The Supreme Court Reports State of Bihar v. Kripa Shankar Jaiswal

Kapur ]. KAPUR J.-This is an appeal brought in pursuance

of a certificate under art. 134(l)(c) of the Constitution against the judgment and order. of acquittal of the High Court of Patna.

There were certain disputes between the workmen and the Management of Mankatha Distillery of which the proprietor is the respondent. On November 23, 1953, a petition was submitted on behalf of the work-men of the Distillery to the Assistant Labour Commis-sioner, Bhagalpur, which was signed by one Banarsi Choudhuri on behalf of himself and for and on behalf of the workmen of the Distillery. In this petition, certain grievances of the workmen were set out. Con-ciliation proceedings were started, and there was an agreement on December 5, 1953, which the High Court has described as • some sort of agreement '.

On January 12, 1954, an application was made for the registration of the Union of the workmen of the Distillery under the Indian Trade Unions Act, and the same was registered on March 23, 1954, under the name and style of Mankatha Distillery l\fazdoor Pan-1960 cha.yat. The Distillery was closed and the workmen were discharged, and thereafter on February 19, 1954, State of Bihar v. the General Secretary of the Mankatha Distillery ]( ripa 5 /iankar Mazdoor Panchayat, even though it was not register-Jaiswal ed at the time, sent a letter to the Management, pro-testing against the discharge of the workmen without Kapur .f. payment of compensation and objecting to the inten-tion of the employers to re-start the factory after employing other workmeq. It was also stated therein that the workers who had been discharged, ·had been working for some years and a list of such workmen was attached to the letter. The following portion of the letter is relevant for the purposes of this appeal:-

" All the persons, named below, shall work in the factory in legal manner, on monthly salary on perma-nent basis. It is not only hoped, rather fully believed that you would consider the above facts and gladly accept the same.

On getting a stisfactory reply, all the workers, who had been working in your factory since years, would report themselves to duty and work according to your orders ".

Although it is addressed to the proprietors of the Dis-tillery, it seems to have been sent to the Assistant Commissioner of La.hour, Bhagalpur, where it was received on February 25, 1954. The following endorse-ments were made on this letter :-

" Di~cussed with you. The management is re-quested to attend conciliation proceeding on 10th March, 1954, at 11 a.m. The Union is also informed accordingly ".

Another petition dated March 5, 1954, was sent by the General Secretary of the Distillery Mazdoor Panchayat to the Assistant "Labour Commissioner, in which the names of a.II the persons who had been freshly emp-loyed by the proprietors, were mentioned and it was .

prayed that those who were discharged at the time of the closing of the factory, may be reinstated and wages pa.id, and a request was made to the Assistant Labour Commissioner to visit and see the situation for himself

and get the workmen reinstated. The order on this petition was :- State of B1'.har "The parties have been called to-morrow in my

v. office for conciliation. The result of the proceeding Kripa Shankar

]aiswal may be awaited."

On March 18, 1954, a settlement was arrived at bet-Kapur ]. ween the management and the workers which is sign-

ed by the Conciliation Officer appointed under s. 4 of the Industrial Disputes Act, 1947 (Act 14 of 1947) (hereinafter termed, for the sake of brevity, the. Act). This document was signed by the proprietor and the manager of the Distillery and by Banarsi Choudhuri, General Secretary of the Workers' Panchayat and also by six other members of the Panchayat who were evidently the members of the Executive Com-mittee of the Panchayat. The terms of the settlement were as follows :

" I. It is agreed that the workers named in Schedule " A" shall be taken to jobs without break in their services.

¶2The new hands appointed after the closure of the factory shall be discharged.

¶3.If three shifts will start and any other increased opportunity of employment will be available in the factory, the management shall employ only those workers who are left to-day and who had worked in August 1953 and September 1953 in order of seniority.

¶4Shri Banarsi Choudhry, Balmiki Singh, Bhaso Singh and Kaltu (?) Singh are accused in a 6ase pend-ing before the Court at Monghyr. The management agrees that if they will be acquitted from the court, they will be given jobs.

¶5All the workers will be put in permanent basis as they were previously. The order putting them in the temporary basis after the opening of the Mill(?) is cancelled.

¶6The arrears will be paid on monthly basis as before instead of weekly basis as at present after the re-opening of the factory.

¶7The grievances raised by the workers and covered by the agreement dated the 5th December, 1953, will be decided by the La.hour Commissioner Ig6o Biha.r, Pa.tna. a.nd his decision sha.11 be a.ccepta.ble to and final for the parties. Slate of Bihar v. 8. The w<.irk of the factory will be resumed imme-K•ipa Shankar diately. Jaiswal

¶9The workers will continue to have all the benefits a.nd privileges which a.re gua.ra.nteed by la.w Kapur or usa.ge a.nd custom. _

¶10The workers will not be victimised for their Trade Union activities".

The prosecution ca.se is that the terms of the settle-ment were not carried out in that the old workmen were not re-employed and the newly employed workmen were not discharged. Thereupon, the res-pondent a.nd the manager of the Distillery, one Ram Nara.in La.I were prosecuted on a complaint filed by the Labour Superintendent, Mr. L. D. Singh, after sanction of the Government of Bihar had been obtained. Both the accused persons were convicted •and sentenced to a fine of Rs. 150 each or, in default, one month's simple imprisonment. The learned Magistrate held that there was a.n industrial dispute within the meaning of the Act, and that the concilia-tion settlement dated March 18, 1954, was a valid settlement and the respondent failed to implement the first term bf the settlement. Against this order, an a.ppea.l was taken to the Se~sions Court and the Third Addi. Sessions Judge dismissed the appeal. He confirmed the findings of the learned Magistrate.

Against this order of the Sessions Judge, an appeal was taken to the High Court by the respondent only, and the High Court set aside the order of conviction and acquitted the accused. It held that there was no recognised Union, though there was "some kind of a vague Union" existing, and that because the Concili-ation Officer had visited the Distillery without giving a reasonable notice, the " decision of the Conciliation Officer on 18-3-1954, must, therefore, be deemed to be without jurisdiction", and that there was no agree-ment arrived at between the proprietor on one side and the "labourers" as a whole on the other, and" it is preposterous to suppose that because some labourers

had signed the settlement that it bound all the labou-rers. It seems to me that there is a serious defect in r Staie of Bihar this settlement which is described as a decision of the

v. Conciliation Officer dated 18-3-1954 ". On the ground, Kripa Shankar

jaiswal therefore, that the settlement was not a settlement

which was binding on the respondent, the conviction Kapur ]. was set aside.

It would be an erroneous view if it were said that for a dispute to constitute an industrial di13pute it is a requisite condition that it should be sponsored by a recognised union or that all the workmen of an indus-trial establishment should be parties to it. A dispute becomes an industrial dispute even where it is spon-sored by a union which is not registered as in the instant case or where the dispute raised is by some only of the workmen .because in either case the matter falls within s. 18(3)(a) and (d) of the Act. See also Newspapers Limited, Allahabad v. The State Indus-trial Tribunal, Uttar Pradesh (1). The settement of March 18, 1954, arrived at during the conciliation· proceedings was signed by the General Secretary and members of the executive committee of the Union though it was unregistered at the time. We cannot therefore give our accord to t.he decision that the settlement of March 18, 1954, was not a settlement binding between the parties.

The scope and effe.ot of s. 11(2) was raised before us and it was argued that because the conciliation officer did not give any reasonable notice before he came to . t.he Distillery on March 18, 1954, the ·settlement was

not a legal settlement and consequently was not bind-ing on the parties and its breach could not fa.II within the penal consequences of s. 29 of the Act. Now, s. 11(2) provides:-

"A conciliation officer or a member of a Board or Court or the presiding officer of a Labour Court, Tri-bunal or National Tribunal may for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the pre-mises occupied by any establishment to which the dispute relates ".

(1) [19fo) 2 L.L.J. 37 at 38 ..

Sectfon 11 only deals with the procedure and powers of the conciliation officers and sub-section 2 autho· rises the conciliation officer to enter . the premises State of Bihar occupied by any establishment to which the dispute v. ffripa Shankar relates after giving a reasonable notice. This notice ]aiswal is only' for "the purpose of entering the premises to make an enquiry into any existing industrial dispute Kapur or .an apprehended industrial dispute, and 'is merely to apprise the establishment that it is the conciliation officer who is coming aud not an absolute stranger who has no connection at all with the machinery set up for the purposes of the Act. The absence of a notice under s. 11(2) therefore does not affect the jurisdiction of the Conciliation Officer.

As to what the conciliation officer can and should do, is contained in s. 12 of the Act. Sub-section I empowers the conciliation officer to hold concilia.tion proceedings in the case of a public utility service after notice under s. 22 whereby a mandatq_ry duty .is cast upon him to do so, and in other disputes it is his dis-cretion to hold conciliation proceedings·in the pres-cribed manner. Under sub-s. (2) he has to investigate without delay the dispute in all matters affecting the.

merits of the dispute, and he can do such things as he thinks necessary for inducing the parties to come to a fa.ir and· amicable settlement. Sub-section (3) provides that if a settJement of the dispute is arrived at, a report thereof shall be sent to the.appropriate Govern-ment, and sub.a. (4) also provides for the sending of a similar report to the appropriate Government if no settlement is arrived at. Sub-s. (6) deals with the powers of the Government when-a report is received as to the non-settlement of the dispute, and sub-s. (6) which was relied upon provides :-

S. 12(6) " A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Governnlent.

Provided that the time for the submission of the report may be extended by such period as may be a.greed upon in writing by all the parties to the dis-pute."

z960 It was argued that because the report had not been

sent to the Government within fourteen days of the State of Bihar commencement of the conciliation proceedings, the

v.

Kripa Shankar settlement arrived at was invalid and was not bind-

jaiswal ing. This contention must be repelled because any

contravention of s. 12(6) may be a breach of duty on Kapur ]. the part of the conciliation officer; that' does not

affect the legality of the proceedings which terminated as provided in s. 20(2) of the Act. It was so held by this Court in Andheri Marol Kurla Bus Service v. The State of Bombay('). It cannot be said, therefore, that the settlement which was arrived at on March 18, 1954, was not a legal settlement and that a breach of it would not attract the penal provisions of s. 29 of the Act.

After the case was decided by the Judicial Magis-trate the parties arrived at a fresh settlement on October ~. 1956, which recited:

" That thi~ settlement ma.de this day the 6th October,' 1956, at Patna, settles a.II the pending grie-vances a.nd/qrA.emands of workmen whatsoever". As a result of this out of the discharged workmen 25, whose names a.re given in Appendix A attached to the compromise, were reinstated with efi"E!ct from October 8, 1956. The claim with regard to the other discharged workmen was withdrawn. This settlement was accepted by the Industrial Tribunal by an order dated October 10, 1956. This shows that a.II disputes between the parties have been settled and workmen have been reinstated. In view of this in the words of Subba. Rao, J., in the State of Bihar v. Hiralal Kejri-lal (") " public interest does not require that the stale matter should be resuscitated ". Therefore we do not t-hink it necessary to interfere under a.rt. 136 with the order of the High Court.

The appeal is therefore dismissed.

Appeal di11missed. (1) (1959) Supp. • S.C.R. 734. (•) (1g6o] 1 S.C.R. i•26, 736.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 83 of 1959.

Appeal from the judgment and order dated July 25, 1958, of the Patna High Court in Criminal Revisions Nos. 593 and 594 of 1958 arising out of the judgment and order dated March 3, 1958, of the Additional Se8sions Judge, Monghyr, in Criminal Appeal No. 286 of 1956.

D. P. Singh and R. H. Dhebar, for the appellant. G. P. Lal, for the respondent.

1960. Octoher 14. The Judgment of the Court was delivered by