Full Text
HIGH COURT OF DELHI
Date of Decision: 4th February, 2022
M/S WEARWELL (INDIA) PRIVATE LIMITED ..... Petitioner
Through: Mr. Alok Bhasin & Mr. Kamal Kant Tyagi, Advocates
Through: None
JUDGMENT
1. This hearing has been done through video conferencing. CM APPL.6256/2022 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of. WP(C) 2180/2022 & CM APPL.6255/2022 (for stay)
3. The present writ petition challenges the impugned order dated 7th August, 2020 in RCA No. 52/2019 titled Wearwell (India) Pvt. Ltd. v. Sh. Praveen Kumar passed by the District & Sessions Judge, South-East, Saket Courts, New Delhi (hereinafter “Appellate Court”). Vide the impugned order the appeal against the order dated 24th November, 2018 in PWA NO. 56/2018 titled Sh. Praveen Kumar v. M/s Wear Well India Pvt. Ltd. passed by Addl. District & Sessions Judge, POLC-V, Dwarka Courts, Delhi (hereinafter “Authority”) under the Section 15(2) of the Payment of Wages Act, 1936 (hereinafter the “Act”) has been partially set aside.
4. The background of this petition is that the Respondent/Workman (hereinafter “Workman”) employed with the Petitioner/Management (hereinafter “Management”) and the last drawn salary was Rs.11,830/-. The 2022:DHC:462 Management claims that it had placed the Workman under suspension on 16th December, 2017 and a charge sheet was issued. However, the claim of the Workman was that he was terminated by the Management on 18th December 2017.
5. The Workman then approached the Conciliation Officer under the Industrial Disputes Act, 1947 wherein he along with 21 other workmen, entered into a settlement dated 03rd May, 2018 with the Management. Terms of the said settlement read as under:
6. However, disputes thereafter arose in respect of the amount payable as per the terms of the said settlement entered into before the Conciliation officer. This led to the Workman approaching the authority under section 15(2) of the Act. The said dispute was adjudicated by the Authority on 24th November, 2018 by holding that a sum of Rs.3,01,466/- would be payable to the Workman. The order reads as under:
7. The said order of the Authority was challenged before the ld. Single Judge of this Court in WP (C) 1765/2019 titled M/s. Wearwell (India) Pvt. Ltd. v. Praveen Kumar The said writ petition was disposed of vide order dated 20th February, 2019 while granting liberty to the Petitioner to approach the Appellate Court under the Act after depositing the amount of Rs.27,406/-. The order reads as under:
8. In view of the order of the High Court, the Petitioner approached the Appellate Court by way of an appeal under Section 17 of the Act. During the pendency of the said appeal, the parties entered into a settlement dated 21st May, 2019 as per which the Respondent/Workman agreed to accept a lumpsum amount to settle the said dispute. The terms of the said settlement are as under: “Terms of Settlement:
1. Praveen Kumar S/o Amrik Prasad by virtue of this settlement do hereby tender his resignation from service and relinquish his employment voluntarily and, as such, he shall have no dispute, demand or claim of any kind left against the Management of Wear Well India Private Limited.
2. In view of this amicable settlement reached by and between the parties, all the claims of Praveen Kumar S/o Amrik Prasad including before the Payment of Wages Authority shall also be deemed to have been finally and fully settled. This settlement will supersede the order dated 24-11- 2018 passed by the Payment of Wages Act Authority against which appeal is pending before the District Court.
3. In view of this amicable settlement, Praveen Kumar S/o Amrik Prasad shall not be entitled to the amount awarded by the Payment of Wages Authority vide order dated 24-11-2018 and, as such, they shall not be entitled to receive the amount of Rs. 27,406/- deposited by means of a Pay Order before the Appellate Authority and, as such, Praveen Kumar S/o Amrik Prasad authorizes the Management to withdraw the same.
4. It is further expressly agreed that this settlement is being signed by Praveen Kumar S/o Amrik Prasad voluntarily without any use of coercion and, as such, no union, person or agent shall have the authority to challenge the same before any authority or court of law.”
9. In lieu of the said settlement, the Management’s case is that a sum of Rs.81,581/- was paid to the Workman vide cheque no. 004394 dated 16th July, 2019. Copy of the cheque is placed on record by the Management along with a bank statement reflecting the encashment of the said cheque.
10. Once the settlement was entered into, the Management approached the Appellate Court for disposal of the appeal and for refund of the predeposit amount of Rs.27,406/-. However, vide the impugned order, the Appellate Court has merely set aside the penalty which was imposed and has held that the pre-deposit amount cannot be refunded on the ground that the settlement has not been acknowledged and accepted by the Workman. Mr. Bhasin, appearing for the Petitioner, submits that the Appellate Court has erred in holding that since the Workman did not appear and confirm the settlement, the amount of pre-deposit would not be liable to be refunded.
11. Heard the ld. Counsel for the Management. A perusal of the record and the Appellate Court’s order shows that the Workman stopped appearing before the Appellate Court despite having notice of the appeal. It must be noted that the Management had placed the settlement dated 21st May, 2019 on record of the Appellate Court. However, the Appellate Court has observed as under:
12. The reasoning of the Appellate Court is basically that since the Workman did not confirm the settlement agreement, the settlement cannot be recorded by the Court while at the same time the Appellate Court set aside the penalty of Rs.2,74,060/- imposed by the Authority, on the basis of the very same settlement.
13. A perusal of Section 18(1) of the Industrial Disputes Act, 1947 (hereinafter “ID Act”) shows that a settlement can be arrived at between the parties otherwise than in the course of conciliation proceedings i.e., Section 18(1) ID Act clearly recognises out-of-Court settlement. Section 18(1) reads as under:
14. The Supreme Court in The State of Bihar v D.N.Ganguly (1958) AIR 1958 SC 1018 held that Courts should take note of the amicable settlement in case between the parties in industrial disputes which generally leads to industrial peace and harmony. The observations of the Court are as under:
15. The decision in D.N. Ganguly (supra) has been affirmed by the Supreme Court in National Engineering Industries Ltd. v State of Rajasthan, AIR 2000 SC 469. The Court has held that:
25. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the industrial tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate government lacks power to make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace than an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinized. Sub-sections (1) and (3) of Section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings and (2) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. A settlement arrived at in the course of conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which has objected to the same. Recognised union having majority of members is expected to protect the legitimate interest of labour and enter into a settlement in the best interest of labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an Individual employee or minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the Workers' Union as laid down by Section 18(3)(d) of the Act. It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of unions that are signatories to such settlement under Section 12(3) of the Act. Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. "This principle of industrial democracy is the bedrock of the Act", as pointed out in the case of P. Virudhachalam v. Management of Lotus Mills MANU/SC/0890/1998: (1998) ILL J389SC. In all these negotiations based on collective bargaining individual workman necessarily recedes to the background. Settle merits will encompass all the disputes existing at the time of the settlement except those specifically left out.”
16. A perusal of the above two decisions shows that settlements entered into in Industrial Disputes are valid and legal, even though provisions similar to Order XXIII Rule 3 CPC do not exist in the ID Act. Settlements can be entered into between Management and Workman even outside the court/conciliation proceedings as is clear from Section 18(1) ID Act. Such settlements would be valid and legal. Upon a settlement being entered into, parties may place the same before the forum concerned and the same can be recorded, upon the Court being satisfied that the terms are legal, just and fair. A settlement under Section 18(1) would be binding on the parties. The usual procedure for recording a settlement would be that parties would file an application and appear before the court and confirm the settlement. However, in a case where one party chooses not to appear and not to confirm the settlement, the Court would have to consider as to whether settlement has in fact been arrived at or not and if the Court is satisfied that the settlement has been arrived at, there is no reason as to why the Court should not accept the settlement and despite the settlement, again go into the merits of the matter. Purpose of providing such provisions of settlement is that there is finality to the settlement and parties should not be relegated to continue to avail of their legal remedies leading to delays involving expending of precious judicial time.
17. In the present petition, it is noticed that a sum of Rs.27,406/- was merely a pre-condition for hearing of the appeal by way of a pre-deposit. The bank of the Management viz., HDFC bank, has certified that the amount of Rs.81,581/- has been encashed by the Workman. To this Court, there is no doubt that the settlement has been signed by the Workman as there is no allegation of forgery or fabrication. The present case would be a settlement in terms of Section 18(1), ID Act and as per the above decision, would be binding on the parties.
18. Advance copy of this petition is sent to the Workman by Speed Post. The receipt has been placed on record. However, there is no appearance on behalf of the Workman. The Workman did not appear even before the Appellate Court to confirm the settlement. Since the Workman has affixed his signature to the settlement agreement and has also encashed the cheque issued by the Management, this Court finds no reason as to why the settlement should not be taken note of and recorded.
19. Moreover, in the opinion of this Court, no useful purpose would be served in again issuing notice to the Workman inasmuch as it appears to this Court that the Workman is satisfied with the settlement and does not wish to incur further costs.
20. Accordingly, the impugned order is set aside. The amount of Rs.27,406/- deposited with the Appellate Court is directed to be refunded to the Petitioner/Management in view of the settlement.
21. If the Workman has any dispute in respect of the settlement, liberty is granted to the workman to approach the Appellate Court.
22. The petition is disposed of in above terms. The pending application is also disposed of.
PRATHIBA M. SINGH JUDGE FEBRUARY 4, 2022 mw/SK