Maharashtra State Handloom Corporation Limited, Through Its Managing Director/Secretary and Manager, Modal Dye House, Maharashtra State Handloom Corporation Limited Vs. Krishna Shankar Kamble and ors. - Court Judgment

Excerpt:
- - the respondents, therefore, filed complaints on 17.07.1987 praying for grant of facilities like d. they had given notice of change demanding better service conditions. not having followed such a procedure, it was not open to the respondents to complain of unfair labour practice, based on comparison between uncomparables. 171.75 is not clearly divisible by eight or nine, ruling out the sum as representing daily wages. 570/, which was first not clearly divisible by 23 and would show wages of a little above rs. therefore, for attracting clause 9 of schedule iv of the mrtu & pulp act it would have to be shown that there was a failure to implement an award, settlement or agreement. the learned counsel submitted that contention of respondent is based on alleged failure to implement rules relating to the employees, which by very definition excluded piece rated workers. 16. in view of the foregoing it has to be held that the learned member, industrial court had failed to see that the respondents, being piece rated workers, did not qualify to be the 'employees' under the rules which were sought to be invoked. the learned member, industrial court failed to see that the respondentworkmen had not made out a case that they were daily rated workers and not piece rated workers. he had failed to see that there was no category of dyers and therefore, he could not have directed absorption of dyers in the time scale provided for mazdoors.r.c. chavan, j.1. this petition by the state handloom corporation takes exception to the order passed by learned member, industrial court, nagpur allowing respondents workmens' complaint under the maharashtra recognition of trade unions and prevention of unfair labour practices act ('mrtu & pulp act' for short), holding the petitioner guilty of engaging in unfair labour practice within the meaning of items 5 and 9 in schedule iv to the mrtu & pulp act, and directing the petitioner to bring the respondents on the timescale prescribed for the posts of mazdoors, giving them all the benefits as per service rules w.e.f. 1st march, 1982.2. facts which led to filing of the complaints before the industrial court are as under:the respondents had been engaged by the petitioner at a dye shed at nagpur for dying yarn used in weaving hand loom cloth. they were piecerated employees whose wages were allegedly converted into fixed rate for eight hours of working. according to the respondent workmen, the industry was subject to the provisions of the bombay industrial relations act. since there was no recognised union or elected representatives they filed complaints themselves. the government of maharashtra had issued a notification under section 5 of the minimum wages act fixing wages for workmen employed in handloom industry. the petitioner corporation has its own wage structure and wage rates and also its own service rules of the year 1977. according to the respondents the petitioner had engaged in unfair labour practice by not extending to them the benefits available to all other workmen. the respondents, therefore, filed complaints on 17.07.1987 praying for grant of facilities like d.a., h.r.a., time scale etc. to them.3. the petitioner employer filed written statements in these complaints stating that the dyers were paid minimum wages as prescribed by the state government. they had given notice of change demanding better service conditions. the matter went in for conciliation and ultimately a reference was made to the industrial court. the industrial court negatived the reference by order dated 28th april, 1987 on the ground that the respondents workmen were governed by the provisions of the bombay industrial relations act and therefore, the workmen should initiate action under the bombay industrial relations act.4. instead of raising the dispute under the bombay industrial relations act the workmen had, however, chosen to file complaint under mrtu & pulp act. while the petitioner admitted that the corporation had framed service rules w.e.f. 01.04.1977, it stated that the rules applied to staff of the head office, sales organisation and other staff who are not governed by the factories act and minimum wages act. it was submitted that the respondent workman could not claim parity with the 'employees' to whom the provisions of factories act and minimum wages act did not apply. the petitioner claimed that the reference was not maintainable and therefore, prayed for rejection of the complaints. though these written statements were stated to be not on record, the learned member, industrial court permitted petitioners to raise their contentions and considered them in his order.5. after taking evidence the leaned member, industrial court by his impugned order held that the petitioner had engaged in unfair labour practice and directed the petitioner to bring the respondents in time scale prescribed for the post of mazdoor. aggrieved thereby, the management has filed this petition.6. i have heard mrs. bharti dangre, learned counsel for the petitioner and shri s.s. meshram, learned counsel for the respondent workmen.7. the learned member, industrial court had not found that any dyer had been brought into time scale while excluding the respondents from the benefit of such time scale. he held that all employees, except dyers, had been given benefit of time scale and therefore, this amounted to unfair labour practice. he noticed that there was time scale prescribed for no category of dyers under the minimum wages act, but held that if there was no such category, the dyers should be given lowest time scale prescribed for the post of mazdoors. he found that there was no reason for not applying the service rules to the respondent workmen and that this amounted to favouritism and partiality.8. the learned counsel for the petitioner pointed out that after the petition was filed, the petitioner corporation allowed the respondents to opt for voluntary retirement scheme of the corporation and the respondents employees working with the corporation in the dye house have retired having accepted voluntary retirement scheme. their dues have been settled and the petition has, therefore, become infructuous. this was contested by the respondents who stated that the question of payment of difference in the dues paid under the voluntary retirement scheme and those to which respondents would have been entitled had they been brought on time scale would still remain and therefore, the petition could not be disposed of as infructuous.9. a copy of the rules of the petitioner corporation has been made available for my perusal. rule 6(ii) which defines 'employees' includes only whole time salaried employees. none appended to this clause categorically excludes piece rated workers. the learned counsel for the petitioner submitted that though the respondent's claim that they were being paid fixed daily wages upon conversion of wages on piece rate basis, this was not so and the wages were paid only according to the minimum wages fixed for piece rated workers. for this purpose, she drew my attention to a notification published in the government gazette on 4th october, 1983 in parti l at page 353 fixing minimum wages for various categories of workmen. item 9 of schedule ii therein relating to piece rates for dye house workers as applicable to the respondents who had to be paid @ rs. 2.20 to 3.70 for each bundle of yarn depending on the colour in which the yarn was to be dyed. the learned counsel for the petitioner, therefore, submitted that it would have been thoroughly impermissible to compare the piece rated workers with those on time scale of pay, who were whole time employees of the corporation.10. next she submitted that the question had already been raised by the reference before the industrial court and by award dated 20th april, 1987, the court held that the reference was not competent under the industrial disputes act, since provisions of bombay industrial relations act applied to the industry carried on by the handloom corporation. she submitted that this award had become final and therefore, this complaint could not have been entertained. she submitted that it would have been open for the workmen to raise a demand and to have it considered, rather than make a complaint of unfair labour practice. referring to provisions of clause 18 of section 3 of the bombay industrial relations act, she submitted that this was an industrial matter pertaining to change and therefore, in view of the provisions of the bombay industrial relations act notice of change was required to be given. under section 73 of the act it was prerogative of the state government to refer the matter to the industrial court. not having followed such a procedure, it was not open to the respondents to complain of unfair labour practice, based on comparison between uncomparables. she, therefore, submitted that the impugned award ought to be set aside.11. the learned counsel for the respondents workmen submitted that dyers had in fact been paid as daily rated workmen and not piece rated workmen and for this purpose he had produced copies of muster rollcumwage card for my perusal at the time of arguments, which shows that in respect of the employees concerned, the column of 'total production in case of piece rate workers' had been left blank and only 'gross wage payable' had been filled in. the learned counsel for the petitioner submitted that a departure or a lapse on the part of the person filling up muster rollcumwage card should not lead to the inference that the workman concerned was daily rated worker and not piece rated worker. she pointed out that on the first page of muster rollcumwage card which had been produced, column no. 9 refers to the minimum rate of wage payable, which is left uniformly blank. had the workman been daily rated worker, according to her, this column would have been filled up. she also pointed out that in respect of one mahadeo tulshiram parate for eighteen days of work between 01.12.1986 and 31.12.1986 gross wages were shown to be rs. 424.80 which comes to rs. 23.60 per day. for eight plus one days of work between 01.01.1986 and 31.01.1986 same workman was paid gross wages of rs. 171.75ps. which should have actually been rs. 212.40 if the daily wage were rs. 23.60. she pointed out that sum of rs. 171.75 is not clearly divisible by eight or nine, ruling out the sum as representing daily wages. she pointed out that shriram dadaji chatap, whose wage card had been produced by the respondents, shows that between 01.08.1983 to 31.08.1983 for 23 days the workman was held entitled to gross wages of rs. 570/, which was first not clearly divisible by 23 and would show wages of a little above rs. 24/per day, (which could not have slipped down to rs. 23.60 after 3 years). therefore, according to her these wages depicted the amounts to which the employees concerned were entitled for the bundles dyed according to piece rates prescribed under the minimum wages act.12. the learned counsel for the petitioner also submitted that since the employeremployee relationship have snapped there is no question of respondents' being entitled to any further benefits after their retirement. for this purpose, she relied on judgment of the supreme court in a.k. bindal v. uoi reported at : (2003)iillj1078sc . in that case too the workmen had opted for voluntary retirement scheme. the court held that the claim for pay revision after accepting voluntary retirement scheme was not maintainable. the observations of the court in paragraph 34 of the judgment may be usefully reproduced as under:34.this shows that a considerable amount is to be paid to an employee ex gratia besides the terminal benefits in case he opts for voluntary retirement under the scheme and his option is accepted. the amount is paid not for doing any work or rendering any service. it is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and foregoing all his claims or rights in the same. it is a package deal of give and take. that is why in the business world it is known as 'golden handshake'. the main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. after the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. if the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for voluntary retirement scheme and has accepted the amount paid to him, the whole purpose of introducing the scheme would be totally frustrated.' learned counsel for the petitioner also pointed out that the court had observed in paragraph 22 of the judgment that the economic capacity of the employer is also to be considered while deciding upon entitlement of the workmen to higher wages.13. in sarva shramik sangh v. indian smelting & refining co. ltd. reported at : (2003)iiillj1156sc on which the learned counsel for the petitioner placed reliance, the court was considering the provisions of mrtu & pulp act. the court had also considered what amounts to industrial dispute under clause 2(k) of the industrial disputes act. she submitted that in view of this judgment unless employeremployee relationship subsists a complaint under mrtu & pulp act could not be entertained and in view of the fact that the respondent workmen had accepted voluntary retirement scheme, according to the learned counsel, now, grievance if any remaining cannot be looked into. in this judgment, the court had referred to its earlier judgment in cipla ltd. v. maharashtra general kamgar union reported at (2001) 3 scc 101. in a.p. srtc v. srinivas reddy reported at : (2006)iillj425sc on which the learned counsel for the petitioner placed reliance, the court was considering the question of employee-employer relationship and observed that in the absence of employeeemployer relationship absorption of such employees could not be ordered.14. the learned counsel for the petitioner also drew my attention to judgment in maharashtra srtc v. premlal reported at : (2007)iillj234sc . there can be no doubt that a settlement cannot be equated to rules. therefore, for attracting clause 9 of schedule iv of the mrtu & pulp act it would have to be shown that there was a failure to implement an award, settlement or agreement. the learned counsel submitted that contention of respondent is based on alleged failure to implement rules relating to the employees, which by very definition excluded piece rated workers. therefore, according to her, clause 9 is not at all attracted. she further submitted that to attract clause 5 of schedule iv it would be necessary to show that the management had shown favourtism or partiality to one set of workers regardless of merits. this implies that two sets of workers who are sought to be compared are comparable i.e. they are same type of workers. in this case what is attempted is to compare dyers with office staff. in view of this, it is obvious that even clause 5 of schedule iv is not attracted. the learned member of the industrial court had tried to compare apples with oranges.15. reliance by the learned counsel for the respondent on a notification dated 9th november, 1989 is misplaced in that notification it is stated that objections to the seniority list would be accepted and notification enumerates various posts for which seniority list had been prepared which includes weavers. there is no reference to dyers. therefore, reference to this order dated 09.11.1989 is of no use.16. in view of the foregoing it has to be held that the learned member, industrial court had failed to see that the respondents, being piece rated workers, did not qualify to be the 'employees' under the rules which were sought to be invoked. an employee, as defined in clause (ii) of rule 6 was to be a whole time salaried employee and the note to the rules specifically excluded piece rated workmen. the learned member, industrial court failed to see that the respondentworkmen had not made out a case that they were daily rated workers and not piece rated workers. he had failed to see that there was no category of dyers and therefore, he could not have directed absorption of dyers in the time scale provided for mazdoors. first award dated 23.04.1987 having become final, it was necessary for the workmen, if they were aggrieved by being continued as piece rated workers, to raise an industrial dispute and get their demand for change processed. it was not open to them to make a complaint under section 28 of the mrtu & pulp act. in any case, since it is not shown by the respondents that any other set of dyers or piece rated workers has been treated differently, the learned member, industrial court could not have held that unfair labour practice, as defined in item 5 of schedule iv had been proved. in the absence of any award, settlement or agreement shown to have been breached, he could not have held that unfair labour practice as described in item9 of schedule iv had been committed by the petitioner.17. in view of this, the petition succeeds. the impugned order is quashed and set aside. there shall be no order as to costs.