Hon'ble Vivek Kumar Birla,J.
These two intra Court appeals arise out of a common judgment in two writ petitions filed by the Textile Labour Union and some of its member Workmen of Elgin Mill Unit Nos.1 and 2, Kanpur and Kanpur Textile Limited, Kanpur working as Clerks and other subordinate staff. The respective Union and their members staked a claim through these two writ petitions for a mandamus commanding the appellant and the respondent nos.7 and 8, the Deputy Labour Commissioner and the Union of India, through Secretary Ministry of Textiles to enforce the document dated 04.12.1992 described as a settlement contained as annexure-3 to both the writ petitions, and to extend all benefits as per the terms of the said document to all the members of the staff of the category of Clerks and other subordinate staff working in the three mills by revising their pay scale etc. and also to pay them difference of salary and other emoluments.
The litigative history of the present dispute has its genesis in the dispute that was raised by the employees of several textile mills of West Bengal, Assam, Bihar and Orissa claiming parity of wages with their counterparts in the corporate office on principle of equal pay for equal work. The National Textile Corporation had been established and therefore a writ petition was filed before the Calcutta High Court by the Employees Association of the National Textile Corporation which was disposed of by a learned Single Judge against which the National Textile Corporation filed a Special Leave to Appeal before the Apex Court. A few other writ petitions and Special Leave Petitions were directly filed before the Hon'ble Supreme Court including Writ Petition No.161 of 1987, Sri Shiv Verma and others Vs. Union of India and others where the Workmen of British India Corporation Limited were also represented. The three mills with which we are presently concerned were being run by the British India Corporation Limited which additionally also ran the Cawnpore Woolen Mill popularly known as Lalimli Woolen Mill. It is in the said Writ Petition No.161 of 1987 that an application was filed informing the Apex court about the document described as a settlement dated 04.12.1992 with a prayer to dismiss the petition as withdrawn which is the fulcrum of the dispute between the parties.
It is undisputed that on the aforesaid submissions on behalf of the petitioners representing the Workmen of British India Corporation Limited in Writ Petition No.161 of 1987, the Hon'ble Supreme Court passed the following order on 11.03.1997 :
"Learned counsel for petitioners Nos.4, 5 and 6, namely Virendra Singh, Har Sharad Singh and Yogesh Narayan Bajpai submits that these petitioners who have filed this writ petition on behalf of the workmen of respondents no.5, British India Corporation Ltd. in the textile Mills known as (1) Cawnpore Woolen Mills Branch (Lal Imli), Kanpur (II) Elgin Mills Company Ltd., Mill No.1, Kanpur (III) Elgin Mills Company Ltd., Kanpur and (IV) Cawnpore Textile Ltd., Kanpur do not have any surviving grievance since they have entered into a settlement dated 4th December, 1992 with which they are fully satisfied. Learned counsel further submits that the writ petition to this extent in respect of the workmen employed in the aforesaid four mills of the British India Corporation Ltd. Be, therefore, dismissed as withdrawn.
Accordingly, this writ petition in so far as it is petitioners Nos.4, 5 and 6 in respect of the workmen employed in the four mills of the British India Corporation Limited is dismissed as withdrawn."
The dispute that hinges in this writ petition is around the impact of the aforesaid order passed by the Hon'ble Supreme Court as well as the subsequent events that occurred during the pendency of the writ petition and were brought on record.
The contention of the workers and the Union before the learned Single Judge was to the effect that the document dated 04.12.1992 was noticed and described as a settlement on the basis whereof the writ petition before the Supreme Court had been withdrawn. The respondent petitioners contended before the learned Single Judge that the said order of the Supreme Court confirmed the said settlement which became binding between the parties for which the respondent petitioners further relied on their allegations that the order passed by the Supreme Court on 11.03.1997 was passed in the presence of the Advocates appearing on behalf of the appellant and the respondent nos.7 and 8, namely, Sri M.S.Usgaonkar, Senior Advocate, M/s T.C. Sharma, Sri Mukul Mudgal, Sri B.V. Balramdas and Sri Parmeshwaram. It was also urged on behalf of the respondent petitioners that the details of the settlement form part of the objections filed by the Workmen on 25.10.1996 to which no objection had been raised either by the Government or by the Corporation or their counsel. It was further the case of the respondent petitioners that the Labour Commissioner, Kanpur Nagar vide its communication dated 16.01.1996 had advised the Joint Managing Director of the British India Corporation Limited to implement the aforesaid settlement forthwith.
At this stage it is useful to refer to another fact that while the matters were pending before the Apex Court in the writ petition and the Special Leave to Appeals referred to hereinabove, the matter was referred to the National Industrial Tribunal and the cases were directed to be placed for hearing after receipt of the report of the National Industrial Tribunal which was then headed by Hon'ble Mr. Justice M.S.Jamdar. It is in this intervening period that the request for withdrawal of the writ petition had been made and accordingly the Apex court passed the order on 11.03.1997 quoted hereinabove.
The management informed the Deputy Labour Commissioner, Kanpur that since the matter was pending before the National Industrial Tribunal and the orders of the Apex Court were awaited therefore the said proposal dated 04.12.1992 can not be implemented as it would amount to interfering with the matters pending before the Apex Court. The Labour Commissioner, Kanpur Nagar again on 13.05.1997 directed the British India Corporation Limited to implement the said settlement dated 04.12.1992.
The respondent petitioners therefore contended before the learned Single Judge that once the Apex Court had recorded the word "Settlement" in its order, it was binding upon the management and was enforceable as such.
When these two writ petitions were filed an interim direction was issued in Writ Petition No.27257 of 1997 directing the Chairman-cum-Managing Director of the British India Corporation Limited to pass an order on the representation of the respondent petitioners in the light of the orders passed by the Hon'ble Apex Court.
The Government of India vide letter dated 16.05.1994 had already declined to extend any benefit and also informed the British India Corporation Limited that it had no authority to negotiate any such settlement keeping in view the fact that the industry had been declared to be a sick industry under the SICA Act, 1985 and the matter can be settled only through a reference made to the National Industrial Tribunal.
Subsequent to the withdrawal of the writ petition before the Apex Court and the filing of the writ petitions giving rise to these appeals, and on the passing of the interim direction on 16.09.1997, a communication was made by the Chairman-cum-Managing Director to the respondent petitioners on 08.11.1997 that the Government of India through the Ministry of Textiles had informed the Corporation that keeping in view the lack of resources and the decision to close the sick mills with no financial aid and the proposal dated 04.12.1992 not being a settlement, it was not possible to accept the representation and accordingly the said communication was made to the respondent petitioners.
These facts were brought on record through a counter affidavit in the writ petitions itself but no prayer for certiorari or any mandamus in respect of the said communication dated 16.05.1994 or 08.11.1997 was made in the writ petitions even though the said fact of communication dated 08.11.1997 has been noted by the learned Single Judge.
A second direction was issued by the learned Single Judge on 19.03.1998 for considering the request of the respondent petitioners which representation was also rejected by categorically stating that the management had never accepted that there was any settlement dated 04.12.1992.
It may be mentioned that the other disputes which were pending before the Apex Court came to be finally decided on 14.10.2003 in the case of Chairman-cum-Managing Director National Textile Corporation Limited and others Vs. National Textile Corporation Limited Employees Union and others, 2003 (11) SCC, 31. It was held therein that where the nature of duties of the staff in the two categories has been found to be not at par, parity in pay scales may not be possible. The conclusion drawn by the Apex Court examined this question in detail and held as follows :
"The plea of discrimination in the matter of revision of pay scales between staff working in the corporate offices/headquarters and the staff working in the Mills is sought to be met by contending that office staff is governed by the CDE pattern while Mills staff is governed by the IDA pattern.
On the other hand, the argument on behalf of the staff/sub staff of the Mills is that great injustice has been done to the workers working in the Mills. While their counterparts working in the corporate offices have been getting pay revisions in normal course as and when it is allowed to other Government servants, the staff working in the mills has been deprived of the said benefit. As a result of this, it is submitted that during the last two decades while the cost of living has gone up several times the salary and allowances of the workers working in the Mills have remained constant. The emphasis on behalf of the workers has been that there is equality and parity in the work and working conditions of the workers of the corporate offices and the workers working in the Mills. Therefore, it is a case for equal pay. On this aspect however, as noticed earlier, the National Industrial Tribunal found against staff of the Mills. The finding of the Tribunal was endorsed by the Sathyam Committee. In the face of the findings of the two fact finding bodies we find ourselves unable to take a different view on this issue. Neither necessary facts have been placed before us nor we would like to go into such a question of fact. We have no reason to differ with the finding of fact on this issue arrived at by the two independent bodies. So far as the claim of the staff based on the principle of equal pay for equal work is concerned, it is therefore, not tenable. When the work is not equal, the question of equal pay does not arise."
However inspite of having ruled as above the Apex Court further went on to hold as follows :
"But we cannot ignore the fact that the staff/sub staff working in the Mills has unfortunately received a step motherly treatment. They have not had a pay revision for years. The litigation has been pending for more than a decade. They have been told that the matter is subjudice. The Sathyam Committee noticed the sorry plight of the workers. The Committee gave some ad hoc relief to the workers. But that is not enough. The Sathyam Committee noticed disparity in the pay scales of the two categories of workers which was 159% in 1987 and had been to 642% in the year 2000. This is highly unjust and unfair. So far as the staff working in the mills is concerned we are told that all the mills are incurring losses and that does not justify any increase in the pay package of the workers. But the staff working in the corporate offices of the Mills is also staff of the parent body. If the mill is incurring losses the impact has to be on everyone connected with the mill, in whatever capacity. You cannot have double standards. When you give revised pay scales to office staff is there no financial burden. ?
In view of the fact that the nature of duties of the staff in the two categories has been found to be not at par, parity in pay scales may not be possible. Yet there can be no case for total denial of revision of pay to the staff/sub staff working in the mills.
Discrimination between the two categories of staff cannot be justified on the basis of applicability of the CDE pattern and in I.D.A. Pattern to the respective categories of staff. The IDA pattern cannot be taken to debar any revision of pay scales. The Central Government has to act as a model employer and such spacious pleas on its part are highly improper and unjustified.
In our view, a case for relief to the staff/sub staff working in this Mills is definitely made out. The workers deserve some relief though not parity of pay scales with staff/sub-staff working in corporate offices, but certainly on account of revision of pay scales increases of D.A. or emoluments from time to time as and when fell due during period of nearly three decades since when no revision of their pay scale has been made.
Relief to what extent is the next question ? Nothing has been placed before us not has been brought to our notice which may enable us to spell out the extent of relief. Even on behalf of the workers the emphasis has been on the fact that they are entitled to revision of pay scales as in the case of staff in the headquarters or corporate office. Nothing more has been urged. Even otherwise we are ill-equipped to work out the extent of relief which can be granted to the workers in the mills. Therefore, we direct the Central Government to take appropriate steps which if so required may include appointment of an expert to work out the extent of relief which ought to be granted to the workers in the mills. Some consideration may be had about the financial constraints, if any, but it cannot be to the extent of virtual denial of any benefit. Before taking a final decision in the matter, an opportunity of hearing be allowed to the management as well as to the workers to enable them to place their respective stands before the decision making authority. The decision should be taken four months from the date of this judgment and the same should be implemented within two months thereafter.
The learned counsel for the Union of India relied on a recent judgment of this Court in A.K.Bindal and another Vs. Union of India [(2003) 5 SCC 163] in support of his contention that pay revision should not be allowed. This was a case of public sector company employees seeking revision of their pay scales. It was held that employees could not claim such a right and such additional financial burden could not be placed on the Government in the absence of material placed before Court justifying the same. This case pertains to public sector undertaking namely Fertilizer Corporation of India. This case is not attracted in the facts of the present case. First, here the Government has a statutory liability for the wages, salaries and dues of the workers. Second, pay revision was being allowed in case of one category of workers within the same organization, while it was being denied to another category of workers, giving rise to discrimination. Therefore, Bindal's case has no relevance so far as the present case is concerned.
So far as argument regarding no relief being admissible to the workers in the Mills in view of rehabilitation schemes being worked out before the BIFR, we have to note that the proceedings have been pending since 1993, i.e. for more than ten years. The management was all along fully aware of the demand of the workers of the Mills in this behalf. Their cases have been pending in courts since much before the rehabilitation schemes were conceived of how long shall the concerned workers be continued to be denied their legitimate claims ? In the various deliberations with the workers it has been noted that the rehabilitation schemes are independent of any orders that may be passed by this Court. Therefore, pendency of the rehabilitation schemes before the BIFR is not a sufficient ground for us to deny relief to the staff/sub staff working in the mills. As per the provisions of section 5 (2) (o) of the Sick Textile Undertakings (Nationalistation) Act, 1974, the wages, salaries and other dues of the employees of the sick textile undertakings after the takeover of their managements by the Central Government are the responsibility of the Central Government. The Central Government has failed to discharge it responsibility for all these years by raising such specious pleas. The Central Government has to discharge its responsibility de hors the BIFR schemes. The argument therefore, is rejected.
The appeal as well as the various writ petitions and transfer petitions are disposed of in above terms."
We have noted the above final decision of the Apex Court hereinabove as we find that the dispute raised by the respondent petitioners was of a similar nature but the said decision has been rendered by the Apex Court after the judgment impugned which was delivered on 26.09.2001 and during the pendency of these appeals.
The learned Single Judge in the impugned judgment after having noted the issues raised and the stand of the appellants came to the conclusion that the appellant had through their agents, namely, their Managers accepted the settlement for extending the benefit of revision of pay scale and wages in the document dated 04.12.1992 duly signed by them. It has been held that they were the Managers under the standing orders of the respective mills and the document was endorsed by the General Managers of the Elgin Mills and Cawnpur Woolen Mill. The learned Single Judge also noted the argument of the appellants and held that the appellants were trying to wriggle out of their assurance that had led to the withdrawal of the writ petition before the Apex Court and which was a settlement and agreement complete in all respects.
On the issue of the settlement having been executed in accordance with Rule 58 of The Industrial Disputes Act,(Central) Rules 1957 the learned Single Judge held that since in the present case a copy of the said document was sent to the Deputy Labour Commissioner and also Secretary to the Government of India consequently there was no perceptible breach of Rule 58 of the 1957 Rules. The learned Single Judge further opined that it was on the assurance of the appellants that the respondent petitioners had withdrawn their writ petitions before the Apex Court which had a binding effect and therefore the appellant was trying to play fraud on the proceedings of the Apex Court. The learned Single Judge held that the Hon'ble Supreme Court had not decided any issue but only referred to the settlement. The representatives of the respondent petitioners Union were led to believe that their grievances would be redressed accordingly. It was therefore found that the appellants could not resile back by raising any misconceived plea and therefore a mandamus was finally issued to implement the document dated 04.12.1992.
The appellants had resisted the claim of the respondent petitioners tooth and nail before the learned Single Judge contending that the document dated 04.12.1992 is only a proposal that was agreed upon to be considered by the higher authorities and was subject to decision by the Competent Authority. The management has maintained in these appeals as well that it was no settlement at all and was a proposal for consideration without any final decision having been taken by the Chairman-cum-Managing Director who is the Competent Authority. On the other hand, after an interim mandamus was issued by the High Court to decide the matter, the Chairman-cum-Managing Director in no uncertain terms intimated to the Deputy Labour Commissioner, Kanpur Region, Kanpur and brought the same on record through the counter affidavit to the notice of the respondent petitioners as well that it was not possible to extend the benefits that were proposed under the said settlement for the reasons recorded therein. The management contends that these communications declining to grant any such relief have not been challenged before the learned Single Judge and in the absence of any such challenge being raised the relief of mandamus could not have been granted by the learned Single Judge without quashing the said communication.
The appellant in both the appeals contended that they have never resiled from anything as there was no final acceptance either by the Central Government or by the management.
Apart from this in the rejoinder affidavit which has been filed in the present appeals by the appellant they have further come up with a case in paragraph no.14 thereof that the respondent petitioners and all the employees (except 46) have taken retirement under the Voluntary Separation Scheme which stipulates that those who have opted for the said scheme will not stake any claim whatsoever after accepting the retirement under the said scheme before any Forum at any time upon having accepted the money offered to them. In such circumstances the respondent petitioners as on date are not entitled to enforce the revision of pay scale under the alleged proposal dated 04.12.1992 as they have opted for retirement benefits without any further demand.
Thus the contention on behalf of the appellant is that firstly there was no settlement either outside Court or otherwise as defined under Section 2 (p) of The Industrial Disputes Act, 1947. The document dated 04.12.1992 is not a settlement as it has not been processed or accepted in terms of Rule 58 of The Industrial Disputes Act (Central) Rules, 1957. The finding recorded by the learned Single Judge that Form "H" presupposes a settlement and that it was a settlement, is erroneous as wrong facts have been assumed and an incorrect law has been applied. Thus factually and legally the learned Single Judge committed an error and proceeded to issue the mandamus on erroneous assumptions of fact and law. Additionally it is urged that no challenge has been raised to the rejection of the request of the respondent petitioners after the filing of the writ petitions as noted above and thirdly once the Workmen have accepted the retirement benefits under the Voluntary Separation Scheme with a clear stipulation that they will have no claim whatsoever in future, then they can not now support the impugned judgment or stake any claim in pursuance thereof.
There is another intervening fact which deserves to be noticed. The present appeals were entertained and interim protection was granted to the appellants but they came to be dismissed for want of prosecution on 14.05.2014. A restoration application was filed within time supported by an affidavit which remained pending for the past four years during which period a contempt petition was filed being Contempt Petition No.1736 of 2015 in which the concerned Secretary, Ministry of Textile Union of India filed a compliance affidavit and in order to obey the judgment of the learned Single Judge released an amount of Rs.12 crores for the said purpose. However, it appears that since the appeal had been dismissed in default by a Bench, of which one of us (Hon'ble V.K.Birla, J.) was a Member, the restoration application was directed to come up before a Bench of which His Lordship was a Member inasmuch as the other Member of the Bench had already been elevated as Chief Justice of the Rajasthan High Court and who had subsequently retired. Consequently, the restoration application was listed before this Bench on 27.07.2018 and the appeals were restored to its original numbers after recalling the order dated 14.05.2014. The arguments were also advanced on merits and therefore the matter was placed before Hon'ble The Chief Justice for appropriate orders as a result whereof a nomination order was passed by Hon'ble The Chief Justice on 03.08.2018 for the matter to be heard by this Bench. This is how the matter was finally heard by us and judgment was reserved on 14.09.2018.
We have heard Sri Shashi Nandan, learned Senior Counsel, along with the Sri Sanjay Kumar Om, learned counsel for the appellant, Sri Gaya Prasad Singh, learned counsel appearing for the Union of India and Sri Santosh Kumar Singh, learned counsel for the respondent petitioners.
Sri Shashi Nandan, learned Senior Counsel has urged that the learned Single Judge without considering the issue in correct perspective has issued a mandamus which was impermissible in law as neither there was a settlement nor the settlement was part of the order of the Apex Court directing it to be enforced. The writ petitions on behalf of the Workmen were withdrawn before the Apex Court on their own voluntary understanding of the document dated 04.12.1992 as a settlement. The counsel representing the management or the Government of India had nowhere conceded to any such settlement even if they were present when the writ petitions were withdrawn. It is in this background that the Chairman-cum-Managing Director after the Central Government had declined to give any relief communicated the same to the Deputy Labour Commissioner and also brought the communication on record before the learned Single Judge that it was not possible to extend the said claim of pay scale revision and other wages which decision was never challenged before the learned Single Judge. According to him firstly, there is no settlement and the document dated 04.12.1992 is only a proposal, secondly the settlement was not processed as per Rule 58 of 1957 Rules and thirdly, the mentioning of the word "settlement" about the document dated 04.12.1992 in the order of withdrawal of the Apex Court does not amount to accepting the settlement and enforcing it or its acceptance by the appellant.
In addition thereto the subsequent retirement sought under the Voluntary Separation Scheme which remain undisputed, the respondent petitioners can not enforce their rights against the appellant.
Coming to the release of a sum of Rs.12 crores under the threat of contempt Sri Shashi Nandan submits that so far as the appellants are concerned no liability can be fixed on the appellants but if the Central Government on its own and voluntarily extends any such benefits the appellants can not have any possible objection to the same. He however, submits that what more has to be taken notice of is that with the proceedings of winding up, the Official Liquidator has steps into the shoes of the management and there are other litigations arising therefrom as well as claims in different Forums including that before the Learned Company Judge, therefore also enforcement of this alleged settlement may come in conflict with any orders passed by any other Forum directly affecting the payments in question. He therefore submits that at this stage apart from the impugned judgment being unsustainable, the subsequent events should also be noticed before arriving at any conclusion.
Replying to the said submissions Sri Santosh Kumar Singh, learned counsel for the Union and the Workmen has invited the attention of the Court to the counter affidavit filed in this appeal to urge that the document was a settlement and for this he has also invited the attention of the Court to another document dated 07.02.1997 that has been filed as annexure CA-9 to the counter affidavit to urge that the same demonstrates that all the officials of the highest rank were parties to the settlement and had reiterated the stand accepting the earlier settlement. This was a document making recommendations and was a working group set-up for the consideration of the claim of the Workmen.
We are extracting that part of the document on which reliance has been placed by Sri Santosh Kumar Singh :
"In view of the above, the Working Group recommends the payment of ad hoc increase as stated in earlier paragraph, which will be adjustable against the benefits of revised pay scales as and when approved by the Government. Working Group also recommends that these proposed increases should be effective from 1st January, 1991.
The matter pending with the Hon'ble Supreme Court in regard to the revision of pay scales, which has been referred to the National Industrial Tribunal, Bombay for fact findings was also discussed amongst the members of the Working Group. It was agreed that after approval of the revision of pay scales by the Government of India, Supervisors and above, who are covered under the aforementioned petition would withdraw the petition, or forego benefits of the processed revision."
Anand Prakash Director (Finance) Sd/--
V.N.Kuril Director (Technical) Sd/--
G.S.Bajpai Secretary CLO Sd/--
He further submits that the acceptance of Voluntary Separation Scheme later on does not amount to any waiver of the benefits arising out of the orders of the Supreme Court and the settlement which forms part of it. He submits that the same being an emolument arising out of a litigation can not be said to have been waived and it is for this reason that the learned Single Judge in the contempt jurisdiction had called upon the Government to undertake steps accordingly, in compliance whereof a sum of Rs.12 crores have already been deposited. The said amount has however not been disbursed as yet on account of the pendency of these appeals. He therefore contends that the judgment of the learned Single Judge is sustainable on all counts and the subsequent events nowhere dilute the impact of the said judgment. He submits that in addition thereto the principle laid down in the judgment of the Apex Court in the case of Chairman-cum-Managing Director, National Textile Corporation Limited (Supra) the respondent petitioners are entitled for the reliefs that have been extended by the learned Single Judge and therefore the appeals deserve to be dismissed.
Learned counsel for the Union of India submits that the Government of India is the ultimate financial authority to extend any such benefits but the learned Single Judge has issued the direction on the strength of the interpretation of the order of the Apex Court. In the given circumstances the Government of India will abide by any ultimate decision to be finally taken or adjudicated by this Court or by any other competent Forum or Higher Forum.
We have considered the submissions raised and the first issue to be determined is as to whether the document dated 04.12.1992 read with order of the Apex Court dated 11.03.1997 can be construed as a settlement having been acknowledged by the Apex Court which is bound to be implemented.
It is no longer in dispute that under The Industrial Disputes Act, 1947 a settlement can be arrived at otherwise than in the course of conciliation proceedings. This statutory incorporation under the 1947 Act therefore became inclusive and an extended meaning was given to the word "settlement". The purpose behind incorporation of such statutory provisions was to expand the area of agreement and reduce the field of conflict for guaranteeing industrial peace. However, such a settlement was to be enforced under the Act and one of the grounds taken in the appeal is about alternative remedy being available. We may at the outset clarify that at this stage of proceedings after the litigation has almost taken twenty years the question of relegating the parties to the Labour Court or to The Industrial Tribunal does not arise. In this background we now proceed to examine the document dated 04.12.1992.
A perusal thereof does indicate that in order to reconcile the ongoing dispute pertaining to revision of pay scale etc. a Committee was constituted and the Committee, after consulting the workmen and after having a dialogue with them, submitted a report that there were ingredients available for consideration of the revision of pay scale for which reasons were given in the said report and accordingly by a consensus, made a proposal indicating the extent to which the pay scales could be revised. However, while tendering the said proposal it categorically recited that this would be subject to approval by the Bureau of Public Enterprises. It further recommends that till such approval arrives some internal relief may be extended which can be adjusted at the time of final relief. On the issue of interim relief the matter was left to the decision of the Competent Authority.
There is nothing on record brought by the Workmen or otherwise that there is any approval of the Bureau of Public Enterprises to the said proposal. To the contrary the document of 1992 was communicated to the Government of India and the Government of India vide its communication dated 16.05.1994 declined to accept the same and further directed the British India Corporation Limited not to incur any financial liability without the prior approval of the BIFR as the same was engaging the attention of the authorities as well as the Court in this respect. The aforesaid fact was on record and which led to the communication dated 08.11.1997 by the Chairman-cum-Managing Director after an interim mandamus was issued, but the learned Single Judge has sidelined the said aspect by heavily relying upon the order of the Supreme Court dated 11.03.1997 where the word settlement has been used and has held it to be binding. It is here that we are unable to subscribe to the view of the learned Single Judge inasmuch as the withdrawal of a claim unilaterally may amount to a waiver and abandonment of pursuing the matter before a Court of law.
In this regard a relevant legal aspect deserves notice. The document dated 04.12.1992 is no doubt an expression of interest indicating a negotiating step to arrive at a final settlement. The management has made an offer of revision of pay-scale. The document dated 04.12.1992 has not been withdrawn but the disinclination to accept it by the appellants as a final settlement is because of absence of approval. The withdrawal of the writ petition before the Apex court has to be understood in this background. There is a bilateral desire to negotiate and settle the dispute that is in the document dated 04.12.1992. The respondent petitioners in this backdrop chose to withdraw the petition in the hope that there would not be any further impediment in achieving their claim as they were satisfied with the negotiations. The appellants have not denied the said document. It is also apt to remember that this negotiation was outside Court when the petition was pending before the Court. It was also not a conciliation before The Industrial Tribunal or Labour Court nor in the wake of any settlement in the proceedings of a Tribunal. The document dated 04.12.1992 was drawn up during negotiations when writ petition was pending before the Apex court. The document was therefore made part of the record in the writ petition before the Apex court whereafter the petition was withdrawn in the light thereof.
It is apt to remember that a compromise can be arrived at even in a writ petition as has been held by the Apex court in the case of Commissioner of Endowments and others Vs. Vtittal Rao and others, 2005 (4) SCC, 120 (Paragraph nos.16 to 20) as followed by a Division Bench in the case of Nand Kishore Gaur Vs. Regional Dy. Director of Education, Meerut and others, 2017(11) ADJ, 606 (Paragraph nos.61 to 66 and 72). A learned Single Judge of this Court has following other judgments come to the same conclusion in the case of Sriram Vs. Girdhari Lal and others, 1982 AWC, 865 (Paragrph nos.6, 7 and 14). In Gaur's case (Supra) the Court was faced with a similar situation where on the basis of a compromise entered outside Court in a writ petition and on a joint affidavit filed by the parties, the same was dismissed as infructuous. When one of the parties resiled back, a fresh petition was filed by the affected party and a learned Single Judge treated the dismissal of the earlier petition as a case of abandonment of the claim altogether and dismissed the fresh petition. The matter was taken up in an intra-court appeal and it was ruled that the negotiation being bilateral, the dismissal of the earlier petition as infructuous will not amount to abandonment of the original claim as the compromise had not been denied and was rather being not implemented for one reason or the other. In that situation the judgment of the learned Single Judge was reversed with a direction to the competent authority to consider the claim of the petitioners.
The situation here is no less similar. The withdrawal of the petition was because of the document dated 04.12.1992 that in turn was subject to approval. Accordingly the claim had not been abandoned but was being pursued in the hope of its implementation. Thus withdrawal of the petition before the Supreme Court under the order dated 11.03.1997 was with a view to pursue the implementation of the negotiations and not to abandon it.
The appellants even before this Court have taken a stand on the absence of approval and it has been urged that any financial liability if accepted by the Central Government would not be a matter of objection by the appellants. The claim of the workmen respondent petitioners therefore cannot be said to have faded away so as to be beyond consideration.
The background in which the withdrawal was made was the document dated 04.12.1992. In the strict sense of the term as defined under Section 2 (p) of 1947 Act read with Rule 58 of the 1957 Rules there does not appear to be statutory compliance so as to record the said document as a settlement. The Central Government even though having been communicated has nowhere recorded its acceptance which was necessary in the background that the funds had to be provided by the Central Government. In the given circumstances there was no concluded contract as the document dated 04.12.1992 was an agreed proposal but not a formal settlement as it was contingent on the approval of the Bureau of Public Enterprises and also by the Central Government. The approval by the Central Government was clearly stipulated in the recommendation dated 07.02.1997 relied on by the respondent petitioners themselves. In such circumstances it can not be said that the appellants or the Central Government had made any commitment on 11.03.1997 before the Apex Court that can be held to have been dishonoured by them. To the contrary the appellants were helpless on account of the refusal of the Central Government to accept any such proposal. The benefits offered under the document dated 04.12.1992 was a proposal of collective bargaining but the said arrangement did not result in any final acceptance terminating the dispute. The document was contingent on approval and as noted above. Neither the Central Government, nor the Bureau of Public Enterprises nor the Chairman-cum-Managing Director of British India Corporation Limited gave their approval or acceptance to the said proposal.
In our opinion unless the approval came into existence no finality could be attached to the proposal dated 04.12.1992. The word approval came to be recently analyzed by a Division Bench of this Court in Special Appeal No.893 of 2018 Committee of Management Kabir Balika Vidyalaya And Another Vs. State Of U.P. And 3 Ors decieded on 18.09.2018 in the context of the exercise of a statutory power conferred on an authority to approve a decision of the management where the Division Bench observed as follows:
".........To begin with, when one approves another's action, this expression amounts to an approval. It is sanctioning approbation which is nothing else but attestation and confirmation. To approve means to ratify or to confirm or to sanction an act of another. It is an act of assent which corroborates through a decision in the affirmative. To approve is to pronounce and hold as correct an affirmation. Thus, the action taken by another becomes subject of approval by some other person or authority. The original action therefore if approved is confirmed."
Thus the action that had to follow after the proposal dated 04.12.1992 was necessarily the approval of the Bureau of Public Enterprises and the Central Government.
We may at this juncture extract a resume downloaded from the internet about the status of the Bureau of Public Enterprises. This Bureau was in existence but in May, 1990 it was made a full-fledged department which is evident from the information downloaded from the internet extracted hereinbelow :
Department of Public Enterprises (DPE) In their 52nd Report, the Estimates Committee of 3rd Lok Sabha (1962-67) stressed the need for setting up a centralized coordinating unit, which could also make continuous appraisal of the performance of public enterprises. This led to the setting up of the Bureau of Public Enterprises (BPE) in 1965 in the Ministry of Finance. Subsequently, as a result of the reorganization of the Ministries/Departments of the Union Government in September, 1985, BPE was made part of the Ministry of Industry. In May, 1990, BPE was made a full-fledged Department known as the Department of Public Enterprises (DPE). Presently, it is part of the Ministry of Heavy Industries & Public Enterprises.
The Department of Public Enterprises is the nodal department for all the Central Public Sector Enterprises (CPSEs) and formulates policy pertaining to CPSEs. It lays down, in particular, policy guidelines on performance improvement and evaluation, autonomy and financial delegation and personnel management in CPSEs. It furthermore collects and maintains information in the form of a Public Enterprises Survey on several areas in respect of CPSEs.
In fulfilling its role, the Department Coordinates with other Ministries, CPSEs and concerned organizations. As per the Allocation of Business Rules of the Government, the following subjects have been allocated to the DPE:
1. Residual work relating to erstwhile Bureau of Public Enterprises including Industrial Management Pool.
2. Coordination of matters of general policy affecting all Public Sector Enterprises.
3. Evaluation and monitoring the performance of Public Sector Enterprises, including the Memorandum of Understanding mechanism.
4. Matters relating to Permanent Machinery of Arbitration for the Public Sector Enterprises.
5. Counselling, training and rehabilitation of employees in Central Public Sector Undertakings under Voluntary Retirement Scheme.
6. Review of capital projects and expenditure in Central Public Sector Enterprises.
7. Measures aimed at improving performance of Central Public Sector Enterprises and other capacity building initiatives of Public Sector Enterprises.
8. Rendering advice relating to revival, restructuring or closure of Public Sector Enterprises including the mechanisms therefor.
9. Matters relating to Standing Conference of Public Enterprises.
10. Matters relating to International Center for Public Enterprises.
11. Categorization of Central Public Sector Enterprises including conferring 'Ratna' status."
A perusal of the said document would indicate that all matters of general policy including rehabilitation of employees under the Voluntary Separation Scheme and assessment followed by an advice for revival, restructuring or closure of enterprises and the review of capital project and expenditure are all within the realm of the said department. In order to receive any expert advice before a final decision was taken, it was agreed upon that the approval of the Bureau of Public Enterprises was to be obtained. The approval of the Central Government as it was the fund raiser was also necessary and therefore the document dated 04.12.1992 was not the full and final settlement as is sought to be canvassed on behalf of the respondent petitioners. The respondent petitioners have adopted a voluntary interpretation of the order of the Supreme Court dated 11.03.1997 on their self understanding which aspect has not been considered by the learned Single Judge.
The learned Single Judge was therefore in our opinion in error in treating the said document to be a final settlement but the question is as to whether the order of the Supreme Court recording the word a settlement can be construed to be an order that binds the parties to any such settlement. It is here that we find that if the Central Government had already declined to accept the said document in the year 1994 itself as noted above then it was the duty of the parties to have brought the said fact to the notice of the Supreme Court about the proposal having been declined by the Central Government. The second aspect of the matter is that on 07.02.1997 a recommendation was submitted by a working group on which reliance has been placed by the Workmen themselves and has been extracted hereinabove. The said document also demonstrates that any such recommendation would be subject to approval by the Central Government. It also refers to the fact that after such approval, the employees of the said category would withdraw the writ petition in order to avail the benefits of any such proposed revision. The said document therefore also does not acknowledge the document dated 04.12.1992 as a final settlement but it is a proposal subject to the approval of the Central Government. It is not understood as to why these facts were not brought to the notice of the Apex Court when the matter was taken up permitting the withdrawal of the writ petition on 11.03.1997.
Having said so we further find that the learned Single Judge has treated the communications made by the appellant to be virtually a dishonest act on the part of the appellant in resiling back from the settlement between the parties. This finding is also not sustainable as in view of the facts that have been noted above the appellant even though were trying to help the Workmen through a proposal, there was no possible way out for them in the absence of approval or available funds and consequently there was no default on the part of the appellant, British India Corporation Limited.
The judgments which have been relied on by the learned Single Judge to support the conclusion therefore do not appear to apply squarely on the facts of the present case in the background aforesaid. It is true that there is a laudable object behind the provisions of the Industrial Disputes Act in order to end any exploitation or inequality in matters of wages but at the same time the resources and the legal method applicable can not be ignored. The fact of the units having been declared sick and subjected to rehabilitation proceedings, the company having undergone liquidation and winding up and the employees having taken benefits under the Voluntary Separation Scheme can not be ignored but at the same time the Central Government can not forego its liabilities on the pretext of paucity of funds or financial constraints after the pronouncement of the Apex Court in the case of Chairman-cum-Managing Director, National Textile Corporation Limited (Supra). It is in this background that we have now to proceed to see as to what is the surviving interest of the respondent petitioners and the obligations of the appellant as well as the Government of India.
The management in principle appears to have accepted the claim of the respondent petitioners to the extent as indicated in the document dated 04.12.1992 and even thereafter. The recommendations of the Deputy Labour Commissioner, Kanpur Nagar were also there but the Central Government did not undertake any such exercise and has only deposited a sum of Rs.12 crores when the contempt proceedings were initiated. It has therefore to be seen that in the above background as to whether a possible resolution of the dispute can be brought about or not.
As having found above the document dated 04.12.1992 was made the basis of the dismissal of the writ petition before the Apex Court and the order of the Apex Court appears to be that it was given to understand voluntarily by the respondent petitioners that a settlement had been arrived at. The Apex Court did not issue any direction for implementation of the document dated 04.12.1992. As noted above it was not a complete settlement concluded by the approval of the authorities as envisaged in the document itself. Even assuming that the document was a complete contract between the parties, then too even it was subject to the approval by the Bureau of Public Enterprises and according to the document dated 07.02.1997 it was subject to the approval of the Government of India. The Supreme Court therefore will be presumed to have mentioned the word "settlement" in the background aforesaid when the order was passed on 11.03.1997 and the writ petitions were dismissed as withdrawn. The rights if any therefore that flow out of the said order were subject to approval by the authorities referred to in the document itself. The said stage had not arrived as the Government had already declined to entertain the request and the Chairman-cum-Managing Director even after the filing of the writ petitions that communicated the disinclination of the Government in accepting the said proposal. The order of the Supreme Court dated 11.03.1997 may therefore not amount to a direction for enforcement of a settlement bereft of the aforesaid conditions. The learned Single Judge in the impugned judgment has read an intention of the Supreme Court which the learned Single Judge thought to be a direction arising out of the document dated 04.12.1992. The order of the Supreme Court is not an adjudication nor is there any direction for any payment under the revised pay scale and other emoluments as per the document dated 04.12.1992. The High Court has to interpret the law and it may not be possible for it to foster its own interpretation of a judgment of the Supreme Court. The order of the Supreme Court therefore has to be read as it stands but the learned Single Judge appears to have travelled beyond the same and has drawn an inference based on the possible intention of the order of the Supreme Court. In our opinion the Central Government had to take a final decision or call for which a direction could have been issued by the learned Single Judge instead of issuing a final mandamus. In our opinion that could have been the correct course or if the workmen were under some apprehension about the impact of the order of the Supreme Court, they could have moved an application for any such clarification but instead they filed the writ petitions giving rise to the present appeals.
It appears that since the writ petition before the Apex Court was dismissed as withdrawn, therefore the Workmen opted for filing of the writ petitions before this Court on the strength of the order of the Supreme Court dated 11.03.1997.
There are two aspects which have now to be considered as subsequent events have intervened, the first is the final judgment of the Apex Court in the case of Chairman-cum-Managing Director, National Textile Corporation Limited (Supra) which has acknowledged the rights of the Workmen to seek pay scale revision even though the earlier part of the claim had been declined, the second issue is with regard to any subsequent Voluntary Relinquishment of the claims having been made by accepting voluntary retirement and the third is any pending litigation or impediment with regard to the status of the company either in the winding up proceedings or any other Forum. Lastly the implication arising of the deposit of Rs.12 crores by the Central Government in the purported compliance of the notice issued in the contempt petition.
Having recorded our findings hereinabove we are of the opinion that the judgment of the learned Single Judge whereby it grants a final relief of extending the benefit of pay scale revision can not be sustained for all the reasons recorded hereinabove. The same therefore deserves to be set aside but at the same time the respondent petitioners can not be entirely non-suited keeping in view the ratio of the final judgment of the Apex Court in the case of Chairman-cum-Managing Director, National Textile Corporation Limited (Supra). This we say because it does appear that the Workmen withdrew their writ petitions before the Apex Court on the proposal of the settlement which was obviously subject to approval by the Bureau of Public Enterprises and the Central Government as found by us hereinabove. In such circumstances the writ petition ought to have been disposed of with a direction to the Central Government for such consideration and granting approval or otherwise which can now also be done in view of the subsequent events as noted above. The Central Government itself has now deposited a sum of Rs.12 crores pursuant to the proceedings under the Contempt of Courts Act.
We therefore in above circumstances set aside the impugned judgment dated 26.09.2001 but at the same time dispose of the writ petitions as well as these appeals with a direction to the Central Government, Ministry of Textiles through its concerned Secretary to consider the said proposal of the appellant now in the light of our observations above and the judgment of the Apex Court in the case of Chairman-cum-Managing Director, National Textile Corporation Limited (Supra) and also the fact that a sum of Rs.12 crores has already been deposited by it for the satisfaction of the demand of the respondent petitioners. We further direct that the amount of Rs.12 crores which have been released by the Central Government shall be held intrust by the appellants and shall not be utilized for any other purpose except for the disbursal of the amount if the respondent petitioners are ultimately found to be entitled to receive the same.
The concerned Secretary of the Ministry of Textiles, Government of India shall therefore now proceed to pass an appropriate order after taking a composite view of all the facts and observations referred to hereinabove including the obligations, rights and liabilities of either of the parties subject to any other further orders having been passed by a competent Forum by a reasoned and speaking order preferably within three months of the date of production of a certified copy of this order.
Both the appeals are disposed of accordingly.
Order Date :- 27.09.2018 R./