- (1.) THE State Transport Service, Cuttack, is an organisation run and managed by the Government of Orissa through the Transport Department. It carries on the activities, inter alia, of transporting public and private goods. The Orissa Road Transport Co. Ltd. is a Government company carrying on identical activities as that of the State Transport Service. The employees of both the said undertakings, who are workmen within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the Act), have organised themselves into a Union known as All Orissa Motor Transport Employees' Federation. It is formed and registered under the Indian Trade Unions Act, 1926. On 7th of August, 1968, the General Secretary of the Federation submitted a charter of demands (Annexure 1) to the Secretary to the Government of Orissa, Transport Department, Bhubaneswar, and also to the Director-in-charge, Orissa Road Transport Co. Ltd. , Cuttack. The charter of demands consisted of various items of demands touching the service conditions etc. , of the workmen of the State Transport Service and of the Orissa Road Transport Co. Ltd. Being satisfied that an industrial dispute existed or was apprehended between the workmen and their employers, the. Conciliation Officer, Orissa, acting under Section 12 (1) of the Act initiated conciliation on 21-9-68 on the disputes. In course of the conciliation proceedings some demands were settled and a memorandum of settlement was drawn up on 25-10-68 under Section 12 (3) of the Act. The disputes which could not be settled were further conciliated upon; but no agreement between the parties could be reached. The conciliation ended in a failure report (Annexure 2) to the opposite party on 31-769 under Section 12 (4) of the Act. With regard to demands Nos. 3 and 5, the opposite party informed the petitioner by the letter (Annexure 3) that the disputes did not merit a reference. Demands Nos. 3 and 5 and the reasons given by the opposite party may be noted hereunder port Service and Orissa Road Transport Co. for easy reference. Demands Reasons for non-re 3. Pension-cum-gratuity facilities. That the pension-cum-gratuity facilitiesas enjoyed by the Government employeesmay please be extended to the employeesof State Transport Service and Orissaroad Transport Co. Ltd. A set of rules prescribingof the employees of the S. Tconsideration of Government these rules the question ofrespect of employees of O. R 5. Daily bhatta or over-duty allowance. That the existing rate of daily "bhatta" or "over duty allowance" as admissibleto the running staff of the State Trans-During the period of enforcmemorandum of settlement da demand is not tenable. Ltd. , may please be revised in thefollowing manner considering thehigh Price of the market: I. Driver: 3 paise per K. M. operated. II. Conductor: 2? paise per K. M. operated. III. Cleaner: 2 paise per K. M. operated. M Against the order of the opposite party refusing to make a reference in respect of demands Nos. 3 and 5 this writ application has been filed under Article 226 of the Constitution.
(2.) MR. Nanda for the petitioner contends that the reasons given for non-reference are irrelevant and extraneous to the questions in issue. The contention requires careful examination.
(3.) WE would first deal with demand No. 5. As has already been stated this demand by the petitioner was for enhancement of the daily batta or over duty allowance. The reason for not referring this demand to the Industrial Tribunal for adjudication is that during the period of enforceability of the memorandum of settlement dated 16-12-66 the demand is not tenable. The reason for non-reference is based entirely on a legal stand. Section 19 of the Act deals with the period of operation of settlement and awards. A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. In this case, the memorandum of settlement was signed on 16-12-66. There was no agreement that the settlement shall come into operation on any other date. Thus the memorandum of settlement came into force with effect from the date on which it was signed. As would appear from the counter-affidavit the Union had given a notice of termination of the settlement on 3-8-68. The stand of the opposite party is that the settlement remained in operation till 3-10-68, and that the charter of demands having been submitted on 7-8-68 there was no dispute on this demand between the parties on the date when the demand was submitted.;