HARIBHAU SHINDE Vs. F H LALA INDUSTRIAL TRIBUNAL BOMBAY

JUDGEMENT

(1.) A somewhat difficult and ticklish question of the effect of the provisions in Sections 9a and 33 (1) of the Industrial Disputes Act, 1947, on the industrial relations between workmen and employers has been raised in this petition under Article 227 of the Constitution, whereby the 2nd petitioner (being a registered trade Union) representing the workmen of the 2nd respondent employers has challenged the validity and correctness of the order of the Industrial Tribunal dated May 27, 1968 (in the matter of Application I. T. No. 177 of 1968), whereby the Tribunal rejected the contention of the 2nd petitioner Union (hereinafter referred to as "the Union") that the above Application No. 177 of 1968 was misconceived and the Tribunal had no jurisdiction to grant the relief claimed in that application.

(2.) THE short facts leading to the institution of the above application may be summarised as follows; by what is mentioned as Baxi award made in I. T. No, 411 of 1958 on December 31, 1959, the question of dearness allowance (including other allowances) payable by the 2nd respondent Company to its workmen was adjudicated upon and decided. Since then, the Company has been paying dearness allowance in accordance with the scale fixed by that award. By notice dated March 20, 1961, the award was terminated on behalf of the Union and the Company was served with a notice for increase in dearness allowance. The industrial dispute relating to demands made for fixation of wage scales and classification of the workmen was referred to the Industrial Tribunal in July 1963 and is subject matter of reference I. T. No. 235 of 1963. On June 24, 1965, the demand of the workmen for increase in dearness allowance and gratuity was referred to the Industrial Tribunal and is subject matter of Reference I. T. No. 216 of 1965. The Company served the union and its workmen with a notice dated September 8, 1967, under Section 9a of the Industrial Disputes Act and stated that the Company intended to reduce the prevailing dearness allowance payment by 40 per cent and to bring about that change and reduction from October 1, 1967, i. e. on expiry of 21 days from the date of the notice. Immediately by reply dated September 20, 1967, the union informed the Company that the proposed change was not at all acceptable to the union and rejected the same. The union expressed surprise that the change was proposed when the demand of the workmen regarding increase in pay structure was pending before the Industrial Tribunal. The union submitted its demand that the notice of change given by the Company should be unconditionally withdrawn. The implementation of the proposed change of reduction of dearness allowance of 40 per cent has been deferred from time to time by the Company. In the meanwhile, the Company requested the Labour Commissioner to admit the matter of the Company's demand of reduction in dearness allowance into conciliation. By his letter dated October 17, 1967, the Labour Commissioner informed the Company that having regard to the preliminary discussions which had taken place, the position was explained and the case brought by the Company for conciliation was treated as closed. The Company thereupon by its letter dated October 30, 1967, to the State Government referred to the facts of the notice of change served under Section 9a and the Labour Commissioner having treated the matter of conciliation as closed. The Company further stated that upon expiry of 21 days from the date of the notice of change the Company had got a right to effect the change desired by the Company but because the reference relating to the demand for increase in dearness allowance was pending, the Company could not enforce the change desired. The Company, therefore, applied to the Government to refer the demand of the Company relating to the reduction of the existing dearness allowance to the Industrial Tribunal under Section 10 (1) of the Act. The Under-Secretary to the Government by his letter dated January 29, 1968, informed the Company that it should approach the Tribunal under section 33 (1) for permission to reduce dearness allowance. For that reason, the Government refused to refer the demand of the Company for adjudication under Section 10 (1) (a) of the Act the Company thereupon on February 7, 1968, filed the present Application No. I. T. No. 177 of 1968 before the Tribunal under Section 33 (1) for a permission in writing to reduce the amount of dearness allowance payable to its workmen by 40 per cent or by such other percentage as from October I. 1967, or from such other date as the Tribunal decided. In passing, it may be stated that the application contains (in about 33 typed pages) all the material facts which are relevant for defence in the reference made at the instance of the union for increase in dear* ness allowance,

(3.) THE main contention made on behalf of the union by its written statement dated April 1, 1968 was that having regard to the reference for increase in dearness allowance, the application was illegal and mala fide and had been made with a view to defeat the substantive reference. Under Section 33, permission that can be granted would be of an interim nature and the matter in respect whereof permission could be asked cannot be substantive matter which was subject matter of reference before the Tribunal. The claim for reduction in dear-ness allowance was such a substantive matter. It appears that at the hearing of the application the union contended that the application was misconceived and the Tribunal had no jurisdiction to entertain the same. By the impugned order dated May 27, 1968, the Tribunal held that the application was in law maintainable, but it was (not?) proper and just to hear and dispose it of before the disposal of the main reference. In that connection, the Tribunal observed that Section 33 (1) of the Act provided for prejudicial alteration of the conditions of service applicable to the workmen with the express permission in writing of the Tribunal. The effect of the permission it granted was to remove the ban imposed by Section 33 and the permission would not stop the workmen from challenging the change permitted. The Tribunal, however, held that to reduce the dearness allowance by removing the ban imposed on the rights of the employers would create complications and accordingly adjourned the application and directed that it be heard with the main reference.