N. M. KASLIWAL, J. - (1.) Both the above writ petitions are disposed of by one single order as they relate to identical facts and circumstances. In Writ Petition No. 1722/81 challenge has been made to a reference made by the State Government under S. 10 (1) read with S. 12 (5) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act)hhh of the disputes whether the lockout declared on 6-10-1980 was valid and whether it was valid on the part of the employers not to declare bonus to the employees at the rate of 15% for the year 1979-80. In Writ Petition No. 1723/ 81 challenge has been made to a reference made by the State Government of the dispute whether the termination of 69 employees who are represented by CIMMCO Workers Union (Citu), Bharatpur, was valid. By these writ petitions the employer Central India Machinery Manufacturing Company Ltd., Bharatpur (hereinafter referred to as the petitioner) has sought a writ of mandamus or any other appropriate writ, order or direction directing the State of Rajasthan to withdraw and/or cancel the order of reference made under section 10 of the Industrial Disputes Act and to forbear from taking any steps or action in pursuance thereof.
(2.) Briefly stated the facts leading to these writ petitions are that the petitioner is a company having its registered office at Birla Nager, Gwalior. It has several divisions and one of such divisions is the Wagon and Structural Division at Bharatpur, which is engaged in the manufacture and supply of railway wagons and structurals. In the aforesaid wagon factory at Bharatpur there are about 2500 workmen and employees. The workmen of this Wagon factory have from time to time formed seven trade unions, all of whom are registered under the Indian Trade Unions Act, 1926. All the aforesaid seven Trade unions are respondents in the writ petitions from numbers 4 to 10. It may be mentioned that the dispute now between the petitioner and its employees is about the employees who are represented by CIMMCO Workers Union, respondent No. 10 (hereinafter referred to as the workers union). According to the petitioner the workmen of the Wagon factory raised certain demands in June, 1980 and the matter was referred to the Conciliation Officer for settlement. Some time in July, 1980, a settlement was arrived at in the course of conciliation proceedings and the terms of said settlement dated July 27, 1980 have been annexed and marked 'II'. According to the petitioner, the said memorandum of settlement had been signed by the petitioner and respondents Nos. 4 to 9, who were 6 trade unions and also by the Conciliation Officer. It is further alleged that a similar memorandum of settlement dated July 28, 1980 was also signed on behalf of the petitioner and the respondent No. 10, workers union. It may be mentioned at this stage that the respondent No. 10 workers union has denied the signing of the settlement dated 28th July, 1980 as alleged by the petitioner or presenting the same before the Conciliation Officer. The case of the petitioner further is that though all matters between the petitioner and the workmen of the Wagon Factory were settled in the course of conciliation proceedings, in spite of that, the Conciliation Officer did not send any report under S. 12 (4) of the Act. It is further allege that in spite of the settlement referred to above, some of the workmen of the Wagon factory aided and abetted by a large number of strangers indulged in committing various illegal and criminal acts in and around the Wagon factory. The workmen, inter alia, destroyed the properties of the petitioner and inflicted grievous injuries to various persons in the Wagon, factory. The grave and serious law and order situation compelled the petitioner to declare a lockout from Oct 6, 1980. In view of such criminal acts and large scale destruction of property, the petitioner was compelled to dismiss workmen who were guilty of criminal acts. According to the petitioner, the total number of the workmen dismissed was 58. In the beginning of Feb. 1981 the situation unproved and the petitioner lifted the lockout w. e. f. Feb 9, 1981. Since Feb 9, 1981 the production in the Wagon factory has been improving and still continues to improve from day to day. By a letter dated March 9, 1981, the workers union raised the demands to the Conciliation Officer, inter alia, on the following matters : (i) Wages during the period of the said lockout. (ii) Taking back the workmen on lifting of lockout who had been removed. (iii) 13 nus for the year 1979-80. According to the petitioner, no such demand was made with the petitioner either by the workers union or any of the workmen. On the basis of the demands contained in the said letter dated March 9, 1981, the Conciliation Officer commenced proceedings under S. 12 of the At. By a letter dated April 3, 1981, the petitioner gave a reply. While the Conciliation Proceedings were pending, direct negotiations took place between the petitioner and the workmen and it wag agreed that all matters raised by the said demand dated March 9, 1981 would be amicably settled between the parties without any reference to the Conciliation Officer or any other authority. However, in respect of take conciliation proceedings initiated, the Conciliation Officer submitted a failure report on April 21, 1981 to the State Government. In the said report, it was stated by the Conciliation Officer that none of the parties had appeared before him on various dates. According to the petitioner, the failure report dated April 21, 1981 given by the Conciliation Officer was misconceived, arbitrary, fanciful, without any basis and wholly illegal. The Conciliation Officer failed to apply his mind to the relevant matters and his report is vitiated because of the non-application of his mind to the questions and facts involved. The Conciliation Officer had not made any investigation as he was required to make under S. 12 (2) of the Act. Had he made such investigation, he would have ascertained and found that the petitioner and its workmen had agreed to settle the matter amicably among, themselves and, therefore, the conciliation proceedings had not followed but had become in fructuous. It is further alleged that in fact by a memorandum of settlement dated Aug 22, 1981 all demands raised vide letter dated March 9, 1981 were settled between the petitioner and the workmen. A copy of the memorandum of settlement dated Aug, 22, 1981 is annexed with the writ petition and marked Ex. IX. According to the petitioner, under the terms and conditions of the said memorandum of settlement dated Aug, 22, 1981, the workmen of the Wagon factory became entitled to substantial financial benefits which are, inter alia, as follows : - (i) each workman would get an ex gratis amount of Rs. 250/- on account of the of wages during the period of the said lockout. (ii) each workman of the Wagon factory would receive an additional amount of Rs. 207/- per month on account of the production target stipulated in the said memorandum of settlement dated Aug, 22, 1981 being achieved. In the said memorandum, it was further agreed that all disputes i. e. future disputes between the parties would be decided by joint committee to be constituted in terms of the said memorandum of settlement. According to the petitioner the said memorandum of settlement dated Aug, 22, 1981 has been implemented and acted upon and every workman of the wagon factory has received the said amount of Rs. 250/- and has also received and still continues to receive the said further amount of Rs. 207/- per month. It is further alleged that since April, 1981, there has been and there is now no dispute whatsoever between the petitioner and the workmen of the Wagon factory. Further, in order to enable the achievement of the production target stipulated in the said memorandum of settlement dated Aug. 22, 1981, the Deputy Secretary, Ministry of Labour and Employment, Government of Rajasthan has himself made orders under the Factories Act, 1948 permitting the workmen of the Wagon factory to work on Sundays. Further in terms of the said settlement a joint committee has also been constituted to deal with and settle any dispute that may arise in future. A provincial committee has also been constituted consisting of Shri V. N. Goenka, Shri Hajari Lal Sharma (who is General Secretary of Indian National Trade Union Congress), Jaipur and Shri Raghuveer Sarma Nirmal, who is Joint Secretary of Hind Mazdoor Sabha), Jaipur. The said provincial Committee has been constituted to deal with any matter which the said joint Committee is unable to decide. In the above circumstances, it is alleged that there has been and there is now no dispute between the petitioner and workmen. As regards the persons whose services have been terminated by the petitioner, it is alleged that they had indulged in illegal and criminal activities and constituted an undesirable violent element among the workmen and if the petitioner is compelled to take back the said persons industrial peace and harmony in the Wagon factory will again be irreparably disrupted and the Wagon Factory will be ruined. It is further alleged that various criminal proceedings are pending against each of the said persons whose services have been terminated in Criminal Courts at Bharatpur in respect of various offences including attempt, to murder, causing grievous injuries, criminal trespass, mischief and robbery. The persons whose services have been terminated are restrained by orders made by the District and Sessions Judge, Bharatpur on Aug, 6, 1980 from holding committees (meetings?) and from indulging in various undesirable activities. The said orders have been confirmed by the High Court and are still in force. Further orders have been made against some of the said persons under Sections 107 and 167, Cr. P. C., 1973. It is further alleged that on inspection of records of respondent No. 2, the Deputy Secretary, Ministry of Labour and Employment, Government of Rajasthan. the petitioner came to learn that on or about July 22, 1981, the respondent No.1 required the respondent No. 3, Labour Welfare and Conciliation Officer to give comments on the reasons why the conciliation proceedings had failed. On August 4, 1981 the respondent No. 3 replied and alleged that the conciliation proceedings had failed because the petitioner had not given any reply to the letter dated March 9, 1981. The petitioner states that the said reply given by the respondent No. 3 is false and patently erroneous. The petitioner has thus alleged that in face of the circumstances mentioned above, the State Government had no jurisdiction to make a reference under S. 10 (1) of the Act. The action of the State Government in making reference under the provisions of S. 10 read with S. 12 was thus arbitrary, illegal and ultra wires. The case of the petitioner is that when there was no industrial dispute in existence in the facts and circumstances mentioned above. the condition precedent for making an order of reference under section 10 of the Act did not exist. The order of reference has been made without application of emend either to the existence of any dispute or to the expediency of making such reference. The order has been made an extraneous and irrelevant consideration and by ignoring the circumstances that are relevant and material and as such the order being arbitrary, fanciful and without any basis, is liable to be quashed. By the impugned orders, State Government has sought to refer the disputes which have been already settled and/or abandoned.
(3.) On a notice issued to the respondent Nos. 1 to 10 to show cause as to why the writ petition should not be admitted, the respondent No. 10 Workers Union has put in appearance and has filed a reply to the show cause notice. The Workers Union in the reply has alleged that the order of references is quite legal, just and valid. The reference has been made as the Conciliation officer had submitted the failure report and thereafter, the matter was fully considered and references, has been made after fully applying its mind. It is alleged that the respondent No. 10 Workers Union represented a majority of the workmen of the petitioner company. If a reference is made to a conciliation settlement dated 5-9- 70 where all the 7 trade unions and the petitioner agreed to accord recognition to the majority Union on the basis of secret ballots, it would be revealed that the Workers Union secured 1673 votes out of 2361 votes and it was declared as the only representative Union in accordance was the terms of the said conciliation agreement dated 5-9-78. No sooner the results of the secret ballots were out the petitioner company by letter dated 26-9-78 recognised the Workers Union as majority union for a period of 2 years. It is alleged that in view of these circumstances, the petitioner company was bound to settle all the disputes across the table with the workers union during the aforesaid period of two years. After the expiry of the period of 2 years no fresh secret ballots for recognising any other union has been held hitherto and the workers union still continues to be a recognised majority union. According to the Workers Union, a charter of demands was submitted by them to the petitioner on 26-6- 80. The demands included revision of pay scales, wage increase, revision of the rate of D. A., house rent allowance, rate of gratuity and leave facilities etc. These demands were of general nature, which affected all the workmen. As such, the other union also submitted their charter of demands. The charter of demands as submitted by the Workers Union was admitted into conciliation by the respondent No. 3, Conciliation Officer. In the meantime, the petitioner clandestinely entered into secret negotiations and llbld conclaves with respondents Nos. 4 to 9 at the back of the Workers Union who was the true representative Union. The petitioner company and respondents Nos. 4 to 9 entered into an agreement on 27-7-80 and manoeuvred with the conciliation officer to get it register as a conciliation settlement, at his house in the dead of night. The said settlement, according to the Workers Union is absolutely illegal and has no binding effect on the workmen of the company, as the workers union, who was true representative of the workmen, was not a party to it. According to them the charter of demands submitted by them on 26-6-80 still subsisted. It was emphatically denied that the workers union ever signed a similar settlement or represented before the Conciliation Officer or its President snatched away its copy or that the same was in their possession. The fact according to the workers union is that as the settlement with the non recognised and non-representative unions, was signed and registered, the petitioner brought undue influence, pressure upon the workers union and its office bearers to sign a similar settlement. The workers union suggested certain modifications, additions and alterations to enable it to sign similar settlement dated 27-7-80, but as the petitioner did not agree to such modifications, additions and alterations, no such settlement was signed by the Workers Union.;