Delhi High Court
Union Of India vs C.P.W.D. Mazdoor Union And Ors. on 28 January, 1992
Equivalent citations: 47(1992)DLT108
JUDGMENT S.B. Wad, J.
(1) This writ petition is filed by the Union of India against the Award of the Umpire Shri M.G. Wanare, Deputy Chief Labour Commissioner (Central), New Delhi, under Section 10-A of the Industrial Disputes Act,1947, published in the gazette under Section 17 of the Industrial Disputes Act on 15.2.1988.
(2) The dispute relates to re-categorisation/re-classification of work-chargestaff and regular classified categories of Cpwd on the analogy of classificationof scheduled employment as per the schedule under the Minimum Wages Act,1947. There is a long-standing demand of the Cpwd worker (3) The two arbitrators disagreed on most of the demands of the workmen through their awards. Therefore, the Umpire rendered his Award. Theparties to the Agreement had agreed. "The majority decision of the arbitratorsshall be binding on us and in case the arbitrators are equally divided in theiropinion, the Award of the Umpire shall be binding on us."
(4) Broadly speaking, the Umpire has rectagoriesed some unskilledworkmen into skilled workmen and some skilled workmen into highly skilledworkmen. The Umpire has followed the principle of a certain length of servicefor the purposes of getting into higher category, such as some skilled and highlyskilled. In some cases the trade test for the purposes of promotion has beenabolished. In certain categories of workmen method of promotion and theratio for the promotees and direct recruits has been prescribed. The Umpirehas directed that the re-categorinsation should be notionally fixed from 1.1.1973and the arrears should be paid to the workmen from 1.4.1981. Shri G.K.Khamani, Arbitrator, had recommended that the Award should be given effectto from 1.1.1986, the date from the which the IVth Pay Commission recommendations were made applicable to the Central Government employees. Onthe other hand Shri Vats, Arbitrator, had recommended that the effect to theAward for the purposes of arrears also should be from 1.1.73. The not effect ofthe Award of the Umpire is that the Central Government will have to payabout Rs. 250 crores by way of arrears. The Umpire has recommenned that 50per cent of the arrears of wages should be deposited in the respective ProvidentFund accounts/National Saving Certificates ; and 5 per cent of the amount ofarrears should be deposited in the Prime Minister's Relief Fund for the purposesof using it for drought relief. The respondent Union had accepted this recommendation. The Umpire has further directed that 5 per cent of the arrearsshould be made over to the respondent Union as Union Fund. The Umpire hasrejected the Union's demand of 15 per cent of the arrears as Union Fund.
(5) The Award of the Umpire is challenged by the Union of India onseveral grounds. The first submission on behalf of the Union of India is that thepayment of arrears from 1.4.1981, as directed by the Umpire, would involvehuge financial payment of over Rs. 250 crores, which is an unbearable burdenon the Central Government, particularly in the light of the precarious financial/economic resources of the Central Government. It is also submitted that theAward will have wide repercussions on other workers in the other CentralGovernment departments as they will also claim the same wages are paid to theworkers of CPWD. It is submitted that the Award should be given effect tofrom 1.1.1986, the date from which the IVth Pay Commission recommendationshave been made applicable to the Central Government employees. The Counselfor the respondent Union, however, strongly objects. He submits that as a matter of fact the 'dispute is pending since 1973 and, therefore, the arrears shouldhave been paid from 1.1.73. The Counsel further submits that in any case thisCourt should not interfere with the Award of the Umpire, which is now gazetted by the Government of India Under Section 17 of the Industrial DisputesAct. The Counsel further submits that Section 17A of the Act, which relatesto the commencement of the Award, empowers the Central Government todeclare that the Award shall not be enforceable if it is expedient on publicgrounds of national economy to do so. The Legislature, it is submitted, hasexpressly given the said power to the appropriate government, but if the government does not avail of the said power under Section 17A and merely publishesthe Award under Section 17 of the Act, the Court should be slow to interferwith the Award, particularly, in the extraoridinary jurisdiction of the writ petition. The Counsel has referred to certain decisions of the Supreme Court, layingdown that the Government should act as a model employer in a welfare state,acting under the constitutional mandate of socialism. On the other hand Counsel for the petitioners has relied upon the decision of the Supreme Court inDharwad District Pwd Literate Dally Wage Employees Association v. State ofKarnataka . In that case the Supreme Court had directed theregularisation of the daily rated employees appointed on or before 1984 to beregularised from 1.1.1990.
(6) Section 17A of the Industrial Disputes Act, gives wide powers tothe appropriate government to declare that the Award shall not becomeenforceable on the expiry of the period of 30 days from its publication if it isexpedient on public grounds affecting national economy to do so. It is true thatthe Central Government has not availed of this power and had merely published the Award as it is under Section 17 of the Act. The Award was publishedin 1988. It can be taken judicial notice of that the national economy has received a serious setback in the last three years, so much so, that it was on thebrink of collapse but for .the assistance received from the Imf and the WorldBank. It is not easy for any government not to give effect to an Award on theground of very precarious national economy, particularly where a large numberof employees (27,000 in this case) repeatedly resort to strikes and other intimidating tactics. It is true that in the Dharwad case the Supreme Court haddirected that the regularisation should be effected from 1.1.1990 although thedemand was pending for over a decade. In that case the Supreme Court haddirected regularisation of about 50,000 daily rated employees. The considerationthat weighed with the Supreme Court was very heavy financial burden of payment of arrears if the regularisation was to be directed from the date of theinitial demand. But that direction was given by the Supreme Court in a petitionunder Article 32 of the Constitution.
(7) Where the award is under Section 10-A of the Industrial DisputesAct and where the appropriate government has not exercised the power under section 17A, the Court should be slow to make major changes in the Award.On examination of all aspects of the matter, we have come to the conclusionthat the umpire has balanced the two extreme positions, one regarding paymentof arrears for 15 years and the other not to pay arrears at all. The date fixedby the Umpire for payment of arrears, i.e. 1.4.1981, is not arbitrary and isbased on the sound perception of the realities by the Umpire. The submissionsof the petitioner and the respondent union in this regard are rejected.The next submission on behalf of Union of India is that the Umpirehas pronounced the award on the matters not referred to in the arbitrationagreement. The first serious objection is that the matter in regard to MusterRoll employees, which are about 10,000 in number, was not referred to thearbitrators. The only two categories in regard to whom the reference was madewere "Workcharged and Regular Classified Establishments". There is good dealof merit in this submission. The arbitrators were not in a position of the FourthPay Commission to consider generally the conditions of service of all classes ofemployees, but their power was circumscribed by the exact terms of the agree-ment which formed the basis of the reference. The award, in so far as it coversMuster Roll employees, is null and void.
(8) Similar is the submission of the petitioners in regard to the criterionfor promotional posts laid down by the Umpire. The Umpire has recommendedthat in regard to Mason, Carpenter, Plumber, Lift Operator, Firemen Driver.Motor Lorry and Road Roller, Sr. Mechanic Ac & R and Sr. Operator, thereshould not be more than 25% of the direct recruitment. The Umpire has alsorecommended that there should be 50% direct recruitment for cable jointer andboilerman. From the award, we do not find any convincing reason as to whythe direct recruitment should be limited to the percentage given by the Umpire,There are various considerations which go into the decision as to what shouldbe the appropriate percentage of direct recruitment incorporating fresh bloodin the service. All the workmen are Government servants working the C.P.W.Dand are governed by statutory Rules 1n regard to seniority, promotion, etc.Since there was no specific reference in regard to the quota of direct recruitsand the promotees for the purposes of all the promotions, the finding of theUmpire is beyond the scope of reference and is, therefore, void and a nullity.
(9) The petitioners have attacked another general recommendationmade by the Umpire, namely, that all workmen classified unskilled should beplaced under semi-skilled category when the workman completes 5 years regularcontinuous service. The category of unskilled, semi-skilled or highly skilled hasmore relevance to the type of job or the work that is handled. Therefore, merework for five years in a particular category does not automatically qualify aperson to go to the higher ladder. If the job or the work remains the same, theprinciple of equal pay for equal work would certainly be affected. We agreewith the submission of the petitioner that the recommendation of the Umpire isunreasonable and likely to create legal difficulties in matters of equal pay forequal work.
(10) Another submission of the petitioner is that it was not a term ofreference to the arbitrator as to whether trade test in certain categories shouldbe abolished and the workmen should go into the next categories after completion of service of a certain number of years, say three or five. The submissionof the Union of India, namely that the Umpire has overstepped the terms ofreference in recommending abolition of trade test is correct. The general submission on behaif of Union of India namely that if trade test is abolished andif a workman is permitted to automatically go to the higher category, all incentive for efficiency and excellence will go from the service has a great merit. TheUmpire has over-looked this vital aspect generally affecting the service underC.P.W D. The Umpire's recommendations in this regard cannot be accepted.
(11) There are some other submissions made by the Union of Indiabefore the arbitrators/Umpire. It is submitted that the two CategorisationCommittees appointed by the Government in 1960 and 1973 had reviewed thecategories of workmen as mentioned in C.P.W.D. Manual Volume Viii andtherefore the demand of the workmen was unreasonable. C.P.W.D. MazdoorUnion, respondent No. 1, was not consulted by the Categorisation Committeeduring 1973 because that was not the recognised Union at that time. It wasthen submitted that when the reference was in relation to the recategorisationand re-calssification on the basis of the Minimum Wages Act, the arbitratorscould not have looked to similar categories in municipal organisations orpublic sector undertakings. Another objection on behalf of Union of Indiais that minimum wages fixed under the Minimum Wages Act are fixed for thedaily wages and they do not hold good for Workcharged/Regular Classified Estt. for whom regular pay scales and service conditions are fixed under thestatutory rules. The Umpire has not aceepted any of these submissions.When the Union of India, through C.P.W.D. Management, areed for thearbitration under Section 10A and agreed to the terms of reference, it cannotnow be said that the categorisation was already done by the CategorisationCommittee in 1973 and that the question cannot be re-opened after ten years.Once a reference is made to the arbitrator, they are free to consider theminimum wages in different establishments including municipal organisationsand public sector undertakings. .Such references are only for finding out thereasonable basis for fixing the wages and the categories of employment. Soalso, the rate fixed for the daily wagers under the Minimum Wages Act is agood starting point even for fixing wages for Workcharged/Regular ClassifiedEstt. because in no case their wages can be below that of the daily wagers.None of these submissions on behalf of the Union of India have any merit andthey are, therefore, rejected.
(12) As regards the apportionment of arrears, as directed by theUmpire, we are of the opinion that it requires some reconsideration.
(13) Since the worker's Union, respondent No. 1, has agreed that 5%of the arrears be deposited in the Prime Minister's Relief Fund for draughtreief, we do not think that we should vary this recommendation. We do notagree with the Umpire that 5% of the amount of arrears should be made overto the C.P.W.D. Union, respondent No. 1, unconditionally. The Umpirewas quite right in rejecting the demand of the Union for payment of 15% ofthe total arrears to the Union Fund. During the course of hearing, we hadfound that handing over about 12 crores of rupees to the respondent union is frought with great danger. Such large amount cannot be at the disposalmerely of the union leaders. We had, therefore, suggested to the parties thata trust be created treating the said amount of about 12 crores of rupees as acorpus. This corpus would fetch at least Rs. 1,20,00,000.00 (Rupees One croreand twenty lacs only) as annual interest. The said amount of interest shouldbe utilised for the welfare activities for the workmen. The fund should be awelfare fund for the benefit of all the workmen and should not be limited onlyto the workmen who are the members of the respondent No. 1 union. During the course of arguments, the case was adjourned from time to time in order to examiue various draft schemes. It was understood that all the workmenunions would have one representative and there would be equal number ofrepresentatives of the Union of India, for e.g. if there are three representativesof the workmen union, there would be three members on behalf of Union ofIndia managing the trust. It was also examined as to whether such arrangement can be made through a society registered under Societies RagistrationAct. However, the arrangement could not be given a final shape because ofthe sudden somersault by the respondent union in insisting that the fundshould be made available to their union alone and it can be utilised for opposing victimisation and litigation by the workmen.
(14) Having considered the matter in great detail, we are of theopinion that both the conditions imposed by the respondent unon are unreasonable and contrary to the general interest of the workmen. iWe direct theconcerned parties to work out a scheme as indicated by us above for theproper utilisation of 5% of the arrears which come to about 12 crores ofrupees. In case there is no agreement between the parties within a reasonable period, the recommendation of giving 5% of arrears to the Union Fundshall stand deleted from the award. Out of the balance of the amounttowards arreas, the workmen who are retiring within one year from today,should be paid their entire amount in cash. Similarly, the workmen who haveretired between 1-4-1981 and the date of this judgment should also be paidthe arrears due according to law. The balance amount, after such payment.should be deposited in the Gpf Account of the workmen, to be governed bythe Gpf Rules.
(15) For the reasons stated above, the writ petition is partiallyallowed. There shall be no order as to costs.