Madras High Court
Pandian Roadways Corporation Ltd. vs Principal Labour Court And Ors. on 23 July, 2001
Equivalent citations: (2002)ILLJ111MAD
JUDGMENT E. Padmanabhan, J.
1. This writ appeal preferred under Clause 15 of Letters Patent has been preferred against the order of the learned single Judge, dated October 27, 1993, made in Writ Petition No. 534 of 1995 on the file of this Court.
2. Heard Ms. Narmada Sampath for Sri Vijayanarayanan for the appellant. Ms. Kalaiselvi learned Special Government Pleader for the second respondent and Ms. Kamala Priya for Sri D. Saravanan for respondents 3 to 70.
3. The appellant is a State Transport undertaking and there is no dispute that it is amenable to the writ jurisdiction as other authority under Article 12 of the Constitution.
Respondents Nos. 3 to 70 are the workmen employed in the appellant-Corporation. The said workmen relied upon G.O. Ms. No. 28 Transport Department, dated January 7, 1981, and G.O. Ms. No. 26, Transport Department dated January 5, 1982, claimed performance incentive while other workers are being paid performance incentive for the period in dispute.
The quantum of performance incentive has been fixed at Rs. 300 for each worker who has put in attendance for more than 200 days in a calendar year. In other words, payment of Rs.
300 towards performance incentive is subject to the conditions or stipulations contained in the said Government Order.
4. One of the conditions being that if few members of the staff of any category indulge in strike or stoppage of work, such category or division of staff are not eligible for payment of performance incentive while other categories are eligible for payment. Respondents Nos. 3 to 70 filed a claim petition under Section 33-C(2) of the Industrial Disputes Act before the first respondent-Labour Court. The first respondent, Labour Court, after contest, and after considering the case of the respective parties, dismissed the claim petition filed by respondents Nos. 3 to 70 in C.P. Nos. 186/83 to 252/83 and 259/83.
5. Being aggrieved, the workers filed W.P. No. 534 of 1995 praying this Court to issue a writ of certiorari calling for the records relating to G.O. Ms. 26 Transport Department, dated January 5, 1982, from the file of the Government, of Tamil Nadu and the records in C.P Nos. 186/83 to 252/83 and 259/83 from the file of the Principal Labour Court, Madurai, after striking down the conditions laid down in G.O. Ms. 26 Transport Department, dated January 5, 1982, as opposed to law, quash the common order, dated December 31, 1983, passed by the first respondent, Labour Court in the said claim petitions and issue consequential directions directing management to pay performance incentive.
6. The writ petition was resisted by the management as well as by the Government of Tamil Nadu contending that the restrictions imposed is valid is not liable to be interfered, is not violative of Articles 14 or 16 or Article 21, that it is a policy decision of the State Government and incentive being a privilege, the workmen cannot insist that they shall be paid performance incentive irrespective of their failing to comply with the stipulations or conditions or restrictions imposed in the Government order by which Government Order performance incentive had been sanctioned. It was also stated that payment of performance incentive to other workers have been made as a matter of concession taking into consideration of their conduct and these 70 workmen have been denied performance incentive since they have resorted to illegal strike and they have forfeited their right to claim performance incentive in terms of the Government order.
7. The Labour Court disallowed the claim of the workmen as the petitioners factually resorted to strike during the relevant period and by their participation they forfeited their right to performance incentive. In other words, the respondents 3 to 70 are the persons, who actually resorted to strike, while other workers did not resort to strike, but there was stoppage of work for more than four days yet the remaining workers have been paid performance incentive as a concession. The first respondent, Labour Court, disallowed the claim and also took the view that the classification is reasonable and the denial of performance incentive to the respondents 3 to 70 is fair and not unreasonable, besides pointing out that the restriction imposed when not complied with, the workers are not entitled to claim performance incentive.
8. The workers contended that conditions or restrictions incorporated in the impugned order are, arbitrary and the conditions or restrictions imposed should be declared invalid. The second respondent-State Government, sought to sustain its order and contended that the restrictions or conditions imposed in no way contravenes Article 14 or Article 21 or any other Constitutional provision as it is only a policy decision and performance incentive has been introduced and it is not part of the salary or wages nor it is a condition of service and, therefore incentive being a privilege has to be earned by complying with the conditions and it is not violative of Article 14 of the Constitution.
9. However, the learned singe Judge, while holding that the conditions imposed in the Government order are arbitrary, unreasonable and it offends Article 14, declared that the conditions imposed in the Government order is invalid as the conditions are not severable. The condition that if a few number of the staff of any category indulge in strike/work stoppage, that category will not be eligible for payment of performance incentive had been struck down as arbitrary and violative of Article 14 of the Constitution. In that view of the matter, the learned single Judge allowed the writ petition and consequently directed the management of the Transport Corporation to pay the incentive to all the workmen in proportion to the attendance put in and the same as provided in the Government order. Being aggrieved by the said order, the present writ appeal has been preferred.
10. Pending the writ appeal, this Court granted interim stay of the order passed by the learned single Judge and the stay has also been made absolute.
11. Ms. Narmada Sampath, learned counsel appearing for the appellant, Transport Corporation, contended that the conditions imposed in the Government Order are not arbitrary nor offend Article 14 nor are discriminatory. The learned counsel further contended that the learned single Judge proceeded on the basis that performance incentive is a right or condition of service and, therefore, there cannot be any classification among the workers as those who resorted to strike and those who have not resorted to strike. It is further contended that such classification among the workers of the appellant-Corporation is not discriminatory nor it is violative of Article 14 nor the conditions imposed take away any of the vested rights of the workmen nor they are being deprived of their due salary or wages for the services rendered by them, but they forfeited their right to performance incentive by their resorting to strike, be it legal or illegal.
12. The learned counsel further contended that the appellant, Corporation operated public transport service and if in the operation wing or other wing even a few workers resort to strike, or stoppage of work for few hours, it results not only in dislocation of work, but also results in dislocation of essential public transportation and this is a chain reaction which jeopardises the entire public transport system for the day or the part of the day or one or more days as the cases may be. The condition imposed, according to the learned counsel is not discriminatory and it is not violative of Article 14 of the Constitution.
13. Per contra, the learned counsel for the workmen, Ms. Kamala Priya contended that the condition offends Article 14, it is discriminatory and workers employed in the appellant-Corporation shall not be discriminated and they shall not be denied of their performance incentive by relying upon the conditions as they have also put in a number of days of work, which would entitle them to performance incentive, Ms. Kamala Priya, further contended that resorting to strike or stoppage of work, which is also permissible and legal, shall not be a ground to deny the performance incentive and such a condition is discriminatory and no interference is called for with the view taken by the learned single Judge.
14. The learned counsel for the appellant raised certain technical objections, namely:
"(i) The workers who filed a number of claim petitions cannot maintain a single writ petition.
(ii) The workers cannot maintain a writ petition with multiple prayers.
(iii) The claim petition under Section 33-C(2) is not maintainable as payment of performance incentive is not a condition of service and the workers have to raise an industrial dispute alone."
15. Per contra, Ms. Kamala Priya, learned counsel for respondents Nos. 3 to 70, contended that all these contentions have not been advanced before the learned single Judge and it is not open to the appellant to raise these contentions at this stage.
16. Prima facie speaking we find that there is force in the contentions (sic) and the technical objection raised by Ms. Narmada Sampath as challenging the rejections of Claim Petitions Nos. 186/83 to 252/83 and 259/83, a single writ petition has been filed. Further in the writ petition, multiple reliefs have been sought for. However, on that score, we do not propose to negative the contentions advanced by the workmen without examining the validity of the Government Orders. Further there is no controversy that the workmen (respondents Nos. 3 to 70) have resorted to strike and they have not complied with the restrictions or conditions imposed for payment of performance incentive. There is no factual dispute and it is a finding of fact recorded by the Labour Court, though we are yet to examine the question whether an application under Section 33-C(2) is maintainable or not.
17. At any rate, there is no dispute that the workmen, namely, respondents Nos. 3 to 70 have resorted to strike and they are placed different from other workers who have been paid performance incentive. Therefore, once we decide the validity of the restrictions imposed in the Government Order, it may not be necessary to examine the other issues. If the restrictions imposed is upheld, then we have to interfere with the order passed by the learned single Judge and if the restrictions are declared unconstitutional or an affront to Article 14, then we have to confirm the order passed by the learned single Judge. In this background we are to examine the respective contentions. The following points arise for consideration:
"(i) Whether the impugned restrictions or stipulations or conditions imposed in the Government Order as to payment of performance incentive are arbitrary or discriminatory or violative of Article 14 of the Constitution and liable to be quashed?
(ii) Whether the order of the learned single Judge is liable to be interfered?"
18. Before examining the point, it is essential to extract the stipulations which have been set out in the scheme provided by the State Government for the payment of performance incentive to the employees of the transport undertakings. In supersession of earlier Government Orders, the State Government issued G.O. Ms. 26 Transport Department, dated January 5, 1982, directing that the employees of passenger and engineering corporations in the State be paid "performance incentive".
19. The conditions stipulated for payment of performance incentive to the employees of the appellant-Corporation reads thus:
"The conditions for payment of the 'performance incentive' to the employees of all other State Transport Passenger/ Engineering Corporations shall be, subject to the following conditions:
(1) The employees in depot/Branch/Central Workshop in Transport/Engineering Corporations grouped under the following three categories shall be considered as a unit each for the purpose of payment of performance incentive;
(i) operating staff (drivers conductors);
(ii) technical staff; and and
(iii) administrative staff.
If members of the staff of any category indulge in "strike/work stoppage that category of staff alone are not eligible for payment of performance incentive and the other categories are eligible for payment.
(2) There should not have been any work stoppage/strike by the categories of staff mentioned in condition No. (1) during the year under consideration. The term 'work stoppage' shall not include stoppage due to general hartal, public agitation or such other reasons for which the employees are not directly responsible.
(3) However, if any work stoppage or strike had taken place by any category of staff, lasting 'for not more than 4 hours' at a time during the year further such work stoppage or strike had taken place not more than once during that year, it will be treated as 'strike free' for payment of performance incentive but the payment should be made as detailed below:
(a) If the strike is withdrawn in less than one hour, the employees are eligible for payment of 75 per cent of the full amount announced during that year;
(b) If the strike it withdrawn after one hour and before four hours the employees are eligible for payment of 50 per cent of the amount announced that year;
(c) If the strike/work stoppage exceeds four hours on any day during that year, it will be treated as strike and the employees are not eligible to draw the performance incentive; and
(d) If any category C of staff indulge in strike/work stoppage for more than one time during that year, it will be treated as strike and the employees are not eligible for payment of incentive. For example, if any category of staff indulge in strike for half an hour for the first time and subsequently for half an hour on any day during that year, the categories of staff who indulged in such strike are not eligible for payment of performance incentive.
(4) The employees should be on the rolls on the last day of the year (i.e.) December 31 of every year.
20. The challenge in the writ petition is to the following portion of the condition, namely:
"If members of the staff of any category indulge in strike/work stoppage that category of staff alone are not eligible for payment of performance incentive and the other categories are eligible for payment.
(2) There should not have been any work stoppage/strike by the categories of staff mentioned in condition No. (1) during the year under consideration. The term 'work stoppage' shall not include stoppage due to general hartal public agitation or such other reasons for which the employees are not directly responsible."
21. It is fairly stated that a section of the workers of the appellant-Corporation issued a strike notice on January 5, 1982 and went on strike on January 19, 1982. It is not in dispute that respondents Nos. 3 to 70 were the only persons who had taken part in the strike and the other workers had not participated in the strike. The appellant-Corporation paid performance incentive to all the workers who had not taken part in the strike, but withheld the same in so far as respondents Nos. 3 to 70 are concerned. This factual matrix is not in dispute.
22. According to the learned single Judge, the condition that even if any one of the workers of a category indulge in strike/ work stoppage, the entire category will lose the performance incentive and in the view of the learned Judge, it is a collective punishment to the whole category. In that view of the matter, the learned Judge held that the condition is wholly arbitrary and unreasonable and they do not satisfy the test prescribed under Article 14 of the Constitution of India. The learned Judge relied upon the pronouncement of the Apex Court in Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress in support of his conclusion.
23. We have given our anxious consideration and we are unable to sustain the view taken by the learned single Judge, as the learned Judge lost sight of the fact that what is sought to be withdrawn by the condition being performance incentive, which is not part of the emoluments or salary or wages. The performance incentive is a policy introduced by the State Government to see that the transport workers do not go on strike or resort to stoppage of work. If any member of a particular category, namely, operating staff/technical staff/administrative staff goes on strike, then the work in the particular section is paralysed and there is a chain of events which leads to total break down of the public transport system for the day or days in question. If operating staff in the first shift resort to strike or resort to stoppage of work then the buses cannot be operated even if one or some operating staff, namely, driver or conductor resort to strike the particular bus or set of buses could not be operated till the second batch of workers come for the next shift. Thus it is clear that stoppage of work by of employees in the particular category dislocates the operation of the public transport system, which not only results in loss to the appellant-Corporation but also throws the transport system haywire leading to inconvenience and bottlenecks to general public with such an object and to avoid such contingency only, the policy of performance incentive had been introduced.
24. It has to be pointed out that payment of performance incentive is not a condition of service nor it has been provided for in the Standing Orders or service regulations. It has been introduced by the State Government to avoid strike/stoppage of work. The performance incentive is not a part of the salary or emoluments or wages and, therefore, imposing a condition that in case of strike or stoppage of work for a particular period by even one or more of a particular category, others in the category will also be deprived of the performance incentive, which is a necessary concomitant evil, which follows when one or more of a particular category resort to strike or stoppage of work.
25. We have to point out that performance incentive provided for under the scheme is neither a right nor part of wages which the workers earn by virtue of the conditions of service. Performance incentive is not part of basic wages. The individual workman has no right to such performance incentive automatically unless he satisfies the conditions. Performance incentive, on the facts of the case, is an assurance to the workmen as a means of procuring their regular attendance with the ultimate object of increasing efficiency of transport service. It as an incentive for regular attendance. The same not payable to the workmen at the time of joining the employment. It is payable to a workman who had put in continuous service for a specific period and who was loyal to the management by putting in the required attendance and also by not resorting to strike or stoppage of work and for that only an incentive is provided. This incentive is not part of wages.
26. There is a basic difference between the performance incentive and the minimum wage or contractual wage or wage agreed in terms of settlement. Every workman as a condition of service is entitled to either the minimum wage or contractual rate of wage or the rate at which settlement has been concluded from the very first time of his joining the employment, whereas, the performance incentive has to be earned by putting the required attendance and by not resorting to strike or stoppage and only thereafter it accrues and payable for attainment of standards stipulated.
27. On the facts, the performance incentive or attendance incentive or attendance bonus as may be loosely called is payable for regular attendance for a specified period and remaining loyal to the management. This scheme of payment of incentive is to secure regular attendance of the workmen. It is nothing but a conditional payment made to the workmen as a means of making their services available or increasing production or maintaining the operation of the fleet without a break.
28. In Titaghur Paper Mills Company Ltd. v. Its workmen , the Apex Court held that the payment of production bonus is in the nature of incentive and is not a condition of service nor it is part of wages. The second view of the Supreme Court in Titaghur Paper Mills Company Ltd. v. Its workmen had been followed by the Supreme Court in Manganese ore (India) Ltd.
v. Chandilal Sadu and others . In this pronouncement it has been held that such payment is in the nature of incentive and it cannot be treated as part of the wages either minimum or at the contractual rate or at the rate arrived at by way of settlement under Section 18(1) or Section 12 of the Industrial Disputes Act.
29. The operation of the said transport undertaking depends upon the regular attendance put in by the workers, be it a driver or conductor or a mechanic or a fitter or electrician or administrative staff as the case may be as the appellant-Corporation has to maintain the operation of public transport system from early morning to late in the night daily and at times during nights as well. Therefore, the incentive had been provided for and in the event of any break in the chain, at results in a chain of delays or chain of breaks in the operation of the fleet owned and operated by the appellant-Corporation. Therefore even if one or more of the drivers or conductors resort to stoppage of work or strike, the result is that the operation for the shift or the day is paralysed and till it is set at right, the Corporation losses heavily and the travelling public suffer.
30. To maintain uninterrupted public transport service is the object for which the performance incentive and imposing conditions that all the workers in the particular section or category shall not resort themselves either to strike or stoppage of work, be it legal or illegal is definitely stipulated to achieve the said objective and deviation or relaxation or striking down will defeat the very scheme or its object.
31. In the present case, there was no dispute regarding the rights of the parties and it is admitted by the parties that the wages, be it the minimum or contractual or terms of settlement were being paid, but in respect of workers who resorted to strike/stoppage of work, incentive alone had been denied. Such denial is not for extraneous consideration or purposes but towards achieving the object.
32. The payment of wages does not normally depend upon the out- turn of work of a particular employee or group of employees in a particular section or category. On the other hand, payment under an incentive scheme is really by way of an additional cash payment for giving efficient performance or higher production, which ultimately goes to increase the maintenance of service or production in the establishment or factory. Such payment of incentive is really related to production higher than the quantity that would otherwise have been normally produced or maintained.
33. In Muir Mills Company Ltd. v. Their Workmen and Anr. , the Apex Court held thus at p. 590 of LLJ:
"Thus understood 'basic wages' never includes the additional emoluments which some workmen may earn, on the basis of a system of bonuses related to the production. The quantum of earnings in such bonuses varies from individual to individual according to their efficiency and diligence, it will vary sometimes from season to season with the variations of working conditions in the factory or other place where the work is done, it will vary also with variations in the rate of supplies of raw material or in the assistance obtainable from machinary. This very element of variation excludes this part of workmen's emoluments from the connotation of 'basic wages.'"
34. When officer of Reserve Bank of India from other regions, when posted at Gauhati were being paid an incentive as against those officers or employees who belong to the North-Eastern region employed in the very same Reserve Bank of India Branch, the payment of incentive to the Officers of the Reserve Bank of India posted at Gauhati by transfer from other regions was challenged as violation of Article 14 of the Constitution of India. While repelling the said contention KAMA, J. speaking for the Apex Court in Reserve Bank of India v. Reserve Bank of India Staff Officers' Association and others , held that it is not discriminatory nor it is unlawful. In that context it has been held thus, in Para. 4, at page 65:
"It is the correctness of the view taken by the High Court which is sought to be impugned before us in this appeal. We are of the opinion that the High Court was, with respect, in error in taking the view that officers from the North-Eastern region who were posted at Gauhati, either on transfer or otherwise, suffered the same hardships as officers from other regions transferred to Gauhati. The hardship and inconvenience suffered by an officer of the appellant-bank who was transferred to Gauhati from regions other than the North-Eastern region, would certainly be more acute than those suffered by local officers posted at Gauhati. His mother tongue might completely be different in speech and, even as far as the script is concerned, from the language used by the local people at Gauhati. He and his family members would, therefore, find it very difficult to communicate freely with the local people. His children might find it difficult to get admission to a school and pursue their education at Gauhati. They would be unfamiliar with the surroundings and the customs of the people. The hardships faced by an officer say from the western or southern regions of India or North India posted at Gauhati would be qualitatively as well as quantitatively greater than the hardships faced by the local officers posted at Gauhati. It may be that some of the officers coming from the North-Eastern region may also face considerable hardships when posted at Gauhati but the fact that there might be a few such officers would not render the payment of special allowance, exclusively to officers transferred from distant regions incriminatory and bad in law. The High Court was, therefore, not justified in coming to the conclusion that all the officers of the appellant-bank posted at Gauhati suffered from the same degree of hardship. A person transferred from outside the North-Eastern region to Gauhati, would normally have to face more severe difficulties than an officer from the North-Eastern region posted in Gauhati or at the least, the appellant bank could reasonably take that view. Moreover, as pointed out by the appellant-bank in the counter that they were finding it difficult to persuade their officers from outside to accept transfers to Gauhati and it is common knowledge that an office of a large bank cannot be run efficiently by officers, a large number of whom have been posted there by transfers against their will and under the threat of disciplinary action. The work done by them could hardly be expected to be satisfactory. After all the appellant, the Reserve Bank of India, is a banking institution and if in the interest of efficiency and proper working it bona fide took the decision, in the circumstances set out earlier to grant some extra benefits to the non-local officers transferred to Gauhati, with a view to maintain efficient working of its unit at Gauhati in our opinion, they cannot be treated as being a quality of any unlawful discrimination, Payment of incentive to an officer hailing from other region and posted to Gauhati in the North-Eastern region had been held to be not violative of Article 14, even though officers hailing from the very same North-Eastern region and working at Gauhati were not being paid incentive, it has been held to be not discriminatory.
35. Equal pay for equal work is an accepted principle. At the same time equal pay would depend on the nature of work, turn over of the work, performance and co-operation in maintaining service and it cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. The concept of equal pay for equal work is contained in Article 39(d) of the Constitution, a directive principle and it is a concomitant of Article 14. Although the doctrine of equal pay for equal work does not come within Article 14 yet any classification which results in unequal pay for persons doing the same work will be violative of Article 14. In case if there is no discrimination the doctrine of equal pay for equal work as contemplated by Article 39(d) has no application, nor it is enforceable as provided in Article 37. In this respect in Supreme Court Employees' Welfare Association v. Union of India their Lordships of the Supreme Court held thus:
"It follows from the above decisions that although the doctrine of equal pay for equal work does not come within Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay-scales and such classification is unreasonable and or if unequal pay is based on no classification, then Article will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work. In other words, where unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of equal pay for equal work, as envisaged by Article 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved, the doctrine of equal pay for equal work will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it as not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of equal pay for equal work, as envisaged by Article 39(d) of the Constitution, has no manner of application, nor is it enforceable in view of Article 37 of the Constitution. Dhirendra Chamoli v. State of Uttar Pradesh is a case of equal pay for equal work as envisaged by Article 14, and not of the abstract doctrine of equal pay for equal work."
36. In Markendeya v. State of Andhra Pradesh , their Lordships of the Supreme Court held thus, in pp. 175 & 176 of LLJ:
"In view of the above discussion, we are of the opinion that where two classes of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualifications, they would be entitled to equal pay. If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution, and the Court will strike down the discrimination and grant relief to the aggrieved employees. But before such relief is granted the Court must consider and analyse the rationale behind the State action in prescribing two different scales of pay. If on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility, and educational qualifications required for the relevant posts, the Court finds that the classification made by the State in giving different treatment to the two class of employees is founded on rational basis having nexus with the objects sought to be achieved, the classification must be upheld. Principle of equal pay for equal work as applicable among equals, it cannot be applied to unequals. Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the Court that invidious discrimination is practiced by the State in prescribing two different scales for the two classes of employees without there being any reasonable classification for the same. If the aggrieved employees fail to demonstrate discrimination, the principle of equal pay for equal work cannot be enforced by Court in abstract. The question what scale should be provided to a particular class of service must be left to the executive and only when discrimination is practised amongst the equals, the Court should intervene to undo the wrong and to ensure equality among the similarly placed employees. The Court however cannot prescribe equal scales of pay for different classes of employees."
37. The above principle of equal pay for equal work is well laid , well accepted and well settled. But in this case there is no quarrel that equal pay for equal work is being paid to the workers employed in the appellant-Corporation and in terms of the wage settlement wages are being paid and there is no quarrel in this respect. Therefore, by the imposition of stipulations in the scheme of performance incentive, the said doctrine of equal pay nor Article 14 is violated. The said doctrine of equal pay for equal work will have no application. As already pointed out we have held that the performance incentive is not part of the basic wages and denial of such performance incentive as per the guidelines and policy provided for by the State Government on the ground that the employees have resorted to strike or stoppage of work, which is a valid criterion and it is a relevant consideration to achieve the maximum production or optimum efficient operation of the buses and therefore denial of such performance incentive as provided for in the Government Order is neither arbitrary, nor it is discriminatory, nor the workers are treated differently nor it is an affront to Article 14 as none of the rights of the workers are being deprived.
38. The learned single Judge had proceeded on the premise as if a right has accrued and that it being taken away or deprived and that the particular or group of workers are treated differently which approach of the learned single Judge, we are unable to persuade ourselves to sustain. The learned single Judge had further proceeded on the basis that the guidelines or the restriction imposed for payment of performance incentive is arbitrary. In our considered view it cannot be sustained as there is neither discrimination, nor there is any arbitrariness as it is the team work of the particular section or category or group which maintains the public operation and failure on the part of any one or more Of the members of the said group or category results in dislocation of the buses operated by the appellant-Corporation. For the above reasons and in the light of the above discussion, we are unable to sustain the view taken by the learned single Judge.
39. Incentive being a concession and such a concession as subject to the conditions stipulated therein and there being no fundamental right, nor it is part of terms or conditions of service, the respondents cannot contend that denial of incentive as arbitrary. Admittedly the workers are being paid full wages and what is being paid as per the scheme is an incentive for performance without interruption and such performance incentive is an ex gratia payment made with an object and such object as sought to be achieved by imposition of conditions, which are reasonable. The conditions have not been challenged. However, what is being challenged is denial of incentives in the event of a portion of one or more workers in a particular category resorting to stoppage of work or strike, which eventuality definitely results in fall in standards in the operation of passenger buses.
40. This condition has got a nexus with the object sought to be achieved and such a condition is neither arbitrary nor discriminatory as the incentive is being paid to the entirety of the section or category of employees as has been categorised in the Government order as there is a basis for such categorisation and even if there is a dislocation by some or few of the employees in that category, the production or the normal operation of the bus breaks down. Being a concession and not forming part of the basic wages payable for the work turned out, the view of the learned Judge that the condition is discriminatory cannot be sustained.
41. In the circumstances we allow the writ appeal set aside the order of the learned single judge. Consequently the writ petition is dismissed. Admittedly the writ petitioners have abstained from work by way of strike or stoppage of work and this factual position is admitted and this has also been recorded by the learned single Judge. That being the position, we see no reason to interfere with the rejection of claims by the Labour Court.
42. In the result, the writ appeal is allowed and the writ petition filed by respondents Nos.
3 to 70 is dismissed. Consequently, connected C.M.P. is also dismissed. The parties shall bear their respective costs.
43. Before parting, we must place on record the valuable assistance rendered by Ms. Narmada and Ms. Kamala Priya, the two junior members of the Bar.