JUDGMENT
V.P. Tipnis, J.
1. This writ petition filed by the Hotel Corporation of India Ltd. under Article 226 of the Constitution of Indian challenges the legality and correctness of the order dated 27.2.1991 passed by the learned Presiding Officer. 1st Labour Court. Bombay, in application filed under the provisions of section 33-C(2) of the Industrial Disputes Act, whereby the learned Judge was pleased to allow the application made by the 7 employees of the Centaur Hotel, Air Port, Bombay.
2. In the application under section 33-C(2) it was pointed out the\at there is a practice of collecting service charges from the guests and customers of the hotel. It is asserted that in a meeting held on 26.9.1981 between the representative of Bharatiya Kamgar Sena and the management certain terms of agreement were agreed regarding staff service conditions. The main principle on the basis on which the service charges are payable to the employees who come in close contact with the guests. The applicants stated that they are working in the Engineering Department and also come in close contact with the guests. However, the applicant and others in the Engineering Department are paid only 2 points as service charges. In paragraph 3 it is asserted that in the meeting held on 14.2.1986 the management ultimately refused to implement the said settlement and was not willing to pay higher charges. In paragraph 5 of the application it is asserted that the management has treated the Engineering Department employees as belonging to non-operational department. However, by a letter dated 12.8.1985 the management finally clarified that the Engineering Department is operational department. Therefore it was asserted that they should be treated on equal footing in respect of the allotment of points in the matter of payment of service charges. The prayer was that the Court may be pleased to compute the moneys due under the agreement dated 26.9.1981 as revised from tome to time on the same basis of allotment of points as to all other employees in operational department under section 33-C(2) of the Industrial Disputes Act.
3. The management in reply firstly contended that the scheme was unilaterally introduced by the management and the service charges collected were distributed amongst the employees as per the particular scheme and under the scheme the applicants who are persons belonging to the Engineering Department are not entitled to anything more than 2 points. It was specifically contended that as there is difference and dispute between the workmen among themselves employed by the company, proper remedy would be to raise industrial dispute for adjudication. It was contended that there is no existing right in favour of the applicants, apart from the assertions by the company that the weightage given to the Engineering Department is fair and proper.
4. The learned Presiding Officer who heard the matter held that the management had discriminated the applicants on the false plea that the workmen in the Engineering Department do not come in contact with the guests and passengers etc. He specifically held that they also come in contact with the guests and passengers. It appears that on this logic the learned Judge was pleased to declare that the applicants and other workers in the Engineering Department are entitled to equal treatment in respect of allotment of points under the scheme i.e. payment of service charges.
5. In support of the petition I have heard Mr. K. B. Swamy, the learned advocate appearing for the petitioner. I have also heard Dr. Kulkarni appearing for the respondent-original applicants and Shri Talsania learned counsel for the Intervenors on behalf of other employees who will be obviously affected by the reliefs granted by the Labour court to the applicants before him. With the assistance of the learned counsel I have gone through the entire record and the judgment and order delivered by the learned judge. The learned counsel for the petitioner contended that the application under Section 33-C(2) of the said Act itself was not maintainable at all inasmuch as the provisions of section 33-C(2) contemplate an established existing right and the proceedings are almost in the nature of execution proceeding for computation of monetary entitlement of the workers. The learned counsel referred to the scheme and pointed out that the scheme as is obtainable uptil now specifically provides for grant of only 2 points to the workers or employees in the Engineering Department. According to the learned counsel what the Labour Court had done is to modify the scheme and allot additional points by granting a declaration in their favour which in the submission of the learned counsel is absolutely beyond the jurisdiction of the Labour Court under the provisions of section 33-C(2) of the said Act. Even on merits the learned counsel justified the scheme.
6. Shri Talsania, learned counsel for the Intervenors on behalf of other employee firstly contended that the other employees who are likely to be affected by the Labour Court’s order were not made parties before the Labour Court and as such their valuable right of monetary entitlement is affected without hearing them and without making them party. On merits Shri Talsania fully supported the submissions made on behalf of the petitioner. The learned counsel for the petitioner relied upon the judgment of the Apex Court reported in 1988 II CLR 229 P. K. Singh and Ors. v. Presiding Officer and Ors.
7. On the other hand Dr. Kulkarni learned counsel for the respondents – original applicants contended that the case made out by the applicants in their application that by virtue of the declaration in their favour that they belong to the operational department, under the scheme, they must be equated with the employees belonging to the operational department. Dr. Kulkarni brought to my notice a letter showing that the management has accepted that the employees belonging to the Engineering Department shall be treated as belonging to the operational wing. Dr. Kulkarni emphasised the fact that on the basis of this letter, the Labour Court came to the conclusion that the applicants i.e. employees belonging to the Engineering Department also belong to the category of other employees who are given higher points for the purpose of distribution of service charges. Dr. Kulkarni urged that in this view of the matter the order is just and fair and this Court under Article 226 of the Constitution of India should not interfere with the said order. Dr. Kulkarni in this behalf relied upon the decision of the Apex Court reported in 1984 I LLJ 26 – Goverdhan Prasad and Ors. v. The Management of M/s. Indian Oxygen Ltd.
8. The order impugned in this petition shows that the learned Judge was mainly influenced by the fact that there have been some negotiations between the recognised union and the management and further by a letter dated 12.8.1985 the management had stated that the maintenance department is treated as operational department.
9. Now it requires to be noticed that if one looks at the scheme it states that the purpose of the service charge scheme is to eradicate the nuisance caused to the guests by the employees by soliciting tips and to ensure that the gratitude offered by the guests are distributed in an equitable manner among the members of the staff. Thereafter the details of the scheme are mentioned. Paragraph 6 also mentions that the points allotted to various categories of employees are based on their contribution towards satisfactory services and the potential of that category for earning rips, has there been no service charge. In the statement annexed to the scheme showing points for distribution of service charges, the employees are classified in 5 categories, some getting 6 points, some 5 points, some 4 points, some 3 points and some 2 points. The employees are specifically mentioned with reference to their designation and there is no dispute that as per the existing scheme the original applicants respondents herein who are holding posting of Senior Electricians, Air-Conditioning refrigeration mechanics, Air-conditioning operations and Junior Air-Conditioning operators are mentioned in the last category to whom 2 points are allotted. Therefore one thing is clear that as per the scheme the applicants are entitled to only 2 points. What is argued is that by subsequent negotiations and a particular declaration the employee should get more points. In those behalf Dr. Kulkarni brought to my notice the minutes of the meeting held between the management of the Central Hotel and the Bhartiya Kamgar Sena on 26.9.1981. After having gone through the entire minutes carefully I find hardly anything suggesting that any change or modification so far as the points are concerned is even remotely indicated therein. The entire emphasis in the said minutes appears to be consideration of the claim of the employees working at the International Terminal Complex of the company and the employees working at the Centaur Hotel.
10. So far as the letter referred to by Dr. Kulkarni is concerned, it is a letter addressed to the General Secretary of the Bharatiya Kamgar Sena, centaur Hotel Unit, by the management. The letter has a reference to their discussions in the meeting held on August 7, 1985. The letter further states that the Union had pointed out that the management should clarify whether the maintenance department is coming under the operational area or non-operational area. The letter clarifies the position of the management that the maintenance department is treated as operational department. I find it impossible from this letter to hold that the management under the scheme of service charges, as such has specifically or directly agreed for allotment of more points. It is relevant to notice that no evidence was recorded during the proceedings. The other workers of employees of the hotel who were likely to be affected adversely were admittedly neither made parties not were heard by the Labour Court.
11. After carefully going though the material and the judgment in the light of the rival submissions made by the learned counsel on both sides, I have no manner of doubt in holding that the Labour Court had modified the scheme and not interpreted the scheme. It is a settle position that in a application under section 33-C(2) of the Industrial Disputes Act, one must show the existing right. The Apex Court in its ruling , while dealing with the claim of the workmen that they should be classified as B-Grade fitters eventhough they have been appointed as C-Grade fitters on the ground that they had been performing the duties which were similar to the duties of B-Grade fitters, held such relief could not be claimed under section 33-C(2). By merely doing the same kind of work which is done by a B-Grade, fitter, a workman appointed as a C-Grade fitter will not be entitled to claim the wages of a B-Grade fitter unless he is duly promoted after getting trough the proscribed trade tests. Such a workman cannot complain that he is not being paid the salary and allowances due to a B-Grade fitter, since he does not posses an existing right to claim it. If on an adjudication made on the said question on a reference made under section 10(1) of the Act. It is held that he should be deemed to be a member of the cadre of B-Grade fitters, then only he would be able to claim the salary and allowances payable to B-Grade fitters.”
12. The reliance placed by Dr. Kulkarni on the judgment of the Apex Court reported in 1984 I L. L. J. 26 is not apposite. In the facts before the Apex Court the workmen employed by Indian Oxygen Ltd. stationed at Ghaziabad claimed dearness allowances in an application under section 33-C(2). They claimed Dearness Allowance as per the award of the Industrial Tribunal, Delhi in respect of the workmen employed in the factory including the General Staff employed in Delhi Branch. The question to be decided by the Labour Court was whether the employees who were stationed at Ghaziabad can appropriately be described as part of Delhi agglomeration or a suburb of Delhi though technically it forms part of the State of Uttar Pradesh. The management raised a preliminary objection stating that an application under section 33-C(2) is not maintainable since the relief claimed is changing the dearness allowance formula applicable to the workmen. The Apex Court held that the workmen stated that for all practical purposes they are under General Superintendence and control of Delhi Branch and therefore, the expression “including General Staff (employed in Delhi Branch)” would comprehend the workman employed by the company and stationed at Ghaziabad. The Apex Court held that it was not a case of fresh demands made by the workmen and the question raided was one of the interpretation of the award to determine its coverage while computing monetary benefits admissible to the workmen. The Apex Court observed that what the workmen contended before the labour court was that the dearness allowance paid to them is not according to the Award by which they are governed as being included in the expression (Staff employed in Delhi Branch). The facts of the case clearly showed that the issue was whether the workmen there are covered by the award in question or not and on the facts and circumstances of that case the Apex Court held that they are so governed. So far as the facts before me are concerned there is no question of any interpretation of the scheme. The scheme specifically mentions all those applicants in the category which is entitled to 2 points. What the labour court has done is, by taking into consideration some negotiations and one letter, it has in fact modified the scheme. In my opinion it is impermissible for the Labour Court to under take such exercise under provisions of section 33-C(2) of the Industrial Dispute Act.
13. It is also attempted to show that the scheme will be unfair to the employees of the Engineering Department, that the workers or employees in the Engineering Department also come into contact with the guests or customers and as such it is not possible to distinguish them from the employees who are allotted 4 points. I am deliberately not expressing any opinion on this aspect for the simple reason that admittedly no evidence is adduced on this aspect before the Labour Court and secondly if at all any such grievance is to be entertained it will have to be under a Reference made under section 10 of the Industrial Dispute Act. But as long as the scheme clearly provide entitlement of only 2 points to the original applicants, the original applicants monetary entitlement for the purpose of section 33-C(2) of the Industrial Disputes Act shall be governed by the aforesaid scheme.
14. In the result petition succeeds. The order passed by the Presiding Officer, 1st Labour Court on 27.2.1981 in application (IDA) No. 851 of 1986 is squashed and set aside.
15. By an interim order passed by Justice Kurdurkar on 28.6.1991 payment under the impugned award during the pendency of the application till the date of award to respondent nos. 1 to 7 was stayed. So far as the prospective payment for the year 1991-92 and thereafter is concerned, the management was directed to pay without prejudice to their rights and contentions at the rate of additional 2 points p.m. The learned Judge clarified that the amount is payable not only to respondent nos. 1 to 7 and other 80 employees-applicants. The payment for the prospective period was to be made only upon the respondent nos. 1 to 7 and other 80 employees giving an undertaking in writing to the petitioner to refund the same in the event this Court so directs.
16. Dr. Kulkarni made a fervent plea that his clients and the others who had received the benefit under the award should not be made to refund the same. He specifically pointed out that the employees who are alleged to have been adversely affected have not come to this Court pointing out as to how they are affected or to what extent they are affected. Dr. Kulkarni further pointed out that the Intervenors who have approached this Court and who are represented by Shri Talsania, are mostly managers. Under the aforesaid circumstances Dr. Kulkarni urges that though order is upset, the benefits already received by the employees working in a comparatively subordinate category should not be deprived of the benefit and should not be made to refund the same. I find much force in this submission and liking into the facts and circumstances and equity in the matter, I direct that though the order impugned is quashed and set aside, payment already made to the original applicants and the employees similarly circumstanced in pursuance to the order impugned herein shall not be recovered from them.
17. Rule made absolute in the aforesaid terms. There shall be no order as to cots, certified copy expedited.