S.B.SINHA, J. - (1.) This appeal is directed against an order dated December 16, 1998 passed by a learned single Judge of this Court, whereby and whereunder the writ application filed by the appellant herein was dismissed. The fact of the matter is as follows: On November 11, 1983, a tripartite settlement was arrived at wherein it was provided that those who would opt for the existing system should be entitled to ad hoc increased pay of Rs. 56.00 per month with effect from January 1, 1981 and those who would opt to retain the existing system of D.A. should also be entitled to one lumpsum amount of Rupees 1,000/-. It was further provided that there would be no revision in the existing pay nor they would be entitled to any benefit in their wages or total emoluments. The time for exercising such option under the settlement was November 30, 1983. By a notice dated November 27, 1983, the period of exercising option was extended till December 10, 1983. The appellants-writ-petitioners did not exercise their option and continued to enjoy the benefit of the settlement earmarked for those who did not opt for normative scale pay. By another notice dated January 1, 1984, the period of exercising option was further extended till January 8, 1984. The writ petitioners appellants however, did not avail for exercising such option. In the month of September 1984, a writ application being C.O.11803(W) of 1984 was filed by some employees challenging the settlement as not binding on them. However, the period of operation of the settlement dated November 11, 1983 expired on December 31,1984 and consequent thereto on October 14,1985 a fresh charter of demand was filed by the employees union. On March 18, 1988, a draft agreement was executed between the management and the Union which was made applicable to those who opted for normative pay scale. On October 7, 1988, a second tripartite agreement was arrived at wherein the draft agreement dated March 18, 1988 was incorporated. In the said tripartite settlement, which was made effective from January 1,1985, it was mentioned that those who exercised option and did not have any legal impediment at the material time would be allowed to have the benefit of second tripartite settlement from January 1, 1985. The said second tripartite settlement was applicable in respect of the employees who were on normative scale of pay and were enjoying All India Consumer Price Index Dearness Allowance (AICPI). Since the writ petitioners appellants did not exercise for the tripartite settlement dated November 11, 1983, they would not be enjoying the normative AICPI pattern of D.A. On October 11, 1988, a writ application being C.O.13914(W) of 1988 was filed by some workmen including the writ petitioners appellants challenging the first tripartite settlement and the draft agreement dated March 18, 1988. The second tripartite settlement expired on December 31, 1989 and thereafter a fresh charter of demands have been filed by the Employees' Union, Employees Association and Diploma Engineering Association on August 21, 1990, December 4,1990 and June 30, 1991 respectively. A writ application being C.R. No. 14803 (W) of 1984 was moved challenging the first tripartite settlement and notices dated November 27,1983 and January 1, 1984 and by an order dated September 6, 1990, Justice B.P. BANERJEE (as His Lordship then was) disposed of the said writ application holding that the petitioners were not entitled to any remedy under writ jurisdiction and the said order passed was without prejudice to the rights of the petitioner therein to raise dispute in appropriate forum, i.e. raising industrial dispute and the application under Section 33-C(2) of the Industrial Disputes Act was not contemplated by the order of the Hon'ble Court. The writ petitioners appellants approached the respondent company for converting their D.A. patterns to AICPI pattern of D. A. on December 14, 1990 and December 16, 1990 respectively. On May 5, 1991, the writ petitioners appellants gave undertaking to the effect that they would get their name expunged and should not file any further suit or dispute. On such undertaking given by the writ petitioners appellants, they were afforded normative scale of pay with effect from April 1, 1991. After having the normative scale on the basis of the undertaking the writ petitioners appellants, on December 9,1992 filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 claiming Rs. 60,000/- and Rs. 95,000.00 respectively being the arrear on the basis of the wages for the period from January 1, 1981 and March 3,1991. The learned Labour Court by an order dated March 8, 1994, held that the application was devoid of any merit and as such, the same was dismissed. Thereafter on June 27, 1994, the present writ application was moved by the writ petitioners appellants wherein the order impugned has been passed.
(2.) The learned trial Judge upon consideration of the rival contentions raised before it and having regard to various decisions of the Apex Court framed two questions namely (1) whether the proceeding under Section 33-C(2) of the Industrial Disputes Act is maintainable for the purpose of adjudication as to the entitlement to the claim of the petitioners for such normative pay scale with effect from January 1, 1981 and (2) whether in the facts and circumstances of the case the petitioners are entitled to the benefit of money claim for arrears salaries and other dues on the basis of normative pay scale for the period from January 1, 1981 to March 31, 1991.
(3.) As regards the first issue, the learned trial Judge held, "But the issue in this proceedings is whether the benefit of such normative scale of pay, which however, was not denied to the petitioners should have the effect from the date as per the aforesaid tripartite settlements. The benefit therefore claimed in the proceeding under Section 33-C(2) of the said Act is incidental to the entitlement of normative pay scale. Therefore, it cannot be said that the proceedings is altogether beyond the scope of Section 33-C(2) of the said Act." However, as regards second issue, it was held, "As the allegations that the petitioners withdrew from the pending writ petition under duress and there was an assurance in this regard by the Respondent/Company were not established so the grant of such normative pay scale to the petitioners on and from April 1, 1991 with notional fixation from January 1, 1981 pursuant to the written undertaking of the petitioners was in substance a modification, alteration and/or a variation of the terms of the tripartite settlement as agreed between the petitioners workmen and the respondent company. The petitioners having thus agreed to such fixation of normative pay scale from any suitable date as deemed fit by the respondent company, the grant of such pay scale with effect from April 1, 1991 in respect of the petitioners was therefore pursuant to an agreement in modification of the tripartite settlement between the petitioners and the respondent/company as above and therefore, there is little scope for commanding the respondent/company to give effect to such normative pay scale with effect from the date as stipulated in the tripartite settlement dated November 11, 1983.";