Writ Petition No.939 of 2010

1st April, 2010

Petitioner Counsel: Mr. A. D. PATWARDHAN,Mr. T. R. YADAV
Respondent Counsel: Mr. MAHESH THORAT

JUDGMENT

JUDGMENT:- Rule returnable forthwith.

2. Heard finally by consent.

3. The petitioner has challenged the impugned order dated 31.l2.2009, in pending Reference (IT) No.2 of 2005 wherein the dispute is about the revision of pay scales and other benefits arising out of service conditions.

4. An application was filed by the First Party Petitioner to pass award in terms of the settlement dated 26th May, 2008 holding the settlement to be fair, legal and proper. In support of the same various affidavits, documents and supporting legal authorities were placed on record. The same was opposed by the second party union. The rejection of this application means no further discussion and/or the consideration of the proposal so settled and/or entered in the form of notarized/signed affidavits, documents by some of the workers ended/concluded at this stage itself even without giving full opportunities to both the parties to see and/or to analyze that the settlement is fair, legal and proper. Though application was filed for passing final award in terms of the settlement, yet that itself should not mean that the parties cannot take into consideration those terms/conditions to be fair, legal, proper or not.

5. In such a situation like this when the parties are disputing and/or raising the issue with regard to the revision of pay scale, the Court/Tribunal must give consideration that whether such settlement is fair, legal and proper, or for proper adjudication, even otherwise, it is also necessary for the Tribunal to consider what should be the revision and or revision arising out of settlement or connected with the same should be fair, legal and proper, even to settle the dispute so raised. In my view, such proposal though not agreed by all the workers need to be decided even for proper adjudication of the dispute so raised before the Tribunal.

6. The settlement though not binding on the other parties as not agreed by all, but the same needs to be considered by the Court in view of the facts and circumstances between the parties, if the Court satisfy that the said settlement terms are fair, genuine and tenable, the Court may pass appropriate order in the same line or in other way. This settlement terms though not binding still it is useful and assist the Court for passing appropriate order to end the dispute at the earliest point of time.

7. In view of above, I am of the view that rejection of this application in such a fashion without giving an opportunity to the parties to justify and support the settlement terms which according to them is fair, proper and reasonable.

It is not uncommon that the parties though agreed for particular terms and conditions at a given point of time, later on for whatever may be the reason, and/or unknown reason, withdraw from the same terms and conditions. In the present case there is no dispute that based upon the said settlement as some of the workmen have accepted the same started enjoying the benefits arising out of the settlement. The submission that they are enjoying the benefits without prejudice to their rights, just cannot be accepted in above background.

8. The change of mind and/or circumstances which compels them to withdraw from the settlement and the connected facet also required detail enquiry in all respect. If there is a case of fraud, misrepresentation and/or coercion of any kind, as submitted by the learned counsel appearing for the second party and therefore, also they object to the settlement terms is again a matter of detail enquiry. Once the matter is settled at earliest that ends the dispute for all the purposes.

Therefore, I am of the view that the Industrial Tribunal should frame the issue and give an opportunity to both the parties to lead evidence in support of their contentions. However, it is made clear that this should not be a ground for first party to delay the proceedings further. Both parties should co-operate, as the evidence is already commenced and one witness has already been examined by the Court of second party.

9. Resultantly the impugned order dated 21.12.2009 is quashed and set aside. The application is restored. The learned Presiding officer after framing issues and after giving opportunity to both parties will proceed to dispose of the matter as expeditiously as early, preferably within a period of six months. The petition is accordingly allowed. No order as to costs.

Petition allowed.