IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23/07/2004 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA W.P.NO.19459 of 2002 and W.P.NO.29868 of 2002 AND WPMP.NOs.26864 & 48410 OF 2002 W.P.NO.19459 OF 2002 The Workmen represented by the Secretary Addisons Paints & Chemicals Limited, Assistants Association (Regd.No.1344/MDS) No.22, State Bank Officer Colony, 1st Street, Perambur High Road, Chennai 600 012. .. Petitioner -VS- 1. The Presiding Officer, Industrial Tribunal, Chennai 600 104. 2. The Management of Addisons Paints & Chemicals Limited, Huzur Gardens, Sembiam, Chennai 600 011. .. Respondents
W.P.NO.29868 OF 2002
The Management of
Addisons Paints & Chemicals Limited,
Huzur Gardens, Sembiam,
Chennai 600 011. .. Petitioner
Vs.
1. The Presiding Officer,
Industrial Tribunal,
Chennai 600 104.
2. The Secretary
Addison Paints & Chemicals Ltd.,
Assistants Association,
10, Vasan Street, Perambur,
Madras 11. .. Respondents
Petitions filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus as stated therein.
!For Petitioner in WP.19459/02 & : Mr.S. Vaidyanathan for 2nd Respondent in M/s. Row & Reddy W.P.No.29868/02 ^For 2nd Respondent in WP.19459/02 & : Mr. Sanjay Mohan Petitioner in W.P.No.29868/02 :COMMON JUDGMENT
A brief background of the dispute is required to be noticed.
The continuing dispute is between the Management of Addison Paints &
Chemicals Limited and some of its employees (hereinafter referred to as the
Management and the employees respectively). Prior to 197 3, the employees
were performing duties as clerks, chemists, stenos, etc., and were being paid
wages consisting of basic pay, dearness allowance, house rent allowance, etc..
In April, 1973 such employees were paid consolidated payment of wages on the
basis of contracts between the management and the concerned employees.
However, a dispute arose which was ultimately referred by the Government to
the Industrial Tribunal on 2.11.1984 by G.O.Ms.No.2313. The said G.O. was
challenged by the management in W.P.No.12729 of 1984. Even though such writ
petition was admitted, no stay had been granted and the Tribunal proceeded to
consider the matter. Even though 22 questions were referred for adjudication,
for the purpose of the present writ petitions only Issue Nos.2, 3 and 6 being
relevant, are quoted hereunder :-
Issue No.2. Whether the demand for payment of dearness Allowance
based on cost of living index is justified, if so to fix the rate and date
from which it should be given effect to.
Issue No.3. Whether the demand for fixation of scales of pay for
various categories of assistants is justified, if so to fix (a) scales of pay
(b) manner of fitment, and (c) the date from which it should be given effect.
Issue No.6. Whether the demand for payment of House Rent Allowance is
justified, if so to fix the rate and the date from which it should be given
effect to.
2. Relating to issue No.3, the Tribunal by award dated
29.12.1986 granted an increase of Rs.125/- per month by way of additional sum
to be paid with effect from 1.4.1986, if the concerned workers have not
received the same earlier. All other issues were also decided by the
Tribunal. W.P.No.3419 of 1987 was filed on behalf of the employees by the
Association challenging the award so far as it went against their contentions,
whereas the management filed W.P.No.1679 of 1989 challenging G.O.Ms.No.128
dated 13.1.1989, which related to nonemployment of one Sri E.D. Arumugam.
All the three writ petitions, namely W.P.No.12729/84, 3419/87 and 1679/89 were
disposed of by common judgment dated 8.4.1992. Learned single Judge held that
W.P.No.12729/84 had become infructuous. In W.P.No.3419 of 1987, the learned
single Judge quashed the award relating to issue Nos.2,3 and 6 and remitted
the matter to the Tribunal for fresh consideration. The Association, however,
filed W.A.No.787 of 1992 challenging that part of the order of the learned
single Judge rejecting the claim of certain other demands. The management
filed W.A.No.802 of 1992 challenging the order of remand relating to the
issues 2,3 and 6 concerning the fixation of basic wages, dearness allowance
and house rent allowance. The writ appeals were admitted, but no stay had
been granted. In course of time, a fresh award was passed by the Industrial
Tribunal on 31.10.1992 wherein it was held that the contracts under which the
set of workmen in the category called Junior Management Assistant (In short
JMA) came to be governed was illegal and unenforceable with effect from
1.11.19 84 and payment of dearness allowance to all the concerned workmen
should be made by the management at the usual rate and formula applicable to
Madras City with effect from 1.11.1984. In respect of Issue No.3, the
Tribunal held that in the place of consolidated wages, the workmen should be
categorized into certain designations with certain scale of pay as indicated
by the Tribunal. Such direction was made effective from 1.11.1984. The
Tribunal while abolishing JMA system with effect from 1.11.1984 made it clear
that those JMAs, who accepted further promotion were free to retain the
promotional post by rejecting the relief granted under the award, but if they
intend to avail the benefits of the award they should not retain the
promotional post.
3. Against the aforesaid award, the management filed
W.P.No.12476 of 2003. The Association filed W.P.No.13814 of 1993 contending
that fixation of basic wages were not proper. The above two writ petitions
were taken up along with the pending W.A.Nos. 787 and 802 of 1992. By
judgment dated 19.3.1994, the Division Bench raised the following seven points
for determination :-
(1) Whether the service contracts entered into by the members of the
JMAs Association with the management in 1973 are unjust, illegal and
unenforceable and whether the members of the JMAs Association are bound by the
service contracts ?
(2) Whether the JMAs having all along enjoyed the benefits, under the
service contracts be allowed to break the service contracts and claim
pay-scales, D.A. and H.R.A. to which the non-JMA workmen are entitled to ?
(3) Whether the order of the learned Single Judge, dated 8 April 199 2
in W.OP.No.3419 of 1987 setting asidei the findings of the Tribunal, dated 29
December 1986 in I.D.No.83 of 1984 on issues 2, 3 and 6 and remanding the
matter to the Tribunal for fresh disposal on the said three issues is correct
?
(4) Whether the award of the Tribunal dated 31 December 1992, holding
that the JMAs are entitled to :
(a) payment of D.A. at the usual rate and
formula applicable to Madras City with effect from 1 November
1984,
(b) that in the place of consolidated wages, JMAs shall
have regular scales of pay with increment with effect
from 1 November 19 84 and,
(c) that the H.R.A payable to the JMAs shall be at the same
rates applicable to workmen covered by Exhibit W89
settlement with effect from 1 November 1984 is correct ?
(5) Whether the wage scale fixed in the award of Tribunal, dated 31
December 1992 for various categories of JMAs in Paras 34 and 36 of the award
of the Tribunal is correct ?
(6) Whether the Members of the JMAs association are entitled to the
benefit of the settlement under Exhibit W81 and Exhibit W89 ?
(7) Whether the award of the Tribunal dated 31 December 1992 in
I.D.No.83 of 1984 will apply to the JMAs who have subsequently resigned from
the JMAs Association ?
4. On Point No.1, the Division Bench held that the contracts
entered into between the association by the management was unjust, illegal and
unenforceable and the members of the association are not bound by such service
contracts. On Point No.2 it was held that JMAs were not estopped from
claiming pay scales, D.A., H.R.A. On Point No.3, the Division Bench upheld
the order of the learned single Judge dated 8 .4.1992 in remanding the matter
in respect of issue Nos.2,3 and 6. On Point NO.4, the Division Bench held
that JMAs were entitled to be treated on par with non-JMA workmen in the
matter of scales of pay, D.A., and H.R.A.. The Division Bench upheld the
order of the Tribunal dated 31.12.1992 in respect of issue Nos.2,3 and 6 which
had been reconsidered in the light of the observation of the learned single
Judge. On question Nos.5 and 6, the Division Bench observed :
. . . In our view, the Tribunal has not adopted the proper
procedure in fixing the pay-scales of the JMAs in question. The Tribunal
ought to have taken into account the basic pay for each of the JMAs when they
entered the service of the management as non JMA workmen and then should have
fixed the basic pay as on 2 November 1984 taking into consideration the
increments to which he would be entitled to and the benefits of the
settlements under Exhibit W81 and W89 treating him as non- JMA workmen as if
the concerned workmen never entered into the JMAs service contract with the
management. As the Tribunal has not followed the said procedure in fixing the
pay-scales for the JMAs in question, the award of the Tribunal in paras 34 and
36 with regard to the fixation of pay-scales alone is liable to be set aside
and accordingly it is set aside. We ourselves are not in a position to do the
exercise of fixing the correct wage scales for the JMAs in question because,
there is no consensus between the parties as to what is the basic pay drawn by
the JMAs in question when they entered into the service of the management as a
non- JMA workmen. In fact, the chart submitted by the counsel for the
management showing they joined the service of the management as non-JMA
workmen during the course of hearing of all these matters by us was not
accepted by the counsel for the J.M.A.s Association. In these circumstances
we are constrained to remit the matter back to the Tribunal for the limited
purpose of fixing the wages scales for the JMAs in question as on 2 November 1
984,on the basis of the various categories of non JMA workmen on the date of
entering into service. Accordingly, the question of fixation of the scales of
pay to the workmen in question alone, is remitted to the Tribunal for fresh
disposal according to law and in the light of the observations made in this
paragraph of the judgment. In fixing the wage scales, the Tribunal is also
directed to proceed on the basis that the JMAs in question are entitled to the
benefits of the settlement under Exhibits W81 and W89 as the JMAs have been
declared to the workmen, by the award of the Tribunal, dated 29 December 1986,
which has not been challenged by the management. In the case of JMAs who
entered into the service of JMAs after 1973, the basic pay of a similar
non-JMA workmen doing the very same work may be taken as the basic pay of such
JMA, who entered the service of the management after 1973.
5. On question No.7, the Division Bench held that the award
of the Tribunal dated 31.12.1992 will not apply to those JMAs who had
voluntarily resigned from the association as evidenced by Exhibit M77 series
and also to those JMAs who had accepted further promotion and who opted to
retain such promotion. The Division Bench confirmed the award of the Tribunal
to the effect that no JMAs could be permitted to enjoy the benefits under the
award dated 31.12.1992 and also the benefits under the JMAs service contracts.
6. Ultimately, the Division Bench gave the following
directions:-
. . . In view of our findings on points iv to vi the award of the
Industrial Tribunal dated 31 December 1992 in I.D.No.83 of 1984 with regard to
mode of fixation of pay-scales as found in Paras.34 and 36 of the award is set
aside and the matter is itted to the Tribunal for the limited purpose of
fixing wage scales for the JMAs in question as on 2 November 1984 according to
law and in the light of the observations made in this judgment. To that
extent W.P.No.13814 of 1993 filed by the JMAs Association is partly allowed
and in other respects W.P.No.13814 of 1993 is dismissed. In other respects
the order of the Tribunal, dated 31 December 1992 in I.D.No.83 of 1984 is
confirmed and consequently W.P.No.12476 of 1993 is dismissed. The Tribunal is
directed to dispose of the matter within 3 months from 4 April 1994 on which
date the parties will appear before this Tribunal.
7. After the aforesaid decision of the Division Bench, the
Tribunal again took up the exercise and passed an award which was to the
liking of neither the management nor the employees and W.P.No.820 of 1995 and
W.P.No.12389 of 1995 came to be filed by the management and the employees
respectively.
8. Learned single Judge while deciding the matter came to the
conclusion that the Tribunal had not kept the observation of the Division
Bench in mind while deciding the matter and observed that for considering the
question remitted for fresh consideration by the Division Bench, the following
relevant questions would arise for determination to the Tribunal, namely –
(1) The concerned persons to whom the award could be made applicable
?
(2) What was the scale of pay drawn by the concerned workmen at the
time they joined as JMAs prior to 1973? i.e., before they governed by the
service contracts.
(3) What was the scale of wages actually drawn by the concerned JMAs
prior to the date when their wages came to be consolidated under the service
contract which is stated to have taken place in the year 197 3?
(4) What was the respective scales of pay of non-JMA workmen who were
doing the same kind of work as that of the JMA workmen that was prevalent
during the period when the consolidation of wages came to be made for the
concerned JMAs and upto 2 November 1984.
(5) What was the scales of pay ofo the JMA to be determined from 2
November 1984 by fixing them in the appropriate categories and the
corresponding scales based on the duties performed by them during the relevant
period vis-a-vis the categories and scales of pay of the nonJMA workmen during
the relevant period by taking into consideration the increments to which he
would be entitled to and the benefits of the settlements under W81 and W89.
9. Accordingly, the matter was remanded for fresh
consideration. Thereafter the present impugned award, which is again
challenged by the management and the employees in two separate writ
petitions,has been passed.
10. The Tribunal on fresh consideration relating to five
questions, which had been formulated by the learned single Judge came to the
conclusion that 11 persons (named in paragraph 17 of the award of the
Tribunal) having resigned from the Association and having accepted promotion,
have to be excluded from the benefits of the award. The Tribunal negatived
the contention of the management for deletion of sales representatives like
Sri E.D. Arumugam and other 10 persons (as indicated in para 19 of the award)
and held . . . . For the above reasoning there cannot be deletion of
eleven individuals. Similarly it also rejected the contention of the
management regarding 18 other persons and ultimately held that 89 persons are
entitled to benefits. The names of such persons under various headings,
namely Chemists (20 ), Salesman (18), Assistants (48), Research Scientist (1)
and Junior Clerk (1) have been indicated at the end of para 21 of the award
passed by the Tribunal. While considering other aspects, the Tribunal
observed :
. . . Fitment of pay of only 89 persons found eligible are
contained in page 1 to 60 of Ex.C-8 and page Nos.1 to 32, 34 in Ex.C-8-1.
Their scales of pay are found in Annexure-1 at page 66 of Ex.C-8. Thus page
66, 67 and 1 to 60 of Ex.C-8 and page 1 to 32 and 34 of Ex.C-8 -1 form part of
the award. They are appended herewith. Award passed accordingly.
11. The main contention raised in the writ petition filed on
behalf of the management is to the effect that the Tribunal has committed
error of law in making the award applicable to the sales representatives as
such sales representatives were not workmen as per the findings of the
Division Bench in W.A.Nos.787 and 802 of 1992 and other connected writ
petitions. It is the contention of the learned counsel for the management
that since the High Court had come to a categorical conclusion that the sales
representatives were not workmen, the Tribunal should not have gone beyond
such finding and come to a different conclusion.
12. Even though such a contention may appear prima facie
attractive, I am not inclined to accept such a contention on deeper scrutiny.
There is no doubt that in the context of the reference made by the Government
in connection with non-engagement of E.D. Arumugham it was observed by the
High Court that the sales representatives did not come within the category of
workmen. However, such observation was in the context of question as to
whether non-engagement of E.D. Arumugam could be the subject matter of
industrial dispute. Such observation must be understood in the context in
which it has been made. It has to be remembered that the conclusion of the Tr
ibunal is by applying the doctrine of community of interest. The question
of fixation of salary or payment of Dearness Allowance and House Rent
Allowance, etc., could also be considered for others had not been challenged
by the management at that stage nor such conclusion had been anyway reversed
by the High Court. The entire discussion relating to reference of E.D.
Arumugam was in the context of his non-engagement and obviously had no bearing
on the question as to whether the basic salary of other employees, who though
strictly speaking were not workmen, had to be considered for the purpose of
fixing salary and entitlement to Dearness Allowance, House Rent Allowance,
etc., because of the community of interest. The reasoning of the Tribunal on
this aspect cannot be stated to be vitiated by any error of law apparent on
the face of record. The question of validity of non-engagement of E.D.
Arumugam is not one of the matters to be decided in the industrial dispute and
is not a matter of dispute in the present writ petitions.
13. The other contention raised by the management to the
effect that the Tribunal had extended the benefit of the award to the persons
who had already accepted the controversial benefit and who were not inclined
to continue the industrial dispute appears to be very vague to warrant any
serious consideration. The writ petition filed by the management therefore is
dismissed. However, it is made clear that the validity or invalidity of
non-engagement of E.D. Arumugam is not a matter which has been decided in the
present case.
14. In the writ petition filed on behalf of the Association,
contention has been raised challenging the fixation of salary and other
perquisites. It has been contended that the Tribunal has wrongly placed
reliance upon Ex.C-8 an Ex.C-8-1 and has fixed the salary without keeping in
view the observations made by the Division Bench and subsequently by the
learned single Judge while remanding the matter for fresh consideration. It
is contended by the learned counsel that the Tribunal should have accepted the
documents which had been filed on behalf of the employees and fixed the salary
and other perquisites accordingly.
15. The High Court, while deciding a matter under Article 226
of the Constitution of India, does not sit as an appellate authority over the
award rendered by the industrial forum in an industrial dispute. Merely
because the Tribunal has accepted one set of evidence or documents or has not
accepted the rival contention, is not a ground to interfere with such award.
It is of course true that if the Tribunal commits an error of law or
completely misdirects itself or does not take into consideration the important
facts and circumstances, such award becomes vulnerable.
16. In the present case, the Tribunal has kept in view the
observation made by the Division Bench and the learned single Judge at the
time of remand, has applied its judicial mind to the various facts and
circumstances including the documents and has come to a particular conclusion.
Even if such conclusion appears to be conservative either to the counsel
appearing for the parties or even to the High Court, in the absence of any
error of law or fundamental defect, the High Court should not interfere with
such conclusion merely because it may be inclined to take a different view of
the matter. Therefore, the award is not liable to be interfered on this
score.
17. For the aforesaid reasons, I do not find any merit in
either of the writ petitions which are accordingly dismissed. The award if
not already implemented should be implemented by the management within a
period of four months. The additional payment should be made to the concerned
employees individually even if some of them have retired or left the
employment in the meantime. There is no
order as to costs. Consequently, WPMP.NOs.26864 & 48410 OF 2002 are closed.
Index : Yes
Internet: Yes
dpk
To
1. The Presiding Officer,
Industrial Tribunal, Chennai 600 104.
2. The Management of
Addisons Paints & Chemicals Limited,
Huzur Gardens, Sembiam,
Chennai 600 011.
3. The Secretary
Addison Paints & Chemicals Ltd.,
Assistants Association,
10, Vasan Street, Perambur,
Madras 11.