Karnataka High Court
Pharmaceutical Chemical And Allied ... vs The Management Of on 15 June, 2019
Bench: Ravi Malimath, S G Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 15TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE S. G. PANDIT
WRIT APPEAL NO.2264 OF 2018 (L-RES)
c/w
WRIT APPEAL NO.2599 OF 2018 (L-RES)
BETWEEN:
PHARMACEUTICAL CHEMICAL AND
ALLIED EMPLOYEES UNION
94-4, LAKSHMINARASIMHA SWAMY NILAYA
MARUTHI TEMPLE STREET
SREEKANTAPURA (ANCHEPALYA)
NAGASANDRA POST
BENGALURU - 560073
REPRESENTED BY IT GENERAL SECRETARY
T. NARASIMHA MURTHY AND
PRESENTLY BY TREASURER
MR. ANANT SWAMY. ... APPELLANT
(COMMON IN BOTH APPEALS)
(BY SRI.SHREYAS JAYASIMHA, ADVOCATE)
AND:
THE MANAGEMENT OF
M/S. J L MORRISON (INDIA) LIMITED
9TH MILE TUMKUR ROAD,
2
BENGALURU - 560073. ... RESPONDENT
(COMMON IN BOTH APPEALS)
(BY SRI.V.S. NAIK, ADVOCATE FOR
SRI.ACHAL ANAND V J, ADVOCATE)
THESE APPEALS ARE FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO i)SET
ASIDE THE IMPUGNED ORDER DATED 20/06/2018 PASSED
BY THE SINGLE JUDGE OF THIS COURT IN WRIT PETITION
No.10738/2005 AND ii)GRANT COSTS OF THE ENTIRE
PROCEEDINGS AND ETC.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 03.04.2019 COMING ON
THIS DAY, S.G. PANDIT J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
Aggrieved by the order dated 20.06.2018 passed by the learned Single Judge in Writ Petition No.10738 of 2005 by which the writ petition and also I.A.No.1 of 2017 seeking additional prayer were dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash the award dated 28.09.2004 in Reference No.10 of 1996; to 3 declare that the lay off of 66 workmen by the respondent - Management vide order dated 27.11.1995 as illegal and unjustified; to direct the respondent to pay the petitioner workmen bonus @ 16.66 % for the period 1993-1994 and 1994-95 and to restore variable dearness allowance (for short 'the VDA') payable to the petitioner-workmen as per the memorandum of settlement dated 19.11.1992. During the pendency of the writ petition the petitioner had also filed I.A.No.1 of 2017 seeking amendment of prayer to pay 16.66% bonus for the period 1993-94 up to 22.06.2000. The said application was considered along with the main writ petition and the said I.A. was dismissed. The appellant has filed writ appeal No.2264 of 2018 against the dismissal of writ petition No.10738 of 2005 and writ appeal 2599 of 2009 is filed against dismissal of I.A.1 of 2017 for amendment.
3. Even though the prayer included dispute relating to lay off of 66 workmen, the same was subject matter of another appeal, which was disposed off subsequent to the 4 impugned award, the writ petition was confined to customary bonus at the rate of 16.66%, restoration of VDA and negotiation of the Charter of Demands. The dispute between the petitioner - Workers Union and the respondent - Management was referred for adjudication by order dated 01.01.1996 to the Additional Labour Court. The Labour Court by the impugned award dated 28.09.2004 rejected the reference. With regard to VDA the Labour Court found that both the parties agreed to freeze the VDA under settlement dated 19.11.1992. Based on the material on record the Labour Court held that the claim of the petitioner for VDA is unjustified. The claim of the petitioner-workmen for customary bonus at the rate of 16.66% for 1993-94 and 1994-95 was also rejected, as the petitioner-workmen failed to point out that during earlier periods they were paid bonus at the rate of 16.66%. The petitioner-workmen were paid bonus only as per law and the respondent - Management never paid bonus at the rate of 16.66%. The Labour Court also 5 dismissed the claim regarding negotiation of Charter of Demands as there was closure of the unit, which was concluded in Writ Appeal No.1924 of 1998 on 19.04.2006. Aggrieved by the dismissal of the reference, the petitioners filed the instant writ petition. The learned Single Judge by order under appeal dismissed the writ petition reserving liberty to the petitioner to make representation and respondent was directed to consider the same in terms of the observation made in the writ petition. While dismissing the writ petition the learned Single Judge also rejected I.A.No.1 of 2017 filed to amend the prayer to pay 16.66% of bonus for the period 1993-94 up to June 2000. Hence, the present appeals by the writ petitioner.
4. Heard the learned counsel for the appellant and the learned counsel for the respondent. Perused the appeal papers.
5. The learned counsel for the appellant would submit that the order of the learned Single Judge is not 6 sustainable in law and on facts. The learned Single Judge failed to consider the material on record. It is further contended that the learned Single Judge failed to appreciate the fact that the petitioners were entitled to bonus at the rate of 16.66% for the periods 1993-1994 and 1994-1995. As per the fresh settlement dated 17.08.1994 the petitioner-workmen were entitled for the relief sought for. The learned Single Judge failed to appreciate the fact that the workers at Bombay Unit of the respondent - Management are being paid bonus at the rate of 16.66% commencing from the year 1974, and as such the respondent - Management ought to have paid bonus at the same rate to the petitioner-workmen at Bangalore Unit also. As per the decision of the Bombay High Court, bonus paid at the rate of 16.66% to the workers at Bombay Unit ought to have been paid to the workers at Bangalore Unit. Further it is submitted that the management had agreed to settle the restoration of 7 dearness allowance vide settlement dated 19.11.1992, hence, prays for allowing the appeal.
6. Per contra, learned counsel for the respondent would submit that the learned Single Judge has rightly rejected the writ petition affirming the award passed by the Labour Court. It is submitted that the petitioners have not made out any ground before the learned Single Judge nor before this Court to indicate their entitlement for the relief sought for. It is further contended that the petitioners were paid bonus as per law and they are not entitled for bonus at the rate of 16.66% as claimed by them. No material whatsoever is produced to show that the petitioners were being paid bonus at the rate of 16.66% at any point of time, at Bangalore Unit. Thus prays for dismissal of the appeals.
7. On hearing the learned counsels for both the parties and on perusal of the appeal papers, we are of the view, that there is neither perversity nor erroneousness to 8 interfere with the order passed by the learned Single Judge. The learned Single Judge has passed a detailed order considering each and every contention raised by the petitioner and also the decisions relied upon by the petitioner in support of its contention. With regard to VDA and restoration of VDA the learned Single Judge looking into evidence of WW.1 and MW.1 was of the view that the petitioner-workmen are not entitled for the same. It is to be noted that both the parties under settlement dated 19.11.1992 agreed to freeze the wage and also to put ceiling on the VDA. Subsequently, it is noticed that even though there was settlement dated 17.08.1994, there was closure of unit and no material was produced to show that the production was restored. WW.1 in his evidence has admitted that the workers Union had agreed for freezing dearness allowance for 18 months, when the dearness allowance was freezed on consent, seeking the same subsequently would not arise. Further WW.1 has admitted 9 that there was no production from 01.12.1991 onwards and subsequently there was closure.
8. The next issue before the learned Single Judge was as to whether the petitioners were entitled for 16.66% bonus as claimed by them for the period 1993-94 and 1994-95. During the pendency of the writ petition the petitioner had filed I.A.No.1 of 2017 to amend the prayer seeking bonus at the rate of 16.66% from 1993-94 up to 22.06.2000. The Labour Court looking into the material on record both oral and documentary evidence was of the view that the petitioner is not entitled for bonus at the rate of 16.66%. While holding so, the Labour Court has observed that the petitioner was paid statutory bonus at the rate of 8.33%. The petitioner has not placed any material to indicate that the workers were being paid bonus at the rate of 16.66% for a very long period continuously or at any point of time. The contention of the counsel for the petitioner that based on the judgment of the Bombay High Court the workers at Bombay Unit are 10 being paid bonus at the rate of 16.66% and the same shall be paid to the workers at Bangalore Unit also, cannot be accepted for the reason that the units at Bombay and Bangalore are separate units. Moreover, the workers at Bangalore Unit were not paid bonus at any point of time, at the rate of 16.66%. It is to be noted that the minimum bonus as per law was paid to the workers at Bangalore Unit. The learned Single Judge while considering IA.No.1 of 2017 for amendment has rightly observed that the claim before the Labour Court was only for the period between 1993-94 and 1994-95, but the claim was not till 20.06.2000. There was no evidence led with regard to bonus at the rate of 16.66% up to 22.06.2000. Hence, rejected the same. The Labour Court has examined entitlement of bonus at the rate of 16.66% only for 1993- 94 and 1994-95. As stated above the petitioner-workmen were paid statutory bonus whereas the petitioner-workmen are claiming bonus at the rate of 16.66% for which there is no evidence on record to the effect that at any point of 11 time such bonus was paid to the petitioner-workmen. WW.1 in his evidence was not able to depose how the petitioner-workmen would be entitled to bonus at the rate of 16.66%. It is not the case of the petitioner that such bonus was paid to the workers at Bangalore Unit and the same was discontinued subsequently. The material produced such as annual report of the Company would not indicate the payment of bonus at the rate of 16.66% but would indicate the payment of statutory bonus. The annual report would show the payment of bonus to various Units of the respondent - Management. The evidence of WW.1 would show that the petitioner has not produced any document showing payment of 16.66% bonus except producing the Bombay High Court judgment, which would have no application to the Bangalore Unit of the respondent - Management. Further issue of negotiation of Charter of Demands would not arise for consideration since WW.1 in his evidence has admitted that there was no production from 01.12.1991 and subsequently there was 12 closure of the unit. The said closure of the unit was subject matter of writ petition and writ appeal No.1924 of 1998 which was concluded by order dated 19.04.2006.
9. For all the aforesaid reasons since no ground is made out to interfere with the order of the learned Single Judge, both the appeals are dismissed.
Sd/- Sd/-
JUDGE JUDGE
NG*
CT:bms