# HERBER TSO NS LIMITED v. WORKMEN OF HERBERTSONS LIMITED AND ORS

- **Citation:** [1977] 2 S.C.R. 15
- **Court:** Supreme Court of India
- **Decided:** 1976-11-03
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/herber-tso-ns-limited-v-workmen-of-herbertsons-limited-and-ors-7018
- **Pages:** 10

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15
HERBER TSO NS LIMITED
A
v.
WORKMEN OF HERBERTSONS LIMITED AND ORS.
November 3, 1976
!1Y. V. CHANDRACHUD, P. K. GOSWAMI AND S. MURTAZA FAZAL ALI,
B
JJ.]
Ind11s1rial Disputes Act, 1947-S. 18-Settlement under s. 18(1)-Scope
·of-Union arri1·ed at settlement-Individual workers-If should know implication.r.
In respect of certain demands of the workers of the appellant company an
Industrial Tribunal made its award.
When the Special Leave Petition of the
. appellant was pending before this Court the parties filed consent terms
for
C
staying the award. In the meantime the 3rd respondent, a Trade Union, wrote
to the employer that all the workers who were members of the 2nd respondent,
also a Trade Union, resigned from that union and joined the 3rd re.~pondent.
-The employer accordingly recognised the 3rd respondent as the . Trade Union
representing the workers and de-recognised the 2nd respondent.
Under s. 18(1) of the Industrial Disputes Act the employer entered into a
-settlement with the 3rd respondent in substitution of the award pending before
this Court. When the 3rd respondent sought to be substituted in place of the
D
2nd respondent in the Special Leave Petition, the 2nd respondent resisted the
. application claiming that it had still the allegiance of 50 workmen of the company.
But this Court added the 3rd respondent as a respondent. Since the 2nd
respondent claimed to have some workers on its rolls as members and had not
. accepted the settlement, this Court passed a preliminary order to the effect that
"in view of the fact that admittedly a large number of workmen employed by
the appellant have accepted the settlement is it shown by the 2nd
respcndent
union, that the said settlement is not valid and binding on its members and
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whether the settlement is fair and ju.>t."
Before the Tribunal the 2nd respondent did not lead any evidence to show
the actual number of its members. The Tribunal recorded its finding that respondent No. 2 had been able to prove that the settlement was not valid and
binding on its members and was incomplete to that extent. It was contended by
-tbe 2nd respondent that even if the settlement was binding on the company and
the 3rd reipOndent representing a large majority of workmen, it was 11ot binding
·on its members under s. 18(1).
•
Dismissing the appeal,
HELD : The settlement is fair and just. The award of the Tribunal shall be
-substituted by the settlement and the settlement shall be the substituted award.
[24Dl
(!)(a) When this Court called for a finding of the Tribunal it was satisfied
that if the settlement was fair and juit it would allow the parties to be governed
by the settlement substituting the award. The wording of the issue sent to the
Tribunal for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were its members. Since a
recognised and registered union had entered into a voluntary settlement
this
Court thought that if the same was found to be just and fair that could
be
allowed to be binding on all the workers even if a
very
small number of
workers were not members of the majority union. [20E-F]
(b) In the instant case the numerical strength of the members of the 2nd
·respondent, who are workers of the company, would also have an important
bearing as to whether the settlement accepted by the majority of the workmen
is to be considered as just and fair. Not a single worker of the company claim-
•ed before the Tribunal to be its member and asserted that the settlement was
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SUPREME COURT REPORTS
[1977] 2 S.C.R.
not fair ~nd just. All the workers of the company had accepted the settlement
and received the arrears and emoluments in accordance with the same
[20H]
(2)(a) The assumption of the Tribunal that the quantum of the membershiP'
of the 2nd responqent did not call for a finding at all in view of this Court's
order is incorrect. The Tribunal was conscious that under s. 18(1) the settlem;nt was bindi

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15
HERBER TSO NS LIMITED
A
v.
WORKMEN OF HERBERTSONS LIMITED AND ORS.
November 3, 1976
!1Y. V. CHANDRACHUD, P. K. GOSWAMI AND S. MURTAZA FAZAL ALI,
B
JJ.]
Ind11s1rial Disputes Act, 1947-S. 18-Settlement under s. 18(1)-Scope
·of-Union arri1·ed at settlement-Individual workers-If should know implication.r.
In respect of certain demands of the workers of the appellant company an
Industrial Tribunal made its award.
When the Special Leave Petition of the
. appellant was pending before this Court the parties filed consent terms
for
C
staying the award. In the meantime the 3rd respondent, a Trade Union, wrote
to the employer that all the workers who were members of the 2nd respondent,
also a Trade Union, resigned from that union and joined the 3rd re.~pondent.
-The employer accordingly recognised the 3rd respondent as the . Trade Union
representing the workers and de-recognised the 2nd respondent.
Under s. 18(1) of the Industrial Disputes Act the employer entered into a
-settlement with the 3rd respondent in substitution of the award pending before
this Court. When the 3rd respondent sought to be substituted in place of the
D
2nd respondent in the Special Leave Petition, the 2nd respondent resisted the
. application claiming that it had still the allegiance of 50 workmen of the company.
But this Court added the 3rd respondent as a respondent. Since the 2nd
respondent claimed to have some workers on its rolls as members and had not
. accepted the settlement, this Court passed a preliminary order to the effect that
"in view of the fact that admittedly a large number of workmen employed by
the appellant have accepted the settlement is it shown by the 2nd
respcndent
union, that the said settlement is not valid and binding on its members and
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whether the settlement is fair and ju.>t."
Before the Tribunal the 2nd respondent did not lead any evidence to show
the actual number of its members. The Tribunal recorded its finding that respondent No. 2 had been able to prove that the settlement was not valid and
binding on its members and was incomplete to that extent. It was contended by
-tbe 2nd respondent that even if the settlement was binding on the company and
the 3rd reipOndent representing a large majority of workmen, it was 11ot binding
·on its members under s. 18(1).
•
Dismissing the appeal,
HELD : The settlement is fair and just. The award of the Tribunal shall be
-substituted by the settlement and the settlement shall be the substituted award.
[24Dl
(!)(a) When this Court called for a finding of the Tribunal it was satisfied
that if the settlement was fair and juit it would allow the parties to be governed
by the settlement substituting the award. The wording of the issue sent to the
Tribunal for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were its members. Since a
recognised and registered union had entered into a voluntary settlement
this
Court thought that if the same was found to be just and fair that could
be
allowed to be binding on all the workers even if a
very
small number of
workers were not members of the majority union. [20E-F]
(b) In the instant case the numerical strength of the members of the 2nd
·respondent, who are workers of the company, would also have an important
bearing as to whether the settlement accepted by the majority of the workmen
is to be considered as just and fair. Not a single worker of the company claim-
•ed before the Tribunal to be its member and asserted that the settlement was
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SUPREME COURT REPORTS
[1977] 2 S.C.R.
not fair ~nd just. All the workers of the company had accepted the settlement
and received the arrears and emoluments in accordance with the same
[20H]
(2)(a) The assumption of the Tribunal that the quantum of the membershiP'
of the 2nd responqent did not call for a finding at all in view of this Court's
order is incorrect. The Tribunal was conscious that under s. 18(1) the settlem;nt was bindini: on the company and the 3rd respondent Union. Yet it examme~ the question whether the workers voluntarily accepted
the
settlement
knowmg all the consequences, which was a· wrong approach. [21B-C]
(b) When a recognised union negotiates with an employer the workers as
individuals do not come into the picture. It is not necessary that each individual
worker should know the implications of the settlement since a recognised union
which is expected to protect the legitimate interests of labour enters into a settlement in the best interests of labour.
[21D]
(c) Prima facie this is ~ settlement in the course of collective bargaining
aud, therefore, is entitled to due weight and consideration.
[2 lE]
(d) Having regard to the totality of the terms of the settlement it is difficult
to hold that the terms are in any way un1air or unreasonable. An adjudication
has to be distinguished from a voluntary settlement.
By the settlement labour
has scored in some aspects and saved all unnecessary expenses in uncertain litigation.
The settlement cannot be judged on the touchstone of the
principles
laid down by !his Court for adjudication. [22D; 230]
(3) There may be several factors that influence parties to come to a settlement as a phased endeavour in collective bargaining.
Once cordiality is established between the employer and labour in arriving at a settlement there is always
a likelihood of further advance in the shape of improved emoluments by voluntary settlement, avoiding friction and unhealthy litigation. This is the quintessence of settlement which courts and Tribunals should endeavour to encourage.
[23EJ
(4) lt is not possible to scan the settlement in bits and pieces and hold some
parts good and acceptable and others bad. Unless it can be demonstrated that
the objectionable portion is such that it completely outweighs all the other advantages gained, the Court will be slow to hold a settlement as unfair and unjust.
The settlement has to be accepted or rejected as a whole.
[24B]
In the instant case the 3rd respondent representing the large majority of the
workmen has stood by this settlement which is a strong factor difficult to ignoreWhen a union backed by a large majority of workmen has accepted a settlement
in the course of collective bargaining, this Court would not interfere with the
settlement.
[24C] ·
CIVIL APPELLATE JURISDJCTION : Civil Appeal No. 1901 of 1970.
(From the Award dated 4/6.3.1970 of the Industrial Tribunal,
Maharashtra in Ref. (I.T.) No. 158/67, published in Maharashtra
Govt. Gazette, Part I-L dated 16-4-1970).
F. V. Kaka, F. A. K. Faisulla Bhai, 0. C. Mathur and D. N
Mishra for the Appellant.
·
F. D. Damania and B. R. Aganvala for Respondent No. 2.
Y. S. Chitale, P. H. Parekh and Miss Manju Jelley, for Respon-·
dent No. 3.
The Judgment of the Court was delivered by
H
GOSWAMI, J.-This appeal by special leave brings forth a rather
disquieting feature of union rivalry whereby th~ significance of collective bargaining which is the forte of a union, 1s sought to be made
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HERBERTSONS )I. WORKMEN (Goswami, J.)
17
a llop.
We say this in the absence of any sugg~stion of mala fides or
of any other ulterior motive alleged by the contending union on the
part of the rival union or its principal officer who had negotiated a
certain settlement on behalf of. the workmen in substitμtion of the
award of the Industrial Tribunal out of which this appeal arose.
The appellant before us is the employer, supported, wholehog,
by the Bombay General Kamgar Sabha, respondent No. 3.
Respondent No. 2 is the only contending union, viz.;· Mumbai Mazdoor
Sabha .
On May 18, 1967, there was a reference by the Government of
Maharashtra of an industrial dispute under section 10 (1) ( d) of the
Industrial Disputes Act to the Industrial Tribunal for adjudicating
eight demands such as, wage scales, adjustment . of increments, classification of workmen into different grades, dearness allowance,
re~
. tropective effect of, the claim from lst June,, -1966, gratuity,
~ick
leave and wages for Sundays and holidays when called upon to wor\..,
The dispute was between. the D & P, Products, (Private) Limited,
Bombay and their workmen. . A written statement was submitted
by the Mumbai Mazdoor Sabha (2nd r~pond<:Wt) claiming to represent the majority of the workmen on. July 25,, 1967. It appears
that this written statement was signed by V., S. J;>andit as General
Secretary.
The company submitted their
written . statement
on
August 17, 1967, ... in which, inter alia, they'plea,c,led incapacity
~o
have greater burden on ·account. of financial positicm. It was stated
that the company had been making losses year after year since 196364.
.·
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During the pendency of the dispute before the Tribunal, D & P
Products (Private) Limited was amalgamated with Herbertsons Ltd.
(the appellant) (hereinafter to be described -as .the: company)
with
effect from 1.10.1968 under the provisions of :the Companies A:ct
by an order of the Bombay High Court dated 6th January, 1969.
The wage scales existing at the time .of'the reference were
as
follows:-
Unskilled
Semi-skilled
. Rs .. 1.25-0.10-2.25
.. Rs. 1.50~0.15-3.00
Dearness allowance Rs. 2.16 per day. ·
The demand of the workmen 011 the other hand was as follows : -
Unskilled
Rs, 1.50-0.15-3:00 per day
Semi skilled
Rs 1. 75 O.~O ,3. 75 . "
"
Skilled
Rs. 2.50-0,30-5,.50
"
"
Highly skilled
Rs. 3.50-0.4$.8.00
"
"
Dearness allowance "as paid to the Bom:b~y T~xtile Operatives".
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3-1458SCI/76
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SUPREME COURT REPORTS
(1977] 2 S.C.R.
The Tribunal (Shri R. D. Tulpule) made its award on March 4,
1970. As regards the demand for wages and dearness allowance,
the award of Tribunal was as follows :-
Grade I
Rs
Plus Revised
(Unskilled)
1.30-0. 12-2.50
Textile dearness
Grade II
B (Semi-skilled)
A (Semi-skilled)
Grade lll
(Skilled)
1.40--0.15-3.20
1-60-0.30-3.60
. l .80-0.20-2.80-0.25-4.80
allowance.
do
do
do
The company preferred an application [or special leave to this
Court on May 12, 1970, against the award. On May 25, 1970, certain consent terms for staying the award were filed by the parties
without prejudice to the rights in the appeal whereby the company
agreed to pay Rs. 2.50 as additional dearness allowance per day
from October 1, 1968. This Court admitted the special leave petition and posted the stay application for hearing on September
24,
1970, on which date in modification of the earlier stay order
t:1c
parties further agreed that from 1st September, 1970, till the disposal
of the appeal, . the total dearness allowance would be calculated
at
Rs. 5/- per day irrespective of the index figures.
On February 22,
1973, the company agreed to increase the dearness allowance further
by 80 paise with effect from January l, 1973.
From June 1973 certain new developments took place. On June
7, 1973, a letter was received by the company from the 3rd re$pundent, Bombay General Kamgar Sabha, stating that all the workers of
the company had resigned from the 2nd respondent union (Mumbai
MazdOOC' Sabha) and joined the 3rd respondent union.
On June 7,
1973, the 3rd respondent sent a communication to the respondent
No. 2 with a copy t0 the company enclosing a letter signed by the
workerii stating that they had resigned from the 2nd respondent
union.
On June 25, 1973, the 3rd respondent sent a reminder
to
the company to recognise the Bombay General Kamgar Sabha. By
a letter dated 2nd/5th July, 1973, to the President, Bombay General
Kamgar Sabha, who was incidentally the same V. S. Pandit who had
earEer submitted the written statement in behalf of the Mumbai Mazdoor Sabha, the company granted recognition to the lBombay General
Kamgar Sabha and informed the 2nd respondent of its derecognition.
On October 18, 1973, the company entered into a memorandum
of settlement with the Bombay General Kamgar Sabha which was ir.
substitution o{ the award which was pending appeal before this Court.
Copies of this settlement were forwarded to the S::cretary to
the
Government of Maharashtra, Industries and Labour Deμartment, the
Commis11io11er of Labour, the Deputy Commissioner of Labour and
the Conciliation Officer.
It is common ground that this is a settle·
ment under section 18 (I) of the Industrial Disputes Act.
The 3rd respondent applied to this Court to be substituted in
place of the 2nd respondent and the other union. Th! 2nd respondent
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HERBERTSONS v. WORKMEN (Goswami, l.)
19
.alone resisted the application claiming that it had still the allegiance of
50 workmen of the company.
This Court allowed the Bombay
General Kamgar Sabha to be added as the 3rd respondent.
The company also submitted a petition to this Court to decide the
appeal in terms of the memorandum of settlement dated October 18,
1973.
This Court on December 19, 1974, passed
the
following
order:-
"The number of workmen concerned in this industrial
dispute is 210.
The appellant employer and the 3rd respondent union which claims to have 193 members on its
rolls have entered into a settlement. The 2nd respondent
union which claims to have about 55 members on its rolls
has not yet accepted the settlement.
We
think
it just,
therefore, to pass the same kind of preliminary order that
was passed in Amalgamated Coffee Estate vs. Their workmen in the following terms : -
"In view of the fact that admittedly a large number of ·
workmen e~ployed by the appellant have accepted the setA
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tlement, is it shown by the 2nd respondent union that the
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said settlement is not valid and binding on its members
and whether the. settlement is fair and just?"
"The Industrial Tribunal, Maharashtra, would consider
the issue and submit its finding within two months from this
date. After the finding is received, the appeal would be set
down for hearing.
Parties should be allowed
to
lead
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evidence."
lVhen the matter went back. it appears that respondent No. 2 did
not lead any evidence before the Tribunal (Shri D. L. Bhojwani). The
company and the 3rd respondent, on the other hand, examined 7 witnesses including V. S. Pandit, the President of the 3rd respondent union.
Certain documents were also filed before the Tribunal by the parties.
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The Tribunal after hearing the parties in due course recorded its findin~
on September 9. 1975 and forwarded the same to this Court.
The
findin~s of the Tribunal recorded are as follows·:-
( 1) Respondent 2 the Mumbai Mazdoor Sabha has been
able to prove that the Disputed Settlement is not valid and
binding on its members.
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(2) The Disputed Settlement is incomplete to the extent
mentioned above.
(3) The scheme of D.A. provided for in the Disputed
Settlement in so far as it affects workmen at or just above the
subsistence level is not fair, just and reasonable.
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(4) The rest of the Disputed
reasonable."
Settlement is fair, just and
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SUPREME COURT REPORTS
(1977] 1 S.C.R.
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That is how this appeal has come up for bearing before us.
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The first question that arises for consideration is whether the findings.
of the Tribunal are sustainable. The appellant and respondent No. 3,
with one voice, have assailed the findings 1 to 3 whereas the 2nd
respondent has supported all the findings.
It is strenuously submitted
by the 2nd respondent that there is no reason why we should interfere
with the findings of fact returned by the Tribunal and relying upon
these it is further contended that we should hear the appeal on the
merits ignoring the settlement altogether.
Before we proceed further it is necessary to appr_eciate the iaplication of the order of this Court passed on December 19, 1974, set out
ear lier. This order was passed after hearing the parties for some time
when the appeal was first called for hearing on December 19, 1974.
From the recitals in the order it is apparent that the parties were prepared to abide by the settlement if the same was fair and just.
We
are not prepared to accept the position, as urged by the 2nd r~pon
dent, that even if the settlement is binding on the parties executing the
document, namely, the company and the 3rd respondent representing
a large majority of the workmen, since the same is not binding on
the members of the Mumbai Madoor Sabha Union, howsoever small the
number, under section 18(1) of the Industrial Disputes Act, the appeal
should be heard on merits. On the other hand, we take the view that
after hearing the parties this Court was satisfied when it had called for
a finding of the Tribunal that if the settlement was fair and just it would
allow the parties to be governed by the settlement substituting the
award.
The wording of the issue sent to the Tribunal for a finding
clearly shows that there was an onus on the 2nd respondent to show how
many workers of the appellant were their members upon whom they
could clearly assert that the settlement was not binding under section
18 ( 1) of the Industrial Disputes Act. It cannot be assumed that the
parties were not aware of the implications of section 18 ( 1) of the
·Industrial Disputes Act when the Court passed the order of December
19, 1974. This Court would not Jiave sent the case back only to decide
the legal e!Iect of section 18 ( 1) of the Industrial Disputes Act. Since
a recognised and registered union had entered into a voluntary settlement this Court thought that if the same were found to be just and fair
that could be allowed to be binding on all the workers even if a very
small number of workers were not members of the majority union.
It is only in that context that after hearing the parties the case was
remanded to the Tribunal for a finding on the particular issues set out
above.
The numerical strength of the members of the 2nd respondent, who
are workers of the company, would also have an important bearing
as to Whether the settlement accepted by the majority of the workmen
is to be considered as just and fair. In that view of the matter we are
unable to appreciate that the 2nd respondent did not choose it fit to
produce evidence to show the actual number of the workers of the
company having membership of the 2nd respondent. lt_is rather odd
that not a single worker of the company claimed before the Tribunal
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IIERBERTSONS v. WORKMEN (Goswami, J.)
21
(o be a member of the 2nd respondent and to assert that the settlement
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Wlli not fair and just. This is particularly so when all the workers of
the company have accepted the settlement and also received the arrears
and emoluments in accordance with the same.
The Tribunal thought that the question of the quantum of membership of the 2nd respondent did not call for a finding at all in view of
thi~ Court's order. As observed above that was not a correct assumpB
tion.
On the other hand, we feel that this view of the Tribunal has
Jed it to approach the matter in an entirely erroneous manner.
The
Tribunal is, rightly enough, conscious that under section 18 (1) of the
Industrial Disputes Act the settlement was binding on the company and
the members of the 3rd respondent union. Even so, the Tribunal devoted nearly half of its order in scanning the evidence given by the company
and respopdent No. 3 to find out whether the terms of the settlement
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had been explained· by the President of the union to the workmen or
not and whether the workers voluntarily accepted the settlement knowin~ all the "consequences".
This to our mind is again an entirely
wrong approach.
When a recognised union negotiates with an employ:r the workers
as individuals do not come into the picture. It is not necessary that
D
each individual worker should know the implications of the settlement
since a recognised union, which is expected to protect the legitimate
interests of labour, enters into a settlement in the best interests of
labour.
This would be the normal rule.
We cannot altogether rule
out exceptional cases where there may be allegations of rnala fides,
fraud or even corruption or other inducements. Nothing of that kind
has been suggested against the President of the 3rd respondent in this
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case. That being the position, p11frna facie, this is a settlement in the
course of collective bargaining and, therefore, is entitled to due weight
and consideration.
It is true that in the course of evidence given by the President as
also by two workmen and other officers of the company the Tribunal
has found certain discrepancies.
For example, the President in the
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cou~e of cross-examination stated that since the workers had already
ayeed he only tried to improve upon the settlement by negotiating with
the company for 85% and 871-% dearness allowances instead of 80%
earlier agreed to by the workers on their own. We do not think that
this admission by the President wou1d reduce the efficacy of the settlement or affect its validity. It may be that negotiations had been going
on for some time and even some important workers had been indivi-
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dually approached by the management. but it is clear that the President
of the union had taken upon himself the responsibility for the settlement upon which he, on his own turn, succeeded in making some
et'fective improvements beneficial to the workmen. The Tribunal further
made some observations that Shri Pandit was actually unaware of the
con~eaucnces that would ensure to the workmen as a result of the
settlement. Reading the evidence of Shri Pandit as a whole. we. howH
ever. find that it cannot be said that he was unaware of the conseauences. We are also unable to hold that he had knowingly and deliberately suppressed the fact about the importance of the consequences
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SUPREME COURT REPORTS
[1977) 2 S.C.R.
to the workers if the settlement were accepted.
As a matter of fact
it has been stated by the workmen. who were examined, that Shri Pandit
did mention that they would lose Rs. 12/- to Rs. 15/- in dearness
allowanc..: if the settlement suoerseded the award. Matheoaticallv this
may not be correct as perhaps, on account of the rise of consumer price
index, the loss in dearness allowance could have been even double the
figure given by the President. That, however, per se, does not make
the settlement unfair or unreasonable.
It is found by the Tribunal that in the matter of wages the settlement bas given better terms and that the same cannot be said to be
unfair. The Tribunal has stated in more than one place that the only
objection to this settlement levelled by the 2nd respondent is with
regard to the quantum of dearness allowance.
While the award bas
given the Revised Textile dearness allowance, the settlement has substituted 86% and 87t% · of the Revised Textile allowance for the
first and the second period respectively.
While the award is for one
year, rubject to the provisions of the Industrial Disputes
Act, the
settlement is for a period of three years. Having regard to the totality
of the terms of the settlement we are unable to agree with the TribunaT
that the terms are in any way unfair or unreasonable.
Besides, the settlement bas to be considered in the light of the
conditions that were in force at the time of the reference. It will not
be correct to judge the settlement merely in the light of the awar,f
which was pending appeal before this Court.
So far as the p«rties
are concerned there will always be uncertainty with regard to the result
of the litigation in a court proceedings. When, therefore, negotiations
take place which have to be encouraged, particularly between labour
and employer in the interest of general peace and well being, there is
always give and take.
Having regard to the nature of the dispute,
which was raised as far back as 1968, the very fact the existence of
a litigauon with regard to the same matter which was bound to take
some time must have influenced both the parties to come to ~me
settlement.
'The settlement has to be taken as a package deal and
when labour has gained in the matter of wages and if there i~ some
reduction in the matter of dearness allowance so far as the award is
concerned, it cannot be said that the settlement as a whole is unfair
and unjust.
There are three categories of workers, permanent workers, listed
casual workmen and certain other casual workmen. It is said tli.t the
. third category of workmen are employed seasonally for a period of
20 days or so.
Their number is also said to be not more than 20 or
30. The terms and conditions relating to this category of casual workmen were left, under the settlement, to be mutually decided by the
parties. It is because of this feature in the settlement that the TribunaT
held that the settlement was incomplete. We are, however, informed
that as a matter of fact by mutual agreement some terms have been
settled even for this third caterrory of casual workmen.
"·t any rate,
because no decision was arrived at wioth regard to this small number of
seasonal workmen, it cannot be said that the settlement is bad on that
account.
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HERBERTSONS I'. WORKMEN (Goswami, J.)
The Tribunal next dealt with. the principles applicable in granting
dearness allowance to workers. It is while dealing with this part of the
Tribunal's award that Shri Damania for the 2nd respondent sought to
make a strong plea in favour of sustaining the award by disregarding
the settlement. According to counsel the wage level of the workers is
more or Jess at subsistence level and, therefore, cent per cent neutralisation of the cost of living or, at any rate, 95 % neutralisation should
have been allowed while sealing dearness allowance. Since the Tribunal
has rightly taken that settled principle into consideration and the settJec
ment has departed from it, the same should be held as unjust and
unfair to the workmen.
We should point out that there is some misconception about this
aspect of the case. The question of adjudication has to be distinguished
from a voluntary settlement. It is true that this Court has laid down
certain principles with regard to the fixation of dearness allowance and
it may be even shown that if the appeal is heard the said principles
have been correctly followed in the award. That, however, will be no
answer to the parties agreeing to a lesser amount under certain given
circumstances.
By the settlem~nt, labour has scored in some other
aspects and will save all unnecessary expenses in uncertain litigation.
The settlement, therefore, cannot be judged on the touchstone of the
principles which are laid down by this Court for adjudication.
There may be several factors that may influence parties to come
to a settlement as a phased endeavour in the course of c()J.lective bargaining.
Once cordiality is established between the employer and labour
in arriving at a settlement which operates well for the period that is
in force, there is always a likelihood of furlher advances in the shape
of improved emoluments by voluntary settlement avoiding friction and
unhealthy litigation. This is the quintessence of settlement which courts
and tribunals should endeavour to encourage.
It is in that spirit the
settlement has to be judged and ·not by the yardstick adopted in scru-
.tinising an award in adjudication.
The Tribunal fell into an error in
invoking the principles that should govern in adjudicating a dispute
regarding dearness allowance in judging whether the settlement was just
and fair.
A
B
c
D
E
F
Mr. Damania has drawn our attention to several authorities of this
Court with regard to the principles of fixation of dearness allowance
including the recent decision of this Court in Killick Nixon Limited v. ·
Killick & Allied Companies Employees Union' and earnestly submitted
tha1 t1'ere is a "peremptive necessity" to grant cent per cent or at any
rate 95 % neutralisation of the cost of living as dearness allowance ('.Ith
G
principle of Killick Nixon Limited supra). Even the Tribunal has relied
upon the above decision. But, as we have pointed out, that is not the
correct way to decide whether a settlement voluntarily arrived at by
the parties is just and fair.
The matter would have been absolutely
different if on the face of it the settlement was highly unconscionable
or grM~!v unjust.
Even according to the Tribunal, the reduction of
the dearness allowance to 85% and 87!% from cent per cent is the
H
only objectionable feature to enable it to hold that that part of the
(1)[1975] Supp. S.C.R. 453.
24
SUPREME COURT REPORTS
[1977] 2 S.C.R.
A
11ettlement is unjust and unfair.
The Tribunal found that all other
terllli of the settlement were "fair, just and reasonable".
It is not possible to scan the settlement in bits and pieces and hold
iome parts good and acceptable and others bad.
Unless it can be
demonstrated that the objectionable portion is such that it completely
outweighs all the other advantages gained the Court will be -slow to
B
hold a settlement as unfair and unjust. The settlement has to be accepted or rejected as a whole and we are unable to reject it as a _whole as
unfair or unjust. Even before this Court the 3rd respondent representing admittedly the large majority of the workmen has stood by this
settlement and that is a strong factor which it is diffic:\!t to ignore.
As stated elsewhere in the judgmen~, we cannot also be oblivious of
the fact that all workmen of the company have accepted the settlement.
C
Besides, the period of settlement has since expired and we are informed
that the employer and the 3rd respondent are negotiating another settlement with further improvements. _ These factors, apart from what has
been stated above, and the need for industrial peace and harmony
when a union backed by a large majority of workmen has accepted a
settlement in the course of collective bargainihg have impelled us not
D
to interfere with this settlement.
That being the position, we unhold the settlement as fair and just
and order that the award of the Tribunal shall be substituted by the
settlement dated October 18, 1973. The said settlement shall be the
substituted award. The appeal is disposed of accordingly. There will
be no order as to costs.
B.P.R.
Appeal di,smissed.
.
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