(Prayer: This Petition is filed under Article 226 of the Constitution of India, With a prayer to quash the Order Dated 21st July 2005 made in Ref.No.83/97 marked at Annexure-H, as the same is Violative of Articles 14, 16 and 21 of the Constitution of India and also is violative of provisions of Industrial Disputes Act 1947 and etc.)

1. The petitioner-Union is before this Court assailing the award dated 21.07.2005 passed in Ref.No.83/1997.

2. The petitioner-Union had raised a dispute with regard to the respondent having refused employment to one Sri Annegowda and 385 other contract workers with effect from 31.03.1992. The conciliation having failed the matter was referred to the Principal Labour Court Bengaluru for adjudication. The Labour Court has rejected the reference through the impugned award dated 21.07.2005. The petitioner Union therefore claiming to be aggrieved is before this Court in this petition.

3. The petitioner contends that there were several trade unions of the workers in the respondent- management as during the year 1990 about 4000 workmen were employed therein. It is their case that about 1200 workmen were wrongly designated as contract workmen despite doing the regular work. Such of those workmen were engaged from the year 1982 onwards. The allegation is that certain persons were made to lend their names as contractors. On 16.02.1992 the workmen who were wrongly categorized as contract workers were refused work due to which a dispute was raised and the matter was referred to the Labour Court in Ref. No.1/1993. The dispute therein raised was with regard to the discontinuance of the workmen who had been employed through the contractors for doing regular work. Such discontinuance was with effect from 16.02.1982.

4. In the said proceedings, even before the pleadings were complete, a joint memo was filed wherein it was indicated that a settlement dated 27.11.1993 was entered into between the parties. The Labour Court through its award dated 31.12.1993 has passed the award in terms of the joint memorandum of settlement. The said settlement was limited to the regularization of 100 workmen. The petitioner herein contends that even though the issue involved was in respect of termination of 1200 workmen, the Union deliberately gave up the contentions and agreed to the terms imposed by the management limiting the regularization only to 100 workmen. It is their case that no General Body Meeting was called to discuss the terms of settlement nor was the Union authorized to enter into any such settlement. The petitioner claims that the workmen were under the impression that the case is still pending but ultimately came to know that their interest has been jeopardized and as such on registering the present Union on 18.10.1996 the petition was filed before the Deputy Labour Commissioner and Conciliation Officer. The matter accordingly being referred required consideration.

5. The grievance of the petitioner is that despite such position, the Presiding Officer of the Labour Court while considering the Ref. No.83/1997 has not adverted to the actual issues involved based on the reference made but has essentially based on the settlement and award in the earlier proceedings in Ref. No.1/1993 has construed the present proceedings to be hit by res judicata. Hence, it is contended that the conclusion as made by the Labour Court is not justified.

6. The respondents have filed their detailed objection statement referring to the contract entered into between the respondent company and the contractors and contract being terminated on 20.03.1982. Detailed reference is made to the earlier proceedings in Ref.No.1/1993 and in the course of the said proceedings a settlement being entered on 27.11.1993. In that regard it is contended that the contractors who had been engaged was in terms of law as provided under the Contract Labour (Registration and Abolition) Act, 1970 and as such on completion of the contract period, the workmen employed by the contractor would have no right to seek any relief against the principal employer who has only discharged the obligations in that regard as provided under the. Despite the said position as a gesture of goodwill and on humanitarian consideration, the respondent management had agreed to engage 100 workmen from among the persons who had been engaged by the contractor. As per the said settlement, having the same recorded in Reference No.1/1993 the Labour Unions representing them had forwarded the applications and the respondent after ascertaining their suitability engaged such 100 casual workers to work on their rolls. It is in that context contended that the subsequent dispute raised in Ref.No.83/1997 is without basis and the Labour Court having taken into consideration these aspects has rightly rejected the reference.

7. In the rejoinder filed on behalf of the petitioner, it is sought to reiterate that the contractors were just name lenders and the respondent has not specified the nature of work that was being assigned to them. It is therefore contended that they were performing the same work as the one being performed by the regular workmen. Insofar as the settlement deed, it is contended that it is entered into behind the back of the petitioner. The settlement is not sustainable since only the 100 workmen were assured work though the dispute arose with regard to 1200 workmen.

8. In the above background, I have heard Sri K.Subba Rao, learned senior counsel on behalf of the petitioner and Sri C.K.Subramanya, learned counsel on behalf of the respondent. I have perused the petition papers including the records received from the Court below.

9. In the nature of the rival contentions urged, the fact that a large number of workers had been engaged by the respondent management is the position that cannot be in dispute inasmuch as at the first instance a dispute had been raised in Ref.No.1/1993, a settlement was reached between the Union and the management and the dispute came to be disposed of in view of the joint memo filed by both the parties. The contract labourers were said to be engaged through Sri Govindram, Sri Manoharlal and Sri N.Lakshmipathi. At the first instance in the said proceedings when the dispute was raised the said three contractors were also impleaded as the first party making the claim in the said proceedings. In the instant proceedings the said contractors were shown as second party in Ref.No.83/1997. At that stage, two unions known as M/s Escorts and Goetze Guttige Karmikara Sangha and M/s Escorts and Goetze Contract Karmikara Sangha had raised the dispute on behalf of the contract workers. Presently the dispute is raised by the Escorts and Goetze Contract Labourers Hitarakshana Horata Sangha. The said Horata Sangha is registered with the number 7/96-97 which would make it evident that it was not existent at the point when the dispute was raised at the first instance in Ref.No.1/1993 and the settlement was reached so as to obtain their consent. Keeping these basic aspects in perspective, the remaining contentions are to be noticed for the purpose of decision making.

10. If in that light a consideration is to be made, though the learned senior counsel for the petitioner has referred to the evidence tendered before the Labour Court to contend that keeping in view the nature of work for which the workmen were engaged and the manner in which the respondent management had exercised control so as to consider the workmen concerned as being employed by the management and the contractors being the name lenders, that aspect would arise only if the contention that the earlier proceedings and the award passed therein is held to be not a bar for consideration of the dispute presently raised. The Labour Court, no doubt after referring to the evidence produced on record has arrived at the conclusion that the workmen regarding whom the dispute is put forth were also the concerned workers in Ref. No.1/1993 and as such held the present dispute to be barred by res judicata. In order to contend that the Labour Court was not justified in that regard, the learned senior counsel for the petitioner has relied on the following decisions;

i) In the case of Indian Tourism Development vs. Delhi Administration (1992 Lab IC 1877) - (Allahabad HC)- Wherein it is held that by virtue of Section 18 (3) of ID Act if the union in the course of conciliation settles the dispute with the management, such settlements will be binding on the workmen who are its members. However one exception is made to the principle of collective bargaining by Section 2A of ID Act since such disputes are treated as individual disputes by legal fiction. Hence in such cases an individual workman cannot be bound by any settlement between the employer and the union unless he consents to such settlement.

ii) In the case of Brooke Bond India Ltd., -vs- Workmen (AIR 1981 SC 1660 [LQ/SC/1981/297] ) -Wherein it is held, unless the office bearers who signed the agreement were authorized by the executive committee of the union to enter into a settlement or the constitution of the union contained a provision that one or more of its members would be competent to settle a dispute with the management, no agreement between any office bearer of the union and the management can be called a settlement as defined in Section 2 (P).

iii) In the case of Workmen of M/s. Delhi Cloth General Mills Ltd vs. Management of M/s. Delhi Cloth General Mills Ltd (AIR 1970 SC 1851 [LQ/SC/1969/425 ;] ">AIR 1970 SC 1851 [LQ/SC/1969/425 ;] [LQ/SC/1969/425 ;] ) wherein it is held that when a dispute is referred to the Conciliation Officer, the management and the Union cannot claim absolute freedom of contract to arrive at a settlement in all respects binding on the workmen, the question of valid and binding settlement in such circumstance is governed by the statute and the Rules made thereunder.

iv) In the case of Workmen of Stran Board Manufacturing Co.Ltd., -vs- M/s. Stran Board Manufacturing Co.Ltd. (AIR 1974 SC 1132 [LQ/SC/1974/116] ) wherein it is held that though principles of res judicata are attracted, extremely technical considerations usually invoked in civil proceedings may not be allowed to outweigh substantial justice to the parties in an industrial adjudication.

11. The learned counsel for the respondent management would on the other hand contend that when the dispute was referred for adjudication at the first instance on 26.12.1992 which culminated in Ref.No.01/1993, the point of dispute referred is as to whether the management was justified in refusing employment with effect from 16.02.1992 to all the contract workmen employed through the contractors despite being employed on regular basis. The second point of reference was whether the contract labourers were justified in demanding regularization of their services, equal pay and other benefits. In that regard it is contended that the dispute got merged with the tripartite settlement signed under Section 12(3) of I.D Act before the Conciliation Officer. The contract labourers Union was party and the settlement was signed on 27.11.1993. The Contractors whose name figured had also entered the settlement which was accepted by the Labour Court and the award was passed on 31.12.1993. The 386 workmen referred to herein were also covered therein. Hence it is contended that the Labour Court was justified in holding it as res judicata. The learned counsel has relied on the decision in the case of Herbertsons Ltd. -vs- The Workmen of Herbertsons Ltd. and others[(1976) 4 SCC 736] [LQ/SC/1976/421] wherein it is observed that it is not necessary that each individual worker should know the implications of any settlement since the recognised union which is expected to protect the legitimate interests of workers enters into settlement in best interests of the workmen and has held as hereunder:

"It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settlement as unfair and unjust. The settlement has to be accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust. Even before this Court the 3rd respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore. As stated else where in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settlement. Besides, the period of settlement has since expired and we are informed that the employer and the 3rd respondent are negotiating another settlement with further improvements. These factors, apart from what has been stated above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement."

12. The binding nature of a settlement entered into under Section 12(3) of the I.D. Act, in the nature of the provision contained in Section 18(3) of the I.D. Act is well settled. Though the learned senior counsel for the petitioner has relied on the above cited decisions, the instant proceedings cannot be brought as an exception under Section 2A of the I.D. Act inasmuch as the proceedings at the first instance which culminated in the settlement and the award dated 31.12.1993 in Ref.No.1/1993 as also the present proceedings culminating in the award dated 21.07.2005 in Ref.No.83/1997 are predicated on collective dispute of a class of workmen if the very nature of the points of dispute referred in the both instances to the labour Court is taken note. At the first instance in the year 1993 the point referred was as to whether all the workmen appointed through the contractors named therein could have been refused employment with effect from 16.02.1992 though they were discharging the regular work of the company. Even as per the contention as urged presently is that about 1200 workmen were wrongly designated as contract workmen and in that light, the present dispute is raised by the first party union on behalf of 386 such workmen. If that be the position the decisions as relied by the learned senior counsel would not assist the petitioner in the present context. The decision as relied on by the learned counsel for the respondent would indicate that in a collective dispute it is not necessary that each individual worker should know the implication of the settlement if the recognized union which is expected to protect the legitimate interest of workers enters into settlement in best interests of the workmen.

13. In that background it is no doubt seen in the present instance that when the dispute was raised for the first time and was referred in Ref.No.1/1993 the contract workmen who were engaged through the said three contractors were represented in the proceedings by two Unions which represented all the contract workers involved and also the three contractors were arrayed as the first party representing the interest of all the contract workmen who were working under them, though presently it is contended that they are name lenders and the actual control was with the respondent company.

14. In that circumstance the position would be that the dispute raised presently in respect of 386 workmen were also the contract workmen being represented by the first party therein. It is no doubt true in the said proceedings the settlement as entered under Section 12(3) of ID Act limited the absorption of only 100 workmen. The memorandum of settlement dated 27.11.1993 (Annexure-C) would disclose that the parties therein were adequately represented. The present dispute is raised by another union which was not only, not a party to the earlier proceedings but was not even in existence at that point in time. Further though the learned senior counsel for the petitioner contends that the earlier settlement is without the authorization in the general body of the Union, even for the present union to raise the dispute and the actual number of workmen who have supported such action no material is forthcoming in that regard.

15. In that light, it is seen that the settlement was entered on 27.11.1993 but the award was passed on 31.12.1993 by accepting the same. Even if there was any resentment or opposition to the said award, there ought to have been a challenge to the same immediately thereafter. On the other hand what is noticed is that after nearly 4 years the petitioner Union which was not in existence has got itself registered and thereafter the dispute has been raised. In that regard also, the settlement dated 27.11.1993 nor the award was challenged at any time before the Labour Court or when the instant petition was filed. However, belatedly an application in IA No.1/2014 was filed seeking to add the additional prayer to assail the award dated 31.12.1993 and the settlement dated 27.11.1993. This Court through the order dated 04.03.2014 has dismissed the application which has attained finality. It is no doubt true that as contended by the learned senior counsel for the petitioner, the petitioners though not aggrieved by the benefit granted to the 100 workmen through the earlier award are presently seeking a similar benefit by raising the present dispute.

16. While seeking the benefit in favour of the workmen on whose behalf the present dispute is raised and to contend that they were in fact employed by the company, in that regard the learned senior counsel has sought to rely on the evidence tendered through WW-1 to WW-4 and to contend that the evidence tendered through MW.1 would not aid the management and also has referred to the documents marked at Exhs.W1 to W.14 to contend that the actual control over the workmen was with the company and in that background has referred to the following decisions:

i) In the case of Workmen of Dimakuchi Tea Estate vs. Management of Dimakuchi Tea Estate (AIR 1958 SC 353 [LQ/SC/1958/2] ) wherein the issue relating to the espousal of the dispute was considered and it was held that the dispute must be real dispute between the parties and the person regarding whom the dispute is raised must be one in whose employment, non- employment, terms of employment or conditions of labour to which the parties to the dispute have a direct or substantial interest.

ii) In the case of Anitha Kushwaha vs. Pushap Sudan [(2016)8 SCC 509] [LQ/SC/1996/394] wherein it is held that access to justice has been recognized as a part and parcel of right to life. The right is so basic and inalienable that no system of governance can possibly ignore its significance and deny the same to its citizens.

iii) In the case of Hindustan Petroleum Corporation Ltd. and others vs. Shivananda and others [Laws (kar) 2016 (3) 120] wherein it is held that during the subsistence of engagement of a contract labour, if a notification under Section 10 of a CLRA Act is issued and the engagement of contract labour is prohibited, the contract labour engaged by valid contract would not automatically become the employees principal employer but would continue to remain the employees under the contractor who may either engage them in any other establishment or terminate their services by complying the due process of law. Even in such circumstance if the dispute is raised the industrial adjudicator will have to determine based on the evidence with regard to the nature of contract in the background of the work performed and in that circumstance, if the contract is found to be sham with effect from the prohibition, the industrial adjudicator would be entitled to grant such relief to the workmen.

iv) In the case of Orissa Textile and Steel Ltd vs. State of Orissa and others (AIR 2002 SC 708 [LQ/SC/2002/72] ) wherein the Honble Supreme Court has referred to the provision contained in Section 25(O) & (N) of the and in that regard has held that while granting permission for closure appropriate enquiry is required to be held by the Government and if such consideration is not made, the closure would amount to retrenchment of the employees.

v) In the case of Workmen of Meenakshi Mills Ltd vs. Meenakshi Mills Ltd and others (AIR 1984 SC 2696) wherein also a similar consideration is made with regard to the restrictions imposed regarding closure and the illegal closure amounting to retrenchment.

vi) In the case of S.Palanisamy and others vs. Presiding Officer, Labour Court [(2018)2 LLN 757 [LQ/MadHC/2020/356] (Mad)] wherein the Court while considering the dismissal of an earlier dispute on the ground that workmen had not resorted to the procedure contemplated, has held that one cannot turn around subsequently and dismiss all the industrial disputes on the ground of res judicata. With regard to the delay it is held that the workers alone cannot be blamed since the justice delivery system is also responsible for pendency of disputes before the Courts.

vii) In the case of Harjainder Singh vs. Punjab State Warehousing Corporation [(2010)3 SCC 192] [LQ/SC/1971/120] wherein a consideration was made with regard to the jurisdiction under Article 226 and/or 227 of Constitution of India and it is stated that the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments or social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in part IV thereof. The concept of social and economic justice is a living concept introduced sustenance to the Rule of Law and meaning and significance to ideal welfare State.

viii) In the case of BEML -vs- The President, Mysore Division General Labour Assn. (W.A.No.1980/2010 dated 12.03.2015)- where while dealing with the contentions relating to the workmen, working under the contractors was the issue to be considered, the Honble Division Bench found fault with the management in not examining the contractor to prove the relationship between the workers engaged in BEML canteen. The agreement between the management and the contractor was noticed and the attendance being maintained by the management was referred and held the agreements to be make-believe theory.

ix) In the case of Management of National Aerospace Laboratories -vs- Engineering and General Workers Union [2015 (144) FLR 925-DB] wherein a Honble Division Bench in the facts had concluded that the workmen were working for a long period without conferring the status. It is unfair on the part of management to set up technical defence. The benefits were therefore ordered to be granted.

x) In the case of Hussainbhai -vs- The Alath Factory Tezhilali Union and Others (AIR 1978 SC 1410 [LQ/SC/1978/180] ) wherein it is held that the true test is the group of workers labours to produce goods or services and the same is for the business of another and that other is the employer. The intermediate contractors with whom the workers have immediate or direct relationship is of no consequence when on lifting the veil where it is found that the management is the real employer.

xi) In the case of Shankar Mukherjee and Others -vs- Union of India and Others (AIR 1990 SC 532 [LQ/SC/1989/577] ) wherein it is held that contract labour system is archaic, primitive and baneful (case of notification to be issued under CLRA)

xii) In the case of Gujarat steel Tubes Ltd., & Others -vs- Gujarat Steel Tubes Mazdoor Sabha and Others [(1980) 2 SCC 593] [LQ/SC/1979/466] where while considering the power available has held the relief of reinstatement also can given by the High Court under Article 226 of Constitution.

17. The learned counsel for the respondent in that regard would however contend that the claim of the workmen through the Union would even otherwise not be maintainable inasmuch as the contractors had fulfilled the requirement as provided under the Contract Labour Regulation and Abolition Act, 1970 (CLRA Act for short) and in such circumstance the principal employee would only be performing the obligations as required under the and no other obligation is created and in that regard has relied on the following decisions:

i) In the case of Steel Authority of India Ltd vs. Union of India and others [(2006)3 LLJ 1037 [LQ/PunjHC/2004/457] ] to the effect that when a definite stand was taken by the employees that they had been working under the contractors, a contradictory plea that they were also workmen of the principal employer cannot be raised.

ii) In the case of International Airport Authority of India vs. International Air Cargo Workers Union and another [(2009)IV LLJ 31] to the effect that mere supervision of work by the principal employer cannot be the basis to hold that the Labour contract is sham. The test to determine is the factors like payment of salary, power to initiate disciplinary action and remove from service would indicate the real control in such cases.

iii) In the case of Steel Authority of India Ltd and others vs. National Union Water front workers and others [(2001)II LLJ SC 1087] to the effect that even in a circumstance where notice is issued under Section 10 of the CLRA Act prohibiting employment to contract labour, the principal employer is not required to absorb the contract labour working in the concerned establishment unless the industrial adjudicator comes to a conclusion that the contractor has been interposed. To the same effect the decisions in the case of Municipal Corporation of Greater Mumbai vs. K.V.Shramik Sangh and others (AIR 2002 SC 1815 [LQ/SC/2002/483] ) and the decision in the case of Workmen of Nilgiri Co- operative Marketing Society Ltd. vs. State of Tamil Nadu and others (AIR 2004 SC 1639 [LQ/SC/2004/164] ) are also relied.

18. Though the contentions relating to the nature of employment of the contract labour and the decisions relied in that regard by either side has been taken note, a detailed consideration of the same on that aspect would have arisen only if the threshold contention relating to the earlier settlement and award on the same subject matter relating to the same dispute and the same set of workmen not being a bar to consider those aspects. In that circumstance though in technical terms it is not construed as res-judicata, keeping in view the provisions as contained in the ID Act and the binding nature of the settlements being contemplated under Section 18(3) of the ID Act, which is for the purpose of achieving industrial peace, reopening a settled issue belatedly would not be appropriate. In the said background as already taken note, two unions representing the cause of all the contract employees had raised the dispute and entered into settlement. Even if it is accepted, at that point the contract workmen were 1200 in number, the fact remains that the present 386 persons were also part of the same process by which the unions which were in existence had raised the dispute on behalf of all the workmen and the procedure under I.D. Act was followed. Though presently when the dispute is raised through an union which was registered in 1997, it is contended that that the workmen were not aware of the settlement recorded in Ref.No.1/1993 and were under the impression that the dispute was pending, such contention is hard to accept. This is for the reason that the case as pleaded is that the employment was refused on 15.03.1992. The dispute was raised, the issue was settled and award was passed on 31.12.1993, after which the 100 workmen were provided employment immediately the other workmen would in any case know that they are not entitled. Hence, it cannot be accepted that they were not aware of the position till 1997 and were oblivious to such development. At the initial stage, there is delay of four years as they would be employed elsewhere since in any event they were contract workers. Thereafter though the workmen cannot be held responsible for the delay in the judicial process, the fact remains that at this point more than 25 years has elapsed during which period industrial scenario itself has changed and the status of respondent company is also not the same. Hence, in a matter of the present nature unsettling the settled issues would not be justified even if the case of Anitha Kushwaha and Harjainder Singh (supra) is kept in view when the case itself is that the members of the petitioner union were contract workers and the union representing them and competent authorities were involved in the process of reaching a settlement which was accepted by the Court and award was passed pursuant thereto.

19. In that view I do not see any reason to interfere with the award dated 21.07.2005 passed in Ref.No.83/1997. The petition is accordingly dismissed.