IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2009
CORAM:
THE HONBLE MR.JUSTICE K.CHANDRU
W.P.No.43646 of 2006
Tamilnadu Industrial Explosives Ltd.,
Rep. By the General Manager,
98A, Vellore Road, Katpadi,
Vellore 632 007. ...Petitioner
Vs
1.The President,
Industrial Tribunal, Tamil Nadu,
Chennai 600 104.
2.Tamil Nadu Industrial Explosives Ltd.,
Technicians Trade Union
Represented by its General Secretary,
3/354, Vivekanandar Theru,
Gandhi Nagar, Vellore 632 006. .. Respondents
Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorari, to call for the records of the first respondent in its award passed in Industrial Dispute No.3/2001 dated 12th day of July 2006 and quash the same.
For Petitioner : Mr.K.V.Subramanian,S.C.
For Mr.M.A.Abdul Wahab
For Respondent : Mr.S.Ramesh Kumar for R2
O R D E R
Heard both sides. This matter came to be posted before this Court on being specially ordered by the Hon’ble Chief Justice.
2. This writ petition is filed by the petitioner/Management against the Award dated 12.07.2006 passed by the first respondent Industrial Tribunal at Chennai in I.D.No.3 of 2001.
3. The second respondent Union filed its claim statement dated 16.07.2001. The petitioner/Management filed its counter statement refuting the stand of the respondent dated Nil (November 2001).
4. Before the Industrial Tribunal, the Workman examined one Gopalakrishnan as W.W.1. On the side of the Management one S.G.Pandian was examined as M.W.1. On the side of the workman, 50 documents were filed which were marked as Exs.W1 to W50. on the side of the petitioner/Management, 16 documents were filed and they were marked as Exs.M1 to M16.
5. The brief facts of the case are as follows:
The State Government by its order in G.O.(D)No.50 Labour and Employment Department dated 04.01.2001 referred the following two issues for adjudication by the first respondent Tribunal:
“(i) “Whether the Demand of the Petitioner Union for Equal Pay Scales to the Technicians on par with Drivers and Administrative Staff as per the recommendations of the VIth Pay Commission is justified. If so to quantify the benefits in terms of monetary considerations.”
Issue No.(ii) “After the expiry of the earlier settlement on 31.03.1997 and on the implementations of the New Settlement with effect from 01.04.97, whether it is proper to give increments in the New Scales of Pay as available on 01.04.97 and add the said increments in the old scale of pay and fit the Basic Pay in the new scales of pay as per the new settlement. It so to quantify the monetary considerations thereof.”
6. The Tribunal by its award dated 12.07.2006 upheld the contention of the workmen and held that the demand made by the second respondent Union for Equal Pay Scales to the Technicians on par with Drivers and Administrative staff as per the recommendation of the VI Pay Commission is justified and the members of the petitioner Union are entitled to the monetary benefits in terms of Ex.W50 series. The Tribunal also held that the members of the petitioner Union are entitled for increment in the new scale of pay as available on 31.03.1997 and weightage from 31.03.1997 together with monetary benefits in terms of Ex.W50 series.
7. The petitioner Union in their claim statement filed before the Tribunal contended that their members are qualified with ITI Certificate and with good experience. Initially, their pay scales were fixed in the scale of pay of Rs.295/-. Subsequently, when the scale of clerical staff was revised, their case was also revised. Similarly, subsequent to the Vth Pay Commission recommendation, the Pay Scales of technicians were accorded Selection Grade, but contrary to the recommendation of the Commission. The petitioner/Management agreed to settle the dispute in terms of para 11 of the Memorandum of Understanding (MOU) dated 20.05.1997. Even as per the settlement under Section 12(3) dated 23.02.1998, they had agreed to revise the scale of pay after the VI Pay Commission came into existence. But despite their agreement to settle the issue, they failed to do so. Before implementing the pay scales in terms of G.O.No.256 Industries Department dated 06.03.1990, no prior notice was given to the members as required under Section 9A of the I.D.Act.
8. In respect of the second issue, they had stated that a settlement was entered into without consulting the Union with the unskilled workers and clerical staff by which 5 service weightage increments were given whereas the clerical staffs got 10 increments. While the unskilled workers were paid Rs.3000/- as arrears of increment, the technical workers were not given any increments. Therefore, the Management had adopted different yardstick in respect of technical staff as well as other staff.
9. In the counter statement, the petitioner/ Management contended that the qualifications required and duties to be performed by the technicians are totally different from that of clerical and administrative staff. While the tehcnicians are only entitled to hold an ITI Trade Certificate whereas the Clerical and Administrative staff are required to be graduates. The job of the technicians was on the shop floor whereas the clerical and administrative staff were required to work in the office. It was stated that in the MOU dated 20.05.1997, the petitioner merely agreed that the issue will be resolved at the time of settlement of mutual discussion. In the settlement signed under Section 12(3) dated 23.02.1998, the Scales of Pay have been elongated which are more beneficial than the recommendation made by the VI Pay Commission. Though in the settlement signed under 12(3) dated 19.06.2000 in Paragraph 11.6, it was agreed to settle the issue relating to increment, scale of pay etc. But later on it was found it was not expedient to disturb the salary structure. It was also stated that Rs.3,000/- was paid even to technicians as per the settlement.
10. The Tribunal by the impugned award after narrating the contentions of both sides, held that a change in the service condition whenever made by an employer in terms of the items set out in the IV schedule to the I.D.Act, Notice under Section 9A is necessary. No notice under the said section was given for changing the scales of pay. Hence, they are entitled to the scales prescribed by the Vth Pay Commission on par with the administrative staff. Therefore, the workmen are entitled to claim pay parity on the basis of the Vth Pay Commission. Regarding the monetary benefit, reliance was placed upon Ex.W50 series.
11. With reference to issue No.2, in the cross examination M.W.1 himself had admitted that service Weightage Fitment will be fixed on the basis of basic pay. The Tribunal held that since the weightage was given on the basis of basic salary as per the admission of M.W.1, the members of the Union were also entitled for weightage. It is this award which has been challenged in this writ petition.
12. Pending the writ petition, the impugned Award was stayed by this Court. On behalf of the second respondent workmen, a counter affidavit dated 22.04.2008 was also filed justifying the award.
13. In the counter affidavit, the second respondent admitted that a settlement under Section 12(3) of the I.D.Act was signed on 23.02.1998. Their main contention was that cannot be a factor to deprive the notice under Section 9A of the I.D.Act. The Union also contended that the settlement signed by the Management under Section 12(3) had rectified the defects in so far as the administrative staff and drivers are concerned but completely ignored the case of the Technicians. The Management cannot rely upon the Government orders for the purpose of ignoring the settlement.
14. Mr.K.V.Subramanian, the learned Senior Counsel appearing for the Petitioner Management submitted that the Award suffers from material irregularities. He also stated that the question of issuance of Section 9A notice will not arise as there is no change in service condition. The MOU signed between the workers and the Management cannot be a basis for determining the issue. The Tribunal ought to have considered the merits of the dispute rather than going under the technicalities.
15. It is admitted by both sides that there is a settlement between the Management workers under Section 12(3) of the I.D.Act on the issue relating to pay fixation. When once that position is admitted, the question of issuance of Section 9-A of the I.D.Act may not arise. The first proviso to Section 9-A makes it clear that no notice shall be given if the change is effected pursuant to any settlement. This aspect has not been considered by the Tribunal. Further if it is a settlement under Section 12(3) of the I.D.Act introducing the pay scales, then by virtue of Section 18(3)(b), it will have an extended operation covering all the workmen in the establishment. In such a case those workmen covered by the settlement cannot raise a dispute without challenging the settlement in the manner known to law.
16. A perusal of the Award clearly shows that these two vital issues i.e. a) Whether there is any necessity to give 9A notice in the light of the first proviso to Section 9A is necessary and b) Whether in view of the settlement introducing the pay scales whether the workmen who are covered by the settlement are entitled to demand something more over and above the terms of settlement was not considered. Without the consideration of these two vital issues, the award suffers from material irregularity.
17. Therefore, the impugned Award in I.D.No.3/2001 dated 12.07.2006 passed by the first respondent is hereby set aside. The matter is remanded to the first respondent Tribunal for fresh disposal in accordance with law.Since the dispute is of the year 2001, the Tribunal shall give preference to the disposal of the I.D.No.3 of 2001 after notice to the parties. In any event, the Tribunal shall pass an award within a period of three months from the date of receipt of a copy of this order.
18. The writ petition is allowed to the extent indicated above. No costs.
svki
To
1.The President,
Industrial Tribunal, Tamil Nadu,
Chennai 600 104.
2.General Secretary,
Tamil Nadu Industrial Explosives Ltd.,
Technicians Trade Union
3/354, Vivekanandar Theru,
Gandhi Nagar,
Vellore 632 006