_
WORKMEN OF M/S HINDUSTAN LEVER LTD. & ORS,, ve
MANAGEMENT OF M/S HINDUSIAN LEVER LTD. ot Tainuary 5, 1984 -
[D.A, Desat,"O. CoNNAPHA Reppy, AND, A. VARADARAIAN, JJ.]
“Industrial Disputes Act 1947 , .. , Industrial Dispitte—Jurisdiction of industrial titbiinal-—Determined from the ordrr of refer rence—Staius of person not questioned by employer—Th ibunal whether entitled to. suo motu decide: as a pr eliminar ‘y issue. ‘
Concluded Agreement between Matiagement and Union—Management acting on’ the agreement for some vears—Management whether ‘later entitled to repudiate ang disown dgreement—Difference between unilateral repudiation -and termination - . of agr eement Indicated. ;
os
Industrial di. sptes~Aducaton of ~Concep of res jncare—Wheter appli- ° ble.
_The appellant-Union and the respondent—company through their communi- cations dated January.24, 1957, April 24, 1957 and May 1, 1987-concluded an.
agreement relating to various items of industrial disputes which infer.alia provided
. that the employer had agreed not to contest the issue: whether field force including, - salesmen were not ‘workmen’ within ‘the meaning of the expression in the Industrial : Disputes Act. and that disputes of an Au- India nature could be raised only at Delhi.
Two employees of the Respondent-company who were’ salesmen and protected a workmen with the meaning of the expression in the ‘Industrial Disputes Act, 1947 and who” wete office-bearers of the union, were charge sheeted and after a disciplinary enquiry their services were terminated. -The appellant-union raised an industrial dispute-contending that the termination of scrvices of these two workmen were illegal and invalid, and that the enquiry was equally illegal, and improper, and that the action of the. employer wos an act of reprisal and victimization, because of their trade union activities. The Government referred the industrial
. dispute té the Industrial Tribunal,
The employer contended. that the two workmen were not ‘workmen’ ‘within the meaning of the expression iti the Act-and ‘that the Government had no jurisdic- tion to refer the dispute to the Industrial ‘Tribunal. It was further contended that”
the services of the workmen were terminated not by way of punishment but under the contract of service and that the disciplinary enquiry, which .was commenced —
. was Sabsequently dropped. ae an
~The’ appellant-union: however contetided that the employer was estopped from challenging the status of the two workmen Within. the meaning of the ex pression
308 _ SUPREME COURT REPORTS. * [1984] 2 s.o.r.
rd in the Act on account of the subsisting, valid, concluded agreement between: the parties and that in view of the award of the Industrial Tribunal, Delhi in 1.D. No.
, 46/66. The contentions about the existence of the agreement and the status of salesmen ‘were res judicata and could not be reopened so long as the agreement was in force and operative.
The Tribunal rejected the preliminary objections raised on behalf of the union and came to the conclusion, that the three communications dated January 24, 1957,
- April 24; 1957,and May 1, 1957 Ex. W-2, W-3, W-4 respectively did not spell out a complete, cancluded agreement between the parties on the points mentioned therein but it was ant inchoate agreement in the stage of negotiations and the employer was not bound to stand by its offer made in the communication dated January
_ 24, 1957" denying itself the right to contest the status of the field force including salesmen as not being workman within the meaning of the Act. The award of the
Industrial Tribunal, Delhi in ID. No. 46/66 in which it was held that there was a concluded agreement between the: parties and therefore the industrial disputes raised therein could not be adjudicated at Delhi did not operate as .res judicata
_ because the issue in that award was not directly and substantially in issue-in . the Present reference: The Tribunal set down the reference for-further hearing.
"Allowing the Appeal : .
HELD: 1. The Tribunal committed a serious crror, apparent on record in holding that there was no concluded agreement between the parties as emerging from Exs. W-2, w-3, and W-4, [329 F} .
In- the instant case, having ‘meticulously examined various references pertaining to various industrial disputes between the parties at different centres in Thdia since the agreement in 1957 it unquestionably emerges that the employer till the present reference never once even whispered that the agreement was not, a
_ concluded agreement or that it was an inchoate one Jeft hanging at the stage of. *hegotiations. It was only in the present reference the contention raised was that — the agreement was not a+ concluded agreement. The .employer which swore by the agreement and repeatedly succeeded in getting thrown out certain references”
at the threshold on account of the agreement contended that there was no concluded agrement, and ignoring the whole history, the Tribunal fell into an error jn accep> ting this contention. The Tribunal wholly ignored the fact that it was a solemn agrement, of. which effective aand wholesome advantage had been taken by the employer and when it did not suit it; it wanted to turn round and not only repudiate’
it but disown it. No court of justice can ever permit such a thing to be done. [324 E-325 B] ,
Hindustan Lever Ltd.v. Ram Mohan Ray & Ors., [1973] 3 3S. C.R. 624; Western :
India Match Co. v. Their Workmen, [1964] 3 S.C.R. 560-at 566; and Aluninium to.
2. The Tribunal is directed to proceed to determine the dispute on merits without conéerning itself with the consideration of the question whether the concerned workmen were workmen within the meaning of the expression urider the
_ Act. [332 E)
3, The concept. of -compulsory ‘adjudication of industrial disputes was statutorily ushered in with a view to providing a forum and compelling the parties
’
Factory Workers, Union vy. Indian Aluminium Co. Ltd., [i962}31 L.L.J. 210, referred ,
«
. WORKMEN ‘y. HINDUSTAN LEVER LTD. 309 to resort to the forum for arbitration so as to avoid confrontation and. dislocation in industry. A developing country like’ India can ill-afford dislocation in industrial production. Peace and harmony in industry and uninterrupted production being the demands of the time, it was considered wise to arm the Government with power to compel the parties to resort to arbitration and as a necessary corollary to avoid confrontation and trial of strength, which were considered wasteful from national an¢- public interest point of view. A welfare State can ill-afford to look askance at industrial unrest and industrial disputes. [326H- 327B]
Dahyabhai Ranchhoddas Shah vy. Javantilal Mohantal., [1973 Lab. & Industrial ;
Cases 967 referred to.
‘4. The Act did. not confer till the introduction of. Chapters V-A and ve, any special or enforceable benefits 6n the workmen. The Act was designed provide a self-contained Code to compel the parties to resort to industrial nvbitra tion- for the resolution pf existing or apprehended disputes without prescribing statutory norms for varied and variegated industrial gelation, so that the forims created for resolutton of disputes may remain unhampered by any statutory control and devisc rational norms keeping place with improved industrial relations reflecting and imbibing socio-economic justice. If this is: the underlying object behind enact-
" ment of the Act, the Court by interpretative process must strive to reduce the field of conflict and expand the area of agreement and show its preference for upholding agreements sanctified by mutuality and consensus in larger public interest, namely to eschew industrial strife, confrontation.and consequent’ wastage. [327 C-E]
5. It is inappropriate to usher in the. technical concept of res judicata pervading the ‘field of civil justice into the field of industria! arbitration. The principle analogous to res judicata can be availed of to scuttle any attempt at raising industrial disputes repeatedly in defiance of operative settlements and awards, But this highly technical concept of “civil justice may be Kept in precise confined limits in the field of industrial arbitration which must as far as possible be kept.free from such technicalities which thwart resolution of industrial disputes. [326 D-G]
Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. Shahdara (Delhi)
Saharanpur Railway Workers Union, (1969) 1 L.L.J. 734 at 742; and Workmen
- of Straw Board Manufacturing Co. Ltd. v. M[s Straw Board Manufacturing Co. Lid.,
[1974] 3 S. CR. 703 referred to. ; .
6. Unilateral repudiation is. distinct from termination and an agreement/ settlement remains in force and binding till terminated and: does not come to an end by unilateral repudiation. {328 E
In the instant case, the parties entered into a solemn agreement. It is not suggested that the agreement has been terminated. ‘The only argument put forward on behalf of the employer was that: the union has repudiated the agreement by .- raising disputes of an all-India nature at a regional level and thereby eommitted
“breach of the agreement. This. contention is entirely without metits. What has happened is that the Union raised certain disputes which according to the Union were of a regional nature and which it was not estopped from raising in the teeth of the terms of the binding agreement between the parties. ‘ On the other hand,
‘the employer contended that the disputes so raised were of an all-India nature.
Both sides swore by the agreement,’ the difference in approach being whether the dispute was of an all-India nature or of regional nature. The divergence in approach iF
?
‘
310 + SUPREME ‘COURT REPORTS 7 e a
’ ‘ was as to the interpretation, the coverage; the: ambit and the width of the agreement Both the partics swore by the agreement but differéd i in, their approach and inter-, _ pretation and the forum namely the Industrial Tribunal consistently upheld at the instance of the employer that there was a binding valid agreement subsisting between the parties, This constitutes adherence to agreement, performance of the agreement, implementation of the agreement and being bound by the agreement. ° This _sonduct in no sense can ‘be said to constitute repudiation: [327 F-328 C]
7. “The Tribunal “derives its jurisdiction by : the order of reference and not
: on the determination. of 4 jurisdictional fact which it mist of necessity decide to acquire juristliction, 1330 G)
8. In industrial adjudica tion, issues are of two types : (i) those. referred by the Government for adjudication and.set out in the order of reference, and (ti) inci- dental issues involving mixed questions of law and facts. The Tribunal may frame . preliminary issues if the. point on which. the parties.are at variance, go to the root ~ of the matter. But the ‘Tribunal cannot travel’ beyond the pleadings and arrogate ~to-itself the power -to raise issues which the parties to the refernece are precluded from raising. ‘If the employer does not question the states of the workmen, the
_ and throw out the’ reference on the sole ground that the concerned workman was not a workmatr within the meaning of “the expression under the Act. [334 G 332 Al
: 9. "Whether a- particular { person: is a “workman or not depends. upon “factual matrix. ‘Workman is defined in Sec. 2(s) of the ‘Act. The -ingredients and the incidents of the definition when ‘satisfied, the person satisfying the same would " be A warkman, Negatively if samcone fails ‘to satisfy one or other ingredient or incident of the definition, -he-may not be figld to bs workman wilain the meaning
‘of the expression in the Act, [330 Cy” . . -
10. There is no provision in the Act which obliges the Industrial Tribunal or other forums sot up. under the Act to decide even in the ubsence of.a-contention
[1984] 25.06
Tribunal cannot suo mort raise the issue“and proceed to adjudicate upon, the same - from the employer, a preliminary issue whether the person. who has invoked its | jurisdiction is.a workman or not." There is n9-'such obligation cast strtutorily -.
con the Tribunal. If the employer does, not raise the contention about the status of the workman approaching the Tribunal, the Tribunal has no-obligation to decide the status of the person whether he is a workman or not. The Tyibwnal ‘must proceed on the assumption that no such contentign is raised and i is required to be adjudicated upon. [330 D- F] '
Civ. APPELLATE JURISDICTION : Civil Appeel Ne. 1865 of 1982 Appeal by Special leave .from the Order dated. the 24th
. December; 1981 ‘of the Labour Court, Delhi in LD. Noe. 120 of ;
M.K. Ramamurthi,, V.P. Choudhary | Jifendra Sharma and :
CP. Gaur, for the Appellant.
~-G.B. ‘Pai, OC. Mathui, DN. “Mishra, S. ‘Sukumaran and Ms. Meera Mathur, ‘for the: * Respondent ae
C.
» ihe to pe ace. On record that 17 W®
,
| WORKMEN ¥. MINDUSTAN LEVER ‘LTD. (Desa. J) - Sh
The Judgment’ of the Court was delivered by and readily aceeeded. to. by the workmen, and: holding: the forte for over a: quarter of a century are crudely disowned compelling. the workmen to knock at the door of the apex court for removing the sroad-block in the access to justice set up by preliminary chjection cf -
‘technical nature, industria] peace and harmony chanted” by the employer. would be not merely an empty mantra but a futile cxercise of chasing a mirage and unfortunately that is the Situation here,
Hindustan Lever Lid., a “multi- national company, " respondent hereiti addressed a communication dated fanuary 24, 1957 recording the out-comeof mutual deliberatioi!s between the Hir: dusien Lever -. Ltd. ¢ employer’ for short) and. ‘the Hindustan Levey Mazécor Sabha cunion’ for short) recognised representativés union of the. workmen employed by the employer.
. The
“Preside nt,
Bombay, °
Dear Sir,
The relevant portion may be extracted :
- DESAI, J. Jf solemn agreements proposed. by the employer.
; 24th January, 1987
Hindustan Lever Mazdeor Se rbhe, o
Referring: to’ our recent meeting about ‘field force; we would -
1).
+
We recognise you as the representative | union, for. all sections of field. force all over India.
“You have agreed to treat all matters relating to wages/ *
_ ‘salaries and terms and conditions of sérvice on analt India © basis and not ona regional basi is as far as field force i 45 concerned,
For all snatters of an all-India nature relating to field « force, you will communicate with the Personnel Director. We hope that all such matters will be settled by direct " aegotialion but if at any stage you decide to refer the -. - matter to conciliation, you will, do so only at Bombay.
; We, on our part, g give you the assurance that if the matter
The union n responded to this communication dated April 24, 1987 which reads as under :
-
SUPREME COURT REPORTS - (1984) 25. CR:
is referred to a’ Tribunal’j in Bombay then its atvard wil be applied by you to ficld force allover India. . For this
“reason, you will agree that it will be only proper for the | ‘Tribunal to examine the matter in an rall India perspective. :
¢ ao
Although we do not anticipate any prebleins of a purely _local nature, in case such problems do arise your mem- | bers will first try to arrive at a solution by approaching
"their own managers. and if this fails, your local Cominittee should refer the matter to the local Conimercial Manager
‘or Office Manager.
7 For future disputes wt. shall ‘not: contest issues about field force on the basis of their not being ‘workmen’ but shal! contest issues only on their merits in the same way as we do fpr other employees.
Please confirm that you-agree with the points mentioned above. 7 ; -
Fa \ :
Yours faithfully, Sd/- BK. Bindani io a)
he W230
The Personnel -Manager, Hindustan Lever Limited, a *
Scindia House,
Ballard Estate, . Bombay-1.
With reference to your letter-Personnel KSB/BN/49. dated ;
Dear Sir,.
°
24.1.1957 and in the light of further discussions we had. with you on the subject we would like, to state as under :
“We ‘thank you, for recognising us as the Representative
Union for all sections of the Field Force employees all | over lindia.
24th April; 1957,
“a as per its letter
Ne oe oe
WORKMEN, HINDUSTAN LEVER LTD. (Desai, J.) . 313 2.’ We agree that certain major issues such a8 salary wages, bonus, provident fund, Gratuity, leave ctc. will be treated as far as possible on an all-India basis.
“3. We agree that for all matters of an all-India. nature,
"we will communicate with the Personnel Director. As for the other points raised by you, we agree to follow "the procedure, as far as legally permissible. oe
4. _ Local matters, if noi settled by negotiations, will have to ‘be ‘dealt with otlierwise. For instance, the Sabha may go in for conciliation or may be free to resort to any other legitimate and/or peaceful method. mo
5. We are indeed glad to note that you will not contest issues about field force on the basis of their not being ‘Workmen’ but you will contest issues only on their merits in-the same way as you do for other employees. We wish to take the opportunity also to’ confirm your
* agreemeft with us that in regard to demands relating to Field Force contained in Ref. N.48 of 1956, now pending adjudicatiormat Delhi, you will not‘contest the
~ issue on the basis of their not being ‘Workmen’ but you will contest the issue on the, merits of the demands als you do for other employees. -
Yours faithfully, Sd/- P. Pullat Pfesident . . Ist May, 1957”
‘
A further communication ensued from the employer dated
“May I, 1957. It is not necessary to reproduce the whole of it save and except that the employer wanted to be assured that the union by its communication dated April.24, 1957 unequivccally intended | to confirm the items of agreement relating to various items of industrial disput2s between the parties as set out in its communication dated: | January 24, 1957 and further sought clarification of the two _ Points
- raiSed by the union, - @.
Tas substantial question is whether there emerged a ‘concluded
_agreement between ‘the partics and binding on the parties till it is terminated according to lay? The question of the existence of a concluded agreement and its validity arises in the following” circums- tances.
¥
314 of a a SUPREM. COURT REPORTS: me [1984] 2s.c. .
Shei A. Ks Sitcat and Shri R. Le Git were “protected ‘workmen
; within, the meaning of the expression'in the Industrial Disputes, Act, : ' 1947-(‘Act’: for short) and were admittedly the office-bearers of the union and conseqi¢htly Jeaders: of the, workmen.. The employer served a charge-sheet on “Shri AK. Sircar on April 10, 1974-and on © ~ the next day, a charge -sheet. was served on Shri R.L. Gupta. ‘There ' followed .a disciptinary enquiry and ultimately the services of ‘Shri
AK. Sirear ard Shri R.L, Gupta were terminated by the employer.
-. The union raised‘an industrial dispute contending that the termination
" of services of the afore-mentioned.two workmen was illegal and invalid’ ‘and the enquiry. was equally illegal and i improper and that-the action . of the employer was an act of. reprisal and victimization because of
'. the trade-union activities of the aforementioned two ‘ office-bearers of the union. The appropriate Governinent referred the industrial dispute to the Tndusirial Tribunal on July 16, 1977,
The. employer i in its written statement. inter, alia ‘contended that Shel ALK. Sircar and Shri, R.L. Gupta were not workmen within the.
meaning of the éxpression in the Act and therefore the appropriate
Government had no jurisdiction to refer the dispute to the Industrial °
Tribunal and consequently” the- IndustrmbTribunal had’ no jurisdiction to hear and deal with the reference. It was further contended that in
_a reference’ betweén the employer and: the apion in another dispute ’ to the Industrial ‘Tribunal in Maharashtra State, a contention. was - raised by.the employer that salesman of the einployer i isnota workman ‘within the meaning of the expression in the Act and* this objection.
wag-upheld.by the Industrial. Tribunal and a petition for-special leave against the decision of the Industrial Tribunal to the Supreme Court _ was*iejected on October 1, 1975. Te. was further contended that ‘the ‘ services of: the aforementioned’ two workmen were terminated -not by way of punishment but under the. contract of service and the disciplinary enquiry which was commenced earler was Subsequently dropped. : :
~ The union in its ‘counter-afidavit inter alla contended that .the emplayer \ was estopped from challenging the status ‘of the two concer- .. ned workmen as not being Workmen within the meaning of the -- . ‘pression in the Act 6n account of a subsisting valid concluded agree- ment between the parties inter alia providing that the employer will not: contest the-issue. about status of field force (which expression includes salesman) on the basis of their not being worknien but shall contest the issue. only on the merits in the same way as they do for. “” other employees, . It was also contended that in view of Shri Roop, —
" WORKMEN Y. HINDUSTAN LEVER LTD. (Desai, J.) - 315
Chandra award the -issue about. existence of ihe agreement and the status of salesman is rés judicatg and cannot be reopend till the agree: oe ment remains ii force and operative.
. a sd
The rival pleadings led to. ‘the Industrial Tribunal framing the following i Issues ; 4 oo
“1. ‘Whether the management is estopped from. ehelienging mo the status of these two concerned workmen as “workman’ . within the: meaning of the Industrial Disputes Act.
2) Whether. the award dated: 17-11-66 of the Additional! - Industrial Tribunal, Delhi would operate ares judicata - between the parties-? - : .
3) If issue No. 1 is answered in the negative whether the ° concerned (sic) are: ‘workman’ within the meaning of . the LD. Act? . ‘
J AD What is ‘the effect of the order dated’ 6 j 13 passed by the LT. Maharashtra in reference 203 of 1973 and - order dated {.10.1975 of the Supreme Court in Petition for special leave 1602 of 1975 ?-
5). Whether the. reference is incompetént and bad in law for reasons mentioned in prel, objections (ID, QV), (Y) - - and (VID) and (VHT) ?. 2 Issue Nos. 1,2, A‘and 5 were difected 1 to be beard as preliminary issues. On Issue No.1, the Industrial Tribunal held. that
. the three. communications. Ex. W-2: dated January 24, 1957, Ex. W-3. ‘dated’ April 24, 1957 and Ex. W-4 dated May 1, 1957 did not spell out a complete. concluded agreement between the parties’ on the’
points set out therein but it was an inchoate agreeiment in the stage ‘of négotiations and therefore the’ employer was not bound to stand by its offer made in the communication dated January 24, 1957 denying to itself the right to contest the status of the field force including salesman as not: being workman within the meaning of the expression / in the Act. On Issue No. 2, it was hled: that the award of Shri Roop
~ Chandra in LD. No. 46 of 1966 in which it was held that there was a +. goneluded agreement between the. parties as disclosed-in Exs. W-2, _ -" We3: & W-4’and therefore ‘the industrial dispute therein raised could ‘not be adjudicated upon at Delhi, it being an ‘All-India ‘dispute and ought to have been raised at Bombay, did not-operate as res judivata
3160 oo " SUPREME COURT REPORTS , [1984] 2 s.c.r- because the issue in the award was not directly and substantially in.
issuie in the present reference.’ Parties did not advance any argument on Issues-Nos. 4 and 5 and thereforé with reference to Issue No. 4,
'- the Tribunal observed that the same may tof be disposed of without:
further hearing the parties and no finding was recorded on Issue No. 5.
The Tribunal accordingly rejected the preliminary objections raised on behalf, of the union and set-down the reference for further hearing. Hence this” appeal by special, leave by tlie union.
_ At tlie outset, we must record our uniappinéss on: the attitude adopted by the employer in contending as late.as-1981 that the three
. communications -Exs.. W-2, W- 3. and W-4 did not constitute a- cons”
cluded agreement between the parties with respect to the points settled _ therein and the Tribunal i ignoing the history and repeated advantage taken by the employer of this concluded agreement on numerous. ' occasions accepted the contention of the employer.. It is therefore -
" necessary first to point out how from 1957 till as late as 1966 and even thereafter the employer non-suited. the union, if that is a proper term, by _ , setting up the.very agreement which now the employer wants to. urge that it isnot a concluded agreement. - The three impor- , tant clauses of the agreement emerging ‘from the correspondence relevant to the present dispute are that (i) the Hindustan Lever. Mazdoor Sabha was tecognised by the employer as a representative | ‘union for all sections of field force all over India in the employment
. of the employer and (ii) the union agreed to bring all matters relating ', to wages/salaries and ‘terms and. conditions of service onan All-India basis and not-on regional basis as far as field force is concerned and (iii) that in future disputcs, the employer will not contest issue about member of the field force being workmen but shall contest issues only on their merits in the same way as thé employer would do for other émployees. Freed from technical jargon, the employer agreed - and undertook not ‘to contest in any industrial. dispute the status of the field force as not being workman -within the’ meaning of the.
expression in the Act .and that feference, if any, would bé contested on the merits of the industria! dispute in respect of which reference is made to the Industrial Tribunal. The out-come of the agreement would be that-if a dispute of an ail-India nature in respect of the field force .is raised at a regional level, founding its contention on one of
"+ _ the terms of the agreement, the employer would be in “a position to get - _ any regional reference rejected on the ground that there is a subsisting valid agreement between. the parties that such dispute of an all-India ' nature in respect of the field force can. be’ raised at Bombay only and
. within the jurisdiction of the Industrial Tribunal at Bombay only:
"ore gs
_ WORKMEN », HINDUSTAN LEVER LTD. (Desai, J.) - 317.
There is no dispute between the parties that if there is an agreement such would be the out-come of it. This is not only not in dispute but it is conceded that a settlement was arrived at in respect of industrial disputes betwen the employer and the union concerning the field force including salesman in 1957, 1959 and 1964: “An averment to this effect is made in Pagagraph ‘H’ of the petition for special leave ‘and Anx .5 was annexed to the petition which purports to be the settlement dated December 22, 1964.) Itis signed by Shri C.J. Mahimkar, ~ Joint Personnel Manager on -behalf of the employer and Shri A.K. Basu; General Secretary of the union at the relevant time. The various industrial disputes in respect of which settlement is arrived at ‘were between the émployet dnd the workmen of the company whio were the members of the field fotce (salesmen, sales supervisors etc.)
employed in any part of-India. This settlement was arrived at under the 7
Industrial Disputes Act’and was registered according to the requirements of the Act. This implies that the status of the salesman as - being workman within the meaning of the expression of the Act was
; not only not disputed but specifically conceded and that must obvi-. ously be pursuant to the subsisting agreement. This is however an — inference so it is better now to move on to adjudication and award by a forum with jurisdiction to decide the point.
The Chief Commissioner of Dethi ‘referred an industrial dispute’ whether workmen whose names were set out in the order of reference be paid compensation in addition to the usual remuneration for the period they had ‘marketed Erasmic Blades and what directions were necessary’ in this behalf. The reference was between the employer the present respondent and the ‘appelllant inion.
In this reference, the workmen who claimed remuneration were
Delhi based salesmen of the employer. The employer appeared and 7 contested the. reference. The only important contention raised on behalf of the employer which must be noticed reads as under: -
“That the concerned workmen are members of the field force of the company; that the field force uit is a seperate _ unit known as Field Force Unit; that they are liable to be transferred anywhere in India; that the Field Force Unit ‘is controlled by Company’ s Head Office in Bombay; that it was agreed between the company and the Hindustan Levey | Mazdoor Sabha, Bombay that all matters relating to Field Force Unit would be dealt with by both partiés at Bombay on all-India basis and if no settlement is reached, the dispute we shall be rai ised i in Bombay t in accordance with Industrial Disputes
Act; and. that any settlement or Award therein would be made applicable and shall be binding on all members of the field for ce - all over India. ” (Emphasis supplied).
. |The employer also contended. that in’ view of the agreement between the parties, the dispute “referred to the Industrial Tribunal regarding the field force could. not be raised at Delhi. contended that in-view of the agreement subsisting betweeh.the paries, the employer had agreed not to contest the issue that its salesman were not workmen within the meaning. of the expression in the Act. . '. A-further contention was. raised that the union has committed breach - of the agreement ‘by raising the dispute at Delhi.
“The union while conceding that there’ was an agreement between the parties as alleged by the employer contested the issue ‘by- saying ~ thatthe dispute was not of an all-India nature as it was concerning only some Delhi based salesmen of the employer ‘and therefore the ° dispute was not covered by, the agreement.
The Industrial Tribunal (Shri Roop Chandra)” on the iva contentions of the parties, 1 raised the following issues :
2) .
4)
-Is there any agreement between the ‘Company and ‘its
_ workmen through the Hindustan Lever Mazdoor Sabha that all matters relating to- members of the ‘field force. ,would be dealt with - by... both the parties in Bombay onan all: India basis and that if no settlement i is reached,’ the dispute would be raised in Bombay i in accordance with the Industrial Disputes “Act 2 2
Does the said agreement prevent the workmen i in this
"case from raising the dispute i in Delhi 2.
- Are the cinployees concerned not sworktaen’ within. the meaning of the term under the Industrial. Disputes . Act ? Ir so, has. the tribunal no jurisdiction 2
; Whether workmen have’ committed: a breach of the | agreement: alleged to have been entered into. between the management and the union in 1957 and if so, is the .
SUPREME COURT REPORTS : 11984 2s.cR.
Tt was also
4k
Seal
~ WORKMEN Y.. HINDUSTAN LEVER LTD. (Desai, J.) 319 |
~ management not entitled to raise’ the plea ‘that the _ salesmén are not ‘workmen’ within: the: meaning’ of Industrial Disputes: Act. a” ,
It would thus appear at a glince that it was the employer who: ° wanted the’ reference to be rejected on the preliminary objection that there Was a valid subsisting concluded agreement bétween thé parties -
-twhich had-a direct’ bearing on the-industrial dispute involved in - . the reference and that because of the agreement and as a necessary -corollary of, the agreement, the Tribunal had ‘no jurisdiction to entertain the dispute. rs a
Now sec the out-come of this contention of ‘the employer. On . Issue Nos. 1 and 2, Shri Roop Chandra as per his award dated November 17, 1966 held that in view of Exs. W-2, W-3 and W- -4marked in evidence in the réference before him as Exs.:M-1], M-2 and M-3 pro: duced and relied upon by: the management that is the employer, —
* the Industrial Tribunal at Dethi would have no jurisdiction to entertain. ‘it. Tt was never contended by the employer. before Shri Roop Chandra that the three documents did not end in a concluded agreément. On_ a contrary parties were ad idem that there was a concluded agreement between the parties. The difference was in their approach as. to the ‘ applicability of various clauses of agreement to the dispute raised in.
the reference before the Tribunal.» The employer contended that the dispute was of an all-India, nature and therefore could not be raised at Delhi. The union, on the other hand, contended tha the dispute” was of a regional nature concerning only 16 Delhi based salesmen of the Company and therefore thé dispute could not be styled ‘as an all-India dispute,
~The. Tribunal Hield that the disputé was of an all-India nature, related to the duties and liabilities of all members of the field force _
; employed. all over India and it involved such a major issue as- salary . :
and, wages. Approaching the - -matter from this angle, the Tribunal
- further held on the basis of, the ‘agreement, that the dispute could "only be taken cognizance of at Bombay. The Tribunal..was of the ’ opinion that the agreement was valid and did not contravene Sec. 28 of the Indian Contract Act becausé where the parties choose to’ have the matter entertained in one of the two or more courts having jurisdic- _ tion to entertain the matter, such an agreement does not’ contravene
Sec. 28. - The Tribunal further held that the agréement had the sanctity _ of a contract and the parties must be held to the contract. The Tribunal concluded by observing that the u union was not justified i in raising
320, SUPREME,COURT REPORTS a [1984] 28.0.8.
: the dispute. in. Delhi in view of its agreement with’ the employer as | evidence by the three documents and that it isnot expedient in the
., interest of justice and peace and harmony in industry that the Tribunal should adjudicate the matter of an all-India’ nature. So saying the Tribunal rejected the. reference. The question is who took advantage and benefit of the agreement ?° Unquestionably, the employer who
“now decades after. successfully contending before another Tribunal that there was a valid and concluded agreement. wants to contend that the three documents, Exs. W-1, “W-2 and W-3 do not spell out a
" concluded agreement but an-inchoate one which remained at the ‘stage of negotiations only. But that i is not the end .of. the vacillation on the part of =the employer.
Mr, Pai, fearned counsel.on behalf of the employer on the other hand contended that the union has expressly repudiated the agreement aad therefore, it is not open now to the union to take recourse to the _agreement. It was submitted that if the union has committed a breach of the agreement, if there was any, the employer is absolved from .- observing or complying with the agreement. To substantiate this submission, our attention was invited to a reference made by the
Lt. Governor, Delhi to the Addl. Industrial Tribunal constituted - _ for the Union Territory of Delhi; then-presided over. by Shri Hans Raj for adjudication of the following wo issues :
“1, whether the deduction of leave 16 by the management for’ the year*1967 is illegal ‘and/or unjustified and if so, to what relief are the affected workmen entitled and what © directions are necessary in this respect ?
2. Whether the management was obliged to grant. special: increment to all of its workmei. in Delhi Branch and if so, to what relief the affected workmen are ‘entitled:
and what. directions are necessary in this respect a
-The-union filed a statement of claim and subsequently filed an additional ‘ot amended written statement in which inter alia it Was. “contended: ‘that the workmen of the coficern ‘throughout India were ‘agitated becasue of this measure and its wholly illegal implementation. -and the applicant Sabha led the opposition of the scheme and the resistence of the workmen to it.’ This averment was relied upon to urge that the union raised a dispute of an all-India nature at Delhi- which was the regional centre and this would imply intentional ‘breach of repudiation of' the agreement. Before we examine this contention, | we lm a os
. ‘WORKMEN ¥, HINDUSTAN LEVER LTD. (Desai, J) 321 . it is necessary to refer to para 10 of the amended statement of claim in n which the union states: as under : re
“That the + binding | nature of the agreement has been: flagrantly flowed by the Managément and. the very basis of collective bargaining for industrial peace has been attacked.”
“This would show that the union accised. the employer of breach: of agreement. On the other hand, the employer in its written state- ment contended as under :
S No claim on behalf: of the employees of the Field Force " can be. taken up by Hindustan Lever Mazdoor Sabha, Delhi © ‘Centre and this Hon’ble Tribunal has no jurisdiction to entertain the same in view of an agreement arrived at and between the. Company and the Hindustan Lever Mazdoor Sabha . -in 1951" (emphasis supplied)
It would be crystal clear that the ‘employer wanted the Teference to be rejected ‘at the ‘threshold on the preliminary objection that in
‘view of the concluded binding agreement between, the parties, the dispute referred to for adjudication being of an all-India nature, the
',union was precluded from raising ihe same at a regional level and the Tribunal had no jurisdiction to entertain the same, Apart from the extracted specific contention in paragraphs 5 and 6, the contention: is-elaborated by the employer and it was specifically contended that in the award dated Nov. 17, 1966 by Shri Roop Chandra, Addi. Industrial Tribunal, Delhi, it was held that a valid agreement was in existence between the parties and no dispute pertaining to the members
_of the Field Force can be raised anywhere except in the State of
Maharashtra. It was further contended that the award of Shri Roop Chandra ‘was confirmed by thé High Court of Delhi by summarily dismissing the Writ Petition No. 1163/67 filed by the union against the award and when the union approached the Supreme Court in Appeal
No. 42/68, the same was rejected thereby affirming the existence and . binding character of the agreemént., These assertions by the employer ' flow from the pleadings. ‘To revert to the narration, Shri Hans Raj ' | procéed on leave and then retired and when a new Presiding Officer was appointed, the reference with one application filed by the union to summon certain documents came up before: the Tribunal. . ‘By a laconic order, unsupported by any reasoning, the Tribunal observed °
"that the salesmen are not workmen and so the documents need not be summoned. it was this order on the application which’ was chal-
- 322 7 SUPREME. COURT REPORTS ” . + 11984)2 SCR, i: lengéd i in ‘the writ petition filed by the union, “Iti is difficult to. appre- ‘ciate what pérmitted the Tribunal to hold ‘that the salesmen are not:
workinen-within the’ meaning of the expression in the Act and: why it did not consider the specific contention that the employer was estopped from taising the contention as to the-status of the ‘salesmen in view of the. binding agreement between the parties. But fors the present
- purpose, it is sufficient to notice that the employer and the union, both. .
swore by the agreement and at any rate the employer never contended that there. was no concluded agreement between ‘the parties covering one of the points in the dispute ‘namely,- the status of the “members “of the Field Force including salesmen.
- Mr. Pai.next tuitned to another round of litigation between the parties. It appears that effective from September 6, 1966, the employer reorganised its marketing organisation into two divisions, the
- Main Lines Division and the Speciality Lines Division.. The Calcutta’ . ‘Branch of: the employer was concerned only with marketing. - - The workmen at Calcutta were directly. affected by the reorganiszation. Ona. dispute raised by the union, the Government of West Bengal
- referred the following dispute for adjudication ¢ to the Industrial Tribu- nal’
_ “Is the human rationalisation as a measure of economic reorganisation | of the company. - ‘reflected through job-inte- - ‘gration’ that, have either’ béen. effected -or Proposed to be
- effected justified ? . -
Pa
Court. by special leave.. The main reference was finally disposed of
- _in-favour of the-employer upholding the reorganisation of marketing organisation. The union questioned the correctness of this award
“before the Supreme Court. Both the- groups of appeals’ came up for hearing together and the decision of this Court is reported in Hindustan oO Lever Ltd. v. Ram Mohan Ray & Ors: This Gourt: upheld the right of the employer to organise and reorganise its work inthe manner it ~~ pleases, ‘Accordingly the appeals” filed by the union were: rejected.
a (1) [1973] 3 SCR at .
Pending adjudication of the disputé, some , workmen filed applica- " tions under Sec.'33A of the Industrial Disputes Act before the Tribunal - alleging that during the pendency: of the adjudication their service _ conditions had been altered adversely and their salary forthe month of October, 1966 had not been paid. The Tribunal granted the applications of the workmen ‘and the employer approached the Supreme :
WORKMEN vy HINDUSTAN LEVER LID. (Desai, J) - 323, 7 The appeals filed by the employer: against: the award | in favour of the workmen in the applications under Sec. 33A were equally rejected by |
. this Court holding that non-payment of wages in the circumstances of | __ the éase amounts to an alteration in the-conditions of service. Frankly,’ -_this decision sheds no light on the point under. discussion because neither: side relied upon the agreement nor did- the agreement figure into the dispute. However, it is interesting to note that when the °
- main refepence was before the Tribunal, a preliminary objection was ‘raised on behalf of the employer to the effect ‘that ‘by an agreement ‘entered into in: January 1957 by and between the employer and union, ° it was, agreed that al] matters relating to the matters of the cutdoor .
‘marketing staff, to wit members of: the field force. can be raised at °
Bombay only and as such the company as well as-the Sabha are bound
* by the aforesaid agreemént. Therefore, not only the employer affirmed — the agreement, did not contend that it was an inchoate one at specifically placed that it.is a concluded. binding: agreement betwee the parties, "> oe re os
It appears that there was one more reference I.D. No. . 43/72 * between the parties at Delhi. Following the.decision of-this Court’ | i in the Gase just herein discussed, the reference was relseted.
“Mr, Pai next. referred fo an order in Referene ce (1.D)). No. 5, 203/70 a by the Industrial Tribunal Maharashtra betwech the .cmployer and the workmen- employees under-it: The dernand which was referred for adjudication’ included revision of pay scales with adjustmient, revision of the wage-scale of sub-clerical grade, gratuity disturbance allowance/and settling-in- -allowance’ fo the office staff, - allowance to office staff. while on tour, acting allowance, overtime wages, cash | allowance and-Jeave travel facilities. The employer raised number . of: preliminary objections, one such: being that Salesmen, “Marketing
Research Investigators, Market Research Supervisors, Sales’ Super- visors, Trade Marks Investigators; Seed Buyérs and - Supervisors of clerical staff are not workmen. within 'the meaning of the expression
- inthe Act, and hence no industrial dispute ean be raised on their behalf and consequently the. Tribunal! had no jurisdiction to ad ijudicate .
- upon the same. The union “countered this, preliminary objection by asserting that the contention about the status of the aforementioned - categories is barred by the:principle of res judicata in view of the award .. dated April 13, 1967 made by the 3rd Industrial Tribunal, West Bengal . The Tribunal rejzcted the contention of’ the union observing that the dispute between them is not of an all- India nature. and therefore, the . employer i is entitled to raise the question about the status of the works
W t
324 _. SUPREME COURT REPORTS — 1984) 2s.0Rr. .
men included in the aforementioned categories. This would imply . that the reference was rejected not on the ground that there was no agreement but onthe ground that the dispute involved i in the reference
- was not covered by the agreement. In the same reference, a plea of . estoppel raised on behalf of the union to the effect that the company was precluded in view-of the subsisting agreement from questioning
- the status ofthe salesmen and allied categories as workmen was overruled by the Tribunal observing that Exs. W-2, W-3 and W-4. ; ‘leave no ‘doubt that the employers’ agreement not to dispute the status - of the’ Field Force was only on the clear understanding that it will “be so, if dispute. is raiséd on-all India‘basis. ‘The Tribunal then
‘observed that the dispute admittedly was not an all-India dispute and therefore, rejected the plea of estoppel.
. Itis at this stage necessary to refer to One more reference between the parties being I.T. No. 233/67. The dispute referred to ‘was a’ -demand by the workmen to withdraw the reorganisation integration imposed on the Supervisors attached: to the Sales Department and
> impending in the case of Field Force (Salesmen}.and other staff attached to the Sales, Accounts, Transport and allied department. This
_ demand was rejected by the Tribunal-following the decision in Hindustan
Lever Ltd. y. Ram Mohan Ray & Ors.. (supra) The rejection of the
.. demand has no impact’at al! on the point under discussion. oe
‘Having meticulously examined various references pertaining to various industrial disputes’ between the. parties at different centres
. in India since the agreenient in 1957, it unquestionably emerges that . the employer till the present reference never once even whispered ° that the agreement was not.a concluded agreement or that it, was an inchoate one left hanging at the stage of: negotiations. But in the present tcference the contention ratsed was that the agrement was not
' a concluded agreement because ‘that’ is how the. Tribunal has approa- ched the probiem. . The Tribunal has observed in this behalf as under:
“According to the management the three letters do not constitute an agreement because in an agreement there * should be an offer and the offer must’ be accepted as such. They: have. argued that the offer made in Ex. W-2’have ‘not
‘heen accepted ¢ as such i in Bx. W-3. 2.0.00. ekee eee ”
The employer. which. swore by ‘the agreement and repeatedly - succeeded in getting thrown out certain references at the threshold on. account of the agreement, now wants to contend that there was no
WORKMEN Y. -HINDUSTAN LEVER LID. (Desai, I. ) 7 + 325° concluded agreement, and ienoring , the whole history, the Tribunal -
~ falls into an error in accepting this contention. The weight of evidence not only not at all referred to by the Tribunal but frankly wholly - ignored clearly and unmistakably Jeads to one’ and one conclusion alone that according to the employer there was the concluded agreement’ between the parties. Itisa solemn agreement, th® agreement of which effective and wholesome advantage’ has been taken by © the employer and when it now does not suit it, it in breach of the solemn _agreement wants to’ turn round and not only repudiate it but disown it as having never been entered into. No Court of justice can ever permit such a thing to be done. -
Mr. Pai, however, raised a: very technical contention that the
’ preliminary objection raised by the union that the employer is estopped from questioning the status of the salesmen or members of the Field -
Force: being not workmen within tho meaning -of the expresston in the Act- must bé rejected either on the principle of res judicata or principles analogous to res judicata or on the principle of issue of .
. estoppel or promissory estoppel and neither of the three contentions is available to the union notwithstanding the fact whether the agreement exists’ or- stands repudiated and thereforé,. the Tribunal was justified in rejecting the contention of the unions © Mr. Pai in support. of the submission urged that at no time as the status of the salesmen as not being workmen or otherwise was ever directly and substantially ‘In issue in earlier references, the isue cannot be rejected on the ground of res jydicata and at any rate there was no decision on this issue and therefore the principle of issue tst6Ppel cannot preclude the employer .
from raising the. contention. Mr. Ramamurthi, on the other hand, contended that it is not thé contention of the union that the issue about the status of the salesmen is res judicata but what is res
. judicata isthe’ existence * and: binding © character of the agreement ,
_ Waigh’ | was directly-and substantially in issue between the’ parties ‘in the award given by. Shri Roop Chandra and in--various other awards.
In order to appreciate rival contentions it is-necessary: to’ focus attention on the issues framéd -by Industrial Tribunal presided over by Shri Roop Chandra in I. D. No. 46 of 1966. These issues have been extracted earlier. The most important issue was Issue No. | about the existence of a binding agreement between the parties which would preclude . the employer from ever questioning the status of the salesmen fill the agreement remains subsisting and till it is terminated. .
_The issue was: ‘is there any agreement between the company and
326° a ; SUPREME court REPORTS - “7. [1984] 2s.c.r.
its workmen covering inter alia the duestion about the status ‘of sales-
. men ? And the answer was: ‘there is such a ‘valid’ and subsisting agreement and that posifion was adopted by none other than the employer and the employer succeeded in getting the reference thrownout at the threshold-on the ground « ‘that in view. of -the subsisting ;
Do4
.. valid: agreement between the parties, -the union was estopped from raising a dispute of an-all-India nature ata regional level and it can
“only be raised at Bombay and therefore the Industrial Tribunal -at
Delhi had no. jurisdiction to entertain the same.. Even if the teciinical prihciple. of res judicata i is imported in the field of industrial adjudica-
' tion, the issue about the existence of an agreement"was substantially and. directly in‘issue between the patties .in the earlier proceedings —
- and was decided in the 2ff rmative that there exists. such an agreement.
In the reference from which thé present appeal arises, the employer ‘contended that there is no such concluded agreement as pleaded: by | the union, and ‘therefore, the issue that atises is: whether there is ‘such an-agteement as pleaded | on behalf of’the’union. But-that was the specific issue in Reference 1,D. No: 46-of 1966 between the .samé . parties. To.that extent, one.can say that unless change of circumstances .. ‘are-established, thé issue would be res judicata. But’ we consider. it iNappropriats. to usher in this technical concept’ of res judicata pervading thé field of eivil justice into, the field of industrial arbitration.” The apprehension was voiced ‘by ‘this Court in Shahdara (Delhi) Saharanpur Light Railway. Co. Ltd. v. Shahdara (Delhi) Saharanpur Railway. Wori-ery Union when it said that it is doubtful whether the . principles analogous to res judicata can properly be applied | to mdustrial adjudication: We are not unawar@™®of the Icga! pasition that principle.
~~ of res judicaté was irivoked and applied by this-Court in Workmen of
_ Straw Board Manufacturing. Co. Ltd. v, Mjs Straw Board _Manufac- > turing Co. Ltd. {22 One can safely say that principle analogous to res judicata can be availed of to scuttel any attempt at.raising industrial
-. disputes repeat ‘edly in defiance of operative ‘settleménts and awards.
But this high'y technical concept of civil justice may be kept in precise
"confined limits in the field of industrial arbitration which must as far as possible’ be hept free from such technicalities which thwast resolu- ° tion of industrial disputes. We however procecd: on the assumption that an industrial dispute may be reject ed_on the principle analogous ‘to res judicata. The matter however, may bé Iooked at froma slightly _ different angle. The concept ‘of compulsory adjudication of industrial, disputes was statutorily ushered i in with-a view to- providing a forum |
‘ . a. ‘
, 0) [1969] 1 L.L.3.4734 at 742, °@) [1974] : 3.$.C.R. 703. 7 8
‘WORKMEN 1, HINDUSTAN LEVER in. (Desay, I) 327 cand compelling tthe parties to resort to the forum for arbitration I) _as to avoid confrontation and dislocation in industry. | “A developing. - country like India. can ill-afford dislocation in industrial production.
. Peace and harmony in industry and uninterrupted production being - the demands of the time, it was considered wise to arm the Government with power to compel the parties to resort to arbitration and ‘ ag a necessary corollary to avoid confrontation and trial of strength, which were considered wasteful from ‘ national .and: public interest point of view. A welfare State can ill-afford, to look askarice at ‘industrial unrest and industrial _ disputes. (See Dahyabhai Ranch- -' hoddas Shah v. Jayantilal Mohanlal. ‘) The Act did not confer till the introduction of Chapters Y-A and V-B, any special! benefits or enforce:
‘able benefits on the workmen. ‘The Act was designed. to provide “a self-contained Code to compel the. parties to resort to industrial arbitration for the resolution of existing or ‘apprehended disputes ~ without prescribing statutory norms for varied and variegated industrial relation norms so that the forums created for resolution of disputes may remain unhampered by any statutory control and devise rational . _ norms keeping pace. with improved industrial relations reflecting” “and imbibing socio- economic justice. If this i is the underlying object ' behind enactment of the Act, the Court by interpretative process must strive.to reduce the ficld of-conflict and expand the area of agreement and show its preferénce for upholding agreements sanctified by. mutuality and consensus in-larger public: interest, namely, ‘to eschew industrial strife, ‘confrontation and ‘cohséquent wastage.
The parties in this case entered into a solemn agreement. It is not for a moment suggested that the agreement has been terminated.
The only argument put forward on behalf of fhe employer was that the _ union has repudiated the agreement by raising disputes of an all-Indid - nature ata regional level and thereby committed breach of the. agree- ment. This contention is entirely without merits. What has happened © is. that the union raised certain disputes which according to the union
- were of a.regional nature and which it was not estopped from. raising in the teeth of the,terms of the binding agreement between the parties.
On the other hand, the employer contended that the disputes so raised were of an all-India nature: Both sides swore by the agreement, the difference i in approach being, whether the dispute was of an all-India.
nature or of regional nature. The emerging situation would be that neither the union repudiated the agreement nor the employer and till a?
the presént dispute, both swore by the agreement. The divergence in: -
(1) [1973] Lab, & Industrial Cases 967, - c ‘
328. ve SUPREME COURT RFPORTS {19847 2 s.c.R the approach was as to the. interpretation, the coverage, the ambit
_and the width of the agreement. Both the parties swore by the agree- ment but differed in their approach and interpretation and the forum namely the Industrial Tribunal consistenly upheld at the instance of the employer that there was a binding vali agreement subsisting between the parties forbidding the union from raising a dispute of an all-India nature at the regional level and succeeded in getting the reference thrown out at the threshold on the ground that the dispute was of an all-India nature and not of a regional level. as contended by the ‘union. This constitutes adherance to agreement, performance
" of the agreement, implementation’ of-the agreement and being bound by the agreement. ‘This conduct in no sense can be said.to constitute | repudiation of agreement by the union. Unilateral-repudiation of-an 7 agreement, as contended by Mr. Pai, does not result in termination of a solenin agreement because the wrongful repudiation can be corrected by ‘enforcement of agreement through machinery provided by the statute. - And that.is what the employer has succeeded in achieving. The employer relying on “the agreement got a number of references ’ rejected on the preliminary objection founded on the agreement. ‘The employer cannot therefore be heard to say that the attempted:
repudiation. by the union, if any, permits the employer to disown the
~ same, when it suits it. Unilateral repudiation is-distinct from termination.and an agreement/settlement remains. in force and binding till’
erminated and does not come to an end by unilateral repudiation. But it must be made clear that there is no substance in tHe contention of Mr. Pai that the union repudiated the agreement. If thus. the
“employer swore by the ‘agreement, reliéd upon it and successfully contested the claim ‘of the union, it cannot now be perm’tted to back
‘out from'‘such solemn abgreement and apart from. the technicality "of the issue being res jidicata or issue estoppel, industrial peace and harmony, good, behaviour and fair relation with workmen estopes the employer from either repudiating the agreement or contending - that the agreement ~vas rot a concluded agreement but dn inchoate one. In this connection, we may profitably refer to Western, India Match Co. v. Their Workmen™” wherein this Court observed as under : a
“It is nat out of place to mention in-this connection that én some previous occasions the management itself has treated. these categories as workmen within the meaning of the U.P. Industrial Disputes Act. The management’s contention that
(iy [1964] 3 S.CR. 560 at 566.
>4
WORKMEN Y. HINDUSTAN LEVER LTD. (Desai, J.) 329 | s
_ the Tribunal has erred i in thinking that the inspectors, sales- “men and retail salesmen are workmen must: therefore be .
7 ; ‘rejected.’
f
Same view was adopted i in Alluminiin Factory Workers’ Union Vv. «Indian Aluminium Co. Ltd. In. that case, certain correspondence which passed before end after the awards between) the parties was referred to. This correspondence shuwed that the apocllant/urtion and the staff association. of the comp: any fuily: accepted the principle’
that Supervisors would no longer be regarded as workmen and. that
A Supervisors had resigned from- membership of ‘the workmen’s unions. . These avettments in the correspondence regarding the status of the e Supervisors being not workmen was held binding between the parties and both the’ Industrial Tribunal-and this Court declined: to examine . the. contention about the status on merits. If the union can be held the status of salesmen would equally be binding on the employer.
to It would thus appear that the employer/management was held hound: not by any specific agreement but an agreement spelt-out of its con: ”
duct in Western India Match Co. case and assertions in correspondence _ in India Aluminium Co. case treating certain categories of the workmen as workmen or not as workmen respectively within the meaning’ of the expression in the Act. then at a later stage, the employer and the -union respectively were estopped from contending to the contrary. } The case before us is much stronger in that there is a concluded binding ‘agreement between the parties neither repudiafed «nor terminated till today which provides that the employer on its part will not contest the status of the membership of the Field Force including the ‘salesmen - employed by the. Company as workmen within the meaning of the expression in the Act. Therefore, the Tribunal eommitted. a serious error, apparent on record in holding that there was no concluded agrecem2nt betwe een the parties < as emerging from Exs. W-2, W-3 and
- W.4, ; . ; . .
The Tribunal negatived the contention of the union that the .
employer was estopped from challenging the status of the workmen also om the ground that ‘there can be no estoppel against the statute. _ We must confess that even.Mr. Pai did not appear to be very enthusias- tic to support the finding of the Tribunal that even if there isa binding .
A -agreement between the parties and therefore, the employe is ' estopped
CS) [1962] t L.L.J.: 20.
~ bound to such an inferred agreement from correspondence, the employer conceding the status or to be precise conceding not to contest oe
330 ; L, "SUPREME COURT REPORTS [1984] 2s.c.R,
“o¢ from questionii.g- the status of salesmen as being. workmen, it cannot~ be availed of by the union because there can be no estoppel against -
"a statute. We find it very difficult not only to understand but to appreciate the approach and the finding of the Tribunal in this behalf. * There is no statutory .provision that a‘status of a person invoking the jurisdiction of the Tribunal must be adjudicated upon notwithstanding that. no contention to that’ effect is. raised. No statutory pro-
“vision was brought to’ our notice which would be rendered nugatory or ineffective if the status of workman is not questioned. * Nor it can be said that the employer has contracted out of the benefits of a statute, Whether a particular, person is a worknian or not depends- upon factual matrix. - Workman is: defined ‘in Sec, 2(s) of the -Act. -
_ The‘ ingredients:and the incidents of the definition, when satisfied, the .
person satisfying the same would be a workman. Negatively, if
- someone fails’ to satisfy one or other ingredient or incident of the - ' definition, he may not be held to be workman within the meaning of - the expression in the Act. There is no provision in the Act .which obliges” the Industrial Tribunal! or other forums set- up under the Act - ‘to decide even in the absence of a contention from the employer, a — preliminary issue whether the person who hasinvoked its jurisdiction © is a workman ot not, There is-no such obligation cast statutorily .
on the Tribunal. If the employer does not arise the contention about the status of the workman approaching the Tribunal, the Tribunal has no obligation, to decide the-status of the person whether’ he is a . - workman or not.:. Conversely, if the employer agrees not to question .
the status in future it would only imply that such a contention would not-only be not raised’ but if rais¢d it would not be pressed and if
" pressed should be negatived in view of the binding agreement: The. . 7 resultant situation would be that the Tribunal must proceed on the assumption that no such contention is taiséd and required to be
-adjudicated upon. If the contention’ is ‘not raised, the Tribunal is under no, obligation so mott or on its own to raise and decide such -
-a.contention to clothe itself with jurisdiction ‘to’adjudicate upon’ the ° :
dispute. The ‘Tribunal derives its jurisdiction by the order of reference and not on ‘the determination ofa jurisdictional fact which it - .
must ‘of necessity decide to acquire jurisdiction. Therefore, the
4 Tribunal was clearly in error in holding that the contention convassed ,
“on behalf of the union would permit it to taise estoppel against’ a
.Statute. Undoubtedly, it is true that there can be no estoppel against — the law of the land. . If a party is estopped by doing’a thing which ' it is under a legal disability to perform or forbearing to do something-
‘ which it is his duty to do, the result would be an enlargement « of the contractual or other rights allowed by law or their alteration. ‘The
. *
WORKMEN V."HINDUSTAN LEVER LTD. (Desai J)... 331
° Court enforces ‘the performance of statutory duty and. declines to . | interfere for the assistance of persons. who seek its aid to relieve them. - against the express statutory provision. Approving the dicta in,
Maddison v. Alderson™, this Court observed in K. Ramadas Shenoy
.v. The Chief Officers, Town Municipal Council, Udipi and Ors.,?
that an excess’ of statutory. power ‘could not be validated by acquiescence in or by the operation of estoppel. Is. that the situation here? The Tribunal obsérved, that notwithstanding the fact that the employer has agreed to recognise the .union as representative .
. of the Field Force including the salésmen, agreement between’ the parties cannot override the statute and if therefore Shri. A.K. Basu is not workman under the Act, the agreement between the union and the emoloyer cannot- confer on the Tribunal any jurisdic-
-tion to givé any: relief to him under the Act. The Tribunal com- ~ ‘ pletely misdirected itself when it assumed and atrogated: to itself the __ _ obligatory duty in the absence of an impermissible contention, to faise one and proceeded ‘to adjudicate upon, notwithstanding the fact if thé agreement is subsisting no such contention can be raised and if raised has to be ignored as ‘an irrelevant pleading. In this.”
connection, ‘it may be recalled that when a reference is‘made under - Sec. 10 of the Act, Rule 10-B of the Industrial Disputes (Central)
‘Rules, 1957 obliges the workman involyed in the reference to file. - . with the Tribunal a statement of demands relating only to the jssues as are included in the order of reference: and simultaneously serve a copy of the same to the employer. Sub-rule (2) enjoins the employer within “two weeks of the receipt of the statement: of’ claim to file its rejoinder and simultaneously serve a copy of the same on the workman..
Ordinarily, the Tribunal ‘after ascertaining on what issue the parties are at variance raises ‘issues. to focus attention on points in dispute.
In - industrial adjudication,” issues are of. two types : (i) those referred by the Government for adjudication and set out in the order of reference and (ii) incidental issues which are-sometimes the issues of law or issues of mixed law and. fact. The Tribunal may.’as well frame pre- liminary issues if the point on which the parties are at variatice, as
. reflected in the preliminary issue, would go to the root of the matter.
But the Tribung! cannot travel beyond the pleadings and arrogate ‘to itself the power to. raise issues which the parties to the reference are precluded or prohibited from raising; to wit if the employer does : , not question the status of the worken, the Tribunal cannot suo motu raise the issue and proceed to adjudicate upoi the same and throw out
- ° @) 11883] 8 A.C.'467.
(2) [1975] 1 S.C.R. 680.
332 | SUPREME COURT REPORTS “ [1984] 2 scr. )
the: reference on the sole ground that the concerned workman was
‘not a workman within the meaning of the expression of the Act. And’
it is. not obligatory upon the employer necessarily to raise the conten-
‘tion that the concerned workman was not a workman within the. meaning of the expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the union were: to prevail, the well laid rule of no estoppel against a statute would be violated.
Having examined all the dimensions of the matter, it is crystal clear and is indisputably established that the agreement relied upon
_ by the unton is a valid subsisting agreement. It is in force. It is neither . repudiated, nor terminated. It is binding upon both the | parties, Once the agreement is held to’ be binding, the employer is estopped from contending that the workmen involved in the dispute wlio were salesmen were not workmen within the meaning. of the expression under thé. Act. “Therefore, the Tribunal was in error in’
undertaking to examine that contention and g answer tt, That part of the order/award of the. Tribunal is unsustainable and must be quashed and set aside.
We accordingly, direct the Tribunal to ‘proceed to deterrhine
.the dispute on merits without concerning itself with the consideration _of the question whether the concerned worknien were workmen within _ the meaning of the expression under the Act.. This appeal accordingly .
succeeds *and: the award of the Tribunal to the extent indicated herein is quashed and set aside and the matter is remitted to the Industrial
_ Tribunal) with a direction to proceed further in the light of the observations made in this judgment. The respondent shall pay to the appel- lant costs quantified at Rs. 3,000,
NV:K. Low . Appeal allowed.