D.K. SETH, J.

(1.) The petitioners had claimed computation of pension payable to them under section 33C(2) of the Industrial Disputes Act after their retirement, having failed to obtain the relief by resorting to section 33C(1) of the said Act. The Labour Court had rejected the claim on the ground that the basis for the claim is an agreement dated 31st August, 1962, which is not a lawful agreement within the meaning of section 2(p) of the Industrial Disputes Act. A review was sought for, which was also dismissed. These orders have, since, been challenged in this writ petition. Submission of the petitioner:

(2.) Learned counsel for petitioners contends that the agreement dated 31st August, 1962 is an agreement within the meaning of section 2(p) of the Act, which had since been acted upon. The Company had addressed a letter to each of the workmen that they will be entitled to pension as per existing agreement, as is apparent from one of such letters, which is at page 46 of this writ petition. He also relies on Exhibit 2 series, one of which is at page 51 of this writ petition, by which one of the workmen, who had accepted voluntary retirement, was awarded pension, after having been approved by the Management of the company. According to him, this is an agreement between the employer and the employee concerned, which has reference to the agreement dated 31st August, 1962. Having accepted the same, he employer cannot now deny the benefit after retirement. The right of the workmen flows from this agreement, which can be computed under section 33C(2) of the Industrial Disputes Act. Submission of the respondents:

(3.) Learned counsel for the employer on the other hand contends that there is nothing to show that the agreement

dated 31st August 1962 was ever sent to any officer, authorized in this behalf by the appropriate Government. Therefore, it is not a settlement or agreement within the meaning of section 2(p) of the said Act, under which the workman can claim, by reason of section 18(1) of the said Act. Thus, the company having disputed the very entitlement of the petitioners, the question does not remain within the purview of jurisdiction under section 33C(2) of the said Act. He relied on the decision in Jhagrakhan Collieries (P) Ltd. v. G.C. Agarwal, reported in 1975 Lab IC 137 = AIR 1975 SC 171 [LQ/SC/1974/392] , in order to contend that this agreement is not a settlement within the meaning of section 2(p) of the said Act. He also relied on the decision in Municipal Corporation of Delhi v. Ganesh Razak, reported in 1995 Lab IC 330, in order to contend that as soon as the question became a question of determination of the entitlement, it is no more a subject matter, which can come under section 33C(2), under which only computation of entitlement, flowing from existing right, can be made. According to him, the agreement dated 31st August, 1962 was an agreement between the two employers at the time when one of the employers had transferred the establishment to the employer, who took over the same. It was not an agreement between the employer and the workmen, though the workmen were represented through their representative and the agreement was also signed on behalf of the workmen. There is nothing to show that this agreement was ever sent to the authorized officer, as is required under section 2(p) of the said Act. As such the very basis of the agreement having been disputed, the question does not remain a question of computation. It becomes a question of determination as to whether the workmen can claim under the agreement itself. He further contends that the letters contained in pages 46 and 51 of this writ petition, were issued by mistake. Then again it cannot stand independent of the agreement dated 31st August, 1962. These two documents cannot form the basis of the claim. Inasmuch as these have no binding force, within the meaning of section 18(1) of the said Act. Therefore, it is no more a computation of a claim flowing from existing right. On the other hand, it is a dispute with regard to the determination of the entitlement, outside the scope of section 33C(2) of the said Act. Therefore, the learned tribunal was justified in refusing the claim. The settlement:

(4.) I have heard the learned counsel for the respective parties at length. A settlement as defined under section 2(p) of the Industrial Disputes Act, 1947, means a settlement arrived at, in the course of conciliation proceeding and includes a written agreement, between the employer and the workmen, arrived at, otherwise than in course of conciliation proceeding, where such agreement has been signed by the parties thereto, in such manner, as may be prescribed, and a copy thereof has been sent to an officer, authorized in this behalf by the appropriate Government and he conciliation Officer. The above definition is not exhaustive but inclusive. It includes agreement arrived at between the employer and the workman, otherwise than in course of conciliation, as well. The only condition that is necessary for treating an agreement between employer and the workmen, a settlement, is that it must be signed by the parties and that a copy thereof has been sent to the authorized officer. In the present case, Turner Morrison and Co. Ltd. (TM for short) was the employer. It was a party to the agreement. The employees of TM were also parties to the agreement. It is not in dispute. The workmen had also signed the agreement through their representative, who represented them in the agreement. M/s. Shalimar Tar Products Ltd. (STP for short) is also a party to the agreement. They have also signed the same. Admittedly, the union belongs to TM. This was transferred by TM to STP. The relationship between TM and its workmen upon such transfer would have ceased and have so ceased. The workmen should not claim to continue under STP, but for the agreement. By reason of agreement, STP stepped into the shoes of TM as the employer of the workmen of TM. By mutual agreement, STP accepted the workmen of TM, as its workmen. Similarly, the workmen of TM accepted STP as their employer. This agreement contained the conditions of the service as between TM and their workmen. STP accepted the workman as their employee on these terms and conditions of service. Virtually, it was an agreement between STP and their workmen agreeing to employ them on transfer of the unit to STP as the employees of the STP on the terms and conditions contained in the agreement. Thus, this is an agreement between the employer and the workmen, arrived at otherwise than in course conciliation proceeding and signed by the parties. The agreement dated 31st August, 1962, being annexure A to this writ petition was exhibited before the learned Labour Court. In fact, it was an agreement between the Management of TM and the Management of STP (1935) and TM employees Union, Calcutta. Thus, it cannot be said that it was only an agreement between the two companies. It is an agreement between the two companies and the employees Union as well. In fact one of the two companies was the outgoing and the other incoming employer of the employees. While the establishment was being transferred by the outgoing employer to the incoming employer, this agreement was entered into with the workmen by both. There cannot be any change of relationship from one employer to the other employer, when a unit is transferred by one to the other, unless mutually agreed. It is only because the Management and the Union had accepted the change of relationship mutually. Therefore, such agreement would survive. Without this agreement, there could not have been any relationship of employer and employee between the parties. The relationship is not in dispute. Primarily, it is an agreement between the employer and the employee. This is also so, by reason of the terms and conditions of the agreement, as is apparent from Exhibit 1. Such terms show that it is the condition of the employment of the employees which was only the consideration of the said agreement. The transferor company had transferred their liability to the transferee company and the transferee company had accepted its liability towards the employees with the consent of the employees. Thus, it was an agreement between the transferee company and its employees in relation to the service conditions. Therefore, it is a settlement within the meaning of section 2(p) of the said Act, arrived at otherwise than in course of conciliation, provided it is so sent to the authorized officer, as contemplated in section 2(p). However, it is contended that it was not so sent. But in the order of the learned Labour Court, there is nothing to indicate that this was not so sent. Admittedly, this agreement was acted upon. The conditions of service of the workmen of TM under STP, after transfer, were governed by the conditions of service as mentioned in the said agreement. It is not in dispute. Binding force:

(5.) Prior to 7th October, 1956 section 18 did not take notice of a private agreement. Till the definition of settlement was amended under Act 36 of 1957, the settlement was defined to mean a settlement arrived at in the course of conciliation proceedings. By reason of such amendment which came into effect on 7th October, 1956, an agreement in writing and signed by the parties, between the employer and the workmen, arrived at otherwise than in conciliation proceeding, was included in the definition. Sub-section (1) of section 18 was also introduced in order to give effect to the amendment of the definition of section 2(p), to make such an agreement binding. Therefore, by reason of section 18, it has binding force. In Worker of B and C Company v. Commissioner of Labour 1964(1) LLJ 253 (Mad); Burma Shell Workers Union v. State of Kerala 1960 (1) LLJ 323 (Ker), it was held that an agreement arrived at otherwise than in course of conciliation proceeding is binding on the parties. Every settlement is an arrangement or agreement. But every arrangement or agreement is not a settlement. According to the dictionary meaning to settle means to decide or decide by agreement between contesting parties. In order to be a settlement, the agreement or arrangement must decide same part of the dispute or some matter in dispute or decide the process, by which the dispute is to be resolved or affect the dispute in some manner or other, or prohibit some act or forbearances in relation to the dispute, on the part of a party or parties to the dispute. Condition of Service:

(6.) In the present case, it appears from the other documents that this agreement was acted upon by the company, as between the employer and the employee. Therefore, at this stage, the employer is estopped from raising the question, that this agreement was not so sent. It is not possible for the employees to prove, whether it was so sent or not. That apart, the employer STP had been acting on the basis of such agreement, which is not in dispute. By reason of its action, it had permitted the employees to believe that the conditions contained in the agreement, are the conditions of service, with which STP had accepted the workmen of the TM. By reason of the said fact, the employer is estopped on the principle of section 115 of the Evidence Act. Admittedly, the workmen had believed the said conditions as true and had acted upon such belief all along. It was never contended by the employer that they had been acting upon the said agreement on a misapprehension or mistake. On the other hand, the said agreement contained the conditions, on which the transfer of the unit was accepted from TM. Once the agreement is acted upon, there was a performance of the terms and once it is so performed, even in part, would attract the principle of equitable estopped. Principle of estoppel:

(7.) When a person has entered into an agreement in writing with another party, such party shall not be allowed to set up the contrary of his assertion in the deed (Bowman v. Taylor 2 A and E 228 : Bateman v. Hunt 1904 (2) KB 530) Lord Mansfield said no man shall be allowed to dispute his own solemn deed (Good Title v. Baily 2 Cowp 579). By reason of such estoppel, the workmen had altered their position on the basis of a representation or promise made by STP. As such the said agreement would operate as estoppel, in view of the decision in Mahindra and Mahindra v. Union of India AIR 1970 SC 798 [LQ/SC/1970/126] . The employer had never sought to avoid the said agreement at any point of time. By reason of its acting in terms of the agreement, the employer had acquiesced. Thus the principle of estoppel by acquiescence of doctrine of standing by, is attracted. Lord Campbel in Cairn Cross v. Lorrimer 3 LT 130, had held that generally speaking, if a party having an interest to prevent an act being done has full notice of its being done, and acquiesce in it, so as to induce a reasonable belief that he consents to it and the position of others is altered by their giving credit to its sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license. Cottenhan LC in Duke of Leeds v. Amherst 1846, 78 RR 47 : 2 Phillips 177 had held if party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence. Admittedly, STP had ratified the agreement by acting upon the same. Therefore, STP is estopped, on the principle of estoppel, by ratification or on the principle of estoppel by silence (Rangasami v. Nachiappa AIR 1918 PC 196 and Chadwick v. Manning 1896 AC 231). The doctrine of part performance is an extension of the rule of estoppel, termed as equitable estoppel. Now, therefore, the employer cannot claim contrary to the agreement on the alleged ground that it was not sent to the officer authorized for the purpose of denying that the agreement was settlement within the meaning of section 2(p). By reason of the above principle of estoppel as discussed, the employer is estopped from contending that the agreement was not sent or denying the agreement which has since been acted upon for this long period. The Settlement is not in dispute:

(8.) Be that as it may, the agreement or settlement was not in dispute between the employer and the employees. It was necessary because the establishment or the undertaking was being changing hands between the two companies and the transferee company was stepping into the shoes of the transferor company. When the Unit was changing hands, normally, the relation of employer and employee between the transferor and their workmen comes to an end. Upon such transfer, whether there should be relationship of employer and employee, between the transferee and the workmen of the transferor, is a question, which is to be steeled between the parties. Thus, this was a dispute as to whether the workmen of the Unit would be continuing as workmen under the transferee. Therefore, the agreement was arrived at, to make an arrangement resolving the dispute. Even if the transferee accepts the workmen of the transferor, it was also a dispute as to on what condition of service they would be so accepted. When these questions are decided and an agreement is arrived at, it is an arrangement deciding to settle the dispute between the parties. Therefore, the settlement, having been arrived at out of a dispute, satisfies the characteristic of a settlement defined in section 2(p). Thus, it appears that the said agreement had fulfilled and satisfied all the characteristic of a settlement, viz.: it was an agreement between the employer and the workmen in writing, arrived at, otherwise than a conciliation proceeding, purporting to decide, resolve or settle a dispute between themselves, with regard to the acceptance of the transferee by the workmen as their employer, and the acceptance of the workmen of the transferor, as the workmen of the transferee, by the transferee, together with the conditions of service, on which such acceptances was mutually accepted by the respective parties. Since the employer is estopped from raising the question that the said agreement was not sent to the authorized Officer and having failed to prove that it was not so sent, the Court has every right, and justifiably, to presume that it was so sent to the officer authorized. I, therefore, hold that the said agreement is a settlement between the parties within the meaning of section 2(p). Under section 18 sub-section 1, a settlement arrived at by agreement between the employer and the workmen, otherwise than in the course of conciliation proceeding, shall be binding on the parties to the agreement. Admittedly, in the present case, the petitioners and the respondent employer, were parties to the agreement and as such it is binding on them. As to the binding nature of such agreement, there is no scope of any enquiry as to its bona fide, which was so held in Sirsilk Limited v. Government of Andhra Pradesh, AIR 1964 SC 160 [LQ/SC/1963/70] . The expression used in sub-section 1 of section 18 is clear and unambiguous. As such there is no escape from the present agreement so far as the employer is concerned. The agreement is the basis of relationship:

(9.) Thus, the said agreement connotes the conditions of service, under which the employees would continue to be employed under the transferee. The said agreement having been acted upon, it formed the conditions of service of the employees. It cannot now be questioned. It is thus apparent from the document at page 46 of this writ petition, that the employer had accepted its liability to pay pension to the workmen. An agreement, since acted upon, cannot be denied after long 15 years, when such agreement formed the basis of the relationship between the parties at the time of transfer. Therefore, the employer cannot turn round subsequently and say that it was issued by mistake. The right claimed by the workmen flows from the conditions of service, which cannot any more be disputed, since having been acted upon by the company. Once the workmen had retired and he was awarded pension, it can never be stopped. Voluntary Retirement Scheme:

(10.) Be that as it may, by reason of the issuance of subsequent letters the company had ratified its liability to pay pension, as the terms of condition of service or as the terms of condition for acceptance of voluntary retirement. The voluntary retirement scheme has not been produced to show that what was otherwise payable under the conditions of service, as embodied in the agreement dated 31st August, 1962. The voluntary retirement scheme also cannot take away the right of the workman with regard to his entitlement of the pension, unless adequate compensation is paid through lump sum payment, in lieu of pension. In the absence of the voluntary retirement scheme, it is not possible to determine, as to whether it compensates the pension. Then again, one of the letters, by which the voluntary retirement scheme has been accepted, certain amount have been shown to be the entitlement, which does not include any such amount of compensation in lieu of pension. Voluntary retirement is a retirement preponed. It hastens a workmans entitlement to receive retireal benefit, which he would have received latter, on superannuation. Therefore, no scheme for voluntary retirement can include a condition to curtail the benefits available on retirement, under the conditions of service, unless adequately compensated. Condition of Service cannot be changed:

(11.) Clause 6 of the said agreement provides that retrial benefit may be substituted by introduction of subsequent scheme. Nothing has been shown that any subsequent retrial benefit scheme has been introduced. In any event, the retrial benefit scheme, which is less beneficiary than the existing conditions of service, cannot be accepted. In any event, in the present case, it is only on the basis of the voluntary retirement scheme, that the right of the workman with regard to entitlement of pension is sought to be curtailed. Such situation cannot be accepted. Therefore, the right sought to be enforced, is an existing right, which does not require any determination. It only requires computation. Admittedly, the conditions contained in the agreement, are conditions of service. In view of section 9A, such conditions of service cannot be changed without complying with the provisions contained in section 9A. It is never contended that the conditions of service has, since, been changed. It is neither alleged that there was any notice issued under section 9A. Unless a notice under section 9A is issued, there cannot be any change of conditions of service. The condition of service cannot be changed, unilaterally, without following the procedure prescribed in section 9A. A scheme of voluntary retirement cannot be equated with a notice under section 9A, purporting to affect change in the conditions of service. Inasmuch as, such notice is to be given in the prescribed manner, indicating the nature of the change proposed to be effected. No such change could be effected within 21 days of giving such notice. The present case does not fall within the exceptions provided in the Proviso (1) and (b) of section 9A. In order to bring about a change in the conditions of service, there must be (1) a proposal by the employer to effect change in the conditions of service; and (b) a notice issued in the prescribed manner to the workmen likely to be affected; and (c) such change takes effect only after expiry of 21 days of such notice. The object of section 9A was to prevent unilateral action on the part of the employer changing conditions of service to the prejudice of the workman, without giving an opportunity to the workman. In Tata Iron and Steel Company Limited v. Their Workmen AIR 1972 SC 1917 [LQ/SC/1972/312] , the Apex Court had held that the object of section 9A seems to be to afford an opportunity to the workman to consider the effect of the proposed change and if necessary to present their point of view on the proposal. Such consultation further serves to sub-serve a feeling of common joint interest of the Management and Workmen in the industrial progress and increase productivity. This approach on the part of the industrial employer, would reflect his harmonious and sympathetic co-operation in meeting the status and dignity of the industrial employee, in accordance with the egalitarian and progressive trend of our industrial jurisprudence, which strives to treat the capital and labour as co-sharer and to brake away from the tradition of labours subserveillance to capital. Reference may also be made to Assam Match Company v. Bijay Lal Sen AIR 1973 SC 2155 [LQ/SC/1973/172] . Any attempt to deviate from the conditions of service, without compliance of section 9A, is of no consequence and void. Therefore, a Voluntary Retirement Scheme so floated, will not amount to a notice under section 9A, since it does not satisfy the conditions of a settlement. Inasmuch as, the scheme cannot be treated to be a notice in the manner prescribed for a notice under section 9A. At the same time, such scheme can even, if, accepted by a workman, cannot be a settlement within the meaning of section 2(p) until it is sent to the Officer authorized. In the present case, admittedly, it was not sent to the Officer authorized. There was not attempt to treat the scheme as a settlement between the employer and the individual employee accepting it. Be that as it may, this question has to be looked into from the point of relationship between the employer and the employee. The mighty employer always stands in an advantageous position. Whereas the employee stands in a position disadvantageous. He is always at the receiving end, particularly, as an individual. Therefore, acceptance of the Scheme, which proposes to or effects change in the condition of service, affecting the workmen prejudicially, cannot operate as an estoppel on the part of the workman accepting it, in view of the special statue contained in the 1947 Act, which makes an agreement binding in view of section 18(1) read with section 2(p). Existing right : Section 33C(2):

(12.) Thus, the right which is now been claimed by the petitioner, is flowing from their existing right, namely, the settlement being the agreement dated 31st August, 1962. It is not a question of determination of their entitlement. It is a question of computation of their entitlement flowing from an existing settlement. Therefore, the question very well comes within the scope and ambit of section 33C(2). The question whether the right claimed is a computation of a scheme flowing from existing settlement or it is a determination of an entitlement, has to be examined in a proceeding under section 33C(2). If it comes within the first part, then it is well within the competence of the Labour Court to examine it under section 33C(2). Even if it is so disputed, the Court cannot withdraw itself. It has to examine and find out, as to in which category it falls. If it falls within the first category, then it can compute. If it does not and if falls within the second category, then the Court cannot assume jurisdiction. The Court can decided even when the question is complicated one. Inasmuch as, it can go to such question incidentally. If such determination is incidental to the exercise of jurisdiction under section 33C(2), the Court cannot avoid it. It has to determine incidentally, so as to exercise its jurisdiction or to refrain from exercising it. Section 33C(2) can be assumed where there is a settlement, a workman is entitled to receive from the employer any money under the settlement to determine the rate or quantum of the amount and whether such amount claimed is due or not. In East India Coal Company Limited v. Rameshwar 1968 (1) LLJ 6 (SC), it was held that the right to the benefit sought to be computed, must be an existing one. In State Bank of Bikaner and Jaipur v. Khandarwal 1968 (1) LLJ 589 [LQ/SC/1967/259] , it was held that a workman cannot put forward a claim in an application under section 33C(2), in respect of a matter, which is not based on an existing right, and which can be appropriately the subject matter of a dispute requiring adjudication under section 10. In Central Inland Water Transport Corporation Limited v. Their Workmen 1974 Lab IC 1018 at page 1024 (SC) it was held that the Labour Court has to be circumspect before it undertakes an investigation under section 33C(2), reminding itself that any investigation undertaken, is, in a real incidental to the computation of a benefit under an existing right, which is its principle concern. The above proposition is now a settled proposition of Law, which was followed in the case of Municipal Corporation of Delhi v. Ganesh Rajak 1995 Lab IC 330. In the present case, as observed earlier, the right of the workman is an existing right and does not require determination of entitlement. The decision in Jhagrakhan Collieries (P) Ltd. (supra), cited by the learned counsel for the respondents, does not help the counsel for the STP in the facts and circumstances of the present case. In the said case, the alleged agreement did not satisfy the characteristics of a settlement, defined in section 2(p) of the said Act. As such, it was held to have no binding force under section 18 sub-section (1) or (3). Unlike the present case, in the said case the agreement was alleged to be an implied one by acquiescence or conduct. The agreement was alleged to be oral and not in writing and signed. A workman can avoid an agreement or settlement. It may not be binding on him, in certain circumstances. But in the present case, the employer and the workmen both were parties to the written and signed agreement dated 31st August, 1962. Therefore, neither the workmen nor the employer could avoid the same, in terms of section 18. In the present case, all the workmen were parties to the said agreement. Thus, the said agreement was a contract binding between the parties. That apart, the terms and conditions of service have been accepted by the parties and it continued for a long time between them, it would be effective and binding under the terms of the transfer. Continuing conditions of Service:

(13.) There is another distinguishing feature. It is not alleged that any new service condition was introduced under the agreement. It was the same terms and conditions of service of governing the workmens employment with TM. These conditions were formally acknowledged and ratified by STP. In case of transfer of an industrial undertaking, along with the workmen, the workmen, if opt to continue, continues under the transferee on the same terms and conditions, until altered by or through acknowledged process, permissible under the industrial legislation. Therefore, the said agreement is more a ratification of the condition of service than a settlement. The conditions of service cannot be altered except through the process of section 9A of the said Act. Conclusion:

(14.) Therefore, the Labour Court was not justified in holding the agreement as without any legal force and refusing computation in the present case. Order:

(15.) In the circumstances, the orders dated 18th July, 1995, 10th September, 1996 and 17th April, 1997 passed by the learned Labour Court and respectively contained in annexure O, R and T to this writ petition, are hereby quashed. Let a writ of Certiorari do issue accordingly. The matter is remitted to the learned Labour Court with the direction for computing the amount, as observed in this judgment, within a period of six months from the date of communication of this order. This writ petition is thus disposed of. Xerox certified copy of this order, if applied for, be given within a fortnight from date of application. Petition disposed of