ORDER
K.P. Sivasubramaniam, J.
1. The petitioners, 44 in number pray for certiorarified Mandamus to call for the records relating to the common order of the Labour court, Vellore in the various computation petitions of the year 1996 as enlisted in the writ petition, to quash the same and direct the Management to pay the amount to the petitioners as claimed by them.
2. The 25th petitioner herein, who is the Secretary of United Foundry Employees Union contends that the their union was the only Union of second respondent-Management and that the majority of the workmen were in their union. The settlement under Section 18(1) of the Industrial Disputes Act was entered into on 10.03.1995 in terms of which, they had agreed to increase the production from 310 boxes to 375 boxes per shift and the management agreed to increase wages by Rs. 250/-. According to them, as along as one Mr. Srinivasan, Personnel Officer was holding the post. There was good relationship between Management and the Workers and there was grant of many better service conditions for the workers. However, subsequently in his place, one Xavier Rajendran assumed Office and according to the petitioner the trouble started after he took over.
3. In the affidavit, there are few allegations against the said Personnel Officer which are not relevant before the disposal of this writ petition. According to the petitioner, the attitude of the said Personnel Officer resulted in friction with the petitioner Union. The management also sponsored another Union which is allegedly a Puppet Union in the opinion of the petitioner. It is further contended that the Personnel Officer refused permanency to the workers belonging to the petitioner union. The petitioner has also stated certain other circumstances which are alleged to have created friction between the petitioner union and the Management and had resulted in certain disciplinary action being taken against the some of the workers belonging to the petitioner Union. Two workers belonging to the petitioner union were also dismissed on 28.08.1995 and the said order of dismissal is said to have been passed illegally and without any enquiry. 26 workmen who were aggrieved by the various orders of the management, had raised an Industrial dispute under Section 2(A) of the Industrial Disputes Act. During Conciliation, the management filed a counter stating that the said workmen were not dismissed, but were only placed under partial lock out. However, the petitioners contend that neither the union nor the workmen were informed about the alleged partial lock out.
4. It is further stated that about 77 daily rated workmen who were denied employment on 05.8.1995, took up the matter before the Labour Court under Section 2-A of the ID Act and the petitioner Union was represented.
5. In the mean time, the petitioner union by their letter dated 13.09.1995 demanded 25% bonus and Rs. 2000/- as exgratia for the year 1994-95 payable before Deepavali and requested the management to negotiate with the Union. As there was no response from the management, the Union approached the Labour Officer by their letter dated 29.09.1995 and raised a dispute under Section 2(k) of the ID Act. During the pendency of the proceedings, a letter was given by the management on 13.10.1995 before the Labour Officer stating that they had declared 22% bonus and an exgratia of Rs. 1000/-. However, though bonus was given to many workmen including some of the members of the petitioner union, the declared exgratia was not paid to union members.
6. Workmen numbering about 13 who were terminated from service, but who were not present at the time of disbursement of bonus were not paid bonus. Even after approaching the Management for disbursement of bonus, they were not paid bonus. As the petitioners were satisfied with the quantum of bonus and exgratia, the Labour Officer by his letter dated 20.12.1995 advised the union to approach the Labour Court under Section 33(c)(2) of the ID Act. Subsequently, the petitioner union filed applications under Section 33(c)(2) of the ID Act. The common order passed by the Labour Court is the subject matter of the above writ petition, the Labour Court having dismissed the computation petitions.
7. The Management in their counter after denying the allegations in the affidavit in support of the writ petition, contends that on 10.03.1995, the second respondent concluded a settlement with United Foundry Employees Union under which the workmen were given substantial increase in the wages. However, in August, 1995, the union precipitated the issues and adopted confrontational attitude on trivial issues, as a result of which there was Industrial unrest. During the said period, the workmen had taken law into their own hands and indulged in various acts of indiscipline. Therefore, the second respondent was obliged to initiate disciplinary action against some of the workmen, who had resorted to sabotage and disrupted normal production. The situation was so explosive resulting in the management declaring a partial lock out to 26 Workmen with effect from 28.08.1995. In view of the belligerent attitude of the petitioner union, a majority of the workmen had left the union and formed another union by name United Foundry Thozhilalar Sangam. The said union obtained authorisation from 110 workmen authorising the office bearers of the union to negotiate with the management on the issue of bonus for the year 1994-95. A settlement was arrived on 12.10.1995 under Section 18(1) of the ID Act covering 110 workmen under which the Management agreed to pay the workmen covered by the settlement apart from maximum bonus of Rs. 20% of earned wages, an additional bonus of 2%. The petitioners are not parties to the settlement. As regards the demand of exgratia amount, the workers should raise an Industrial Dispute and get their rights adjudicated before the appropriate forum.
8. The respondent contends that in the background of the said facts, the claim of the various amounts by the petitioner union in terms of the settlement would be outside the jurisdiction of the first respondent under Section 33(c)(2) and hence the Labour Court had rightly rejected the claim petitions. It is further stated that with regard to the claim petition in C.P. No. 12/96 and 621/96, except as regards the claim for exgratia and gift, the second respondent has no objection to accept the claims under the head of earned wages and overtime wages. The agreement under Section 18(1) will be binding only on the parties to the settlement and the petitioners were not parties to the settlement and hence they are not entitled to claim the benefits of the settlement.
9. Mr. Hariparanthaman, leaned counsel appearing for the workmen contends that they had raised a dispute with reference to the bonus which was unpaid to some of the workers, exgratia for some of Rs. 1000/- and a gift of brass bucket of value of Rs. 375/-. While the conciliation proceedings were pending, the Labour Officer was informed in writing that the management had announced Rs. 1000/- as exgratia or a gift amount of Rs. 1000/- and also announced 22% of bonus to the workmen for the year 1994-95. The said proposal was not objected to by the workers and hence the Labour Officer by his letter dated 20.05.1995 had stated that the workers were free to approach the Labour Court under Section 33(c)(2) ID Act.
10. The learned counsel further states that with reference to the bonus, the management had infact conceded the bonus in favour of the petitioners in C.P. No. 102/96, 621/95 and 20/96. With reference to the wages and over time, the management had conceded the claim for the petitioners in C.P. Nos. 12/96 and 621/95. Therefore, without any rhyme or reason, the management was objecting to the grant of bonus, exgratia and gift even after having filed a statement before the Labour Officer that bonus at the rate of 22% and exgratia of Rs. 1000/ will be paid. The stand taken by the management as if Section 33(c)(2) will not apply is not tenable having regard to the manner in which the proceedings before the Labour Court came to an end.
11. Mr. Ravindran, learned counsel appearing for the management contends that the agreement under Section 18(1) was restricted only to 110 employees and the petitioner/workers not being a party to the said agreement are not entitled to any relief on the basis of the said settlement or any bonus or exgratia payment which is offered by the management only in favour of those 110 employees in view of the peaceful work discharged by the said employees. Bonus as well as exgratia were only intended as incentive for proper discharge of duties by the workers and not intended to the petitioners who had indulged in violence and activities causing damage to the properties of the management. The letter which was sent to the Labour Officer on 13.10.1985, is not an agreement, but was only an announcement of the decision taken by the union in favour of the loyal workers who had signed the agreement under Section 18(1) of the ID Act. The Management had not entered into any agreement with the petitioner union and therefore there being no pre-existing right, the petition under Section 33(c)(2) was not at all maintainable. The decision of the union as reflected in the letter dated 13.10.1995 was accepted only by the other union and not by the petitioner union. It is further contended that exgratia was not a statutory payment and hence there is no vested right in the workers to receive the exgratia payment much less by filing a petition under Section 33(c)(2) of the ID Act.
12. The learned counsel for the management also relies on the Judgment of the Allahabad High Court in M/s. Chemi Chrome Industries (Pvt) Ltd., Kanpur V. Labour Court (I) Kanpur and Ors. (1975 LAB.I.C 121), in support of his contention that voluntary payment of bonus to some of its employees by the management will not mean that every other employee acquires a right to receive it and hence petition under Section 33(c) was not maintainable.
13. Reference is also made to the Judgment of a learned Single Judge of Punjab and Haryana High Court in Dalmia Biscuits (Private) Ltd., v. Labour Court, Patiala and Ors., (Vol. 63 FJR 58). The dispute which arose for consideration in that case is as to whether goodwill bonus announced to some of the employees, can be claimed by other employees by filing a petition under Section 33(c)(2) of the ID Act. The learned Single Judge held that when once the management granted goodwill bonus to some of the employees, it cannot discriminate against another set of employees and to refuse to pay the bonus. However, the said claim can be decided only by the Labour Court on reference under Section 10 of the ID Act and not by filing an application under Section 33(c)(2) of the Act.
14. Further reference is also made to the Judgment of the Supreme Court in State Bank of India v. Ram Chandra Dubey and Ors. (2001(1) LLN 58). In that judgment, the Supreme Court has considered the factors distinguishing the claim under Section 33(c)(2) and held as follows:
“8. The, principles enunciated in the decisions referred by either side can be summed up as follows:
Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit, can approach Labour Court under S. 33C(2) of the Act. The benefit sought to be enforced under S. 33C(2) of the Act is necessarily pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered, just and fair on the other hand is vital. The former falls within the jurisdiction of Labour Court exercising powers under S. 33C(2) of the Act while the latter does not.”
15. I have considered the submissions of both sides.
16. The issue as to whether Section 33(c)(2) could be invoked or not, is settled by various decisions to the effect that if the workman was entitled to receive from the employer any money or benefit, which is capable of being computed in terms of money, such benefit can be computed. However to enable the workers to file a computation petition under Section 33(c)(2), the benefits sought to be enforced has to be necessarily on a pre-existing right or predetermined benefit in accordance with law or admittedly due and not a benefit over which there is any dispute between the management and the workmen.
17. In the present case, the basic facts are not in dispute viz., that the petitioner union aggrieved by the stand of the management regarding the quantum of bonus and the exgratia amount had sought for conciliation before the Labour Officer. While conciliation proceedings were pending, the management had submitted a letter dated 13.10.1995 and the text of the said letter is as follows:
“Dear Sir,
We proudly announced 22% of Bonus to our workmen for the year 1994-95.
Additionally with Bonus we announced Rs. 1,000/- as Ex-gratia or a gift worth of Rs. 1,000/- for our workmen for the year 1994-95.
This is for your kind information.
Thanking You,
Yours faithfully,
for UNITED FOUNDRIES (PVT) LTD.,
S.R.HUSSAIN
GENERAL MANAGER(Accts & Admn)
cc to: 1.Deputy Commissioner of Labour, Madras
2.Asst. Commissioner of Labour, Madras.”
18. It is true that the petitioners/workers are not parties to the agreement executed by the management with 110 employees belonging to the other union and as such the petitioners/workers will not be entitled to claim any benefits arising out of the said settlement. There can be no controversy as regards the stand thus taken by the management. However, the facts of the present case disclose that after the petitioners had approached the conciliation officer and that the management had announced declaration of bonus at 22% and also an exgratia payment of Rs. 1000/-, it is not possible to accept the stand of the management that the workers did not acquire an enforceable right. It is only on the basis of the said letter, no failure of conciliation was reported by the Labour Officer and thus there was no possibility of the workers to raise any dispute before the Labour Court. In this context, the Labour Court fell into an error in assuming that the offer was not acceptable to the workers. In Paragraph-18, the Labour Court had observed that the offer of the management declaration 22% bonus and Rs. 1000/- as exgratia was not accepted by the workers. The said finding is not based on any evidence or materials and hence is liable to be set aside. In fact, the letter of the management dated 13.10.1995 was followed by a letter from the Labour Officer dated 20.12.1995. After referring to the letter of the management dated 13.10.1995, the Labour Officer has stated that the management did not take part in the subsequent proceedings, though the representative of the union was present. In the said circumstances, the Labour Officer has rightly directed the workers to approach the Labour Court under Section 33(c)(2) of the ID Act. It is pertinent to bear in mind that the management had not raised any objection to the said letter of the Labour Officer dated 20.12.1995. Nor is there any material to show that the petitioners had not accepted the offer of the management.
19. Therefore, I am inclined to hold that by virtue of the letter of the management dated 13.10.1995, the management had conceded bonus at the rate of 22% and Rs. 1000/- as exgratia payment and hence there is an enforceable right in favour of the workers who had approached the conciliation Officer. I am also inclined to hold that a petition under Section 33(c)(2) is perfectly maintainable in the said circumstances. None of the Judgments cited by the learned counsel appearing for the respondent/management pertain to similar facts viz., the management agreeing to pay any specified amount as bonus and exgratia before the Labour Officer, in a conciliation proceeding.
20. In the aforesaid circumstances, I am unable to sustain the order of the Labour Court. The order of the Labour Court is set aside and the writ petition is allowed on the following terms:
(i) In terms of the letter of the management dated 13.10.1995, all the employees are entitled to bonus at the rate of 22% for the year 1994-95 and also entitled to receive a sum of Rs. 1000/- as exgratia payment.
(ii) As regards the claim for Rs. 375/- towards the value of gift of brass bucket as the management had not conceded any such demand, the same is not enforceable under Section 33(c)(2) of the ID Act.
(iii) Consequently, such of those employees who had not received either bonus or exgratia amount as aforesaid, will be entitled to receive the same.
(iv) The Management is directed to pay to the workers the said amounts within a period of three months from the date of receipt of a copy of this order.