1. The writ petitioner-company is engaged in the manufacture and sale of coal tar, petroleum products, water proofing and damp proofing belts, etc. Respondent 2, Smt. Sushila Gayen was never employed by the petitioner but was an employee of a licensed contractor of the petitioner, named Sri Kanu Ganguli of Basudebpur, Triveni, District Hooghly, in connection with the work undertaken by the petitioner at Banded Thermal Power plant at Hooghly. Respondent 2 was never paid any wages by the petitioner for any work done by her at the said plant. A criminal case was started against her on the ground of theft of materials from the said Thermal power plant when she was caught redhanded by the security guards of the said plant while she was working as a workman of the contractor mentioned above. Ultimately she was acquitted from that case. Before acquittal in the case respondent 2 wrote to the petitioner company requesting for re-employment with back-wages. At that time the petitioner-company first came to know about the antecedents of respondent 2. Thereafter conciliation proceeding was initiated before the Additional Labour Commissioner,. Government of West Bengal. The petitioner-company attended the said conciliation meeting and explained the position to the said Additional Labour Commissioner. However, in order to avoid getting into unnecessary litigation the petitioner company without prejudice to its rights and contentions took a sympathetic view in the matter and settled the same in course of the conciliation proceeding before the said Labour Commissioner on payment of Rs. 1500 in cash which was received in full and final settlement before the then Additional Labour Commissioner. West Bengal. The said settlement was recorded by the said Additional Labour Commissioner and the parties signed the settlement which was also signed by the Additional Labour Commissioner. True copies of the tripartite settlement signed by the parties and a receipt showing payment of the sum of Rs. 1500 have been annexed with the writ petition and marked by letter “B.” Clause 3 of the said tripartite settlement runs as follows:

“In case, the charge of theft against Smt. Gayen is not proved in the Court where her case is pending she may approach the principal employer for a job through any contractor under them in B.T.P.S In that event, the management would consider the prayer of Smt. Gayen provided any job of the nature of her lost job is then available.”

2. In January 1990. respondent 2 informed the petitioner that she had been exonerated from the charges in the criminal Court and that she should be given an employment. But at that time the job at B.T.P.S was over and the site was closed down. No employment could be offered to her. However, no question of employment could arise at all in view of the assertion of the writ-petitioner that she was never an employee of the petitioner-company. Thereafter she look up the matter with the Conciliation Officer. Ultimately the Government oi West Bengal by an order of reference, dated 29 July, 1992, referred the following issues to the first respondent Tribunal for adjudication:

“Whether the termination of service of Smt. Gayen is justified/What relief, if any, is she entitled?

A true copy of the said order of reference is annexed with the writ petition and marked with the letter ‘D.’”

3. The petitioner filed written settlement in the said adjudication. True copy of the said written statement has been annexed with the writ-petition and marked with letter “E.”

4. Subsequently the said respondent 2 filed an application for interim relief before the said Industrial Tribunal. The writ-petitioner filed an objection in reply to the said application for interim relief. A true copy of the application and the objection have been annexed with the writ petition and marked with Annexure F.

5. The petitioner took this stand in the objection that since the dispute was settled by a tripartite settlement, dated 27 May, 1983, between the parties in course of conciliation proceeding, the aggrieved party could proceed under S. 29 of the Industrial Disputes Act, 1947, for violation of the terms of the said settlement and that the Government cannot lawfully refer the alleged dispute to the Industrial Tribunal.

6. As the point of maintainability was taken up as a preliminary point, the learned Tribunal after hearing both the sides has been pleased to pass the impugned order, dated 20 December, 1993, holding that the settlement is not a settlement within S. 2((p) of the Industrial Disputes Act, 1947. It was further held by the learned Tribunal that according to the condition of the settlement respondent 2 was eligible for fresh appointment if she was acquitted or discharged in the criminal case pending against her. It was further held by the learned Tribunal that since she was discharged from the criminal case, she was entitled to re employment and held that as no copy of the settlement was sent to the authorised officer, the said settlement was not a settlement within S. 2(p) of the Industrial Disputes Act, 1947. It was further held that the mere presence of the conciliation Officer would not make the meeting of a conciliation proceeding under the Industrial Disputes Act.

7. Being aggrieved by and dissatisfied with the impugned order passed by the learned Tribunal the petitioner company has come before this Court alleging, inter alia, that the learned Tribunal has acted without jurisdiction and in violation of the fundamental principle of justice. It has been further held that on the face of the record the finding of the learned Tribunal is perverse.

8. The writ application is hotly contested.

9. Under S. 18(1) of the Industrial Disputes Act a settlement arrived at by agreement between the employer and workmen otherwise than in the course of Conciliation proceeding shall be binding on the parties to the agreement. But under Sub-sec. (3) of the said section a settlement arrived at in the course of a Conciliation proceeding under the Act shall be binding on all the parties to the industrial dispute including the employer, his heirs, successors and assigns and all persons who were employed in the establishment on the date of the dispute and all persons who subsequently become employed in the establishment or part So it is clear that the sweep of a settlement arrived at in the course of a conciliation proceeding under the Act is wider than the sweep of a settlement under Sub-sec. (1). Section 12 of the Industrial Disputes Act lays down the duties of the Conciliation Officer under Sub-sec(3) of that section if a settlement of the dispute is arrived at in the course of the conciliation proceedings, the Conciliation Officer shall send a report thereof to the proper Government together with a memorandum of the settlement signed by the parties to the dispute. The expression “report” used in Sub-sec. (3) must derive its meaning from the context in which it is used. When there is a settlement, a detailed report may not be necessary since the dispute in the ordinary course is amicably settled. Even the absence of a report under this section would not vitiate the settlement F.T.C Employees' Association v. State of Karnataka, [1981 — II L.L.N 67]. A Single Judge of the Delhi High Court in Krishna Gold and Silver Thread Mills v. Union of India, [1980 — II L.L.N 354], has held that though a duty is east on the Conciliation Officer to send the report to the proper Government together with the signed memorandum of settlement, failure to perform this duty to despatch the signed copy of the report cannot invalidate the settlement.

10. It has been submitted by the learned lawyer for the writ-petitioner that in Pratap Singh v. Sri Krishna Gupta, [A.I.R 1956 S.C 140], it has been held by the Supreme Court that tendency of the Courts towards technicality is to be deprecated: it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no breach ensues; and when the learned Judge does not itself state which Judges must determine the matter and exercising nice discretion, sought out one clause from the other alone a broad based common sense lines. In that case, the rules made under the C.P and Berar Municipalities Act, 1922 fell for consideration in the light of S. 23 of the said enactment. It was held that the rules cannot travel beyond the Act and must be read subject to its provisions. Their Lordships held that in view of the section, an omission to set out a candidate's occupation cannot be said to affect the merits of the case.

11. It is clear that in that case the question was whether the rule would override the section. But in our case that is not the question involved. Therefore, the principles as laid down in that case cannot strictly apply in our case.

12. The learned advocate for the worker, respondent 2 has drawn the attention of the Court to some reported decisions to emphasize what are the essential elements involved in the term “settlement” as defined in Ss. 2(p), 18 and 12 of the Industrial Disputes Act, 1947. In Jhagrakhan Collieries (Private), Ltd. v. Central Government Industrial Tribunal-cum-Labour Court, Jabalpur (by G.C Agarwal Presiding Officer), [1974 — II L.L.N 511], the workmen in the appellant Collieries had claimed variable dearness allowance at a certain rate which the management did not accept. The respondent workmen had filed petitions under S. 33-C(2) of the Industrial Disputes Act before the Labour Court Meanwhile there was a settlement between the management and a union of workmen but the respondent workmen and some others were not parties to it. The appellant raised a preliminary objection with regard to the maintainability of the claim in view of the settlement. The Labour Court rejected the objection. Held, a written agreement between the employer and the workmen arrived at otherwise than in the course of conciliation proceeding must satisfy that it has been signed by the parties thereto in the prescribed manner and that a copy thereof has been sent to the prescribed authorities as indicated in S. 2(p).

13. Further held, that S. 18 makes it clear that the settlement arrived at in the course of conciliation proceeding is binding not only on the actual parties to the industrial dispute but also too the heirs, successors and assigns of the employer on the one hand and all workmen in the establishment, present or future, on the other hand. In extending the operation of such a settlement beyond the parties would be under Sub-sec. (3) of the section departs from the ordinary law of contract and gives effect to the principle of collective bargaining. It was further held that the argument that the respondents and some others, though not parties to the settlement, had accepted the variable dearness allowance in accordance with the settlement, would be as effective against them as if they were parties to it, is attractive but does not stand close scrutiny.

14. In Nagercoil Electric Corporation v. Industrial Tribunal, [Vol. V (1953-54) F.J.R 208], a Single Judge of the Travancore Cochin High court held that the mere presence of the person who is conciliation Officer at a meeting convened by the Chief Minister between the parties to a dispute will not make the proceedings “Conciliation proceedings” under the Act. Where there is no evidence to show that the proceedings were in the presence of the Conciliation Officer as such, any settlement arrived at during the proceedings would not be binding under the Industrial Disputes Act, 1947, and no award can be passed thereon. It was further held that a writ can be issued by the High Court quashing an award which is passed on a misapprehension as to the points that arose before it for decision where the misapprehension appear on the face of the order even though the aggrieved party may have a right of appeal.

15. The learned advocate for respondent 2 has perhaps tried to buttress his contention that the signature of the Additional Labour Commissioner, West Bengal, below the signatures of the parties in the settlement as per Annexures B to the writ petition cannot by itself make the settlement one under S. 2(p) of the Industrial Disputes Act as there was actually no proceeding for conciliation pending at that time. So the first question to see whether the proceeding was really in connection with a reconciliation proceeding pending at the time or it was a private settlement of a dispute outside the scope of S. 18(3) of the Industrial Disputes Act. If it was a settlement coming within Sub-sec. (3) of S. 18 of the Industrial Disputes Act then all the parties as explained in Jhagrakhan Collieries case (vide supra) even outside the contract of settlement will be coming within the purview of the prohibition of S. 18. If the settlement was not a settlement coming within S. 18(3) then it was a settlement under Sub-sec. (1) of S. 18 and as such it was binding upon the contracting parties only. In that case it was binding both on the writ-petitioner as also respondent 2 Therefore, it is of no consequence whether the settlement came within the purview of Sub-sec(1) or Sub-sec. (3) of S. 18 as the factum of settlement is not denied by the parties.

16. In this view of the matter, there was no industrial dispute between respondent 2 and the writ-petitioner at the time when the reference was made by the Government. As the reference was without any basis, therefore, the entire exercise of jurisdiction was a fiasco. In this view of the matter, the writ application succeeds and the impugned order is quashed