- (1.) Munilal Roy, the respondent. No. 5 in this appeal was emloyed by the appellant Spencer & Co. Ltd. as a packer-cum-coolie. On account of various charges of acts of misconduct committed by the respondent No.5 as stated in the petition, two charge-sheets dated 7th Feb. (6th ) and 25th Feb. 1971 were issued against him, Similarly charge-sheets were also issued to 6 other workmen. Thereafter, an enquiry was held wherein the respondent No. 5 was found guilty of all the charges contained in the charge-sheet dated the 25th Feb., 1971 and of charges Nos. 2 and 3 of the charge-sheet dated the 6th Feb., 1971. The respondent No. 5 was, however, given the benefit of doubt with regard to charge No. 1 of the said charge-sheet dated the 6th Feb, 1971. In view of the gravity of misconduct of which the respondent No. 5 was found guilty he was dismissed. Enquiries were also made into the charges against six other workmen including Joggeswar Ram and Babulal Shaw. The said Joggeswar Ram and Babulal Shaw were also dismissed. A dispute was raised thereafter by the Union, namely, 'Spencer Shramik Union' on behalf of the workers on the question of dismissal of the said employees including that of the respondent No. 5 Munilal Roy. In course of conciliation proceedings under the Industrial Disputes Act, 1947, a settlement was reached at the intervention of the Conciliation Officer of the industrial dispute between the appellant and its workmen and the Memorandum of Settlement was signed on behalf of the employer, namely, the appellant and on behalf of the workmen by the General Secretary of the Union and that was also witnessed by one H. M. Ghosh, Conciliation Officer. In this appeal we are concerned with the interpretation, of this Settlement particularly, CI. 5 (1) (2) thereof. The said clause reads as follows : "5 (1) The dismissal of Shri Munilal Roy will stand but the Company will have no objection to dispute in this respect being referred for adjudication to a Tribunal by the Government. (2) Shri Babulal Shaw and Joggeswar Ram will be allowed to resume duties on tendering apology with effect from 7th June, 1971 as a measure of compromise which will not be quoted as a precedent. It is clearly understood that reinstatement of Shri Babulal Shaw and Joggeswar Ram is being agreed to by the Company at the request of the Conciliation Officer and this shall not be taken as a ground to the prejudice of the Company in any Judicial proceedings whatsoever including if any, in respect of Shri Munilal Roy". Thereafter by an order dated the 5th May, 1972, the Government of West Bengal referred the following dispute under S. 10 of the Industrial Disputes Act to the Third Industrial Tribunal, West Bengal for adjudication. "1. Whether dismissal of Shri Munilal Roy is justified What relief if any, is he entitled" In the adjudication proceedings which started pursuant to the said order of reference before the Third Industrial Tribunal the appellant and the Union filed their respective written statements. It was contended on behalf of the Company that as the dismissal of Munilal Roy was finally! settled by the said Settlement the reference was incompetent and the Tribunal had no jurisdiction to entertain. the same. The appellant also made an application to the. Tribunal for deciding the question of the jurisdiction as a. preliminary issue it appears that the Tribunal decided the question of jurisdiction as a preliminary issue and for that purpose evidence was taken by Tribunal. After hearing the . parties the Tribunal by its order No. 15 dated the 27th March,1973, held that it had jurisdiction to entertain the reference. Thereafter, on or about the 17th December, 1973, the appellant made an application in the constitutional writ jurisdiction of this Court under Art. 226 of the Constitution challenging the validity of the said order of reference dated the 5th May. 1972 and the said order of the tribunal dated the 27th March, 1973 and prayed for appropriate writs for quashing and/or setting aside and/or rescinding the said order. The said application was moved before Masud, . J. but his Lordship by an order dated the 19th December, 1973, refused to issue a Rule Nisi and dismissed the said application. The instant appeal is directed against the said order dated the 19th Dec, 1973.
(2.) This appeal is contested only by the respondent No. 3.
(3.) The main contention of the appellant in this appeal is that all disputes including the dispute regarding dismissal and/or reinstatement of the respondent No, 5 Munilal Roy were settled by the Settlement arrived at in course of conciliation proceedings in June, 1971 mentioned hereinbefore. According to the appellant's counsel Mr. H. K. Ghosh, under C1.. 5 (1) of the said Settlement parties agreed that the dismissal of Munilal Roy would stand but only the dispute as regards monetary claims to which Munilal Roy was entitled to would be adjudicated upon by the Tribunal. It was submitted that: the expression 'dispute' in this respect appearing in CI. 5 :(1) meant the dispute regarding the monetary claims of the respondent No. 5, namely, the claim for gratuity, bonus, salary in lieu of notice, retirement benefit, earned leave etc. and it could not mean or include the dispute regarding the dismissal or reinstatement of the respondent No. 5 because of the clear and express words in C1. 5 (i) that 'the dismissal of Shri Munilal Roy will stand" Mr. Ghose also referred to C1. 5 (2) of the said Settlement and submitted that the said clause made it clear that the reinstatement of Shri Babulal Shaw and Joggeswar Ram. by the . company would not be taken as a ground to the prejudice of the company in any judicial proceedings which would be taken in respect of the aforesaid claims of the respondent No." 5. According to counsel as the dispute regarding the dismissal or reinstatement of the respondent No. 5, was finally settled by the aforesaid Settlement in the conciliation proceedings and such Settlement is binding on all the parties to the Settlement in view of S.18 (3) of the Industrial Disputes Act no reference could be made by the Government of any dispute regarding the dismissal of the respondent No. 5. Therefore, according to counsel the alleged reference was bad. On the question that the settlement arrived at in the conciliation proceedings remained in force and the aforesaid dispute could not be referred to the tribunal for adjudication counsel has relied on various cases, to wit, 1968 2 LLJ 350 ; Workmen of the Motor Industries Co. Ltd. V/s. Management of Motor industries Co. Ltd., 1969 AIR(SC) 1280 and S. Joseph v.Panyam Cements and Mineral Industries Ltd., Kurnool, 1966 AIR(AP) 147. As there is no dispute between the parties regarding the effect of S. 18 (3) of the Industrial Disputes Act it is necessary to deal with the aforesaid cases.;