IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019
PRESENT
THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND
THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD WRIT APPEAL No.1 OF 2019 (L-RES)
BETWEEN:
M/s Aditya Auto Products & Engineering India Pvt. Ltd., No.23-24, 2nd Phase Peenya Industrial Area Bengaluru-560 058.
Represented by its Head-HR Sri.Ramesh Pai ... Appellant (By Shri. S.N. Murthy Senior Counsel, Along with Shri. Somashekar, Advocate)
AND:
1. M/s Aditya Auto Products (NTTF) Employees’ Union No.23-24, 2nd Phase Peenya Industrial Area Bengaluru-560 058.
Rep. by its Secretary.
2. The Deputy Labour Commissioner And Certifying Officer under the Industrial Employment (Standing Orders) Act, 1946 Division-1 Karmika Bhavana, Bannerghatta Road Bengaluru-560 029.
3. The Additional Labour Commissioner (Administration) and Appellate Authority under the Industrial Employment (Standing Orders) Act 1946, Karmika Bhavana, Bannerghatta Road Bengaluru-560029. ... Respondents (Shri K.Subba Rao, Senior Counsel A/w Shri. K.S.Subramanya, Advocate for C/R1: Shri.S.H.Prashanth, AGA. For R2 & R3) This writ appeal is filed under Section 4 of the Karnataka High Court Act praying to set aside the order of the learned Single Judge dated: 05.12.2018 in Writ Petition No. 24308/2018 and consequently the order bearing No.SOA/CR-25/2017-18 dated 22.05.2018 at Annexure ‘K’ in the Writ Petition passed by third Respondent and pass such other orders as deemed fit in the facts and circumstances of the case.
This writ appeal,having been heard and reserved for orders, coming on for pronouncement this day, H.T.NARENDRA PRASAD J., delivered the following:
JUDGMENT
This appeal is directed against the order dated 5th December 2018 passed by the learned Single Judge in W.P.No.24308/2018, whereby the learned Single Judge dismissed the writ petition filed by the appellant herein.
2. The brief facts of the case are that the appellant is engaged in manufacturing of wide range of products which includes stamped sheet metal components manufactured in high speed and high tonnage power presses. The appellant Company took over the management of NTTF Industries Limited under Section 25FF of the Industrial Disputes Act, 1947 (for short, ‘ID Act’). The appellant has entered into a settlement with the first respondent on 26th December 2014 for a period of three years from 1st January 2014 to 31st December 2017.
3. The State Government has amended the Karnataka Industrial Employment (Standing Orders) Rules (for short, ‘the said Rules’) enhancing the age of retirement from 58 years to 60 years by a notification dated 27th March 2017 which is gazetted on 28th March 2017. Immediately thereafter, the first respondent Union filed an application before the second respondent on 18th April 2017 seeking amendment of Standing Order for enhancement of retirement age from 58 years to 60 years. After hearing both the parties, the second respondent rejected the application filed by the first respondent Union by order dated 19th December 2017. Being aggrieved by the same, the first respondent filed an appeal before the third respondent on 12th January 2018 under Section 6 of the Industrial Employment (Standing Orders) Act, 1946 (for short, “the said Act of 1946”). The appellate authority, after hearing both the parties, passed an order on 22nd May 2018 allowing the appeal filed by the first respondent by enhancing the age of retirement from 58 years to 60 years. Being aggrieved by the same, the appellant Company has filed a writ petition before this Court. The learned single Judge by order dated 5th December 2018 dismissed the writ petition filed by the appellant Company. Being aggrieved by the same, the appellant has filed this appeal under Section 4 of the Karnataka High Court Act, 1961.
4. Sri S.N.Murthy, learned Senior Counsel appearing for Sri Somashekar firstly submitted that there is a settlement between the appellant and the first respondent dated 26th December 2014 for a period of three years. This settlement was not brought to the notice of either the second respondent or the third respondent Authority. The same has been placed for the first time before the learned Single Judge. Since both the parties have admitted the settlement between the parties, the settlement is going to the root of the matter and the same is admitted and uncontroverted. But the learned Single Judge has failed to consider the same. In support of his contention he has relied on the judgment of the Apex Court in the case of RATTAN LAL SHARMA vs. MANAGING COMMITTEE, DR.HARI RAM (CO-EDUCATION) HIGHER SECONDARY SCHOOL AND OTHERS1 Secondly, the learned Senior Counsel contended that the appellant Company and the first respondent employees are bound by the terms of the settlement dated 26th December 2014 wherein the employees of the Union have agreed not to reopen any matter or raise any financial burden on the petitioner Company directly or indirectly. That settlement is for a period of three years from 1st January 2014 to 31st December 2017. Hence, the order passed by the appellate authority under Section 6 of the Act is contrary to law. To substantiate his contention he has relied on the judgment of the Apex Court in the case of BARAUNI REFINERY PRAGATISHEEL SHRAMIK PARISHAD vs. INDIAN OIL CORPORATION LIMITED2.
1 (1993) 4 SCC 10 2 (1991) 1 SCC 4 5. Per contra, the learned Senior Counsel Sri K.Subba Rao, appearing for the first respondent has contended regarding the settlement dated 26th December 2014 placed before the learned Single Judge for the first time without urging either before the certifying authority or before the appellate authority. Hence, he submits that the appellant is estopped from raising the said contention. Secondly, he contended that the settlement between the management and the union dated 26th December 2014 has expired on 31st December 2017 and the order passed by the appellate authority is after expiry of the validity period of the term of the settlement. Hence, the appellate authority has rightly modified the Standing Order by increasing the age of retirement from 58 years to 60 years.
6. Heard learned counsel for the parties and perused the appeal papers.
7. It is not in dispute that the appellant took over the management of NTTF under Section 25FF of the ID Act and also there is no dispute that the appellant and the first respondent have entered into a settlement dated 26th December 2014 for a period of three years with effect from 1st January 2014 to 31st December 2017. Clause 35 is extracted hereinbelow:
“Clause 35. Existing privileges/Benefits: It is agreed that all the existing facilities, privileges, amenities, which are not altered in this settlement are continued without any change”
8. This settlement was not brought before the certifying authority or before the appellate authority. The contention was raised regarding the existence of the settlement between the management and the union for the first time before the learned Single Judge. It is not in dispute that both the parties have admitted the settlement dated 26th December 2014. The Hon’ble Apex Court in the case of RATTAN LAL SHARMA (supra) has held that the plea which is going to the root of the matter and based on admitted and uncontroverted facts should not have been rejected and it does not require any further investigation into the question of fact. The same can be placed first time before the High Court under Article 226 of the Constitution of India. Therefore, there is no dispute in the first point raised by the appellant.
9. The point which is relevant for our consideration in this case is the second contention raised by the appellant. After the appellant took over the management of NTTF Industrial Limited under Section 25FF of the ID Act, the appellant entered into a settlement dated 26th December 2014 with the first respondent Union for a period of three years from 1st January 2014 to 31st December 2017. In the meantime, the State Government, in exercise of the powers conferred under sub-section (1) of Section 15 of the said Act of 1946 has made the Rules called Karnataka Industrial Management (Standing Order) (Amendment) Rules 2017 thereby increasing the age of retirement to 60 years. The amended Rules have been notified in the gazetted on 28th March 2017. The first respondent Union has submitted the letter dated 18th April 2017 to the second respondent seeking for amendment of the Standing Order. The second respondent, after hearing the parties rejected the application filed by the first respondent Union by order dated 19th December 2017. Being aggrieved by the same, the first respondent Union filed an appeal before the third respondent on 12th January 2018 under Section 6 of the Standing Order, which reads thus:
“6. Appeals.- (1) Any employer, workman, trade union or other prescribed representatives of the workmen aggrieved by the order of the Certifying Officer under sub-section (2) of Section 5 may, within thirty days from the date on which copies are sent under sub-section (3) of that section, appeal to the appellate authority, and the appellate authority whose decision shall be final, shall by order in writing confirm the standing orders either in the form certified by the Certifying Officer or after amending the said standing orders by making such modifications thereof or additions thereto as it thinks necessary to render the standing orders certifiable under this Act.
(2) The appellate authority shall, within seven days of its order under sub-section (1) send copies thereof to the Certifying Officer, to the employer and to the trade union or other prescribed representatives of the workmen, accompanied, unless it has confirmed without amending the standing orders as certified by the Certifying Officer, by copies of the standing orders as certified by it and authenticated in the prescribed manner.”
10. By a plain reading of the above provision, it is very clear that the appellate authority has the power to amend, modify or add to the standing order as it thinks necessary to render the standing order certifiable under the said Act.
11. In the case on hand, the appeal is filed on 12th January 2018. The appellate authority has amended the standing order by enhancing the retirement age from 58 years to 60 years on 22nd May 2018. The order passed by the appellate authority is after the expiry of the term of the settlement. As on the date of amendment of the Standing Order by the appellate authority, the term of settlement between the parties was not in force. Once the settlement comes to an end, the authorities can modify the Standing Orders. The Hon’ble Apex Court in the case of LIFE INSURANCE CORPORATION OF INDIA vs.
D.J.BAHADUR3 held that “on the expiry of the period prescribed in the sub-section the conceptual quality of the transaction as a ‘settlement’ comes to an end. The ban lifts. The parties are no longer bound to maintain the industrial status quo in respect of matters covered by the settlement. They are at liberty to seek an alteration of the contract. But until altered, the contract continues 3 (1981) 1 SCC 315 to govern the relations between the parties in respect of terms and conditions of the service.”
12. Therefore, on the expiry of the term of settlement on 31st December 2017, the appellate authorities could have passed order of amending the standing order contrary to the terms of settlement. The impugned order passed by the third respondent on 22nd May 2018 was after the expiry of the term of the settlement dated 26th December 2014. Therefore, the order dated 22nd May 2018 passed by the third respondent is in accordance with law.
13. The judgment referred by the appellant in BARAUNI REFINERY PRAGATISHEEL SHRAMIK PARISHAD (supra) wherein the modification of the Standing Order passed by the appellate authority during the subsistence of settlement between the parties. Hence, the Hon’ble Supreme Court has held that during the operation of the settlement, it was not open to the workmen to demand for modification in the relevant clause of the Standing Order. But, in the case on hand, as on the date of amendment of the Standing Order, that is, on 22nd May 2018 the settlement between the parties was not in existence. Hence, the aforesaid judgment is not applicable to the facts of the present case.
14. Therefore, we are of the opinion that there is no error in the order passed by the learned Single Judge. Accordingly, writ appeal is dismissed.
Sd/- CHIEF JUSTICE
Sd/- JUDGE
Cm/-