent No. 1. On 29-5-1964, respondent No. 1 framed issues in the case and one of them, namely, No. 2 being "cannot Item No. (2) of the reference be adjudicated upon for the reasons given in the written statement?. This issue was decided against the petitioner by the order, dated 17-8-1964. The three prayers made in this petition are-
(1) that the order, dated 17-8-1964 passed by respondent No. 1 be quashed; 2. that respondent No. 1 be prohibited from proceeding with the trial of the reference with regard to dispute No. (2), wholly, or, in the alternative, as regards the workmen who were represented by the ceramics Union: and 3. that the State of Punjab, respondent No. 4, be directed by a writ of mandamus to publish the arbitration agreement in the official Gazette.
(2.) IN the return filed by the Joint Labour Commissioner, Punjab, it was stated that the arbitration, agreement referred to by the petitioner was not in order and the defects detected therein were communicated to the Establishment by the conciliation Officer, Bhiwani, for necessary correction, As the necessary rectification was not done in time and meanwhile a reference was made to the industrial Tribunal for adjudication of the two disputes, therefore, the ceramics union was informed by the Government that it would not be conducive to refer the same demand for arbitration and they should approach the Tribunal to make them a party to the reference and allow them to get the matter of dearness allowance settled through arbitration instead of adjudication. It was also stated that the proceedings, if any, started by the Arbitrator before the publication of the arbitration agreement in the Official Gazette as required under S. 10-A (3) of the act were invalid. It was further mentioned that the arbitration agreement, which the Government was bound to publish, must be complete in all respects and effected before the dispute had been referred under S. 10 of the Act to the Labour court or Tribunal or National Tribunal. Since in the present case, the arbitration agreement, after necessary rectification, was not received before the reference, there was no failure on the part of the Government in publishing the same. The arbitration agreement derived its authority from its publication by the Government in accordance with the provisions of the Act.
(3.) IN the written statement filed by the Bhargava Union, it was mentioned that there were about 450 workmen in the petitioner's establishment. The Bhargava union exclusively represented the workmen of the establishment and about 230 out of them were its members. So far as the Ceramics Union was concerned, it was a general Union of workmen belonging to different factories, carrying on the business of glass works in Faridabad. It had only a few workmen belonging to the petitioner's establishment on its roll in 1963, but in 1964 this Union had no workman of this establishment as its member. In fact, this Union was being used by the Management of the establishment to further its own ends. The Management got the demand notice, dated 3-1-1964 served by the Ceramics Union in order to defeat the real demands which were being made by their workmen at other time, and a notice about which was served on the Management by the Bhargava Union on 17-1-1964. It was the Manager of the Petitioner's establishment who wrote to the Conciliation Officer, Bhiwani Circle, to intervene in the dispute and this showed that the whole thing was collusive, because generally in allgenuine cases it were the workmen who had to approach the Labour Department for intervention. It was admitted that the Management of the establishment got some sort of arbitration agreement executed. ; but the whole thing was being mannered by the management is collusion with S. Karam Singh, who was an outsider and not himself a workman, in the Establishment. The alleged agreement did not fulfill the requirements of R. 8 of the Industrial disputes (Punjab) Rules, 19058 (hereinafter referred to as the Rules), inasmuch as it was not signed by the President and Secretary of any Union of the workmen of the petitioner's establishment. The alleged arbitrator could not enter on the reference, before the arbitration agreement was published in the Official Gazette and any proceedings, taken by the alleged arbitrator without the arbitration agreement having been accepted by the appropriate Government as bona fide by publishing it in the Official Gazette, were void and ineffective. The genuine industrial disputes that existed between the workmen and the management of the establishment were referred under S. 10 of the Act by the Punjab Government to the Industrial Tribunal, Punjab, by the notification, dated 7-4-1964. There was no legal impediment to the reference of any of the items of the dispute mentioned in this notification, because there was no valid previous reference to arbitration. The government was not bound to publish an arbitration agreement when it was obviously collusive. The agreement set up by the establishment was a fraud on the statute and as such could not have any legal force.
(4.) LEARNED counsel for the petitioner submitted that respondent No. 1 ought to have held that the reference was wholly incompetent in regard to dispute No. 2, because of the pervious arbitration agreement under S. 10-A of the Act. In the alternative, it was contended that the same was invalid at least as regards the workmen, who were members of the Ceramics Union, which was a party to the arbitration agreement. It was further argued that the Government should have published this agreement in the Official Gazette and in any case the Government's omission to publish the same did not either affect its validity or prevent the arbitrator to investigate the dispute and proceed to deliver the award. The publication of the agreement, according to the learned counsel, was a mere formality, because the arbitration agreement and not from the Government gazette notification.
(5.) ARBITRATION agreements are dealt with in S. 10-A of the Act. Which is in these terms
"section 10-A (1) Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred under S. 10 Labour Court or Tribunal or National Tribunal, by a written agreement, refer the dispute to arbitration and the reference shall be to such person or person (including the presiding officer of a Labour Court or Tribunal or National Tribunal) as an arbitrator or arbitrators as may be specified in the arbitration agreement. (2) An arbitration agreement referred to in sub-s. (1) shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed. (3) A copy of the arbitration agreement shall be forwarded to the appropriate Government and the concilation officer and the appropriate government shall, within fourteen days from the date of the receipt of such copy, publish the same in the Official Gazette. (4) The arbitrator or arbitrators shall investigate the disputed and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be. (5) Nothing in the Arbitration Act, 1940, shall apply to arbitration's under this section. "
According to sub-s. (2), the arbitration agreement has to be in such form and signed by the parties thereto in such manner as might be prescribed. rules for this purpose have been framed and they are as under.
"rule 7. An arbitration agreement for the reference of an industrial dispute to an arbitrator or arbitrators shall be made in Form 'c' and shall be delivered personally or forwarded obey registered post in triplicate to the Labour Commissioner, Punjab. Rules 8. The arbitration agreement shall be signed:-- (a) In the case of an employer, by the employer himself, or when the employer is an incorporated company or other body corporate, by the agent, manager, or other principal officer of the Corporation; (b) In the case of workmen, either by the President and Secretary of a trade Union of the workmen or by five representatives of the workmen duly authorised in this behalf at a meeting of the workmen held for the purpose.
From 'c' referred to in Rule 7is as under:-
"from C (See Rule 7)AGREEMENT (Under S. 10-A of the Industrial Disputes Act. 1947)Name of Parties. Between. Representing employers: representing workmen: it is hereby agreed between the parties to refer the following industri (here specify the name (s) and address (es) of the arbitrator (s): (i) Specific matters in dispute; (ii) Details of the parties to the dispute including the name and addre (iii) Name of the Union, if any, representing the workmen in question; (iv) Total number of workmen employed in the undertaking affected; (v) Estimated number of workmen affected or likely to be affected by th witnesses:- Signature of the Parties. (1) Representing Employer. (2) Representing Workmen. Copy to- (i) The Conciliation Officer (here enter the office address of the conciliation Officer in local area concerned). (ii) The Labour Commissioner, Punjab. (iii) The Secretary to Government, Punjab, Labour Department'.
In the present case, admittedly, the arbitration agreement which is annexure 'a' to the writ petition, was signed by Shri K. L. Dhawan, general Manager, representing the employers, and S. Karam Singh, general Secretary, representing the workmen. According to the petitioner, the following two objections to the arbitration agreement were pointed out by the Labour Commissioner. Punjab:-1. that the complete address of the arbitrator was not given therein; and 2. that the letter of authority from the members authorising S. Karam singh to sign the agreement on their behalf was not enclosed. It may be mentioned that in their return, the Joint Labour Commissioner has not given a copy of the objections taken by him, but he has admitted that these were the objections raised. So far as the first objection is concerned, it is meaningless, because in the arbitration agreement, the address of the arbitrator is clearly given as C-11-41, tilak Lane, New Delhi. With regard to the second, the same is not correct, because the General Secretary of the Union did not require any letter of authority from the members authorising him to sign the arbitration agreement on their behalf. The objection which could have been taken in accordance with R. S. was that the agreement should also have been signed by the President of the Union. This, however, was not raised. In case this defect had been pointed out, the same could have been removed by getting the agreement signed by the President. Moreover, the arbitration agreement was dated 14-3-1964 and it was sent to the Labour Commissioner on 17-3-1964. On that very day, a copy of the same was sent to the Conciliation Officer, Bhiwani Circle, as well. In spite of that, the objections were raised by the letter, dated 134-1964, while the reference to the Industrial Tribunal had already been made on 7-4-1964. These objections should have been raised before a reference to the Industrial Tribunal was made under S. 10 of the Act, because the proceedings under S. 10-A had already started by the execution of the arbitration agreement, dated 14-3-1964. It may be mentioned that Ss. 10 and 10-A of the Act provide alternative remedies to settle an industrial dispute. Whenever the same arises, it can either be referred to the Industrial Tribunal for adjudication under S. 10 or the parties can enter into an arbitration agreement and refer it to an arbitrator agreement and refer it to an arbitrator appointed by them to give his award under S. 10-A. The remedies, as already mentioned above, are alternative and once certain workmen choose their remedy under S. 10-A, the Government cannot refer their dispute to the industrial Tribunal under S. 10 and in case the Government refers the dispute of the other workmen of that very Establishment to the industrial Tribunal, then the decision of the latter would not be binding on the workmen, who had entered into an arbitration agreement. Likewise, the arbitration award given in the case of the workmen will be binding only on those, who were parties to the arbitration agreement, and who referred the dispute to arbitration, but not on the other workmen of the same establishment. In this connection, reference may be made to S. 18 (2) of the Act, which clearly lays down that an arbitration award, which had become enforceable, shall be binding on the parties to the agreement, who referred the dispute to arbitration. The contention of the learned counsel for the petitioner that the arbitration award would also be binding on all the workmen is without any substance. A perusal of the provisions of S. 18 would show that a settlement arrived at by an agreement between the employer and the workmen otherwise than in the course of conciliation proceedings shall obey binding only on the parties to the agreement, whereas the settlement arrived at in the course of the conciliation proceedings under the Act shall by virtue of sub-s (3) (a) (c) and (d) be binding on all the parties to the industrial dispute, namely, the employers and all the workmen. Similarly, an award of a Labour Court, Tribunal or National tribunal would be binding on all the workmen and the employer, but an arbitration award, as already mentioned above, would only be binding on the parties to the agreement, who referred the dispute to arbitration. In the present case, the objection with regard to the arbitration agreement having not been signed by the President of the Union was not pointed out and, as such this mistake, which appears to be a bona fide one, can be rectified even now and when the same has been done, then the government should publish the arbitration agreement in accordance with the provisions of S. 10-A (3) of the Act. The reference to the Industrial t
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ribunal with regard to dispute No. 2 was, therefore, invalid qua the workmen, who were parties to the arbitration agreement. (6.) IT may be mentioned that the case of the Labour Commissioner now in his return is that the date, of reference to the Industrial Tribunal was 7-4-1964 and not 7-3-1964 as mentioned in the impugned order of respondent No. 1. (7.) IN view of what has been said above, I hold that the workmen, who are members of the Ceramics Union, which had entered into an arbitration agreement with the establishment under S. 10-A, would not be bound by the reference made to Industrial Tribunal with respect to dispute No. 2 and no proceedings qua them can be started by respondent No. 1. It may be pointed out that the contention of the Establishment is that number of workers employed by them belong to the ceramics Union, while, on the other hand, the case of the Bhargava Union is that no workman of this Establishment is at present the member of the Ceramics union. This matter will be decided by the Industrial Tribunal and those workers, who are found to be the members of the Ceramics Union, will not be considered to be parties to the industrial reference so far as dispute No. 2 is concerned and the award of respondent No. 1 will not be binding on them. The Establishment will get the arbitration agreement signed by the President of the Ceramics Union and if that is done, then the Government is directed to publish the same in the Official gazette. (8.) THE result is that this writ petition succeeds and the order, dated 17-8-1964 of respondent No. 1 qua the workmen, who are proved to be the members of the ceramics Union, is hereby quashed. There will, however, be no order as to costs. It is, however, understood that if the Establishment fails to get the arbitration agreement signed by the President of the Ceramics Union within a reasonable time to be fixed by respondent No. 1 or the Ceramics Union is unable to prove to the satisfaction of respondent No. 1 that any of the workers of this Establishment are its members, then the impugned order of respondent No. 1 would stand. (9.) PETITION allowed.