Workmen v. Hindustan Lever Ltd.

··~ 307 A . _"f_ WORKMEN _OF.Mjs_ HINDUSTAN LEVER LTD. & ORS,. _v._ MANAGEMENT OF M/S ttTNtius r AN LEVER LTD. B_January_ 5, 1984 . [D . .J\. DESAI:'O. CHl,NNAPPA REDDY, AND. A. VARADARA;AN, JJ.] _Industrial Disputes Act_ _1947_ .. . _Industrial Dispitte-Jurisdiction_ oTindu~trial trlh1~nal~Deter11!i1,1ed _fro1n_ _the o.rdrr_ _of reference-:--Status_ _o,f person_ _1iot_ qu~stior1e:J _hy en1ployer-TNhunal_ _whe.tlier_ _entit_led_ - C · 1!!...f~'o _!ll()fU_ _decide· as_ _a prelin1i11ary_ _iSsue._ + . --t·· _Concluded_ _Agree1i1e11t_ _betlt'een_ _Ma1iage111e11t_ _and_ _U11ion-Manafreme11t_ _acting_ _on· the. agl'een1ent_ _for_ _so1ne_ _)-;ea.rs-Mm1agen1ent_ _whethcir ··zater_ _entitled to repudiate_ _ancl,_ _disown_ _dgreen1ent-Dlffere11ce_ _between_ _unilateral_ _rep1_rdiation_ _-and_ _tennination_ _of agree1nent_ _Indicqted._ _lil[lustrial dispute.\:-:Adjudication pf-Con<;_ept_ _of res_ judicata-Wh~th_er _apj,li-._ _ble._ The appeJlant-UniOri and the respondcnt-Gomi,any through their c·ommunications dated January .. 24, 1951, April 24, )957 and May .1, 1957 :concluded an. agreen1ent relating to .various it~ms· of industrial disp~tes which _inter.Olia_ ptovided . that the en1ployer had agreed not to contest the issue-whether field foice including_ salesn1e11 were not '\vorkn1en' within .the meaning of the expressiop in the Tndti.strlal DiSputes Act.and that disputes of an ·AH-India n~ture . cotild be raised only at . t>~lhi. Two empioyees of the Respondent·con1pany who were· salesme.n and protected · workmCn with the meaning Of the expl·esSion ln the ·Tndustrial Disputes Act, 1947 and who• were office"· bearers of the union, were · cha·i·gci sheeted and ~fter a disCtpJinar.y enquiry their services ~ere terminated. .The appellant-union raised an industrial dispute-contending that the t~rmination of scrviCes of these two workn1en were ille£a! and.iil"val.id, and that the enquiry was equally illegal,"and i~Propc!,. and th"at the action of_ the. emp!Oyer ·w::i.s an act of reprisal. and victimiz3.tion, Qecause of their trade union activities. The Government referred the' industrial _ dispute tO the Indi1strial Tribu.naL . . The e~ployer Contended. that the two Workn1en were not 'workmen' ·within the rrieaning Of the exprCssion·in·the Act-and "that the Government had no jurisdiction to refer the dispute to the lndust-fiii.1 -T~ibunal. '1t was further co,ntCnded that·, the s¢rvices of th~-wor,kme·n were tern1inated not by way of p'Unishn1ent but under the contract of service and ihat the di"scip'linary enquiry \vhich was commenced was ~~bsequently dropped. - -,t ' . . The -appellant-union- however conteitded that the employer wa~ estopped from ~hall_cnging f~e status of the: two workplen \yitbin. the meaning of th'e expression - \ .. D E F G H 308 SUPREME COURT REPORTS (1984] 2 S.C.R. in the A_ct on account of the subsisting, valid~ conc!Uded agreement between' the parti_es and that in view of thC iward_ Of the lndµstria1 Tribunal, Delhi in 1.D. No. 46/66. The contentions about the existence of the agree·ment and the status of salesmen 'were _res_ _judicOta_ and could nOt be reopened so 109g as the agr~ment w~s in force and operative. The Tribunal rejected the preliminary objections raised on behalf of the union and came to the conclusion_ that the three communications dated January 24, 1957, ·.April 24; 1957 .. and May I, 1957 Ex. W-2, W-"· W-4 respectively did.not spell out a coniplete, concluded -agreen1ent between the parties on the points mentioned therein but it was art inchoate agreement in the stage of negotiations and the employer waS not bound to stand by its Offer made in the communication dated January 24, 1957 · denYing itself the right to contest the status of .the field force including salesn1en as not being workman within the meaning of the Act. The a\vard Of the Industriai Tribunal, Delhi in I.D. No. _46(66_ in which it. was held that there Was a concluded agreement between the- parties and therefore the industrial disputes raised therein could not be ·adjudicated at Delhi did not operate as _.ra.s_ _judicata_ because the issue in that a\vard was not directly and .~ub~tantially in issue: in. the present reference.' The Tribunal set dciwn the reference for·fufther hearing. - Allowing the Ap~eal : HELD : 1. The Tribunal committed a serious error, apparent on record in holding that there was Ii.o concluded agreement between the parties as emerging from Exs. W,2, W-3, and W-4. [329 F] ' In .. the instant case, having meticUlously examined various refe~cnces pertaining to various industrial disputes ·between the parties at different centres in :ni.ctia since· the agreement in 1957 it unquestionabiy emerges that the emPioycr till the present reference never once even whispei:ed that 'the agteefnent was not. a concluded agrOOffient or 'that it w.as an inChoate one left hanging at the s_tage of. . "'negotiations. It ~as only in the. present reference the contention raised was that the agreement was not a· concluded agreement. The.employer which- swore by the agreement and repeatedly succeeded in getting th~own out certain reference.s · at the threshold on account of the agreement contended tha'.t th_ere was no concluded agrement, and. ignoring the whole history, the Tribun;r" fell into an _eiior_ in accep:ting this contention. The Tribu'nal wholly ignored the fact that it was· ; solel)ln agrement~ of. which effective" aand wholesome advantage had been taken by the employer and.when ii did not suit it; it wanted to turn round and not only repudiate it but disown it. No court of justice ~an ever permit s~ch a thing to be done. [324 E-325 BJ . _Hindustan Lever Ltd .. v._ _Ram_ _Mohan_ _Ray_ _&_ _Ors.,_ (1973] 3 S.C.R. 624; _JVestern_ _India_ _Match_ _Co._ v. _·Their_ _Workmen,_ [1964] 3 S.C.R. 560.at 566; and _A(urniniu'!1_ _Factory_ _Workers,_ _Union_ v. _Indian_ _Aluminiton_ _Co._ Ltd.~ [i,962]]1 L.L.J. 210, referred. to. 2. The Tribun.al is directed to proceed to detern1ine the dispute on merits without conCerning itself with the considef~tion of the question whether the concerned workmen were workmen w.ithin the meaning of the exp_ressiori under the Act. [332 E] 3. ·-The concept.of .. compulsory adjudication of industrial disputes was statutorily _ushered ifi. with a view to providing a. forum and comP.elling the parties •· A B c D E F G H _)_ WORKMEN _·v._ HINDUSTAN LEVER LTD. 309 to resort to the forun1 for arbitr~tion so as tp avoid collfrontation and.dislocati~n in industry. A developing country like'·India can ill-afford dislocation in ~ndust~1al production. Peace and harmony in industry an~ uninterrupted product~on being the demands of the time, it was considered wise to arm the Government with pow~r to con1pcl the parties to resort to arbitration and as a necessary coronary to ~void corlfrontation and trial of strength, .which were co~sidered wasteful from national and--public interest point of view. A welfare State can ill-afford to Jook askance at industrial unrest ~nd indUstri_al Q.isputes.' [326H-327B] - Cases _Dahyabhai_ 96.7 .referred _Ronchhoddas_ to. _Shah_ v. _Jayanfilal Mohan/al.,_ (1973} Lab. & Industrial ' 4. The Act did. not confer till the introduction of. Chapters ·v-A and V-B, any special or enforceable benefits On the workmen. The Act was designed ·to provide a self-contained Code to compel the parties to resort to industrial arbitration- for the· ·resolution· .of existing or appreherided disputes without prescribing statutory norms for varied and variega_ted industrial ielatiO.n, so that the forUms created for resolution of disputes may ren1ain ·unhan1pered by any statutory control and devise rational norrris keeping place with improved industrial relations reflectfiig and imbibing socio-economic justice. If this is· the underlying object behind enactni.ent of the Act, the COurt by interpretative· process must strive to reduce the field of conflict and expand· the area of agreeinent a:nd show its preference for upholding agreements sanctified by ·mutuality· and conse~sus in larger publiC interest, namel.Y to es~hew in"duStrial strife,· confrontation. and consequent· wastage .. [327 C-E] 5. It is inappropriate to usher in the. technical co.ncept of _res judicata_ pervading the "field of civil ju~ticc "into t~e field of industrial arbitration. The principle analogous to _res judicata_ can be availed of to scuttle any attempt at raisi~g industrial disputes repeatedly in defiance of .operative settlenients and awards. But this highly technical concePt of·· civil justice may be Kept in precise confined limits in the field o.f industrial arbitr<ition whi9h must as far as possible be kept:free from such technicalities which thwart resolution of industrial disput~s. [326 D-G] _Shahdara_ _{D_elhi)_ _Saharanftur_ _Light Railway_ _Co._ _Ltd .._ v. - _Shahdara (Delhi)_ _Saharanpui:_ _ftailway Workers_ _Union,_ (1969) 1 L.L.J. 734 at ·742; and _Workmen_ _of Straw Board Manufacturing_ Co._ _Ltd._ v. _M/s Straw_ _Boa1«d_ _Mlinufacturing_ _Co._ _Ltd.,_ [1974] 3 S.C.R. 703 referred to. 6 .. Unilateral repudiation is .distin~i from terrriination and an agreement/ settleinttnt reniains in fOrcc and. binding till ·terminated and· does not come to .an end by unilateral repuqiation. -[328 E] A. B D E F G H In th~ inst~nt case; th~ parties enfered _intO a soi~~n agreement. It ~s not suggested that the agreement has been tenninated. The only argument put forward on behalf of the em))l~yer was that· .the union· has repu~iated the agreement by raising disputes of an a11-India natu.re at a r~gional level .and thereby committed ·breach .. of the agreement. This. con_t6ntion is entirely without rnetits. What has happe·ned.is ttiat the Union raised ceriain disputes whicl! according to the Union were of a regional nature and which it was· not estopped from raising in the teeth c;>f the tenns of the binding agreement behveen the parties. : On 'the Other b:ind, ·the employer contended that the disputes so raisCd were of an aJl-Jndia nature. Both sides swore by the agreement,~the difference in approach being ·whether the dispute was of an all-India na_turc __oi_ of regional nature. Th~ divergence in approach. 310 SUPREME COURT REPORTS A. B c D E F G H CML APPELLATE JURISDJCTfON: ~ivil Appc2l Ne. 1865 of 1982 Appeal by Special leave . from the Order dated the ·24th . Decembcr.'19.8.1 of the Labour Court, Delhi in LD. No. 120 of i977 . _M.K_ _Rammnuithi,_ - _VP._ _Choudhmoy_ . _Jifendra_ _Sharma_ and _P._ _C,aur,_ for the Appellant. - _·-·G.B.._ _Pai,_ _0.C._ _Mathui·,_ _D.Nc_ _Mishra,_ _S._ _·sukumaran_ and _Ms. Meera. Mathur;_ ·for the· Rcsp~ndent. W~· as .to the ihterPretation, _the coverage; the.ambit and the width of th_e agre~h;ent' Both th~ pa.rticS s~ore by the agrec1n€nt but differe"d _in._ their aPproach and· inter-. prl:'.tation and the forun1 na1nely t,he Industrial Tribunai consisientlY upheid at tiW instance of the e1nployer that there was a biJld_ing valid agreement subsisting between the parties~ This. constitutes adherence· to agrecmcrit 1 pcrfOrn1an.ce of th:;: agree~ ffient, implementation of the ·ag'ree1ncnt and being _bound by the agreement. This conduct in no sense c.1,n'be said tCrconstitti.te . repudiation: . [327 F-328 CJ 7. The Tribun~l -derives_ its jurisdictin1i by the 9.rdc;. of reference and not 01_1.thc deteqninati<?O .. of a ju'risdictiOn.al·fact whipji i(ryii.1st of necessity decide t9 ~'. acquir~ jurjsdiction. [330 G] 8. In industrial adjudic~tfon, is;;ues are of two typ~s : (i) those- referred b:Y tht .OOvernn1ent for adjudication a11d.s.:t Out in the order -of 'reference,' and (ii) incidental issues invol-ving miXod question<; of l11w and facts. The Tribunal may fran1e. preliminary iS~ues if the. point on which. Jhe parties,are at varia,~cc, go to the. foot of the matter. But the -Tribunal cannot fraver beyond the ptCadings and aTrogate J ~ tO ·itself the pchvor -to. raise· issues which the. ijarties to the· refern"e~ are precludf:d fro111 raising. If the e"n~plqyCr does not question the statu~ of the workmen, the .Tribllnal callnot _suo 1notu_ raise the· i~su~ 'ai1~ proceed to adjudicate Upon. the same and throw out. the· reference ·on the sole ground that the Concerned workman was not n workman·Withii-i-tp,e -n1:.!ani:ng _or_ ~he ?xprcssion under thi;: Act. [33.l G'-332 Al. 9.· ·Whether a- p~rticular pcrs~n ··is a·· workn1an or· not depends -u·pan· factual 1natrix. ·Worktnan is ·d~fined in S0c. 2(s) ·of .the :Act. The ·ingn:dients and th~ irtddcnts of thC definition when 'satisfied, thC person satisfy.ing. the sa1ne would. be a \vorkman, N~gativcly if son1cone fails "to sati<;fy one _or_ oth~r ingredient or ·incident of the definition, -he-may not be.hpld to be workman witi~in the meaning ' of th~ exprcssi011 ln the A~t: [3.30 C] . . t 0 .. There is no provision in the A.ct. -which ob11ges the r ndtistria\ Tribui1al or other forums sJt up _under the Act _Ip_ d.;:cidc iVen in thG absence o(a :contention froin the effip\oyer, a preliminary issue. w.heth_cr th_c per<;Oll· \Yh.o has_ invoked its . 9.· ·Whether a- p~rticular pcrs~n ··is a·· workn1an or· not depends -u·pan· factual 1natrix. ·Worktnan is ·d~fined in S0c. 2(s) ·of .the :Act. The ·ingn:dients and th~ ju'~isdiction is. <l work1nan or not. ··There is no- ·suc·h oblig.1tion cas~ sth.tutorily on th0 Ti:i.bunal. If the employci· ~Oc~. not raise the contention about the status of.thC \Vorkm'.ln a.p.proaching the Tribunal, the Tribunal has no-obligation to decide the Statµ:s· cif the person Whether he is a· workman or uot. The TribHnal inust prbceed o'n the assrnnption ~hat n'o s\ich ·_conte.ntiqn ls _raised and is requirCd. to be adjudicated upon. [J30 D-F] ' WORKMEN _v._ . HINDUSTA~ . . ~EVER . L'rU. _(Desai,_ . . _J.)_ . 311 The . Judgment j of ' the Court . was delivered . . hy DESAI, J .. Tf solemn agr_eelt)ents _proposed. by t11e employer. and readily ac.ceeded. to by .the workmeio and holding:the forte for over a· quarter· of a: century Ure crud~Jy .disowned .cofr1pelli:ig. the workmen to knock at the door of the apex court for removing the "roaJcblock in tJ1e access to justice set up by preliminary cbjectioi C'f ·iechnioal nature>, _industrial peace and harmony chanted" by the emplo~·er. \~ould be not merely an empty _1;1a11trl1_ buf a· (,xercise l ' \'.: df chasi,ng a mirage . . and . unfortunately ·. . . that . . i~ the ·sltuati('i1 -.,;. here. ' . ._Hindustan Lev.~r L~d., _a muhi:ri~itio~a! co1ripany, respo~dent herein addressed a communication d'::ted January 24,_ 1957 1-ccordjng _1_ l ' emplo~·er. \~ould be not merely an empty _1;1a11trl1_ buf a· fliti!e (,xercise df chasi,ng a mirage and unfortunately that i~ the ·sltuati('i1 here. the out-come· .. of mutual deliberaiiors betwcrn the .Hi1•dust211 Lever · Ltd_. {'employer'. for short) and.· the Hindust_an Levq' Mazdcor Sabha A B c D ;. ·uni-o-n' f Or' short) recognised repres~n"tativ- u1lion o_f. ·th~. \\'0rkn1cn employed by _the employer. The rckvan_t portion may be extrnct(d _:_ _"Bx._ _W-2_ _24th_ _January,_ 1957 Presidrnt, ' Sir; . •' ## . our rcCent _The Presidrnt, Hindt)Stan Lever Mazdoor Sabha, Bomloay, Dear Sir; . R~ferring~to: our rcCent 1neeting: abriut 'field force;- \ve \VOlfld <:,c to p:ucc. on record that ~- · • .!) . Wc."r~·:"ognise you as tJ:ic·· representjtive union. fo·r aJl -F s~ctiofis of fic19- fo~ce all over In.din. 2). · Yoll'-h,,tve agr~ed to tre<:1t_all 1nat'tcrs relating to \vages/• sitlaries and ter-1ns and cdnditions cf $ervice ·on an ali·ITidia basis· and not_ on· a regional haSi? as far as fi.efd forct is c:_,nccrne'd. G H ' 3f. For all -111atter~ of an .;ll~India natute re!nti1ig to field force, you will communicate ivith ihe Pcrs~1'nel Director. We hope that all such .matters will he scttkd by dircc_l Megq!iatiOn hut.i.f at ony stage you decide to refer the matlcr to conciliation, you will. _po_ _w_ only at Bombay. _W::.,_ on our part, gi.ve you the assurance that if the 1naltcr **local** **nature ..** i~ **cas.c** **such** proble~s **do** **arise· :;our** **rnem-** ·. bers vvill first try to arrive at a solution by approaching - their own managers. and if this fails, your loeal Committee should refer the matter to the local Commercial Manager ·nr Office Manage~. · - . **SUPREME** **COURT** **REPORTS** [1984) 2. S.C .. R: **A** - **B** **c** **E** **F** **·G** **H** 312 ' With reference to your letter·Personn~l KSB/BN/49 dated 24.1.1957 and in the light of further discussions we had with ·you ori the subject. we would like. to sta1e as under : J. We thank you for recognising u; as the Representative Union for all sections of the 'Field Force e11iployees all ovei India. is referred to a· Tribuna!"in llombay then its a\vard will be applied by you to field force all.Dver India .. Fo~ thi~ !·eason, you wiH agree that it will be only proper for the Tribunalto examine \he matter in an all India perspective. , . . ###### . 4)"· Although we do not nnticipate. any problei11s of a.purely 5) . _Foi_ future disputes. v~shall ·not coniest. issues about **field. force** **911** **the basis** **of** **t.hejr** **not** ~being 'wo-r~mcn' **bLit** **shal!** **"contest** **issues** **only** **qn** **their** **111erits** **in** **th.e** **same** way a_s wego !£ir other e91ployces. Please.confirm that yo~1-agree.with the points menticined **above.**, ... Yours faithfully, Sd/- B.K. B;nd1ni" . ' **The** **union** **respondi:d** **·to** **this** **con1n1unication·** **as** per its letter elated April 24, 1957 which reads as under : _"nx:_ _w.3_ . **The** **Personnel· Manager>** Hindustan Lever Limited, Seindia House, R8lbrd Est.ate, Bombay-]; D~ar·Sir, 24th April; 1957 - [-~] \. _)_ . **A** **B** **c** **D** **E** .. #### . { + ~ A further communicatiqn ensued from th"- employer dated ' . May I, 1957. It is not necessary to reproduce the whole of it save **F** **ahd** **cxc_ept** **that** **the** **e1nployer** **wanted** .t~ **be** **assured** **that** **the** **un.ion** by its communicaiio11 dated April 24, 1957 uneguivccally intended. WORKMEN'V. HINDUSTAN LEVER L'fD. _(Desai,_ J.) 313 2. We agree that certain major issues such as salary wages, bonus,.provident fund, Gratuity, leave etc. will be treated as far . as nossible on . . . an all-India basis. 3. We agree that for all matters -of an all-India. nature, we will communicate with the Personnel Director. As for the other points raised by i•ou, we agree to follow the procedure. as far as legally permissible. ' 4. Local matters, if .nol settled by negotiations, will have to be ·dealt with otherwise. For instance .. ihe Sabha may go in for co_nciliation or may be free to resort to .>iny other legitimate and/or peaceful method. 5. We are indeed glad to note tha.t you will not contest **issues about** **fiel_d** **force on ·the basis** **of their n6t being** 'Workmen' but you will contest issues only ·an their **n1erits** **in·the** **san1e** **\Vay** **8-S** **you** **do** **for** **other** **emp{oyees-.** We ·wish to take the opportunity also to· confirm your **agreenlefit** **with** **us that** **{n.** **regard** **to** **·deinal1ds** **relating** to Field Force contained in Rer. N.48 of "1956, now p~niling **adjuQicatie,Rtat** **Delhi, you** **will** **not•contest** **the** **issue on** **the** **basis** **Of** **their** **not being** **'Worl011{'1l'** **b'ut** **you** **\viii** **contest** **the** **is.sue** **on** **the.** **n1crits** **of** **the** **dernands** **as_** you do for other cmpfoyces . Yours faitlifully, Sd/- J?, Pullat President !st May,,1957" ---.i ~ Tn~- **·substantial** **questio1_1** **is** **vvhethcr** **there** **C-ft1:erged** **a ·concluded** **ag.ree.n12nl** **between** **thC** **parties** **and** **binding** **on** **the** **parties** **till** **it** **is** t~rrr)inated **accordin·g** **to** **la\v?** **the** **question** **of** **the** **existence** **of** **a** c3nsluJ~d **agrGemtnt** **a._1Hl** **its** **validity** **arises·** **iJi** **the** **folk)\ving·circums-** **tances.** - **H** **t'.)** **CJ;ifirm** **th:!** **iten1s** **of.agrceincnt** **relating** **to** **various iten1s** **6f'indi1strial** disput~s b:!t\v~en **the** **parties** **as** **set out** **in** **its** **con1municatjon** **dated·** JanLJary 24, 1957 ai1d .further sought clarification of _the two points t\l~~d **b);** **the** **uninn.** - - **G** ·• . SUPREME COURT REl'OR\~ [1984] 2 s.c,R . .~ ,. **A** **B** ·.~ **D** **E** **F** **G** **H** .Shri A.K', Sircar and Shri Gupta were protected workmen R.L. 'Pi thin. th~· meaning of the expression in the Industrial Dispute~··A<:t; - The union in its counter-affidavit _iiiter_ _al/a_ co1itcnded that .the,. e;,,player '.was est0pped from chalhnging the ·Status 'of the fwo cQncerned workmen as not being \VCPknieo withfo the meaning of· the :ex- . "pression in the Act on account of a subshting valid concluded agreement bet\Veeo the parties _inter a/ia_ ]Yrovi(ling that the einploycr \Viii . n~t· contest the issue about statu~ .of field force (which expression includes salesman) on the basis of their not b~ing workmen but shall contest the issue.only on the nieri'ts ill the same way as they .do for other employees, It.· was also. contended that in view of Shri Roop, 'Pi thin. th~· meaning of the expression in the Industrial Dispute~··A<:t; 1947 ('Ac!' for short) and were admittedly the. office-bearers of the miion a1id consequehtly leaders of the. workmen,. The employer served_ a charge-sheet on.Shri A.K. Sfrcar on April JO, 1974 and on the n·oxt•day. 'a charge-sheet. was served .on Shri R.T,. Gupta. ·There .followed .a disciplinary enquiry and ultimately the services of Shri A.K .. Sircar nd Shri R.L, Gupta were ierminated by the employer . . The union raised an industrial dispute contending· that the termination . of services of the afore'nlCiltioned. two w0rkmenwaS illegal and invalid :and the ·enquiry was equally illegal and improper and that the acti.On of the employer was an act of reprisal and victimization because.of the trade-union .actiyities of the afor.ementioned two ·office-bearers of the 'union. The appropriate Governfrlent referred the industrial dispute to the Industrial Tribunal on July 16, )977. . ''? Tl;e employer in its· written ~tatement. _intet a/ia_ contended that . Shrl .A.K. Sircar and Shri. R.L. Gupta .were iiot workmen within the · meaning of the expression in the Act and .therefore the appropriate Government had nojurisdiction to refer the dispute to the Industrial Tribunal and consequently-the Industi"il.Tribunol had ·no jurisdiction **to .hear** **and** **qeal'** **with 'the ref** ereµ~~- **.. _ It was** ~urther -~on_tendCd t~at. **in** a reference·between the employer and the union in ai1other dispute to the Industrial Tribunal· in Maharashtra· State, ·a contentio.n was ### ·.·~ ~als_ed-byJh~ en1Ploy~r **tbat** sJ!e~111f!Jl, **off he** el'nplcY.er.i~ not~ ~vor!(1~2n ·within the 1;1eaning or the expfes>ion .in the Act and• this objection was upheld.by the Industrial.Tribunal and a petition for.special leave against the decisbn of the Jqdu'str:a1 Tr<bunal to the Supreme Court . waS' rejected o~ O:tober l, 1975. ft' was furtl'er contended that'the \ _**\tf**_ -. **services** _**of.:**_ **the** af~)remenJioned **·** **t\Vo** **_\vorktTien** **Were. terminated** **. not** by way of punishment. but under the co;llract of sorvice and the **dis-c;irlinary** **e11quify,_** **WhiCh** **\VaS'** **conniienced** **earl:er** **\VOS** **slfbsequfntJy** dropped. " WORKMEN _v._ HINDUSTAN LbVER LTD. _(Desai,_ J.) _315_ . . ... . A **B** c _+-_ ~·· ~' ; Chandra· award ti1e ·is.sue about existence of ihe agreement and the status of salesman· is _res judicatq_ and cannot be reopend iill the agree~ **n1cnt** **remains** **i1r** **force and operative.** . . . . The rival pleadings led tci. the Industrial Tribunal framing the . following issues : - . . . •· "l) Whether the management .is estopped from challenging the status of these two concerned workmen as "workman'. within the meaning ofthe Industrial Disputes Aet. 2) .Whether -the awar<! dated 17-11-66 of the Additional Industrial Tribunal, Delhi wculd operate as res judicata between the parties ?' 3) . lf issue No. I is answered int~e negative whether the concerned (sic) are· 'workman' within :the meaning .of - the I.D. Act ? '4) What is the effect of the order dated·.6-1-75 passed **D** by the ·l.T. Maharashtra. in reference 203 of 1973 and order dated i.10.1975 of the Supre1m; Court in Petition for special leave 1602 of .1975? 5) - Whether the reference is incomp.etent and bad iri law .for reasons mentioned in preL qbjections (III), (IV), (V) .· - a11d (Vil) and (VIII) _1_ Issue Nos. 1,2, 4·and 5 were directed to be he;ird as pre· liminary issues. On Issue· No . .J, the Industrial Tribnrtal held that the tht~e.communications.E~.W-2 ·ciated January 24, 1957, Ex. W-3. 'dated April 24, 1957 and Ex. W-4 dated May 1, 1?57 did not spell out a complete concluded agreement betw·een the parties on ihe points set oµt therein but it \V.as· an inchoate agreement in the stage of negotiations and therefore the· employer wa& not bound to stand by its offer made in the comm,;nication dated January 24, 1957 deny,ing to itself' the right to contest the. status ·of the field force incfoding salesman as not· being workman within the meaning of the expression in the Aci. On Issue No. 2,.it was hied that the award of Shri Roop Chandra in LD. No. 46 of 1966 in. which it was held that there was a concluded agreement between the. parties· as disclosed· in Exs. W-2, W·3 & W-4 and therefore 'the industri.al dispute therein 'raised could not be adjudkated upon at Delhi, it being an AU-India ·dispute and ought to have been rai$e<l at Bombay, did not:opei:ate as _resjuqivata_ E F G **H** . · .... 316 SUPREME COURl REfORlS . [1984) 2 S.C.R· A because the issue in the award was not directly and s11bsta11tially in. issue in the present reference. Parties did not advance any argument on Issues·Nos.-4 .and 5 anc\ tl1erefcire with reference to Issue No. 4, .the Ttibunal observ~d that the same. may not be disposed of without further hearii1g the parties and no findi.ng was recorded on Issue ·No, 5. The Tribunal accordingly rejected the preliminary objectiorn raised **B** on behalf. of the union and set down the reference for further hearing. Hence this• appeal by s·pecial. le~vc by the union. . . At the outset, we must xecord our unhappiness on the attitude adopted by the employer in eon tending as late.as .1981 tha~ the three commmiications ·Exs .. W-2, W-J and W-4 did ·not constitute a con-· eluded agreement between the parties with respect to the points settled basis and not·on regional basis as for as field force is concerned.and (iii) that in future dispuics, the employer will not contest issue about member of the field forc.e being workmen but shall contest issues only on their .merits. in the same way as the employer would do for other employees. Freed from technical jargon, the employer agreed and undertook not to contest in any industrial dispute the status of the field. force as not being workman witl1in the meaning of the expression in the Act and that reference, if any, would M contested on tl\e meri\s of the industi-ial dispute in respect of which reference is made to the Industrial Tribunal. The out-tome of the agreement would be that if a dispute of an all-India nature in respe~t of the field. force . is raised at a regional level, foundi\lg its contention. on one of the terms of the agreement, the employer would be in ·a position to get . any regional reference rejected on the ground that there is a subsistil1g valid agre.ement between the parties that such dispute .of an all-India . nature in respect of the field force can.be· raised at Bombay only and withiµ the jurisdiction of the Industr.ial Tribunal at Bombay only . .. therein and the Tribunal ignoing the ·l1istoi·y and repeated advantage taken _by_ the employer of this conclLided agreement . on numerous. oc.casions accepted. the conte1ition of the employer. It is therefore necessary first to point out how from 1957 till as' late as. 1966 ahd even thereafter the employer non,suited the union, if that is a proper. term, by .• setting up the .,very agrce1nent which now the employer wants to. urge that it is11ot a concluded agreemeni. · The three impoi' **tant clauses** **of** **the** **agreement ·emerging 'from** **the·** **correspondence** relevant to the present dispute are that (i) the Hindustan Lever fyfozdoor Sabha was tecognised by tbe employer as a representative union for all s~ctions. of field force all over lndia in the employinent of the. employer and (ii) the union agreed to bring all matters relating - . to wages/salaries and ·ter'rns and conditions o'r service on an All-India .. c **D** **E** **F** **G** **H** . ' 'WORKMEN I'. HINDUSTAN . LdER LTD. _(Desai,_ _J.)_ . 3l7 There is no dispute between the parties that if't\1ere is_ an agreement such would bo the out-come of it. This is not only not in dispute but it is conceded 'that a settlement was arrived. at in respect of industrial disputes between the enwloyer and the 11nion concerning the field force including salesman in 1«15"1, 1959 and 1964: 'An averment to this effect ·is made in Paragraph 'H' of the petition for special leave - and Anx .5 was annexed to the petition which purports to be the settle rnent dated December 22, 1964.. Jt is signed ·by Shd C.J. Mahimkar, Joint Personnel Manager on . behalf of the employer and Shri A.K. Basu; General -Secretary of the union at the relevant time. The various industrial disputes 1n respect of which settlement is arrived at were between the employer and the workmen of the. company who were the members of the field fot'ce (salesmen, sales supervisors etc.) employed in any part of India. This settlement was arrived at _under the Industrial Disputes Act' and was registered according to the requirements 'of the Act. This implies ibat the status of the salesman as - being workman within the meaning of the expression of the Act was - not only not disputed but specifical)y conceded and that mtist obvi ously be pursuant to the subsisdng agreement. This is however an inference so it is better now to move on to adjudication and award by a forum with jurisdiction to decide the point.' The Chief Commissioner of Delhi referred an.industrial dispute whether workmen whose names were set out in the order of reference l;Je paid compensation in addition to' the usual remuneratidn for the period they had marketed Erasmic Blades and what directions were necessary· in this behalf. The reference was between the employer tl1e present respondent and the appelll~nt Union. **In** **this** reference~ **the workmen** **whD** **claimed** **ren1uneratiun** **\Vere** Delhi based salesmen of the employer. The_ employer appeared and ~ontested the reference. The only important contention raised on behalf of the employer which must be 1ioticed reads as under : ' "That the concerned workmen are members of the field force of the company; .that the field force unit is a seperate unit known as Field Force Unit; that they are liable to .be transferred anywhere in India; that the Field Force Unit is controlled by Company's Head Office .in Bombay; _that it_ _wa'.<_ _agreed between the .company and the Hindustan Lever_ _Mazdoor Sabha, Bombay that all_ _matter.<_ _relating_ _to_ _Field_ _Force Unit would be dealt_ _ivi_th_ _by_ _both parties at Bombay_ _on all-India basis_ _and_ if no_ _settlement is reached; the dispute_ **A** **B** c **D** **F** **G** **H** 318 . SUPREME C~URT .R~PORTS [l984J 2 s.c.R. _shall be raised in_ _Bombay in_ _accordan.ce with Industrial Disputes_ _Act; and. that any,sett/emen.t or_ _Award tl;erein_ _1vo1dd be_ m~de _app/icaO/e and sha// (>e_ _bindilj[5 Oil a// members of the jiefd force_ _ail_ _over._ _India."_ . (Emphasis supplied). . . A (:. ' D F . ' H 4) - Whether workmen have committed· a breach of. the agreement' alleged to have been entered .into between the. management and the µnion in 1957 and if so·, is the The employer .. also contended. that i1f view of .the agreement between· the parties, the dispute. referred to the Industrial Tribunal regarding Hie field force could not be ;·aised at Delhi. _It_ was also contended ihat in view of the agreement subsisting betweeh.the paries, the employe.i· had agreed not to contest the issue that its salesman were .. not lv.orkmen within tlie meaning of the expression in the. A~t'. . kfurthe·r contentlo;1 was. raise.ct that the union has committed breach . of'the agreement by ri!ising t.he dispute at Delhi. ' The union while conceding that there was an agreement between the parties as alleged w· the· employer contested the issue by·saying. that.:the dispute was)1ot of an all-fodia nature as it was concerning only some Delhi based .salesmen of the employer ·and therefore the dispute was not .covered by the agreement. . . The Industrial . Tribunal. (Shri Roop Chandra) 61\ the rival contentions of the parties, raised the. following issues : . "ISSUES .. ~ J ( _-1_ _.r_ . ["I) ] _2)_ .. Is thei·e any agreement between tl1e 'Cqmpany a1id its wo.rkme1i thi·ough ·the Hindustan Lever Mazdoor Sabha that all maU~rs relating to· members of the :field force - would be dealt with by .. both the parties in Bombay ou _a:n_ ail India basis and that if no settlement is reached,· the dispute would be raised in Bombay.ii} accordance with the Indnsti:ial Disputes ~ . ' Act ? - Doe.s the said agreement preve~1t the workmen in this case from· raisi11g the dispute in Delhi ? ·3) - Are the einployees concerned not 'w.orkmen' ·within the meaning of the term under tlie lndu~trial Disputes Act? If so, has.the tribunal no juri~diction? _**f·**_ . . WORK~1BN _v .._ HINDUSTAN - - LEVER LTD. . _(Desai,_ J.) . l . 319 management not entitled .!() rai.se. the pl.ea ·that the **salcs1nen** **.are** **not** **'wofk1nen'** **within·** **the: meaning·** **of** Industrial Disputes Act ? " It would thus appear at a gl!tnce that i( was the employer who wanted the refe~ence t-0 be rejected on the preliminary objection .that there was a valid subsisting c01icludecl agreement between the parties : which had a direct bearing on the· industfi.al dispute involved in the reference and that ·because• of the agrce1nent and as a 11ecessary ·corollary of. the agreement, the Tribunal had no · jurisdktion to entertain. tlie dispute. . . Now sec the out-coib.e of this contention o(the employer. On Issue Nos. I and 2, Shri Roop Chandra as per bis a.ward dated November 17, 1966 held that in view of Exs. W-2, W-3 and W-4marked in evide1ice_i11 the reference before him .~s Exs. M-1, M-2 and M-3 pro, duced aµd .relied upon by- the mai\agement th~!. is the employer, - t.he Industrial. Tribunal at Delhi would have no jurisdiction to·entertai11 A **B** c it. It was never contended by the employer.beforeS·hri Roop Chandra that the three documents did not end in a concluded agreement. On . a contrary parties were _ad idem_ that there was aconcluded agreement . ·between the parties. The difference was in their approach as to the applicability of various clauses of agreement td the dispute raised in the reference before the Tribunal., The employer contended that the dispute was of an all-India. nature and therefore could not be raised at Delhi. The union, on the ot.Jie·r ha11d, contended tha the dispute· was of a regional nature ·concerning only 1.6 Delhi based salesme1i of the Company and therefore the dispute could not be styled as an ·. all'lndia dispute. - . . . The. Tribuna.1 lield .ih11t the dispute was of ari all-India nature, related ·to the· duties and liabilities of all members of the .field force employed all over India.and it involved su~h a major issue as salary and.wages. Approaching the .matter from .this angle, the Tribunal further held on the basis oLthe agreement, that the dispuie could only be taken cognizance of at Bombay: The Tribunal .. was of the - opinion that the agreement was valid and ·did not contravene Sec. 28 of the Indian C:ontra6t Act because where the parties .choose to h.ave the matter entertained in one of the two or more courts having jurisdiction to e1itertain the matter, such an agreement does not· cont~avene Sec. 28 .. The Tribunal further held that the agreement had the sanctity . ofa 'contract and the parties must be held.to the c.ontract'. The Tribu ofa 'contract and the parties must be held.to the c.ontract'. The Tribu nal concluded by observing that the union . . was notjustified in raising . **D** E **F** **G** **H** .• 320 [.. ] SUPREME.COURT REPORTS [1984] 2 s.c.R. **A** **.ft** the dispute. in. Delhi in vi;w ·of its agreement' with. the emp!o;er as evidence by the three documents and that it is.not expedient in the ._ interest of justice and peace and harmony in industry that the Tribunal should _adjudicate the matter of an all-India· nature. So saying the Tribunal rejected the reference. The question is who took advantage and benefit of the agreement? 'unquestionably, the employer who - now decades after. successfully contending before another Tribuna) that there was a valid and concluded agreement. wants to contend that the three doeun:ients,Exs. W-1, W-2.and W-3do not spell out a - concluded agreement but ail inchoate one which remained at foe **c** **D** **E** **F** **G** **H** stage of negotiations only. Btil that is ·not the end .of th~ vacillation which was the regional centre .und this would imply intentional breac.h or repudiation of the a~reeinent. Before we examine !his contention, ~n the part of.the-employer. Mr. Pai, learned counsel on. behalf ~f the employer on the "other hand contended that" the union has expressly repudiated the agreement **8.iid** th~r~fore, **it** **is** **not open no\v** **ro** **the** **union** **to take** r~course **to** **the** . agreement. It was subniiiteil that if the union has committed a breach . of the agreement, if there was· any, the employer is absolved from .. observing or complying .with the. agteement. To substantiate thi& submission, our attention was invited to a reference made by the Lt. Governor, Delhi to the Addl. Industrial Tribnnal constituted · for the Union Tt'1"ritory of Delhi; thcn·presided over.by Shri Hans Raj for adjudication of the following.,two issues : ···1. whethor the deduction of leave" ·by tlie management for" the year··I967 is illegai ·and/or unjustified and if so, to" what relief are the affec1,ed wo1·kmen enti(led' and what directions are necessary in this respect ? 2. Whether .the management was obliged to grant. _special· increment to all of its workineil. in .Delhi Branch and if so, to what relief the affected workmen are 'entitled· and what directions are necessary in this 1:espect ?" The. union filed a statement of claim and sulisequently filed an" additionai or amended written statement in which _inte1·_ _alia_ it was. .-contended- 'that the .workmen of the concern "throughout India were agitated becasue of this measure .and its wholly illegal implementation . and the applicant Sabha led the opposition of the scheme and the resistence of the workmen to it.' This averment was relied npon to urge that the unlon ·raised a dispute of ail all-India nature at Delhi· **'-j..·** , -~ - WORKMEN _v._ HINDUSTAN. LEVER LTD. _(Desai,_ _J.)_ 321 it is. necessary to refer to p'ara IO of the amended st(ttement of claim **in \vhich the union states·as under** : "That th.e binding nat~re of the agreement has been· flagrantly flou<ed by the Management and. the very basis of collective bargaining for industrial peace ha; been attac)<ed.": This would show that the unioi1 .accused the employer of breach· of agreement. On the. other hand, the employer in its written state-· mcnt contended as under : · ,. "No claim on behalf of the employees of the Field Force ca'il .be taken up by Hind\1sta1i Lever Mazdoor Sabha, Delhi ·Centre and this Hon'ble Tribunal has no jurisdiction to entertain the same _in_ _view_ _of_ _an_ _agreement arrived ai and_ _between the. Company and the Hindustan Lever Mazdoor Sabha_ _in_ _)957."_ (emphasis supplied) - .. It would be crystai clear that the employer wanted the reference to be rejected· at the threshold on the preliminary objection that in ·view of the concluded binding agreement betwee11 the parties, the· dispute referred to for adjudication being of an all-India nature,' the . union was precluded from raising lne same at a regional level and the Tribunal had no jurisdiction to entertain the same. Apart frem the extracted specific contention i11 paragraphs 5 and 6, the contentio1i· is· elaborated by the employer and it was specifically contended that in the award ·dated Nov. 17, 1966 by Sh;i Roop Chandra, Addi. Industrial Tribunal, Delhi, it' was held that a valid agreeme1it was in existence between the parties and no dispute pertainfog to the members of the Field Force can be raised anywhere except in the State of Maharashtra. It was further contended that the award of Shri Ro-0p · Chandra was confirmed by the High Court of Delhi by summarily dismissing the Writ Petition No. 1163/67 filed by the union against the award and when the union approached the Supreme Court in Appeal . No. 42/68, the same was rejected thereby affirming the ·existence and : binding character of the agreement.. These assertions by the employer fiow from the ple. ad.ings. To. revert to the. narration, Shri Hans .Raj . ,. proceed on leave and then retired and when a new Presiding Officer - was appointed, the reference with one application: filed by the union to summon certain documents ca!Jle up before. the Tribunal. . 'By a laconic order, unsupported by any. reasoning, the Tribunal observed that the salesmen are not w-0rkmen and so the documents neeu not be .summoned. lt was this order on the application which was cha\ **A** **B** c _**D**_ **E** **F** **G** **H** ,. 32~. . • . SUPREME ~OUR~ REPORTS . [1984}2 S.C.R, A c **D** F. G **H** lenged i1rihe writ petition filed by the unicin .. It is difficult to appreciate what permitted the Tribunal 'to hold· thar the salesmen are not workmen.within the.meaning o!the qpression int.he Act and why it did not consider the specific contention that the .employer wa·s estopped · from caising the contention as to· the status of the ·salesmen in view of the. ~i°nding agreemei~t between tl~e par~ies. Bt,it for- the present - purpose, it is sufficient to .notice that tlie employer and the UJiion both swore by the agreement and at any rate the employer mover contended that there was no concluded agnoe\nent between 'the parties covering · . one of the points in the dispute· namely,:the status of the members - of the Field Force including salesmen. - Mr. Pal. next turned to another' ·round of litigation between the panics. It appears that <:ffective from· September u, 1966, 'the employer J'e.organised its marketing organisation into .·tivo divisions, the Main Liries Division and the Spe;:iality Lines Division. The Calcutta' ·Branch of the employer was coi1cerned only with marketing.·· The workmen at· Calcutta were directlv. affected by 'the reorganiszation. On· a· di°spute raise.cl by the union: the Governinent of West Bengal refei'red .the {allowing disJl.ute for adjudication to the· Industrial Tribunal· - - "Is' **the** **liun1an** **rarionttlisation** **as** **a n1easure** **of econo·n1ic** ' ' reorganisation. of the company : reflected through job-integration ·that. have either' been. effected or pro.posed to be effected justified ?" . " Pending adjudication of the dispute, some workmen filed applica**1** lions under Sec. 33A of the Industrial Disputes Act before the Tribunal alleging .that during the pendency of the adjudication their service cdnditions·had been altered adversely and their salary for. the month - of October, 1966 had not been paid. The Tribunal granted the applica- _j_ tions of the workmen. and the employer approac)led the Supreme Court by ·special leave,. The main refer.!i1c~ was finally disposed of . infavo.ur of the· employer upholding the reorgani~atioil of marketing organisation. The union questioned the correctness of this award ·before ·the Supreme Court. Both the· groups of appeals· came up for hearing together and the decision of this Court is reported in _Hindustan_ Le~er _Ltd._ v. _Ram Mohan Ray_ _&_ _Ors.'"_ T[lis Conrt upheld the r.ight' of tlle employer to organise and reorganise its work)~ the mamier it - I pleases. 'Accordingly the appeals 'filed by the union wern rejected. (I) [1973] 3 SCR 624 . .. .• ' .. ·~ **-1(-** WORKMEN _v._ HINDUSTAN LEVER LTD. _(Desai,_ _.J.)_ ' 32~ .. The appeals:filed by the employ~r againstthe award in favour of the workmen in the applications under _Sec._ 33A were eq~ally rejected by . . this.Court holding that: non-payment of wages in the circumstances of the case amounts to ·an alteration in thecoi1ditions of service. Frankly,. this decision sheds no light o.n the point:under discussion because · neither: side refo:d unon the agree.men! ncir did the agreement figure into the dispute. However, it is interesting to note that when the · - main refejence was be.fore the Trlbui1al, a. prel~minary objech011 was - raised cin behalf of the employer to the effect that 'by an agreement entered into in January 1957 by and between the employer and unio·n, · it was agreed that all matters relafo;g to die matters of the "'utdoor ' mal'keting staff, to wit members of' the field force can be rais~d al Bombay only and as ~uch the company as well 0s·the Sal)ha are bouri.d - by the aforesaid agreement. Therefore, 1iot only the employer affirmed the agreement, did not contend that it was an inchoate one but . specifically placed that it,'is a ~ncluded ·binding·agreement between the partie-s. · - - - - - _It_ appears that .J.ttere was .one 1i10re reference I.D. No. 43/72 between the parties at Delhi. Following the. decision of ·this_ Court in the case just herein discussed, the !'cf.er.:nc;e \Vas rej~cled . _)_ \--'('.· #### ' . .. behalf and consequently the .. Ti'ibunal had no'jurisdio.tion· to adjudicate - **upon** **the** **sanie.** **··The** **.un'ion** **··counterQd** **this_** **preliminary** **objection** by ·asserting that the cDntentiori about the status <if the aforementioned· . Mr. Pai nexi referred io an order in Ref~rp1ce (I.D}No. 203/70 by the :Indtistriai' Tribunal Maharnshtra bctwtci1 the.employer and **the** **\Vork1nen- efnployeeS** **under -it:** **The** **clcLtland** **\vhich** "' [1] as **refei-red** for' adjudicati~n· incfoded · r~vis,ion of pay s~ales with adjustment, **re_visiof1** **_of** **the** y.:age-s~ale **of** sUb-cle-r-i~al **grade,** **gratuity disturbance** **allowance/and settling-in-al)o\vance ·** **fo** **the** **Office** **staff,·** **allo\\'.ance** **t?** **office** **·st.aff.** **whi-Ic** **01r** **tOur,** **acting** allo~ance,. **ov.ertin1e.** ~ages, **caSh** allowance and. leave tt'avel facilities. The. employer raised number **of prelin1inary** **o.bjcetions,** **one** SU!.~lr **being** **that** **Salesn1e11,** **·Marl<eting** Research Investigators, Market Research Supervisors, Sales' Super**visOrs,** **Trade** **Marks** Jnv(;~HigQtors; **·Seed** B~yers **and -·Supervisors** **Or** **c:ler{caI·** **staff** **arc** ·no~· .\vor~tnen.· **within** **'the** ·1neani~g _**9t'**_ **the** **Cxpression** **in, the** **ACt,** **and** **hence** **nO** **indl1strial** **dispute** **3311** **be** **rnisCd** **on** **their** .c~tegorie.s is barred by the principle of resfudi~at.a in view of.the "'~ard · **B** ' ·. ' **c** ' **D** **E** **F** **G** **H** dated April 13,' 1967 made by .the 3rd Industrial Tribunal, Wc5t Bengal The Tribunal rcj 'cted the contention of· the u'nion observing thai the dispute bei,;,een them is .not of ati all-In'dia nature and therefore, the employer is entitled to raise the question,about the status . - ' . . . . of the work- . **A** **B** **c** **D** **E** **F.** **G** **H** 324 SUPREME COURT liTIPORTS [\ 984] 2 S.C.R. men included in lh~ aforem~ntioned c'ategories. This. woul\! imply that the reference was rejected not Oil the ground lhai there was no agreement but 011°the ground that the dispute involved ii1 the reference was not covered by the agreement. In the· same reference, a plea of estbppel rnised on behalf of the union to the effect that the company was precluded in view .of the subsisting agreCIJlCnt from que~tioning the status ~f the salesmen and allied categories as workmm was . overruled bv the Tribunal observing that Exs. W-2, W-J and .. ' . . .W~4. . . ###### leave no :doubt thot the employers' agreement not to dispute the status . of the· Field Force was only on the clear undcrstandi1ig that it will - be so, if' dispute. is raised on all India· basis. The Tribunal tlien 'observed that the .dispute atlmittedlywas not an all-Tndia dispute and therefore, rejected the plea of cstoppcl. ' ' The employer ~hich swore by the agreement and repeatedly succeeded in getting thrown out certain· references at the threshold **on. [:ccou.nt** **of the'** **ag(ec1nent,** **no\v** **\VantS** **tO** **coritend** **that there** **\vas** **no** It is at this stage necessary to refer to 6ne more reference between the parties being LT. No. 233}67. The dispute referred to was a· ·demand by the .workmen to withdraw the ·reorganisation integration imposed on the Suporvisors attached· to the Sales Department arid impending in the case of Field Force (Salesmeniand otherstaff attache.d to the Sales, Accounts, .Transport and alhed department. TlllS demand \\'as rejected by ihe Tribunal· fol lowing the decision in _Hindustan_ _Lever_ _Ltd._ v. _Ram_ _Mohmi_ _Ray_ _&_ _Ors .._ (supra) The rejection of the demand has no impaci at ali on the point under discussion. **Having** **rneticnlousl)r** **eXamined** **various references pertaining to** various industrial disputes between the' parties al different centres in.lndia since the' agreement i.n 1957, it unquestionablyemei·ges that' the employer till the present reference never once even whispered · that the agreement was not. a concluded i1greemcnt or that it. was an inchoate one left hanging at the stage of: negotiations. But in the **pr_esent** **reference** **the** **contention** **raised** **was** **that** **the** **agrement** \\ [1] ~s **not** a concluded agreern.ent because tha( is hdw the Tribunal 'has approache.d the pr0b:cm .. The Tribimal has ohserved in this behalf as under: ,• #### ##### **"Accordin-' to the** **inanage1nent** **the** **-three** **letters do** ~ot **constitute** **an** **agreement because** **in** **an** **agree1nent** **there** should be an offer and the offer must ·be accepted as such. They have.argued.that the offer. made in Ex. W-2'ha·vc 'not beenaccept~~as·..,uch **in** **Ex.** **W-3 ..** . -..... -....... " WORKMEN _v._ HINDUSTAN LEVER"L'ID. _(Desai,_ J.) ., 325 .. concluded agreement, arid ignoring the whole history, the Tribunal falls into an error in accepting this corytention. The weight of evidence not only not at all referred to by the Tribunal but frankly wholly ignored clearly _and unmistakably leads to one and one conclusion alone that according to· the employer there was .the concluded agreement between the parties. Tt is a solemn agreement, tht agreement of which effective and wh.cilesome advantage has been taken by the employer and when it now does not suit i_t, it in breach of the solerrrn agreement wants to· turn round and not only repudiate it but disown it as having never been entered into. No Court of justice can ever permit such a thing to be done. Mr. Pai, however, raised a very technical contention that the - preliminary objection raise~ by the union that the employer is cstopped • · A B c D E F from questioning the status of the salesmen or members of the Field · Force· being not workmen \vith(n tho 1;,caning ·of the expression in the Act- must be rejected either on the princi pie of ·~es _judicata_ or pr!nciples analago1is to _res judicata_ or 011 the pdncipic of is~ue of . - estoppel or promissory. estoppel and neither of the three contentions is available to the union notwithstanding the foct whether the agree _meiit_ .exists· or· stands repudiated and therefore,. the Trihnnal was justified in .rejecting_the contention of thC union. Mr. Pai in support. C?f the s.ub1nission urg~d ~hat at no timC as the s·ta~us of the salesmen as not being \Vork1nell or otherwise was ever directlv and stibstaritiallv - !11 issue in c;rlier referc.nc_es, _the i.Ssue.cann_ot be rej~·cted on the· grou.nd of _res J1.1dicata_ and at any rate there:: \vas no dee.is ion on tllis issue and therefore the principle of.issue "st6Jl'pel cannot. preclude. the employer froi11 raising the contention. ·Mr. Ra1nan1urthi, on the Other hand, contended that' it is not the contention. of the union that the issue about tile status of thi; salesi11e_n is _res judic<ita_ but ·,vJ1at is _res_ . _judicata_ . . _is"thc ·existence· and bindin!! . ~ ·-character of the . iigree1nent ' . ., wb1ch· was directly· and st\bstantially in issue .between the patties in the award given by Shri Roop Chandra and in· various other awards. In order to tlppfect-ate rival contentions it iS · necessai·y to' focUs attention on the issue; framed by. Industrial Tribu.nal presided over G by Shri Roop Chandra in f. D. No. 46 of _1966. These issues have been extracted earlier. The most important issue was Issue No. J about the existence of a binding agreement between the parties which would preclude . the employer from ever guestioning the ;tatus of the salesmen till the airee1nent reinains subsisting and till it is tern1inUted. · ; ff . The issue \Vas : "is there any a·grcen1ent bet\vcen the co111pany ·.and· . .. **A** .. **B** . **n** **E** **F** **G** **H** 326 SUPREME COURT REPORTS [1984] 2 s.c.R . . . its worklneu coyering _inter a/la_ the question aboi1t tlie status 'of sales. meii ?' ·And the answer was : 'there is such a valid and subsisting . agreeinent and that posiffdn was adopted by noneother than the employerand the employer succeeded in getting the reference thrownout at tlie threshold· on .the ground. that in view ·of the subsisting . valid agreement betw<;en the parties, the union was est0pped fro1n ·raising a dispnte of a0 all-India nature at.a regional ·level and it can . : only be raised i1t Bombay and .therefore the Tnd11strial· Tribunal at (1) [i%9] I L.L,j,734 at 742 . . [1 ] (2) [1974] 3 S.C.R. 703. . ·. ' Delhi had no.jurisdiction to entertain the same ... Even if the-teclinicaJ · pri~ciple .of _res_ Judic~ta is imported In the field of industrial adjudication, the issue about the existence of an .agreemen(was substant,ially and directly in issue between the pa;:ties .in the earlier proceedings and was decided in the offirrnative that there exists.such an agreement. In the reference fi:om \vhich tlie present a.l.'pe3l arises, the employer - ·contended that theie is no such concluded' agreement as pleaded· bji the union; and ·therefore, the issue that arises is: whether there is ·such an -agreement as piea"ded on behalf ~ni1eunio11. But that was the specific issu.e in Reference I D. No; 46 of l966"between the .same. **p-arties.** **To. that extent,** one.ca~·say **that unless Change** ~f **Circumstances** are established, the issue would be _res_ _;udlcata._ But" we consider it i1;appropriate. to usher in this techn.ical concept. of _res_ _judiqata_ pervading the field of aivil justice. into.the field of industrial arbitration.· The apprc\lons;on' :vas voiced by ·this .Court in _Slwhdara (Delhi)_ _Saharanpur Light_ _Raf/.ivay_ _Co._ _Ltd._ v. _Shahdara (Delhi) Saharanp111·_ _Railwav._ w.' _Wor/.:crs_ _Union'!)_ when it said - - that it is doubtful whether the . **principles anaJC,gous to** _**resjudicaid**_ **C<ln** **properly be applied _to** **industfial** '.ldju~ica~i-on: **We** **are** **not** una\var~of **the** **legal** pq~tion **that** **pr_inciplC:** of _res judicatri_ was invoked and applied by this --Court in _Workmen_ _of_ . _Straw Board_ M~nufacturing. _Co._ _Ltd._ v, · _M/s Straw ·}Jom:d Manufac-._ _**·_turin"ft**_ _**Co.**_ _**Ltd.(2>**_ **One** **can** **safely** **Say** **that prilicipte analogous tO** _**res**_ judic~ta can be av~iled ;r to scuttel any atte;npt at raising' industrial - . **disputes** repeat"'~dly **in** de~ance **uf** **Operative** &ettlernen~s **a1_id** **a\vards.** But this hig'1'y technical concept of civil justice may be kept ia precise conlill~d **limits** **in** **the** fi~ld **of -industrial** **arbitration** **\vhich** **n1ust** **a·s.far** **as** **pOs.Sibie: be** **hept** **free·** **from 'such** **t!'.lchni_caJities** **whiCh** **th\vart resolu-** tion ·_of industri{tl disputes. We however proceed on the assumption . that· an industrial dispute may be rejected. on the principle ai:alogous - to _res ji1dicata._ The matter however, may be fooked at from a s [1] ightly -~. ### .. difforent angle. The_ concept of compulsory adjuditation of industrial **disputes** **"''a.s** .st~tutqrily **uShered in** **with .. a vic\V** **to· pro.viding a.** **forun1** . . ,WORKMEN l'. HINDUSTAN LEVER LTD" _(DesAI,_ _J,)_ '327 . arid compelling .the parties to resort to the forum for arbitration so - as to avoid. confrontation and dislocation in industry. ·A developing country like India. can ill-afford dislocation h1 industrial production . . Peace and harmony in industry and uninterrupted production being A B c D E G' a1 ,. the demands of the time, it was considered wise to arm the Govern. rnent with power to compel the parties to re5ort to arbitr,,tion a.rid ' as a necessary corollary to avoid confrontation at;d trial of strength, which were considered wasteful from · national and· public interest .poini of view. A welf~re State can ill-afford. to 16.ok askance at - industrhl unrest and industrial . disputes. (See _'JJahyabhai_ _Ranch·.·_ _hoddas Shah_ v. _Jayanti/a/ Mohanlat."l_ The . .Act die! not confer till the introduction of Chapters V-A and V-B, a1w special' benefits or enforce• - able benefits on. the workmen. The Att was designed to provide a self-contained Code to co~pcl . the. parties to resort to industrial arbitration 'for the resolution of existing or 'apprehended disputes without prescribing statutory norms for varied and variegated industrial relation norms so that the forums created tor resolution of disputes may remain unhampered by any statutory control and devise rational norms keeping pace .. with i,mproved industrial relations .reflecting and imbibing .socio-economic'justice. If this is the underlying object behind enactment of the Act, the Court by interpretative process mlist strive.to reduce the field of.conflict and expand the area of agreement and show its preference for· uphcilding agreements sanctified by mutuality and consensus in larger public interest; namely,' to eschew industrial strife, confrontation and· consequent wasfrge. . . The parties fo .this case .entered into a solemn agreement. It is hot for a moment suggested that the agreement has been terminated. The only argument put forward on behalf ~f fhe .employer was th.at the· union has repudiated the agreement by raising disputes of an all, India. nature at a regional level and thereby committed breach of the. agreement This contention is entirely wiihout merits. What has happened is. that the union raised certain dispµtes which according to the 4nion we're of a,.regional nature and which it was not estopped froin raising in the teeth of the, terms of the binding agreement between the parties. On the other hand, the employer contended that the disputes so raised were of an all-India nature; Both sides swore by the agreement, the ,<:iitfereiice in.approach being: whether the dispute was of an all,India: ·nature 'or of \egional nature .. The emerging situation .would be th.at neiteer tile union repudiated the agreement n·or the employer and till .the present dispute, both swore by the agreement. The divergence in·· - (I) [1'B] Lab; & Industrial C.ases 967, · 328 SUPRFM~ COURT REPORTS [J 984]2 S.C R. **A** **B** **c** .. **D** **. E ..** **F** **H,** **"It** **is** **nqt out** **of place** **to** **1nentioi1** **in-this connection** **that** **l1n** so~e **i)revious occasions** **the** **1nanagement** **itself has** **treated.** these categories as workmen within the meaning of the U.P. Industrial Disputes Act. The management's contention that ~~{IJ~~ [1964] 3 S.C.R. 560 at 566. the approach was as to the interpretation. the coverage, the ambit . and the width of the agreement. · Both the parties swore by .the agree ment but differed in their approach and interpretation and .the forum namely the fndustrial Tribunal cimsistenly upheld at the instance of the employer that there was a binding valitl agreement subsisting between the parties forbidding the union from raising a dispute of an all-India nature at the regional level and .succeeded in getting· the reference thrown out at the threshold on the ground that the tlispute· was of an all-fndia nature and not of a regional level as contended by the'union .. This constitutes adherance to ag.reement., performance - of tbe agreement, implementation of.the agreement and being bound **by the agreement.** **·This cond,uct** **in** **no sense can be said. to constitute** . repudii\lion of agreement by tbe union. Unilateral repudiation of an · agreement, as contended by Mr. Pai, does not result in termination · of;· solemn agreement because the. wrongful repudiation can be corrected by ·enforcement of agreement through machinery provided by the statute. ·And that.is what the employer has succeeded in achieving. The employer relying on' the agreement got a number of refeiences rejected 'on the pr<liminary objection founded on the agreement. - The employer cannot therefore be heard to say that the attempted repudiation by the union, if any, permits the employer to disown the **sa1ne. when** **it** sui.~s **it.** **Unilaterai'** **repudiation is·.distinct** **fron1** **terminri-** **tion .and** **an** **agree1nent/settlen1ent** **r.e1nains.** **In** **force** **:-ind** **binding** **till'** **terminated** **and** **does** **.not** **come to· an** **end** _**by**_ **unilatera 1 repudiation .** **But** **it** **mlist** **be** **1nade** **clear** **that** **there** **is** **no** **s·t1bstance** **in** **t11c** **contention** of Mr. Pai that the union repudiated the agreement. If thus; the employer swore by Ilic' agreement, rdied upon it '1nd succes.sfully **contested the** **clai1n** 'of **the** ~inion, **it** **cannnt now** **be** **penn;tted to back** ·out from such solemn abgreement and apart from the technicality 'r-' ~ **i** ... .., of the issue being _res judicata_ or issue estojJpel, industrial peace and **<har·mony,** **good. behaviour** **and** **fair** **rel_atiofi** **\vith** **\Vorkn-!en** **estOpes** the _employer fr0m either repudiating the agreement or contending. that tl;e agreement ~as not a concluded agreement but <fn incl1oate one. Jn this connectinn, we may profitably refer to _Western India_ _Match Co._ v. _Their_ _Workmen'"_ w'herein this . Court observed ;s **urider** : WORK'IBN _v._ HINDUSTAN. LEVER LTD. _(Desai,_ _J.)_ 329 the Tribunal has erred in thinking that the inspectors, sales-· men and retail salesmen are work1nen must- therefore be 'rejected." **A** **B** **c** , **'D** **E·** **F** **G** **H** . . _-<(._ •• Same view was ado'ptcd in _Alluminhm1_ _Factor)/_ Work~l's' _Union_ v. _**Indian**_ _**A!'.1111iniuin**_ _**Co.**_ _**Lfd.**_ _**[11]**_ _**>**_ **Jn.** **fRat** **case·.** **Certain** **corresrnndcnce** which passed before rnd after the awards betwec1i \he parties ~as **referred** **to.** **Thi'>** **corre<;po:ide;ic('** **sh,_,wed** **that** **the** ar:~1Jlant/urti611 and the steff associetion of the "'""µqny foily· accepted the principle that Supervisors wo<.ilcl no lr.nger be regarded as workmen and that **Supervisors** **had** **resigned** **from-1ncmbership** **of.the** **wor-krnen's** **unions.** . ' . These ave.rtments in the correspondence regarding the status of the Supervisors being not workmen was held binding between the parties and both ihe Industrial Tribunal·and this Court declined· to examin.e . the. contention about the status on merits. If the union can be held bound to .such an inferred agreement from correspondence, the· **employer conceding the** **statUS** **or to** **be** **preCise** **concedii}g not t.o** **contest** the· status of salesmen would. equally be binding on the _e1n']Jloyer._ _It would thus appear that the employer/management_ was held hound· **not** ~y **any** spe~ific **agreemen.t** **but an** **agrcen1ent** **5pclt-out** **of** **its** con~· **duct in** _**Western**_ _**India**_ _**Matr;:h**_ _**Co.**_ **case and** **asserti-Ons** **in** **correspondence** **in** **[ndia Alun1inium** **Co.** **case trcati'ng certain categ·orics ofthi::** **workmen** **as.** **workmen or not as** **\\'Orkrne1}** resp~ctively **\Vithjn** **the meaning·** **or** the expression in the Act. then at a later stage, the employer and the - u~ion **respectively** **\Vere** **estopped** **frnn1** **contendifig to ·the contrary.** **The case before** **u.s** **is** **much_stronger. in** **that** **there** **is a conclude4 binding** . **agreement** **b2-tween** **th>;!** **parties neither** **repudiaj:ed** **·nor. terminated** till today which .provides that the "employer on its part will not contest the.status of the membership of the Field Force including the salesmen em.ployed by the .C~mpany as workmen within the meaning of· the exp~ession **in** **the** **Act.** **Therefore,** **·the** **Tribunal** c~nimitted **a seriQus** **error,** **apparent** **on** **record** i1~ **holding** **that** **there** **.\vas** **no** ~Oncluded agr,:cmont between. the parties as. emerging from Exs. W-2, W-3 and - W-4. **Th.e** **Tribunal** 1~ega~ived **the** **contention** **of** **the** **union** **that** **the** employer was estopped from challenging the status of the workmen **also. Oil** **the** **gr..ound** **that 'there** **Cbn** **be** **110** **estoppeJ** **against the** S~at.ute. **We** **must confess** **th0-t** ~ven.Mr. **Pai 9id not appear to** **be** **very enthusias-** tic to support the finding of the Tribunal that even if there is a binding ·agreement ~etween the parties and th.erefore, the employe 1s - estopped (1) ~~[1962]~~ _1_ ~~L.L.J~~ . 210. **A** **B** **c** **D** **F** **G** **H** .. 330 .SUPREME. COURT REPORTS [1984] 2 S.C.R, " from questioni1,g· the status of salesmen as being. workmen, it cannot· be availed of by the union because there can be no estoppel.against • a statute. We. find it very difficult not only to unnderstand but to appreciate the approach and the finding of the Tribunal in this behalf.• . There is no statutory . . pro~ision . that a· status, . of a person invoking .· . the jurisdiction of the Tribunal must be adjudicated upon notwithstanding that no contention· io t!iaf effect is·. raised.. No statutory pro·vis{on was brought to our notice which would. be rendered nugatory or ineffective if the. status of workman is not questioned. ·Nor it can he s~id that the employer has contracted out of the. benef)tsof a statute. Whether a particular, person is a workman or not dependsupo·n factua.1 matrix .. Workman is defined ·;n Sec. ·2(s) of the Act. · The ingredients and· the incidents of the definiti"on when .satisfied, the . person sati;fying the same would be a workman. Negaiively, someone fails to s0atisfy 6ne or other ingredient. or incident of the if someone fails to s0atisfy 6ne or other ingredient. or incident of the definiti'on, he may not be held to be workman within the meaning of the expression in ihe Act. The.re is no provision in the Act. which obilges the Industrial Tribunal or other forums set up under the Act . to. decide even in the absence of a contention from the employer, ·a preliminary issue w!iether the ·pcrs·on who has· invoked its jurisdiction is· a workman or not. There is· no such obligation cast statutorily · on the Tribu11al.,If the employer .does not .arise the contention,about the status of the workman approacliing the Tribunal, the Tribunal ,h~s no obligation, to ~ccide the status .of the persq11 whether' he,is a workman or not. . Conversely, if the employer agrees not to ques!fon ~ . the status in future it would only imply that such a contention would not· only be not raised· but if raised it would not bepressed and if pressed 'should be negatived in view· o.f the binding agreement: The .. resultant situation would be that the Tribunal must proceed on the assumption that no such conten.tion is raised and required to be ·adjudicated upon: .lf the contention is not raised, the Tribunal is **u.nder** **no.** **obligation,** _**st10**_ _**1notil**_ **or** **on** **its** **o·wn** **to** **raise** **and** **decide such** a contention tci clothe itself with jurisdiction to.adjudicate. upon the · . dispute. The Tribunal derives its.jurisdiction by the order of refe rence and not on the determination of a jurisdictional fact which it must of 1;ocessity decide to acquire jurisdjctioh.· Therefore, the - Tribunal was clearly in error in holding that the contention canvassed o'n beh~lf of the union would permit it to taise estoppel against' a . statute. Undoubtedly,. it is true that there cari be no estoppel againsf the Jaw of the land .. If a party is. estopped by doing·a thing· which it is under a legal disability to perform or forbearing to do something. which fr is his duty to do; the result would be an enlargement of the contractual or other rights ailowed by law or the'.r alteratio~: The WORKMEN v .. HINDUSTAN LEVER LTD. _(Desai._ _J-)'_ 331 **'t··** Basu is not . workman under ·the Act, the agreement between the union. and the emoloyer. cannot ·confer on the Tribunal any jurisdic. lion to give any- relief to him under the Act. Tb.c Tribunal. completely misdirected itself when it assumed and arrogated to itself tj:le . . obligatory duty in the absence of an impermissible contention, to .raise one and proceeded . to adjudicate upon, notwithstanding the fact if Hie agreement. is .subsisting no such contention can be raised and if raised has. to be ignored as an irrelevant pleading. In this. · connection, it may be. recalled ihat when a reference is·made under Cour·t e11forces 0 'the performance of statutory duty and declines to - interfere 0for the assistance of persons who seek its aid to relieve the~ . aga,inst the express statutory provision. Approving the dicta Jn. .• - interfere _Maddison_ v. _Alderson(",_ this Court observed in _K._ _Romadas Shenoy_ . v; _The Chief Officers, Town Municipal .Council, Udipi and Ors.,t•l_ that an excess of statutory power · could not be validated by **acquiescenc;e. in** **Or** **by** **the operatio·n** **of** ~stoppel. **Is. that the -situation** here ? The Tribunal observed. that notwithstanding the fact that the employer has agreed' to recognise the .union as representative of the Field ·Force including the salesmen, agreement between· . the parties cannot override the statute and if th\'refore Shri A.K. Sec. 10 of the Act; Rule .10-B of the Industrial Disputes (Central) ·Rutes, 1957 obliges the workman involved in the reference to file. with tl1e Tribunal a statement of demands relating only to the issues as are included fo the order of reference and simultaneously serve a copy ofthe same to the employer. Sub-rule (2) enjoins the employer within ·two weeks .ohhe receipt of the statemerit·of claim to file its rejoinqer aud simultaneously serve a copy ofthe same on the workman. Ordinarily,, the Tribunal ·after ascertaining on ·what issue the parties .· are at variance rais.es i.ssues to focus aitention on points in dispute. In industrial adjudication,: issues are of two typ_es : (i)· those referred by the Governmei;it for adjudication aud set oat in the order of reference. and (ii) incidental issues ·which· are· sometimes the issues· of law or . iss·ues of mixed law and fact. The' Tribunal may.'as well frame pre~ **A** **B··** ·C **D** **F** **G** **H** liminary issues if the poiut on which the parties are ai varia11ce, as . reflected in the preljffiinary issue, o/OU!d go to the root of the matter. But the Tribun&l cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from r11ising; to wit if the employer. does riot q11estion the status of the worken, (he Tribunal cannot _suo_ _inotu_ raise the issue and proceed to adjudicate upoil the same and throw out (l) [18831 8 A.C. 467. (2) [19751 1 S.C.R 680. **A** **B** **·n** E F ' . 332 SUPREME COURT REPORTS [1984] 2 ~.Cll. the reference on the sole ground that the concerned -workman was . not .a workman .w;thin the meaning of the expression of the Act. And it is' not obligatory upqn the employer i1ecessarily to raise \he conten"tion that the co.ncerned workman was not a workma1i within the. meaning of "the expression .under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of ·the union ~ere· to prevail, the well laid rnle of no estoppel against a statute would be violate<). Having examined all the diniensions of the matter, it is crystal clear and is indisputably established that the agreement relied upon by the union is a valid subsisting agreement. It is in force. _It_ is neither . repudiated. nor terminated. Tt is binding upon both the parties. Once the agreen:ient is held to· be binding, the employer is estopped fro;,, contending that the workmen involved in the dispute **wbo** **were** **sales1ncn** wen~ **not** **work1nen** **within** **the** **nleaning.** **of** **the** expression undei· the Act. Therefore, the Tribunal was in error in undertaking to examine that contention and answer it. That part of the order/award of the Tribunal is unsustainable and must be quashed and set aside. . We accordingly, direct the Tribui1al to ·proceed to deteni1inc . the dispute on merits without concerning itself with .the consideration of the question whether the concerned workmen were workmei1 within the meaning of the expression under the Act.. This appeal accordingly succeeds-and' the award of the Tribunal to the extent indicated herein is quashed and set aside' and the matter is remitted to the lndustri_al Tribunal with a direction lo proceed further in the light of the observations made in thi.• judgment. The respondent shall pay to the appellant cosis quantified at Rs; 3,000. - · N.V;K. _Appeal allowed._ . \ \.~'-. ' ###### . . \ ' ###### I **t** ###