Madras High Court
General Secretary, Hindustan ... vs State Of Tamilnadu And Anr. on 7 August, 1987
Equivalent citations: (1988)ILLJ159MAD
ORDER Nainar Sundaram, J.
1. The petitioner raised an industrial dispute under Section 2(k) of the Industrial Disputes Act. 1947. hereinafter referred to as "the Act" for payment of ex-gratia bonus for the year 1979 for the employees of the second respondent. The body of the petition preferred to the Conciliation Officer runs as follows:
The petitioner-Union raises this dispute against the respondent-Management, for not having paid ex-gratia amount for the year 1978-79 before Deepavali as per the existing practice in the previous years.
In all the previous years, except the year 1976, despite the profit ratio, the Management was paying 20% of the total earning of an year as ex-gratia amount. But. This year, 1979, employees have been paid only 8.33% as ex-gratia amount. Quoting Section 20 of the Payment of Bonus Act, 1965, the Management had announced that the employees are not eligible for bonus. In this connection, the contention of the petitioner-Union is that till 1978, the employees have been paid 20% of the total wage earnings of an year as ex-gratia payment, and not any percentage of amount as per the Bonus Act. This Union do not find any valid and bonafide reason in the argument of the Management in saying that the employees are not eligible for ex-gratia amount as per the Bonus Act. The employees are entitled to 20% of their emoluments (Pay + D.A. + D.A. adjustment + C.C. A.) as customary pooja ex-gratia payment as this payment has been made to them ever since 1968, ten days in advance of the pooja festival.
At no time details were given to show how the ex-gratia amounts were worked out, the petitioner-Union submits that receiving 20% of ex-gratia payment thirty days before is a customary privilege.
The Management may please be ordered to issue audited balance sheet of the Company of the year 1978-79 and also for the previous years from the year 1975.
The Conciliation Officer may be pleased to order the respondent-Management to declare the payment of 20% of the ex-gratia payment for the year 1979.
The Conciliation Officer conciliated the dispute, but the conciliation ended in failure. On receipt of the failure report, the first respondent passed the following order, declining to refer the industrial dispute for adjudication:
The Government have examined the conciliation report of the Assistant Commissioner of Labour first read above in regard to an industrial dispute raised by the Hindustan Teleprinters General Employees' Union, Madras, against the Management of Hindustan Teleprinters Ltd., Madras 32 over the issue relating to the payment of ex-gratia at the rate of 20% for the year 1979 and they pass the following orders:
It is reported that the Management had already decided to pay the ex-gratia at 8.33% to their workers and that the provisions of the Payment of Bonus Act shall not apply to the establishment.
2. Hence, the Government consider that there is no case to refer the issue in dispute for adjudication.
The above order is being impugned in this writ petition.
2. Mr. K.S. Janakiraman, learned Counsel for the petitioner, would submit that the first respondent over-stepped its limitation by adjudicating the merits of the industrial dispute, and on that basis declined to make the order of reference, and this would come within the mischief of the ratio countenanced by the Supreme Court in Ram Autar Sharma v. State of Haryana 1985-II-L.L.J.-187. The following observations in the above pronouncement at p. 192 settle the law "that if the Government purports to give reasons, which tantamount to adjudication, and refuses to make a reference, the appropriate Government could be said to have acted on extraneous and irrelevant grounds or grounds not germane to the determination and a writ of mandamus would lie calling upon the Government to reconsider its decision." Mr. Sanjay Mohan, learned Counsel appearing for the second respondent, wants to distinguish the above case of the Supreme Court by stating that it related to an industrial dispute raised under Section 2-A of the Act wherein the scope of Section 11-A of the Act also came up for consideration, and the learned Counsel would submit that the earlier pronouncement of the Supreme Court in Bombay Union Journalists v. State of Bombay 1964-I-L.L.J.-351: countenances that the Government can prima fade consider the merits of the dispute when it decides the question as to whether its powers should be exercised under Section 45(1), read with Section 12(5) of the Act or not. Here, the question is as to whether the employees of the second respondent are entitled to the ex-gratia payment at 20% for the year 1979. By the impugned order, the first respondent has opined that since the second respondent had already paid the ex-gratia at 8.33% to its employees, and further the provisions of the Payment of Bonus Act are not applicable to the second respondent, there is no case to refer the dispute for adjudication. The questions as to whether the payment by the second respondent to its employees ex-gratia at 8.33% would be in satisfaction of the claims of its employees and whether the Payment of the Bonus Act would apply to second respondent have got to be answered only when the industrial dispute is being adjudicated by the appropriate industrial forum. The first respondent has done that adjudication as we could see from the reasons expressed in the impugned order. This is not permissible as per the ratio in Raw Autar Sharma v. State of Hanjana (supra). The attempt of the learned Counsel for the second respondent to distinguish the above case on the ground that it dealt with a dispute under Section 2-A of the Act wherein the scope of Section 11-A of the Act came up for consideration is a futile one because the ratio laid down by the Supreme Court in the above pronouncement is general in terms and cannot be tied down only to a case of an industrial dispute raised under Section 2A of the Act. Mr. K.S. Janakiraman, learned Counsel for the petitioner, would draw my attention to the pronouncement of the Supreme Court in M.P. Irrigation Karamchari Sangh v. State of M.P. and Anr. 1985-I-L.L.J.-519 where even with refference to the conditions of the service of the employees and in what manner the conditions of service could be improved, it was held that it is the 'Special Preserve' of the appropriate Tribunals to be decided in adjudicatory processes and are not ones to be decided by the Government in a prima facie examination of the demand. This pronouncement' of the Supreme Court gives a direct answer to the contention raised by the learned Counsel for the second respondent. Under these circumstances, this writ petition is allowed and the matter is remitted to the file of the 1st respondent for fresh consideration of the question of reference taking note of the principles settled by pronouncements of Courts and avoiding the infirmities noted above, which alone constrained this Court to interfere in writ powers. No costs.