H.K. Rathod, J.@mdashHeard learned Senior Advocate Mr. S.I. Nanavati for Nanavati & Nanavati on behalf of applicant, learned advocate Mr.
D.S. Vasavada for opponent No. 1 and Mr. Danial, learned Union Representative appearing on behalf of opponent No. 2 concerned employee.
2. This Court has passed an order on 21.12.2009, which is quoted as under:
1. Heard learned senior advocate Mr. S.I. Nanavati appearing on behalf of applicant, learned advocate Mr. Vasavada appearing on behalf of
opponent No. 1 and Mr. Danial, learned union representative of opponent No. 2.
2. Considering the submissions made by both learned advocates and averments made in this application and also the affidavit filed by respondent
No. 2, the question raised in this application requires detailed examination. Hence, Rule returnable on 18.1.2010.
3. Meanwhile, interim relief in terms of Para.11(C) till final disposal of this application.
3. Before considering merits of the matter, it is necessary to consider order passed by this Court in SCA No. 14632 of 2007. In SCA, petitioner
has challenged the order passed by Industrial Court, Ahmedabad in Appeal (IC) No. 27 of 2006 against the order of Labour Court in Application
No. 294 of 1996 dated 7.5.2007. The Industrial Court, Ahmedabad has allowed the appeal filed by respondent Union and judgment and order
passed Labour Court on 10.4.2006 in BIR Application No. 294 of 1996 has been set aside. The Industrial Court has declared that there was a
closure of the mills company from 23.5.1996 onwards and permission for closing down was not obtained from the appropriate Government.
Therefore, said closure was declared illegal. The consequential benefits of holding of illegal closure shall be paid by mills company to the concerned
employee with the cost of Rs. 500/-. The Rule issued by this Court on 8.1.2008 and ad-interim relief granted by this Court. Thereafter, matter has
been discussed number of occasions between the parties to find out some solution in respect to question involved in the present petition.
Thereafter, matter has been settled between the parties. It is necessary to note that opponent No. 1 TLA being a union representative under
provisions of BIR Act, 1946. The terms of settlement has been worked out between the parties and produced on record by both parties. The
consent terms has been produced on record and according to consent terms, benefits which were available to concerned employees of tendering
their voluntary resignation, retired employees, expired employees and Badli employees has been worked out on agreement between the parties to
the effect that mills has closed down manufacturing activities completely and it has been agreed to grant following benefits as per the settlement to
the concerned employee. This consent terms dated 11.2.2008 signed by both advocates of respective parties as well as Shri S.D. Vyas, Director
of Ahmedabad Advance Mills Ltd. and Shri Amar Barot, Secretary of TLA.
4. This Court has passed the order on 11.2.2008 recording settlement. The order which has been passed by this Court on 11.2.2008 in aforesaid
SCA, paras.5, 6, 7 and 8 are relevant which are quoted as under:
5. I have perused the consent terms arrived at between the parties. The matter has been rightly settled and both the parties have rightly agreed to
the terms which is in the interest of both the parties. The result of this settlement is that the order passed by the Industrial Court, Ahmedabad which
is under challenge declaring the closure of the mills company is illegal, is now considered to be a closure declared by the mills company is legal and
valid, which is accepted by the respondent union and all the concerned employees along with representative of respondent-union who has given
writing to this Court dated 28/1/2008.
6. The aforesaid consent terms is taken on record and accordingly, the order passed by the Industrial Court, Ahmedabad in Appeal (IC) No. 27
of 2008 dated 7/5/2007 is hereby modified in terms of consent terms and both the parties are directed to abide by consent terms and it is directed
to both the parties to implement the consent terms as recorded by this Court.
7. Rule is made absolute in terms of consent terms with no order as to costs.
8. It is necessary to note that long pending dispute is now reached to the happy settlement, where, rupees fifteen crores are to be disbursed in
favour of the concerned employees with the sincere efforts made by Mr. Amar Barot, Secretary of Textile Labour Association and showing
positive approach in all respect getting the result of long pending dispute in good settlement. This Court is really appreciated the sincere efforts of
Mr. Amar Barot, Secretary of TLA being a representative of Union in local area in Textile Industry. It is simultaneously happy to note the positive
approach of the employer leaving a legal battle aside and settled the dispute in a positive manner which is ultimately, beneficial to the concerned
employees. Therefore, this Court also appreciated the sincere efforts of learned senior advocate Mr. S.I. Nanavati, learned advocate Ms. Anuja
Nanavati learned advocate and Mr. D.G. Shukla who have helped through out in the proceedings. This Court also appreciated the sincere effort of
learned advocate Mr. D.S. Vasavada.
5. The aforesaid paragraphs are quoted by this Court for deciding controversy arise between the present applicant and opponent No. 2. This
Court has observed that net result of this settlement is that the order passed by Industrial Tribunal, Ahmedabad which is under challenge declaring
closure of the mills company is illegal, is now considered to be a closure declared by the mills company is legal and valid which is accepted by the
respondent Union and all the concerned employees along with representative of respondent Union, who has given writing to this Court dated
28.1.2008. This Court while taking consent terms on record, modified order passed by Industrial Court, Ahmedabad in Appeal (IC) No. 27 of
2008 dated 7.5.2007. In terms of consent terms, both parties are directed to abide by consent terms and it is directed to both the parties to
implement the consent terms as recorded by this Court and Rule is made absolute in aforesaid SCA in terms of consent terms with no order as to
costs.
6. Therefore, whatever benefits accrued in favour of concerned employees as per consent terms are to be calculated on the basis of legal closure
of petitioner mills. The opponent No. 2 herein has filed application before the controlling authority which is at Page-27 (Form-I) dated 31.7.2008.
The date of appointment is 1.7.1954 and date of termination means voluntary resignation dated 15.4.2008, total period of service is 54 years and
daily wage is considered at Rs. 143.41 ps. The difference of gratuity has been calculated which comes to Rs. 35,220.10 ps which is at Page-27 of
compilation. Thereafter, on 5.3.2009, mills company has filed reply against claim of opponent No. 2. The application is registered by competent
authority being Application No. 63 of 2009 on 16.4.2009.
7. The present applicant mills company has filed present application with a prayer to issue necessary direction to the controlling authority,
Ahmedabad modifying/clarifying the earlier order dated 11.2.2008 passed by this Court in SCA No. 14632 of 2007 and to quash the proceedings
of Application No. 63 of 2009 filed by opponent No. 2 before the controlling authority.
8. The affidavit-in-reply filed by opponent No. 2 against present application with authority of union representative Mr. P.K. Danial, General
Secretary of mighty Labour Association.
9. Mr. S.I. Nanavati, learned Senior Advocate, submitted that in pursuance to aforesaid consent terms and order passed by this Court on
11.2.2008, opponent No. 2 has tendered his voluntary resignation on 15.4.2008 and that resignation was accepted by mills company as per
settlement recorded by this Court and to be paid amount on or before 31.5.2008. This letter where voluntary resignation was accepted, has been
communicated immediately to opponent No. 2 which bears signature of opponent which is at page-23. Page-24 is a letter of opponent No. 2
where it is mentioned that on the basis of settlement arrived at between representative union TLA and mills company as well as order passed by
this Court on 11.2.2008, whatever terms and conditions decided between the parties has been accepted by opponent No. 2 - workman and
requested mills company to pay whatever dues available as per consent terms to him. In the said letter, it is also made clear by opponent No. 2
that he has not filed any case or proceedings against mills company and even in case if any such case is filed, he has given undertaking to mills
company to withdraw it voluntarily. He is not having any other premises or quarters with him or any property of company with him. Even if any
property is remained with him, he is prepared to give vacant possession to mills company. This letter at page-24 is signed by opponent No. 2
workman in presence of witness, who has also signed in the said letter. Thereafter, a receipt has been given by opponent No. 2 (page-25) as per
settlement recorded by this Court as referred above, total amount comes to Rs. 78,478/- and after deducting various deduction, Rs. 24,151/- as
agreed between both parties, remaining amount of Rs. 54,327/- has been paid to opponent No. 1 by Cheque No. 717731 dated 10.6.2008
drawn on SBI Commercial Branch, Ashram Road, Ahmedabad. This receipt is also signed by opponent No. 2 on 14.6.2008 in presence of union
representative. Thereafter, Rs. 80,942/- amount of gratuity is also paid as per consent terms (page-26) which has also been accepted by opponent
No. 2. Thereafter, Form-I has been preferred which was sent to mills company by opponent No. 2 on 31.7.2008 claiming difference of amount
calculating the interim period of closure upto 15.4.2008. Thereafter, mills company has filed reply on 5.3.2009 (page-28) to controlling authority
under Payment of Gratuity Act, 1972. After reply of mills company, opponent No. 2 has filed application No. 63 of 2009 before the controlling
authority on 16.4.2009 claiming difference of gratuity amount which comes to Rs. 35,220.10 ps. These are the facts which are on record.
10. In light of these facts which are almost undisputed between parties based on documents which referred by this Court as above.
11. Mr. S.I. Nanavati, learned Senior Advocate relying upon the decision of Apex Court in case of Shivanand Gaurishankar Baswanti v. Laxmi
Vishnu Textile Mills and Ors. reported in 2008 AIR SCW 8122, submitted that once the representative union arrived at an agreement or consent
terms with mills company, then concerned employee opponent No. 2 has no right to challenge the consent terms. He also raised contention that
consent terms has been accepted by opponent No. 2 and accordingly, voluntary resignation was tendered by him which was accepted by mills
company and according to consent terms which was recorded by this Court on 11.2.2008, necessary due payment was already made which was
accepted by opponent No. 2. Therefore, now to file application before controlling authority claiming difference of amount of gratuity is not
maintainable in law and the controlling authority has no jurisdiction to decide such application when amount of gratuity has been determined on the
basis of consent terms with representative union. He relied upon certain terms of settlement which is quoted as under:
5. It is agreed by and between the parties that as per the present settlement the Petitioner Mills will be completely closed for all purposes and the
Respondent Union or its members/employees who are the beneficiaries under the present settlement will not raise any dispute about the closure of
the petitioner Mills.
12. He emphasized vehemently that after accepting consent terms and tendering voluntary resignation and accepting amounts by opponent No. 2,
filing of an application No. 63 of 2009 under provisions of Payment of Gratuity Act is contrary to order passed by this Court dated 11.2.2008 and
it is nothing but an abuse of process of law which may result into multiplicity of proceedings. The controlling authority ought not to have proceed
with such application after the reply filed by applicant mills co. whereby attention of controlling authority was drawn about the order passed by this
Court on 11.2.2008. The undertaking given by opponent No. 2 accepting the order passed in terms of settlement/consent terms dated 11.2.2008.
Therefore, any proceedings initiated by controlling authority in response to application No. 63 of 2009 filed by opponent No. 2 is without
jurisdiction and contrary to order passed by this Court. He submitted that order passed by this Court dated 11.2.2008 recording consent terms is
not challenged by opponent No. 2 to any higher forum. He further submitted that once consent terms arrived by mills co. with representative union,
then opponent No. 2 is having no locus standi to challenge the order passed by this Court dated 11.2.2008. He also submitted that consent terms
arrived between mills co. and representative union under provisions of Bombay Industrial Relations Act, 1946. Therefore, controlling authority has
no jurisdiction to entertain such application filed by opponent No. 2. Therefore, entertaining such application by controlling authority itself is against
the order passed by this Court dated 11.2.2008 and also it is contrary to the provisions of Bombay Industrial Relations Act, 1946. Therefore, that
proceedings is required to be quashed. He relied upon Para.31, 32, 39, 43, 44, 45 and 46 of aforesaid decision of Apex Court which is quoted as
under:
Status And Position Of Representative Union
31. The learned Counsel for the appellant contended that respondent No. 8 could not have agreed to accept a meager amount of Rs. 22 crores
when the outstanding dues were more than Rs. 130 crores. It was also stated that majority of workers are with the appellant and they are opposed
to the settlement. Thousands of workers have so stated in writing and informed the appellant that the grievance raised by the appellant is well-
founded and they are entitled to much more amount than what had been paid under the settlement.
32. Even this contention has no force. The learned Counsel for the Union, in our opinion, is right in submitting that under the Bombay Industrial
Relations Act, 1946, it is the `Representative Union'' which has all powers to enter into a settlement on behalf of workers in the industry and it is
only that Union which can take a decision under 1946 Act. The said decision would bind not only the members of the Union, but also to those
workers who are not members of such Union.
39. This Court considered the relevant provisions of the 1946 Act, the object underlying conferment of power on Representative Union and the
action taken by it and held that when a Representative Union appears in any proceeding under the Act, none else can be allowed to appear not
even the employee at whose instance proceedings might have been started u/s 42(4) of the Act. The Court held that if the Representative Union
appears, the decision taken by that Union would be final and binding.
43. The Court, therefore, concluded;
The result therefore of taking Sections 27A, 32 and 33 together is that Section 27A first places a complete ban on the appearance of an employee
in proceedings under the Act once it has commenced except through the representative of employees. But there are two exceptions to this ban
contained in Sections 32 and 33. Section 32 is concerned with all proceedings before the authorities and gives power to the authorities under the
Act to permit an employee himself to appears even though a representative of employees may have appeared but his permission cannot be granted
where the representative Union has appeared as a representative of employees. Section 33 which is the other exception allows an employee to
appear through any person in certain proceedings only even though a representative of employees might have appeared; but here again it is subject
to this that no one else, not even the employee who might have made the application, will have the right to appear if a Representative Union has put
in appearance as the representative of employees. It is quite clear therefore that the scheme of the Act is that where a Representative Union
appears in any proceeding under the Act, no one else can be allowed to appear not even the employee at whose instance the proceedings might
have begun u/s 42(4). But where the appearance is by any representative of employees other than a Representative Union authorities u/s 32 can
permit the employee to appear himself in all proceedings before them and further the employee is entitled to appear by any person in certain
proceedings specified in Section 33. But whenever the Representative Union has made an appearance, even the employee cannot appear in any
proceeding under the act and the representation must be confined only to the representative Union. The complete ban therefore laid by Section
27A on representation otherwise than through a representative of employees remains complete where the representative of employees is the
Representative Union that has appeared; but if the representative of employees that has appeared is other than the Representative Union then
Sections 32 and 33 provide for exceptions with which we have already dealt. There can therefore be no escape from the conclusion that the Act
plainly intends that where the Representative Union appears in any proceeding under the Act even though that proceeding might have commenced
by an employee u/s 42(4) of the Act, the Representative Union alone can represent the employee and the employee cannot appear or act in such
proceeding.
44. Again, in Textile Labour Association, Bhadra Ahmedabad Vs. Ahmedabad Mill Owners Association, Ahmedabad, this Court held that once
Representative Union of Textile Industry in the local area of Ahmedabad entered into a compromise, such compromise would bind all the
employees and those employees who are not members of the Representative Union cannot contend that they are against such compromise and are
not bound by it.
45. In Santuram Khudai Vs. Kimatrai Printers and Processors Pvt. Ltd. and Others, a similar question arose. The Court reiterated the law laid
down in Girja Shankar and held that once the Representative Union appears on behalf of the employees in a proceeding before a Labour Court
under 1946 Act, individual workman has no locus standi. According to the Court, combined reading of Sections 27A, 30, 32, 33 and 80 of the
Act make it clear that consistent with the avowed policy and prevention of exploitation of workmen and augmentation of their bargaining power,
the Legislature has clothed the Representative Union with plenary power to appear or act on behalf of employees in any proceeding under the Act.
Keeping in view the said object, it has deprived individual employees or workmen of the right to appear or act in any proceeding under the Act
where the Representative Union enters appearance or acts as representative of the employees.
46. Following Girja Shankar, the Court observed that mala fides or bona fides of the Representative Union has no relevance in construing the
relevant provisions of the Act. In case the employees find that the Representative Union is acting in a manner which is prejudicial to their interests,
their remedy lies in invoking the aid of the Registrar under Chapter III of the Act requesting him to cancel the registration of the union.
13. As against that, Mr. Danial, Union Representative, who has filed reply in affidavit against present application, raising contention that applicant
has paid the gratuity to opponent No. 2 - workman in different two rates which is as per the settlement arrived between the applicant Mills Co.
and TLA which is contrary to mandatory provisions of Gratuity Act and two different rates have been taken into account while calculating amount
of gratuity; one is Rs. 121.12 ps. and second is Rs. 143.41 ps. which quite against the Gratuity Act. He submitted that such type of different
calculation is not permissible under the provisions of Gratuity Act and settlement or order cannot change mandatory right of eligible person.
Therefore, even if it is done then it is nothing but a breach of law. The consent terms cannot consider as a right thing and union representative is not
empowered to decide the fate of the workman through settlement especially when settlement is against the prevailing laws and its mandatory
provisions. He relied upon decision of Bombay High Court reported in 2002 2 CLR 395 . Therefore, according to his submission, such settlement
or consent terms is not proper and contrary to the provisions of Gratuity Act and merely accepting amount by opponent No. 2, he cannot consider
to be helpless for challenging or claiming difference of amount of gratuity. The resignation cannot consider to be voluntary and for that, he
submitted that resignation has become very sensitive and element of suspicion arises when the resignation is genuine. He relied upon one decision
of Apex Court in case of Secretary, Multi-purpose Co-operative Society Vs. Presiding Officer, Labour Court and Others, However, he has
accepted in affidavit-in-reply that resignation which was tendered by opponent No. 2 was voluntary because he has no other option with him. But
he was not agreed with the illegal deduction made by Mills Co. The opponent No. 2 has lost Rs. 35,220.10 ps. because of illegal settlement with
representative union. Therefore, according to his submission, such application filed by applicant Mills Co. may be dismissed and direction be
issued to pay Rs. 35,220.10 ps. to opponent No. 2.
It is necessary to note that affidavit-in-reply is not filed by opponent No. 2 but, it has been filed by Union Representative Mr. Danial, who is not
the party of present proceedings. Except that, Mr. Danial, Union Representative has not raised any other contention before this Court.
14. I have considered submissions made by both learned advocates and documents which are annexed to present application as well as affidavit-
in-reply filed by Mr. Danial, Union Representative.
15. The calculation which has been made by opponent No. 2 considering his total service of 54 years from 1.7.1954 to 15.4.2008. The applicant
Mills Co. as per consent terms considered amount of gratuity for 41 years'' service from date of joining upto 31.3.1995. On 31.5.1995, monthly
salary of opponent No. 2 was Rs. 3149.31 ps. Accordingly, daily wage comes to Rs. 121.12 ps. Total amount comes to Rs. 74,489/-.
Thereafter, Mills Co. has considered after three years gratuity w.e.f. 1.4.1997 to 31.12.1999 where total monthly salary comes to Rs. 3728.74
ps. where per day wages comes to Rs. 143.41 ps. which amount comes to Rs. 6453/-. Therefore, as per terms of settlement, amount of gratuity is
required to be calculated as per A + B as agreed by Union Representative with Mills Co. in consent terms. The consent terms provides a clause
for amount of gratuity to permanent retired employees which will be paid as per award dated 12.2.1997 upto 1.3.1995 and from 1.4.1997 till the
date of retirement for the period from 1.4.1995 to 31.3.1997, lumpsum payment as per clause-9 of the award dated 12.2.1997. The permanent
employees will be paid gratuity as per award dated 12.2.1997 upto 31.3.1997 and from 1.4.1997 to 31.3.2007, index base is to be taken from
31.3.1997. So question of last drawn salary is not required to be taken into account while calculating amount of gratuity on daily wage of
concerned employee. Therefore, amount of gratuity which has been calculated by Mills Co. on the basis of consent terms as arrived at between the
parties and in case if any dispute arises or difference may arise in respect of calculation of any amount as per present consent terms, then matter
will be referred to Mr. S.I. Nanavati, learned Senior Advocate and Mr. D.S. Vasavada, Union Representative, who will decide it and their joint
decision will be binding to both the parties as well as to the concerned employee and they will not raise any objection or dispute about such
calculation. Relevant Item No. 7 of the consent terms is quoted as under:
7. It is further agreed by and between the parties that if any dispute or difference may arise in respect of calculation of any amount as per present
consent terms, then it will be referred to Shri S.I. Nanavati, Senior Advocate and Shri D.S. Vasavada, Advocate, who will decide it and their joint
decision will be binding to both the parties as well as to the concerned employee and they will not raise any objection or dispute about such
calculation.
16. The submission made by Mr. Danial, Trade Union Representative that amount of gratuity has been calculated in two spells - (A) and (B). Spell
(A) provides that amount of gratuity from date date of joining till 31.3.1995 and Spell (B) provides that amount of gratuity paid from 1.4.1997 to
31.12.1999. In both kind of gratuity, Spell (A) last drawn wages taken into account on 31.3.1995 and in Spell (B), last drawn wages taken into
account from March,1997 because living index is taken into account. Therefore, according to him, amount of gratuity is available to employee
under the provisions of Payment of Gratuity Act, 1972 on the basis of last drawn wages which has not been calculated. Therefore, provisions of
Gratuity Act is violated.
16.1 It is necessary to note that one proceedings initiated by both parties i.e. TLA Union representative and the Ahmedabad Advance Mills Ltd.
giving submission in Case (IC) No. 1/1997 under provisions of the Bombay Industrial Relations Act, 1946 wherein u/s 66 settlement between both
parties arrived on 12.2.1997 and accordingly, that settlement has been recorded by Industrial Court on 12.2.1997. Therefore, as per terms 6(C),
the gratuity is required to be calculated from date of joining of concerned employee upto 31.3.1995 on basis of receiving salary by concerned
employee on 31.3.1995. This settlement has been arrived because of discontinuation of certain departments and to accept voluntary resignation
from concerned employees and whatever posts are found to be vacant, that posts are required to be abolished. For that, specific settlement has
been arrived with representative union by applicant mills co. Therefore, part (A) calculation made upto 31.3.1995 as per settlement dated
12.2.1997 which was produced before controlling authority. Thereafter, subsequent period, Part (B) was taken into account from 1.4.1997 to
31.12.1999. Both kind of gratuity has been calculated on basis of two separate agreement arrived by representative union with applicant Mills Co.
That agreements are binding to concerned opponent No. 2 and accordingly, benefit of gratuity has been calculated for total years of service which
comes to 41 years. The opponent No. 2 in its form-I considered his service to be continued upto 15.4.2008 which is not correct because by
second agreement which was recorded by this Court on 11.2.2008 where specific agreement arrived between both parties that closure of the mills
co. is held to be legal and valid which is accepted by the respondent Union and all the concerned employees along with representative of
respondent Union, who has given writing to this Court dated 28.1.2008. Therefore, a moment closure is considered to be legal, then thereafter
there is no further period is available to concerned employee to claim gratuity. Therefore, considering both agreements dated 12.2.1997 and order
passed by this Court on 11.2.2008, the amount of gratuity in respect to opponent No. 2 has been properly calculated by applicant Mills Co. If
there is an error in calculation, the remedy is available to opponent No. 2 to approach Advocate of Representative Union and learned Senior
Advocate Mr. S.I. Nanavati as per order passed by this Court on 11.2.2008 but, there is no remedy is available as per binding agreement to
concerned opponent No. 2 to approach directly to controlling authority under the provisions of Payment of Gratuity Act.
16.2 Mr. Danial, learned Union Representative has referred and relied upon recent decision of Apex Court in case of Allahabad Bank and Anr. v.
All India Allahabad Bank Retired Employees'' Association reported in 2010 I CLR 1 : 2009 AIR SCW 7667 and 2009 (4) Scale 577. He relied
upon recent decision of Apex Court in respect to gratuity where question was considered by Apex Court whether the retired employees having
exercised their option to avail the benefits under the pension scheme are estopped from claiming the benefit (i.e. gratuity) under the provisions of
the Payment of Gratuity Act. Answering this question by Apex Court in the negative, the Apex Court has held that right to receive gratuity under
the provisions of the Act cannot be defeated by any instrument or contract. The pension and gratuity are separate retiral benefits and right to
gratuity is a statutory right. No comparison between a pension scheme, not providing for payment of gratuity and right of employee to receive
gratuity under the provisions of the Act. Therefore, appeal preferred by Allahabad Bank has been dismissed. So aforesaid decision of Apex Court
is not applicable to facts of this case because here amount of gratuity has been paid to opponent No. 2 by applicant Mills Co. which has been
accepted by him on basis of two agreements dated 12.2.1997 and 11.2.2008. Both agreements with representative union under provisions of BIR
Act, 1946. When both agreements arrived with representative union by applicant Mills Co. the concerned employees expressly or impliedly
waived their statutory right to claim payment of gratuity under the provisions of the Act. But their claim of gratuity is decided in terms of two
settlement dated 12.2.1997 and 11.2.2008. Therefore, observations made by Apex Court in Para.22 and 23 of aforesaid decision is relevant
which are quoted as under:
22. This Court in Hindustan Lever and Anr. v. State of Maharashtra and Anr. relying upon the decision of this Court in Purshottam H. Judye v.
V.B. Poddar held that the word `instrument'' would include award made by the Industrial Tribunal. It is thus clear that notwithstanding the Desai
and Shastry Awards and the subsequent settlements the members of the employees association are entitled to avail the benefit conferred upon
them for payment of gratuity under the provisions of the Act. The employees cannot be deprived of their valuable statutory right conferred upon
them to receive payment of gratuity.
23. There is no material placed before us that the employees while opting for the pension scheme at the time of their superannuation/retirement
either expressly or impliedly waived their statutory right to claim payment of gratuity under the provisions of the Act. In the circumstances we find
no merit in the submission made by the learned Counsel for the appellant in this regard. For the aforesaid reasons we find no merit in the appeal.
16.3 In view of above observations made by Apex Court in aforesaid recent decision, reliance which has been placed by the Mr. Danial, Trade
Union Representative is not helpful to him in support of his submission. The aforesaid recent decision of Apex Court makes it clear that in case if
employee while opting for the pension scheme at the time of his superannuation or retirement, either expressly or implied waived their statutory
right, then concerned employees are not entitled to claim amount of gratuity as per provisions made in the Payment of Gratuity Act. In this case, by
two agreements with representative union under provisions of BIR Act, 1946 which is binding to members of representative union and even also it
is binding to non-members means concerned other employees working with applicant Mills Co. In this case, having accepted both settlements
arrived with representative union and receiving payments, thereafter to file proceedings under provisions of Payment of Gratuity Act, 1972 is not
maintainable. Otherwise there is no sanctity of both settlements arrived with representative union by applicant Mills Co. When applicant Mills. Co.
negotiated entire matter where question of closure of Mills Co. was discussed where number of workers are affected and on principle of collective
bargaining when entire matter has been settled, so employees concerned may get immediately amount of their legal dues without being legal fight
against applicant ''Mills. Co.'' The opponent No. 2 has not made any allegation against representative union or there is no mala fide has been
alleged by opponent No. 2 against representative union. At the time of recording settlement by this Court, this Court has also found that settlement
produced before this Court being settling in respect to all amounts of legal dues of employee which was in interest of concerned employees.
Therefore, this Court has recorded it and accordingly, applicant ''Mills Co.'' has acted on it. Thereafter, if such separate application filed before
controlling authority if it is to be entertained, then unnecessary multiplicity of proceedings will be arisen which is not in interest of either parties
because it amounts to violating legal and binding terms of both settlements. The representative union under provisions of BIR Act, 1946 having sole
collective bargaining agent recognized by statutory provisions become nugatory. The Apex Court in number of decisions has considered this
question reported in AIR 2008 SCW 8122. Therefore, according to my opinion, even recent decision of Apex Court in case of Allahabad Bank
and Anr. is also not helpful to opponent No. 2. On the contrary, in case of waiving expressly or impliedly statutory right under provisions of
Payment of Gratuity Act by virtue of two settlements arrived with representative union under provisions of BIR Act, 1946, the opponent No. 2 is
not entitled to claim any amount of difference under provisions of Payment of Gratuity Act, 1972. Now to challenge such calculation is contrary to
both settlements as referred above. Therefore, contentions raised by Mr. Danial, Trade Union Representative cannot be accepted and hence,
rejected.
17. In view of aforesaid consent terms arrived between representative union and Mills Co. and in case of dispute of difference in calculation, the
remedy is also available to opponent No. 2, but opponent No. 2 is not entitled to approach directly to controlling authority by filing necessary
application under provisions of Payment of Gratuity Act, 1972. Unless and until the order passed by this Court on 11.2.2008 recording consent
terms arrived between both parties is challenged to higher forum by either of parties. The opponent No. 2 after accepting consent terms and
tendering resignation and accepting amount without any objection, has no right to straightway approach to controlling authority claiming difference
of amount under provisions of Payment of Gratuity Act, 1972 because this consent terms is binding to him and he has no right to even challenge
such settlement which has been accepted by him arrived by representative union under provisions of BIR Act, 1946. This consent terms is having
binding effect not only the members of union but, also to those workers even who are not members of such union. The decision taken by
representative union would be final and binding and individual employee has no locus standi to file any proceedings before the Court or any
authority contrary to consent terms which arrived between Mills Co. and representative union. That aspect has been made clear by Apex Court in
case of Shivanand Gaurishankar Baswanti (supra). Therefore, controlling authority has no jurisdiction to initiate any proceedings against present
applicant in response to application No. 63 of 2009 filed by opponent No. 2. Therefore, considering relevant provisions of BIR Act and also the
observations made by Apex Court in above referred cases, the proceedings filed by opponent No. 2 before the controlling authority under
Payment of Gratuity Act, 1972 in Application No. 63 of 2009 is also required to be quashed because it is contrary to consent terms as recorded
by this Court on 11.2.2008 and it is also contrary to law laid down by Apex Court as referred above.
18. Therefore, Application No. 63 of 2009 filed by opponent No. 2 before controlling authority at Ahmedabad under the Payment of Gratuity
Act, 1972 is hereby quashed and set aside. It is directed to controlling authority at Ahmedabad under Payment of Gratuity Act, 1972 not to initiate
any further proceedings in respect to Application No. 63 of 2009 filed by opponent No. 2 against present applicant Mills Co. Accordingly, Rule is
made absolute to aforesaid extent with no order as to costs.
