JUDGMENT Vineet Saran, J.
1. This writ petition has been filed by the employer-Hindustan Aeronautics Limited challenging the award dated 24.12.1987 passed by the Industrial Tribunal, Agra, whereby the reference made by the State Government has been decided in favour of the employees and the claim of the concerned workmen has been allowed after holding that they would be entitled to house rent allowance (HRA) at the rate of 25% of their salary payable with effect from the date of reference.
2. The petitioner-company Hindustan Aeronautics Limited is a company registered under the Indian Companies Act with its head office at Bangalore. Besides several other places all over India, it has an Overhaul Division at Agra. The present petition relates to the workmen of the petitioner company at Agra. The undisputed facts are that prior to 1983, all the employees of the petitioner company posted at its offices all over India were paid house rent allowance at the fixed rate of 10% of their salary. On 7.12.1983, a settlement is alleged to have been arrived at between the workmen and management of Hindustan Aeronautics Limited, Bangalore Complex, Bangalore. A copy of the memorandum of settlement has been filed as Annexure-1 to the writ petition and a perusal of the same shows that it was a settlement arrived at "Under Sections 2 (p) and 18 (1) of the Industrial Disputes. Act read with Rule 59 (4) of the Industrial Disputes Act (Karnataka) of 1957, between the workmen and management of Hindustan Aeronautics Limited. Bangalore Complex, Bangalore." By the aforesaid settlement dated 7.12.1983, besides several other issues, the issue relating to house rent allowance was dealt with at Item No. 10 wherein it was provided that with effect from 1.1.1983, the house rent allowance shall be payable at the rates indicated in the settlement which were said to be based on the Government classification of cities. The city of Bangalore was classified as 'A class' city and 25% HRA was to be paid to the Employees of Bangalore ; whereas Agra fell in the category of 'B Class' city and only 15% HRA was to be paid to the workmen of Agra. It has not been disputed by the petitioner that the Union of Workers of Agra Division of the petitioner company was not involved in the negotiation for arriving at the settlement nor were they party to the said settlement.
3. Being aggrieved by the discrimination in payment of HRA, the workmen through Hindustan Aeronautics Employees Union, Agra (respondent No. 2) (hereinafter referred to as the Agra Union) approached the State Government under- Section 4K of the U. P. Industrial Disputes Act, 1947 and in turn the State Government made a reference of the dispute to the Industrial Tribunal (IV), U. P., Agra, for adjudication. The terms of reference were as under :
"Whether the employees of the concern are entitled to house rent allowance at the rate of 25% like other employees of the Head Office, Bangalore? If so, from which date and with what other details?"
4. After the reference was made to the Tribunal, the respondent No. 2, Hindustan Aeronautics Employees Union, Agra filed the written statement alleging that they had always been discriminated and unfair labour practices were being adopted by the petitioner company ; that the emoluments of workmen varied on the basis of the place of recruitment instead of place of posting, skill and personal qualification or technical know-how required for a particular job ; that even those who were born and brought up at Agra but recruited through Bangalore office and working at Agra, were given higher allowances as compared to those recruited at Agra and working there. In paragraph 6 of the written statement it was alleged that prior to 1983, they were being paid equal HRA but thereafter, under the garb of an alleged settlement, discrimination was made only on the basis of place of recruitment, even though both the classes of workmen were working at Agra. It was also stated that the alleged settlement was contrary to the Certified Standing Orders of the concern as well as in contravention of Section 9A of the Industrial Disputes Act and as such the alleged settlement was no settlement at all as defined Under Section 2 (p) of the said Act. In paragraphs 10, 11 and 12 of the said written statement, it was stated that the "employees have been denied equal house rent allowance of 25% which is being paid to Agra domiciled employees alleged to have been recruited through Bangalore office for a period ranging from 10 to 25 years with fictitious and perjured record of break of less than ten days". Specific names of over a dozen such persons were given in the written statement, who were recruited from Bangalore and were living and working at Agra for the last more than ten years and had even acquired movable and immovable properties at Agra and their children had got educated there and had no establishment at Bangalore but they were still getting 25% HRA which amounted to gross illegality and discrimination against the employees recruited and working at Agra who were being paid only 15% HRA.
5. In its written statement, the petitioner company stated that it has office all over India and the memorandum of settlement arrived with Hindustan Aeronautics Employees Association, (HAEA) Bangalore, was binding on all the workmen including those at Agra ; that the classification was based on Government classification of cities and as such the difference in the rates of HRA was justified. In its rejoinder statement, the Company has stated that the Bangalore complex has only one recognised Union, i.e., HAEA, Bangalore and the terms and conditions of service of all employees were settled through this Union ; that if employees were recruited at Bangalore and were sent on assignment to Agra or any other place, they continued to get the HRA of Bangalore unless they were transferred to such place, in which case the HRA applicable to the place to which they were transferred was payable. Distinction between transfer and assignment of job was carved out by the company in its rejoinder statement. It was further alleged that the settlement dated 7.12.1983 was a settlement within the meaning of Section 2 (p) of the Industrial Disputes Act and the same could not be a matter of challenge before the Tribunal. In reply to the averments made in paragraphs 10, 11 and 12 of the written statement of the workmen, it was stated that "the workmen have no right to claim same rate of HRA as is being paid to persons of Bangalore who have been assigned jobs at Agra. These persons were getting the HRA of Bangalore. If at all, the workmen can claim to decrease the rate of HRA to these persons to the extent of HRA as applicable to city of Agra. They have no right to claim HRA of city of Bangalore." Regarding the specific persons named by the Agra Union, who were getting the benefit of HRA of Bangalore even though working at Agra for even ten years or more, it was stated that "none of these persons have been transferred to Agra by the company but they were assigned jobs of outstation from Bangalore". Although, it was denied that such persons worked continuously at Agra for over ten years but no details of specific postings of persons named by the workmen was given by the petitioner company in its reply and it was only stated that "such persons were called back at Bangalore after a specified period and they were again sent to Agra". It was further stated that since Bangalore was a much costlier city, the HRA for Bangalore city could not be equated with that for Agra city.
6. In support of their case, the respondent No. 2 Hindustan Aeronautics Employees Union, Agra, examined its workman Sri Ravindra Singh who corroborated the case as set out In the written statement and also specified that the Overhaul unit at Agra had 300 employees.
7. The employer company examined Sri V. K. Narain Swami Special Duty Officer posted at Agra Division as their witness. The said witness reiterated the case set out by the employer in its written statement and rejoinder-statement and made an effort to explain that there was distinction between transfer and assignment and accepted that those employees who were on assignment at Agra but were recruited at Bangalore were getting the HRA at the rate of 25% of their salary in contrast to those who were recruited and also working at Agra who were getting 15% HRA. He further accepted that the said variation was on account of the settlement of 1983. He also stated that respondent No. 2, Hindustan Aeronautics Employees Union, Agra was not a signatory to the settlement but said that out of 350 employees in Agra in the year 1983, 60 employees were members of the Union (HAEA) which signed the agreement at Bangalore. He accepted that no proof had been filed to show that the company had sent any copy of the alleged settlement of 1983 to the Labour Commissioner, U.P. or the Conciliation Officer at Agra. He further conceded that at the time when the settlement was made, there were other Unions of the employees of the petitioner company but the settlement was arrived at by the management with the Employees Union of the Bangalore complex only. The said witness had accepted that in the Standing Orders, there was no provision for transfer or assignment and that the Agra detachment base was a part of Bangalore office and the conditions of service of all the employees whether at Bangalore, Agra or any other place were the same. It was also accepted by the said witness that the assignment was extendable up to five years only ; although no proof was shown from the record that the persons as named by the workmen did not remain on assignment at Agra for ten years or even more.
8. Considering the written statements filed by the parties as well as the statements of the witnesses and also the documents filed, the Industrial Tribunal, vide Its award dated 24.12.1987, held that house rent allowance being a condition of service, any change in that condition of service of the employees should have been notified to the workmen Under Section 9A of the Industrial Disputes Act, 1947 and such discrimination amongst the employees recruited at Bangalore and at Agra, even though both working at Agra, was purely arbitrary and unfair. Thus, the Tribunal held that the concerned workmen were entitled to house rent allowance at the rate of 25% of their salary which was being paid to those recruited at Bangalore and working at Agra and was made payable to them with effect from 21.4.1986, i.e., the date of the reference.
9. Challenging the aforesaid award, the Hindustan Aeronautics Limited, has filed this writ petition. In the writ petition, it has been stated that the majority of the manpower is supplied to Overhaul Division, Agra from Hindustan Aeronautics Limited, Overhaul Division, Bangalore, who are sent on assignment and after completion of their assignment, they return back to Bangalore and thus there are two sets (classes) of workmen, namely, one locally recruited employees at Agra and the other, which is the majority of workers, transported by way of assignment from Bangalore to Agra. It has been further stated that the classification with regard to house rent allowance made in the settlement dated 7.12.1983 was a reasonable classification based on the Government classification of cities and the same could not be said to be arbitrary ; that the memorandum of settlement dated 7.12.1983 was a valid and legal settlement arrived at between the employer and employees and was binding on all the employees of the company posted anywhere in the country and as such the award was bad and liable to be set aside.
10. At the stage of hearing of this case, on 10.9.2002, an application for amendment was filed with a prayer to add a ground, which is quoted below :
"Because the reference made by the State Government Under Section 4K of the U. P. Industrial Disputes Act is absolutely without Jurisdiction, inasmuch as, the . State Government is not an appropriate Government. In the instant case, only Central Government is an appropriate Government as such the reference so made by the State Government is wholly without jurisdiction and contrary to law declared by the Hon'ble Supreme Court."
11. As the learned counsel for the respondent Agra Union did not object to the said amendment, the application was allowed and the ground was permitted to be added.
12. I have heard Sri V. B. Singh, senior advocate and Sri Vijay Sinha, learned counsel appearing for the petitioner company as well as Sri A. S. Diwakar, learned counsel for the respondent employees Union at length and perused the record.
13. On the basis of the newly added ground Sri V. B. Singh raised an objection that the reference made by the State Government was itself bad and as such the award based on such reference could not be sustained. I shall consider this aspect of the case after dealing with the case on merits.
14. On merits of the case, learned counsel appearing for the petitioner accepted that prior to 1983, the HRA payable to all the employees posted at any of the Units of the company anywhere in India was at a flat rate of 10% of the salary. Thereafter, in terms of the settlement dated 7.12.1983 arrived at between the employer and the employees' union, the HRA was made payable at different rates based on the Government classification of cities, which was perfectly just and proper. It was submitted by the learned counsel that by the same agreement about two dozen other matters were also settled and the benefit of the same had been accepted by all the employees including those at Agra, and as such the answering respondents could not be permitted to accept the other ingredients of the settlement and refuse to accept the condition relating to HRA. It was also urged that the agreement had been made between the employer and the employees' Union which represented the majority of the workers of the company, which had about 18,000 workers employed all over the country, whereas the strength at Agra was of 150 workers (although accepted by the witnesses of the petitioner company to be 300), as such the settlement arrived at by the majority of the workers would be binding on the small minority also. The learned counsel then contended that the settlement had to be looked into as a whole and not in part and even if any particular set of workers were not party to the same, it would be binding on them also, specially when the same is based on a fair and just classification. Sri Singh stated that assuming that if the settlement was to be ignored, then the respondents workmen would be entitled to only 10% HRA which was being paid prior to 1983 and as such since, after the settlement, in any case they were being given a higher HRA of 15%, they cannot complain or challenge the same.
15. In support of his case learned counsel for the petitioner relied on the following decisions of the Apex Court :
(1) National Engineering Industries Ltd. v. State of Rajasthan, AIR 2000 SC 469 ;
(2) K.C.P. Limited v. Presiding Officer, (1996) 10 SCC 446 ;
(3) Herbertsons Ltd. v. Workmen, AIR 1977 SC 322 ; and (4) Tata Engineering and Locomotive Company Ltd, v. Workmen, AIR 1981 SC 2163.
16. He also relied on a decision of the Madras High Court rendered in Indian Overseas Bank Officers Union v. Indian Overseas Bank, 1994 (1) CLR 378.
17. Sri A. S. Diwakar, learned counsel appearing for the contesting Workers' Union submitted that the alleged settlement of 1983 was not a valid settlement as it did not comply with the conditions set out Under Section 2 (p) of the Industrial Disputes Act, 1947, as also Section 6B of the U. P. Industrial Disputes Act, 1947 ; that in any case the settlement could not be binding on the Agra Workers' Union as they were not party to the said agreement ; that since the variation in payment of HRA amounted to change in the conditions of service, the compliance of Section 9A read with 4th Schedule in the Industrial Disputes Act, 1947, was necessary ; and that unfair labour practices were being carried in favour of one set of workers over the other. Learned counsel has relied on the following decisions of the Apex Court in support of his case :
(1) Jhagrakhan Collieries (P.) Ltd. v. G. C. Agrawal, AIR 1975 SC 171 ;
(2) M/s. Tata Chemicals Ltd. v. Workmen, AIR 1978 SC 828 ;
(3) Indian Oxygen Ltd. v. Workmen, AIR 1979 SC 1196 ;
(4) General Manager, Security Paper Mill v. R. S. Sharma, AIR 1986 SC 954 ; and (5) M/s. Mackinnon Mackenzie and Co. Ltd. v. Audrey D'Costa, AIR 1978 SC 1281.
18. At the cost of repetition, I may set out relevant facts in brief which require consideration.
19. Admittedly all the employees of the petitioner company, irrespective of the place of their posting, were being paid same HRA of 10% prior to 1983. The settlement dated 7.12.1983, was arrived at between the workmen and management of Hindustan Aeronautics Limited, Bangalore Complex, Bangalore and the Agra Workers Union was not a party to the said agreement. The employees recruited and working at Agra were being paid 15% HRA whereas those employees who were recruited at Bangalore and working at Agra were being paid 25% HRA. From the record it is clear that such employees who were recruited at Bangalore and had been working at Agra for 10 years or even more had no establishment at Bangalore and their families and children were staying with them at Agra. In the backdrop of the aforesaid facts it has to be examined as to whether the petitioner company was justified in paying different HRA to its workmen working at Agra merely on the basis of the place of their recruitment. During the course of arguments Sri A. S. Diwakar, learned counsel for the respondent workers' union had submitted that there was no challenge to the settlement dated 7.12.1983 and the only question which was. referred to the Industrial Tribunal was with regard to the entitlement of the Agra Union workers to payment of 25% HRA like other employees. He further submitted that although the Tribunal had gone into the validity of the said settlement, it was not required to be done as the same was not under challenge. The only grievance of the Agra Workers Union is with regard to discrimination, which they were suffering at the hands of their employer in being paid lesser HRA, which amounted to unfair labour practice.
20. The Apex Court in Jhagrakhan Collieries case (supra) has held that an agreement shall be binding only on those who have signed it and it will not make out a case of acquiescence even though part of the said agreement has been accepted by those who have not signed it. This view has been followed by the Supreme Court In the cases of Tata Chemicals ; Indian Oxygen and Security Paper Mills (supra).
21. The Supreme Court in the case of Herbetsons Ltd. (supra) has held that if the settlement is disputed then reference has to be made regarding its genuineness and binding nature and It is only the Tribunal that, upon reference, can decide the issue. In the case of K. C. P. Ltd. (supra) the Apex Court has held that the settlement entered into between the Employer Trade Union otherwise than in conciliation proceedings would be binding even on dissenting members and in Tata Engineering and Locomotive case (supra) it has been held that where the settlement Under Section 18 (i) and 2 (p) of the Industrial Disputes Act has been arrived at by vast majority of workers, refusal by a small minority will not render the settlement unjust and unfair. The Madras High Court in the case of Indian Overseas Bank Officers' Union (supra) held that after having accepted the various benefits under a settlement, the Union would be precluded from questioning the validity of a portion of the settlement as the settlement has to be accepted or rejected as a whole and there cannot be any mid way exercise.
22. In the present case, since there is no dispute regarding the rate of HRA to be paid on the basis of the settlement and the question is of discrimination which the employer is making on a classification based on the place of recruitment, the said decisions would not be of much help to the petitioner. The Industrial Tribunal has rightly considered this aspect of the case and allowed payment of 25% HRA on the basis of discrimination being suffered by those employees at Agra who have been recruited at Agra as against those who are working at Agra but have been recruited from Bangalore.
23. Clause 9 of the 5th Schedule of the Industrial Disputes Act, 1947, relating to unfair labour practices reads as under :
"To show favouritism or partiality to one set of workers regardless of merit."
In the present case, the petitioner company has not been able to justify as to why and how the workers recruited at Bangalore and permitted to continue to work at Agra for a long period are being paid the HRA which is payable to those employees who are posted at Bangalore. The explanation that such employees have been assigned work at Agra is not justified in view of the fact that such employees have continued to work at Agra on the alleged assignment basis for over a decade and in some cases even up to 25 years. It is admitted by the petitioner-company that in case such employees were transferred to Agra they would have been paid HRA at 15% only. Thus, in my view, the employer has resorted to unfair labour practice by favouring a class of persons by showing them to be on assignment at Agra although for all practical purposes, they are permanently posted at Agra. The Rules governing the workers, relating to assignment had neither been placed before the Industrial Tribunal nor have the same been placed before this Court. On the contrary, their witness Sri V. K. Narain Swami has accepted that in the Standing Orders there is no provision for assignment. Even in the settlement of 1983, there is no mention with regard to assignment of workers. It has merely been stated by the employer that the workers can be assigned work at different places for periods up to two years, which may be extended upto 5 years, but no documents have been filed in support of such averments. The theory of assignment had been carved out by the employer, for, the first time only after filing of its written statement before the Tribunal, and that too without authenticating it on the basis of any document on record. Even otherwise, assignment being a temporary phenomenon, workers can thus only be sent on assignment for a particular job for a short duration but it cannot be understood that such workers remain on assignment for a decade or more and get the benefit of HRA on the basis of place of recruitment. In the present case, from the record it is clear that such assignment at Agra has continued for years, with the employees permanently residing with their families at Agra and having no establishment at their alleged base at Bangalore. The respondent Agra Union has given specific instances with names of such employees and the petitioner company has only given a general denial without specifically contradicting the same, thereby accepting the said position as correct. A very weak explanation has been given that such persons sent on assignment were called back at Bangalore after a specified period and again sent back to Agra, which explanation is not worthy of acceptance. On lifting the veil, it is clear that the explanation of assignment, without there being any such provision in the Standing Orders, is only a camouflage to give benefit or favour to a particular class of employees in the garb of their place of recruitment. The respondent workmen have established from the record that the workmen recruited at Bangalore and doing the same kind of work at Agra are getting higher HRA than those workmen who have been recruited at Agra. Thus, in my view the petitioners have been discriminated and are entitled to payment of the same HRA as is being paid to such employees, who are working at Agra but have been recruited at Bangalore. The finding of the Industrial Tribunal in this regard is perfectly justified and need not be interfered with.
24. I now come to the technical ground raised by Sri V. B. Singh, learned senior counsel appearing for the petitioner that the reference made by the State Government was itself bad and the award based on such reference could not be sustained as according to the petitioner, the State Government is not the appropriate Government and it is only the Central Government which would be the appropriate Government to make such a reference. In this regard reliance has been placed on a decision of the Supreme Court in Civil Appeal No. 3659 of 2002, Hindustan Aeronautics Limited and Anr. v. Hindustan Aeronautics Canteen K. Sangh and Ors., decided on 8.7.2002, wherein, relying on the decision in the case, of Steel Authority of India and Ors. v. National Union Waterfront Workers and Ors., (2001) 7 SCC 1, it has been held that the Central Government would be the appropriate Government and not the State Government. Similar view has been taken by a single Judge of this Court in Writ Petition No. 13936 of 1995, Hindustan Aeronautics Limited v. State of U. P. and Anr., decided on 29.9.1997.
25. Be that as it may, this objection, which is preliminary in nature, ought to have been taken at the first stage itself. It was neither raised before the Tribunal, nor even initially in this writ petition, but only long after the exchange of counter and rejoinder-affidavit, when the writ petition was ripe for hearing, after 14 years of its filing. It would not be prudent for this Court now to dismiss this writ petition on technicalities, which has been pending here for 16 years. It is well-settled law that exercise of discretion should be to undo the injustice and not to perpetuate the injustice. The High Court exercises equity jurisdiction under Article 226 of the Constitution of India. While exercising such jurisdiction, this Court always has the power to refuse relief where jurisdiction is invoked to obtain dishonest advantage. The Apex Court in the case M. P. Mittal v. State of Haryana and Ors., AIR 1984 SC 1888, has laid down that "it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain".
26. The extraordinary writ jurisdiction should be exercised only in cases where any improper exercise of jurisdiction has caused substantial injustice to the party. Where no injustice is caused and on the contrary, by exercising the jurisdiction under Article 226, substantial injustice would be caused to those who otherwise have not been, given due justice, this Court should not exercise its discretion in favour of party at whose instance such injustice Is being caused. The aim of equity is to promote honesty and not to frustrate the legitimate rights of a party. This Court must so act as to prevent perpetuation of injustice. Equity is always to be exercised in favour of those who defend the law and not in favour of those who have themselves been responsible for discrimination and causing injustice. Nearly half a century back, a Division Bench of this Court in the case of Pooran Singh and Ors. v. Additional Commissioner, Agra and Ors., AIR 1956 All 276, held that "the mere fact that an order is without jurisdiction or that there is an error apparent on the face of the record is not sufficient to justify the issue of a writ. In addition to that it must be established that the order has resulted In manifest injustice. It is, therefore, open to the High Court to refuse to issue a writ if it feels, as was faced by the learned single Judge in the present case, that if the writ prayed for is Issued it will clearly effectuate an injustice in the case."
27. In the present case, considering the fact that this Court has already held that the petitioner- employer has certainly discriminated one set or class of workers as against another set or class of workers doing the same job, merely on the basis of their places of recruitment, In my view, this Court is not bound to exercise its discretionary jurisdiction, merely on grounds of technicalities, at the instance of a party which is itself guilty of causing such injustice. Granting indulgence to the petitioner and setting aside the award on any technical ground would not serve the ends of justice and on the contrary, injustice would be caused to a class of workers who have already suffered at the hands of the employers because of their discriminatory attitude/deeds.
28. Accordingly, in my view, no interference is called for with the impugned award of the Industrial Tribunal. This writ petition is thus dismissed, but without any order as to costs.