Judgment:
1. In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the Award dated 19.10.2005, Annexure-A and the order dated 13.3.2002, Annexure-F in I.D.No.85/1999 passed by the industrial Tribunal at Bangalore.
2. Respondent is a company engaged in manufacture of machine tools. Petitioner is the registered trade union representing the employees in the respondent company. Respondent company denied to the workers bonus/ex-gratia payment for the years 1996-97 and 1997-98 to the workmen who went on illegal strike for a period of 11 days in 1996 and for a period of 85 days in the year 1997. Aggrieved by this denial of bonus/ex-gratia, petitioner union initiated conciliation proceedings and the same ended in referring the matter to the Tribunal for adjudication and the same came to be registered as I.D.No.85/1999. The points referred for adjudication are as under:
Whether the Bharat Fritz Warner Limited, Peenya Worker- Union's demand for payment of 20% ex-gratia to the workers, who had gone on strike during 1996-97and 97-93 by the management is proper? 2. If so, to what reliefs the workers are entitled to?
3. After completion of pleadings, the Tribunal framed an additional issue as under: Whether the 1 party proves that the 1st party workmen were justified in going on strike for the period 1996-97 and 1997-98 and legal?
4. Petitioner union filed l.A. 1 under Section 10(4) of Industrial Disputes Act (for short v I.D. Act') for deletion of additional issue framed by the Tribunal. On contest, the Tribunal passed the impugned order Annexure-F dated 13.3.2002 dismissing I.A. 1. Thereafter the petitioner examined one witness as WW.1 and got marked W1 to W17. Respondent company examined three witness as MW.1 to MW.3 and got marked Exs.M1 to M37. The Tribunal on appreciation of entire material on record passed the impugned award rejecting the reference. Hence this writ petition.
5. Heard arguments on both the side and perused the entire writ papers.
6. The material on record discloses that there was a strike by the workmen of the petitioner union for 11 days in 1996 and 85 days in 1997. The respondent management declared ex-gratia to the employees who did not participated in the strike and who are not covered by the Payment of Bonus Act. The ex-gratia had been paid to the employees including the workmen, who satisfied the following conditions:
a) That they are not covered by the Payment of Bonus Act, 1965; and
b) That they were not on strike during the year 1996-97 and 1997-98
7. From the above declaration made by the respondent management, it is clear that those who indulged in strike are denied the payment of ex-gratia. Those who did not indulge in the strike and attended the work are extended the benefit of ex-gratia. On the face of it, this act on the part of the respondent management is victimisation and discriminatory.
8. The strike is a weapon in the hands of workmen to press for their legitimate demands. Whether the strike carried on by the workmen is valid or not was outside the scope of reference to the Tribunal When such being the case, the Tribunal committed an illegality in framing an issue with regard to the legality of the strike. Though the Tribunal stated that the additional issue relating to strike was only incidental, the same carried in the mind of Tribunal while passing the impugned award, further the Tribunal having framed an additional issue has not given any specific finding on it. Further the Tribunal, casually approached the controversy between the parties.
9. The payment of ex-gratia to all the employees was in practice from the year 1975-76 upto 1995-96. The material on record discloses that this ex-gratia was paid on earlier occasions even during the period of strike and also during the period of losses. M.W.I the Senior Manager of respondent Company admits in his evidence that he was paid ex-gratia from 1992. Thus the employees enjoyed the benefit of ex-gratia for a long length of time and the same has matured into a right to the workmen. This right for ex-gratia had become a condition of service. Extending the benefit of ex-gratia to certain workmen and denying the same to other section of the workmen on the ground that they indulged in strike is illegal and bad in law. A condition of service cannot be changed without following the procedure specified in Section 9A of the I.D. Act. Admittedly the respondent company has not followed the procedure specified under Section 9A of the Act.
10. Firstly ex-gratia was paid to all the employees for a long period. Secondly the ex-gratia was paid unconditionally. Thirdly the ex-gratia was paid as an incentive. The ex-gratia was paid even during the period of losses and strike. Therefore the payment of ex- gratia can be regarded as a part of contract of service and the same cannot be denied to the workmen who participated in the strike. If the strike is illegal then the concerned workmen are liable for punishment in accordance with the provisions of the I.D. Act. Therefore the workmen are entitled for ex-gratia even though they participated in the strike.
11. For the reasons stated above, the following;
ORDER
i. Writ petition is hereby allowed.
ii. The impugned order dated 13.03.2002 and the award dated 19.10.2005 in I.D. No. 85/1999 passed by
Industrial Tribunal at Bangalore are hereby quashed.
iii. The workmen are entitled for ex-gratia though they participated in the strike. The respondent company to pay the concerned workmen the ex-gratia within six weeks from today. Ordered accordingly.