Calcutta High Court
Biecco Lawrie Sramik Karmachari Union ... vs Biecco Lawrie Ltd. And Ors. on 5 February, 1988
Equivalent citations: (1988)2CALLT26(HC)
JUDGMENT Paritosh Kumar Mukherjee, J.
1. This writ petition was virtually moved on behalf of Biecco Lawrie Sramik Karmachari Union and three others, for issue of appropriate writ against respondent Company challenging withdrawal and/or discontinuance of an amount of Rs. 90 drawn by the labour force and subordinate staff of Biecco Lawrie Limited (hereinafter referred to as the Company), which they were receiving, as part of their attendance bonus since 1983, in terms of a settlement arrived at between the parties, in terms of Section 18 of the Industrial Disputes Act, 1947.
2. At the time of admission of the writ petition on June 29, 1987, Sushanta Chatterjee, J, did not grant any interim order, but directed this matter to be disposed of as a 'Contested Application' after 6 weeks.
3. Thereafter, the matter came up before me for disposal after completion of the respective affidavits.
4. Facts of the instant case are as follows :
The petitioner No. 1, Biecco Lawrie Sramik Karmachari Union is a registered Union and other three petitioners are its office bearers, being the General Secretary, Joint General Secretary and the Secretary. The management of the Company was taken over by the Government in the year 1972, and since then, it has been carrying on business as a Central Government enterprise and it had 900 labour force and sub-staff and about 200 clerical and other staff and the workmen are working in the factory premises and the offices within the compound of premises No. 6, Mayurbhanj Road, Calcutta-23 and P-54, Hide Road, Extension, Calcutta-88.
5. After certain negotiations between the Company and the Union, it was agreed in the year 1983, that the respondent Company would introduce and grant an amount of Rs. 90 per head per annum calculated @ Rs. 7.50 per month, provided one has had the minimum attendance of 75% in the month in question to the labour force and subordinate staff, as part of their attendance bonus and since such introduction and grant of the said amount of Rs. 90 per annum each of the labour' force and the subordinate staff under the respondent No. 1 had been drawing the same till 1986, and according to the writ petitioner Union it has thus become a 'condition of service' and/or customary concession and/or privilege or usage.
6. It is further the case of the writ petitioner that the Working President of the petitioner No. 1, Mr. Ramesh Chandra Bose received a letter, dated February 27, 1987, from the respondent No. 2, the Administrative and Personnel Manager of the Company, informing that the said benefit and/or customary concession and/ or privilege or usage of the staff has been withdrawn with effect from January 1, 1986, on the plea of granting of leave travel assistance of Rs. 150 per Calendar year for self and family of the labour force and the subordinate staff.
7. Such withdrawal of bonus has been impugned in the instant writ petition.
8. Mr. Sourendra Prasad Talukdar, learned Advocate appearing in support of the petitioner Union submitted that grant of such amount of Rs. 90 since 1983, as a part of attendance bonus has got the sanction of some sort of "condition of service" and the same cannot be altered unilaterally to the prejudice of the Writ petitioners.
9. Mr. Talukdar submitted that by withdrawing the amount of Rs. 90, the employer has not complied with the provisions of Section 9A of the Industrial Disputes Act, 1947, which specifically' provides for that no employer, who proposes to effect any change in the condition of service applicable to any workman in respect of any matter specified in the IV Schedule, shall effect such change :-
(a) without giving any workman likely to be affected by such change, a notice in the prescribed manner or the nature of change proposed to be effected ; or
(b) within 21 days of giving such notice.
10. In the second place, he submitted that withdrawal and/ or discontinuation of the said sum of Rs. 90 as a part of attendance bonus, without giving any notice, and thereby affecting the condition of service, was arbitrary and illegal.
11. Next he argued that adjustment of Rs. 90 with newly introduced leave travel assistance granted to the labour force and subordinate staff under compulsion by the respondents, is arbitrary, illegal and without any basis.
12. Dr. Monotosh Mookerjee, learned Advocate, on the other hand, appearing on behalf of the Company opposed the grant of prayers made in the writ petition and has relied on the affidavit affirmed by Rabindra Chatterji, former Administration and Personnel Manager of the respondent Company.
13. At the very outset, he submitted that the points raised in the present writ petition cannot be adjudicated in this forum, that is, in the writ jurisdiction, as they have-got other remedies by taking recourse to reference under Section 18 of the Industrial Disputes Act, or they might take recourse to remedy under Section 36A of the Industrial Disputes Act, which gives power to the appropriate Government, to interpret any provisions of an award or settlement, if any difficulty arises.
14. On the preliminary point, in the second place, he submitted that in any event, the petitioners are not entitled to challenge the validity or otherwise of the settlement, dated February 27, 1987, as arrived at between the parties, which was represented by Biecco Lawrie Employees' Union, for which the petitioners have got other reliefs under the said agreement.
15. The aforesaid specific preliminary objections have been taken in paragraphs 5 and 6 of the affidavit.
16. After placing the preliminary objections, Dr. Mookerjee has placed reliance on the memorandum of settlement, which has been annexed as Annexure 'A' to the said affidavit and also has drawn my attention to item No. 5.2 of the Terms of Settlement, which is as follows :-
"5.2. This settlement shall cover all permanent labour force (Unskilled, Semi-skilled, Skilled, Highly Skilled, Head Mistries, Leading Hands, Progress Chasers and Inspectors, etc.) and Subordinate Staff (Peons, Security Guards, Head Durwans, Drivers, Coolis, Canteen Boys, Sweepers and Gardeners, etc.) of the Company."
17. He has also drawn my attention to Clause 5.4, being Reimbursement of leave travel assistance, which is to the following effect :-
"5.4. All permanent labour force and subordinate staff, who actually attended work for 240 days or more during the calendar year will be granted leave travel assistance of Rs. 150 per calendar year for self and family effective from 1-1-1986."
18. In reply to this preliminary point, Mr. Talukdar, however, submits that as the petitioners were not parties to the settlement, the petitioners are not bound to follow the said memorandum of settlement.
19. In my view, that argument of Mr. Talukdar cannot be accepted in view of the law laid down by the Supreme Court in the case of Tata Engineering & Locomotive Company Limited v. Their Workmen, , wherein the Supreme Court has held that if the settlement had been arrived at between the company and the Union of the workers by a vast majority of the concerned workers with their eyes open and was also accepted by them in its totality, it must be presumed to be just and fair and not liable to be ignored merely because a small number of workers were not parties to it or refused to accept it.
20. To meet this position, Mr. Talukdar has, however, relied on a judgment in the case of General Manager, Security Paper Mill, Hosengabad v. R. S. Sharma, reported in Labour and Industrial Case 1986, page 667, wherein a distinction has been made between a settlement arrived at in the course of conciliation proceedings and a settlement arrived at by agreement between the workmen and the employer other than in conciliation proceedings.
21. In any event, if there is any interpretation of settlement involved, as in the present case before me, the parties are at liberty to take recourse to the provision of Section 36A of the Insustrial Disputes Act, 1947, which runs as follows :-
"36A. Power to remove difficulty - If, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such labour court, tribunal or national tribunal, as it may think fit."
22. On the point of maintainability of the writ petition, for withdrawal of any privilege, Mr. Talukdar has drawn my attention to the observation of a Single Judge of this Court in the case of In re : Gurudas Chatterji v. State Bank of India reported in 1982 Eastern Law Reports, Calcutta 325, wherein by the judgment dated August 13, 1982, G. N. Ray, J, held that mere withdrawal of privilege will not amount to change in service condition, until such privilege having been allowed to be enjoyed by the employees over a long space of time and becomes a condition of service.
23. In my opinion, that judgment will be of no assistance to Mr. Talukdar, as the grant of Rs. 90 in terms of the settlement was being made available for a temporary period, which has been withdrawn, in lieu of further privilege, which has been accepted as a part of settlement as noted hereinabove. As such, in my view, it is not for this court to interfere and to see as to whether such withdrawal was fit and proper or unjust, as it had not conferred any permanent right to the petitioners.
24. In this context, I may also refer to the statements made in paragraph 11 of the affidavit, affirmed on behalf of the Company wherein the deponent had stated that the discussion, negotiation and settlement in some cases, had been taken place in the past between the petitioners and the respondents with regard to some disputes and/or grievances of the employees' of the respondent No. 1 and the petitioner No. 1 did not represent the substantial number of labour force and sub-staff and clerical staff of the respondent No. 1 at the material point of time when the dispute was amicably settled by the memorandum of settlement dated February 27, 1987, as arrived at between the respondent No. 1 and their workmen.
25. That being the factual position, this court should not pronounce any opinion on the same in the present writ petition.
26. In the result, the writ petition is entitled to be dismissed.
27. I make it clear that this will not prevent the writ petitioner union and other office bearers to agitate their grievance in appropriate forum, including raising dispute, taking recourse to conciliation, and reference before the State Government, and in accordance with law.
The writ petition is thus dismissed.
There will be no order as to costs.