Bombay High Court
N.R.C. Employees Union vs N.R.C. Ltd. on 9 March, 2000
Equivalent citations: [2000(86)FLR482], (2000)IIILLJ777BOM
Author: F.I. Rebello
Bench: F.I. Rebello
JUDGMENT F.I. Rebello, J.
1. The petitioner Union by the present petition has challenged the Judgment and Order dated February 27, 1997 passed in Complaint (ULP) Nos. 321 of 1995, 989 of 1995 and 402 of 1996. All the three Complaints were filed by the petitioner Union on the ground that the Respondents were guilty of unfair labour practices under Item 5 of Schedule II and Items 3, 5 and 9 of Schedule IV of the MRTU & PULP Act, 1971. The grievance of the complainant was that the Respondent company had transferred the employees from the head office to the factory, without consultation with the Union as required by the settlement and/or by failing to negotiate with the petitioner Union. Consequently Item 5 of Schedule II was breached. Similarly, the transfer would occasion financial loss and as such attracts Items 3 and 9 of Schedule IV. Though there is a provision for accommodation, the transferred employees are not being given accommodation inviting breach of Item 5 Schedule III. This point has been canvassed in the third Complaint being Complaint (ULP) No.402 of 1996.
2. The first Complaint bearing Complaint (ULP) No.321 of 1995 was filed on March 28, 1995. The second Complaint bearing Complaint (ULP) No. 989 of 1995 was filed on September 5, 1995 and the third Complaint bearing Complaint (ULP) No.402 of 1996 was filed on June 2, 1996. The Respondent company has filed a reply. It is contended that the transfers are strictly in terms of the settlement dated August 25, 1993. There has been consultation with the Union before the transfer was effected. Therefore, it cannot be said that there has been a failure to negotiate. It is further denied that the transfers are. arbitrary and mala fide. The transfers it is contended have been effected taking into consideration the necessities of the administration for more efficient running. In so far as the allegation that financial loss would be occasioned to the members of the petitioner Union, it is contended that the settlement provided for protection of certain allowance like City Compensatory Allowance and Medical Allowance. It is therefore contended that it cannot be averred by the petitioner that the financial loss has been occasioned to them. It is further contended that by virtue of Clause 27.1 one of the conditions of transfer was that the conditions of service as applicable at the place where the employee was transferred would apply. It is contended that those workers who were not working on Saturdays at the head office, considering the condition of service at the factory has to work on two Saturdays. In so far as extra additional work of 15 minutes is concerned, it is contended, is also a part of the conditions of service prevailing at the Factory and consequently the petitioner Union can have no grievance on that count. In so far as failure to pay in terms of Clause 22.1, it is contended that the same is only applicable to permanent staff members on roll prior to May 1, 1990 reporting in general shift. Some of the employees transferred to the general shift were employed on the fixed pay basis. That being the case such employees would not be eligible for the benefits in terms of Clause 22.1. In so far as others are concerned, it is contended namely those who are working on five days of a week, benefit of 2.1 is being given to them and therefore there can be no grievance. In so far as accommodation is concerned, it is contended that the company has formulated a policy. A Circular has been issued to that effect. Accommodation is being given in terms of the said policy. It is, therefore, contended that there is no merit in the contention alleged on behalf of the Respondent. The contentions as advanced by the Respondent found favour with the Industrial Court which dismissed all the complaints. The said contentions have been reiterated before this Court.
3. At the outset, it may be pointed out that in so far as transfer is concerned, even if the Court were to reverse the findings of the Courts below, it would not be possible to re-transfer the employees as in the meantime the premises have been disposed of. It is true that during the pendency of the complaint there was an interim order by this Court which directed the Respondent company to approach the Industrial Court in the matter of transfer of the premises. The transfer, however, has taken place after the complaints were disposed of and when there was no order restraining the Respondent Company from transferring or surrendering the premises. In this view of the matter as no relief can be granted and if granted would be infructuous, I do not propose to consider that aspect of the matter. It is also contended on behalf of the petitioner Union that all throughout the various proceedings, the Respondent held out promises to the petitioner Union. Based on these promises either the Courts were induced not to pass any order and/or to grant relief. It is contended that the Respondent company has gone back on these promises held out. These factors it is contended must be taken into consideration while considering the case of the complainant in the matter of their conditions of service. I am afraid it will not be possible. What the Court has to consider would be the acts of unfair labour practices, if any committed as alleged and if proved by the petitioner herein. In other words what is the material is the record before the Industrial Court before the final order was passed.
Having, said so, the contentions which arise can now be summarised as under:
1) Has the petitioner made out a case that its members are entitled to be paid for working for two Saturdays and for extra 15 minutes per day from the time they have been transferred to the factory?
2) Are the workers, on whose behalf the complaints were filed entitled to be paid on alternate non-working Saturdays if called upon to work, in terms of Clause 22.1 of the Settlement dated August 25, 1993?
3) Whether the petitioner has made out a case that in the matter of accommodation the Respondent company is arbitrarily denying to the transferred employees the benefit of accommodation in terms of Clause (e) to which they are entitled?
4. For the, purpose of deciding these contentions it would be essential to reproduce some clause of the settlement' dated August 25, 1993. The relevant clauses are as under:
"22 SATURDAY OFF WORKING:
22.1 The permanent staff members on roll prior to May 1, 1990 reporting in General shift at plants are presently entitled to alternate Saturday off. Such staff members at the plants when called upon to work on Saturday off days are entitled to compensation at the rate of 3.33% of their monthly salary (Basic + DA + Time & Special and ad hoc increments) for each of such Saturday off worked. This arrangement will continue."
"27, TRANSFER OF STAFF MEMBERS FROM H.O. TO FACTORY AND VICE VERSA:
27.1 Transferring any staff member or a group of staff members from Factory to H.O. and vice versa is generally the prerogative of the Management. Such transfers will be done, if found necessary, purely for administrative convenience, keeping in view that such transfers do not result in undue hardships or financial loss to the employee/employees, so transferred. However, with a view to maintain the cordial relation with the Union, it is agreed that the Management will consult the Union, before transfers are effected.
27.2 The staff member so transferred as above will have to work as per the working conditions prevailing in the place he is transferred."
For the sake of convenience it may also be mentioned that subsequent to this settlement and during the pendency of the first and second complaints another settlement was signed between the petitioner Union and the Respondent which is dated December 23, 1995. The Respondent company had issued a Notice of Change under Section 9-A, for the purpose of effecting changes in shift timings and the general shift working in some departments. This was resisted by the petitioner Union. Finally a settlement came to be arrived at whereby the timings at the factory in respect of the Purchase Department, Accounts Department including the Excise and Computer Centre were settled along with the timings of all other Departments. This was done shiftwise namely G-III shift which was the General shift. G-I which involves the main plant and G-II which involves the Nylon Plant. After hearing had been completed and before the Judgment could commence, learned counsel for the Respondent company has drawn my attention to another settlement dated May 1, 1990 for the purpose of interpreting Clause 22.1. The relevant Clauses in the said settlement are as under:
"14. WORKING OF ALTERNATE SATURDAY OFF FOR STAFF MEMBERS ATPLANT :
14.1 The existing permanent staff members reporting in General shift at plant at Mohone are presently entitled to alternate Saturday off. Whenever any of them categorywise, in Group or otherwise are called upon to work on such off days, they shall work accordingly and shall not decline or refuse such assignment. In all such cases, where present permanent staff members put in work on such off days, they shall be entitled, instead of compensatory off as at present, to compensation at the rate of 3.33% monthly salary consisting of Basic, D.L.A. and Time and Special and ad hoc, increases, for each of such alternate Saturday off worked."
"16. REGULARISATION OF EMPLOYMENT 16.1 It is agreed that the staff members whose names are mentioned in Annexure A hereto shall be brought on regular service of the company as under.
16.2 They shall first be on probation of six months with effect from April 1, 1990 and will be paid during probationary period basic pay and variable D.L.A. as per Clause 3.2 of this settlement. The other benefits under the settlement shall be made applicable to them on their being confirmed on completion of six months' satisfactory probationary service."
5. With that background the contentions as raised can be disposed of. The first contention therefore would be whether the transferred employees from Head Office to the factory would be entitled to be paid compensation for the two working Saturdays at the factory and for the additional extra 15 minutes. In so far as the language of the settlement is concerned namely Clause 27, the expression is as under:
"Do not result in undue hardships or financial loss to the employee/ employees so transferred."
This has to be read coupled with the expression in Clause 27.2 namely to work as per the working conditions prevailing in the place he is transferred. The settlement as its recital shows was in respect of company's establishment in Bombay, Mohone and other places. The transfer policy provided for a transfer from the Head Office to the factory and vice versa.
At the relevant time as the record bears out a large number of employees working at the head office had a five day working week, whereas at the factory two Saturdays were working. The working hours were also different. The clause pertains to transfer from the factory to the head office and from the head office to the factory. In the past also there have been cases of atleast about 13 employees being transferred from the factory to the head office. On transfer they have been working in terms of the conditions of work applicable at the head office. It is, however, contended on behalf of the petitioner that apart from the clauses of settlement, the order of transfer will also have to be borne in mind. One such order dated March 27, 1995 has been produced. I will reproduce the relevant portion of the same, which reads as under:
"As per the provisions of Clause 27 of the settlement dated August 25, 1993 between the company and the N.R.C. Employees Union, you will continue to enjoy all the benefits and allowances and you will not be adversely affected financially. As stipulated in the said clause, you will have to observe the working conditions prevailing in the Administrative office at the Factory."
Attention is also invited to letter dated August 7, 1995 wherein in the letter addressed by the Management to the General Secretary of the Union it was pointed out as under:
"We reaffirm that these employees, on transfer, shall continue to enjoy the benefits presently being availed by them including City Compensatory Allowance and higher Medical Allowance which otherwise, are not applicable to staff members located at Factory. In addition, these employees shall also be reimbursed difference in rail fare, if any, for travel between residence and factory. Therefore, you will appreciate that the proposed shifting is in line with Clause 27 of the settlement dated August 25, 1993."
On the other hand on behalf of the Respondents, their learned counsel has drawn my attention to the letter dated March 1, 1995, wherein referring to Clause 27, it is pointed out that the proposed transfers will not result in undue hardship or financial loss in terms of Clause 27. Further the transferred members will have to work as per the working conditions prevailing at the place where they are transferred. Next reference is made to letter dated March 13, 1995 wherein it is pointed out that the transferred workers will continue to receive City Compensatory Allowance which is normally payable to staff based at Bombay only. Next is letter dated March 22, 1995 wherein again reference is made to the effect that the transferred workers would continue to receive the benefit of City Compensatory Allowance which is normally payable to the staff at Bombay and as such there would be no financial loss. Considering all these, it is contended that the company has stood by its interpretation of Clause 27 namely that the transferred workers either way, would be subject to the terms and conditions as set out in terms of Clause 27.2. Reading of Clauses 27.1 and 27.2 can it be said that the workers if asked to work for additional time will be suffering financial loss. At the highest it can be construed to mean that the workman is called upon to do more work than he was called upon to do at the Head Office. The contention however is that on Saturday the members of the petitioner Union were not working at the Head Office and if they were called upon to work at the Head Office, were being paid over time wages. This it is contended would be financial loss suffered. Considering the language of Clauses 27.1 and 27.2 and the correspondence exchanged, it is not possible to accept the said contention. Transfer was both ways. Both the petitioner and the Respondents were aware, when Clause 27.2 was inserted that those transferred from the factory to the Head Office would have to work for less working hours and no work on Saturday, whereas those transferred from the Head Office to the factory will have to work for additional 15 minutes and work on two Saturdays. In these circumstances to construct language of Clause 27.1 to mean that financial loss would be occasioned for working extra time and on Saturday, considering the language of Clause 27.2 cannot be accepted. Any other construction would lead to absurdity. The absurdity would be that though transfer is part of the condition of service, if transferred to Factory they would have to be paid extra and if transferred to Head Office then they would have to work less, but without deduction in wages. The construction adopted is more acceptable also considering that after the two complaints had been filed one more settlement . regarding office timing was entered into between the petitioner and the Respondent on December 23, 1995. The office timings were maintained at the Head Office. In the factory there was a re-shifting of timings. The extra time work continued at the factory. In these circumstances, the contention as urged on behalf of the petitioner Union cannot be accepted and consequently must be rejected. To that extent the findings of the Industrial Court cannot be faulted.
6. We then come to the contention in so far as interpretation of Clause 22 is concerned. Admittedly, it is not all employees who are transferred from the Head Office to the factory who are being denied the benefit of payment in terms of Clause 22.1, if they work on alternate Saturday off. Only some of the employees are denied. This it is contended on behalf of the respondent is only in respect of those staff members who were not permanent members and on the roll prior to May 1, 1990 and who have been employed on what is termed as six days week. To my mind such an argument cannot be accepted. Clause 22.1 is the reiteration of what was already existing in the earlier settlement of 1990. All that the Clause means is, that if there was an employee on the roll prior to May 1, 1990 and permanent, such a person, would be entitled to the benefit of the Clause. Where such an employee was engaged in a six days a week would be to my mind immaterial. The moment Clause 27.2 applies, the same working condition would apply to those transferred from Head Office to factory. This has been accepted by the company by giving the benefit to those who were working for five days in a week. If this contention is not accepted then the contention as had been raised on behalf of the petitioner regarding two Saturdays would have substance namely that in so far as they are concerned as they were not working on Saturdays, the moment they are transferred they have to be paid for the two Saturdays that they were working. As pointed out earlier, such a construction has been rejected considering the language of Clauses 27.1 and 27.2. In these circumstances, employees transferred from the head office, if they were on the roll and permanent at the time of the transfer, even if they were engaged on so called six days basis, will have to be paid at the rate specified in Clause 22.1 from the time of their transfer. To that extent the findings of the Industrial Court will have to be set aside and it must be held that there is an infringement of Item 9 of Schedule IV of the MRTU & PULP Act.
7. That leaves us with the last contention as raised in the third complaint namely in so far as accommodation is concerned. There was an interim order of the Industrial Court which was the subject matter of a challenge by a writ petition, being Writ Petition No. 1818 of 1996. By an order dated September 19, 1996 a Division Bench of this Court presided over by the then learned Chief Justice had modified the Order of the Industrial Court dated June 13, 1996 to the extent that emergency staff will have priority in the allotment of staff quarters and the remaining quarters will be allotted on the basis of seniority and company policy. In the affidavit filed, the policy of the company is being disclosed in terms of Circular dated May 22, 1996. In terms of the said Circular, the type of quarters to which the transferred employee would be eligible, for consideration is E type of quarters. The Order of the Division Bench of this Court dated September 19, 1996 continued till the disposal of the complaint. The Division Bench has not departed substantially from the Circular of May 22, 1996. All that has been set out is that once the emergency and the other staff as set out in the Circular of May 22, 1996 are admitted, if there are vacant quarters then vacant quarters should be allotted to the eligible person based on their seniority. It is in that extent that the contention of the petitioner, that their request for accommodation is not being granted has been made. I do not propose to hold as to whether that would sound as (sic) an unfair labour practice in the absence of specific details and material. However, a direction will be issued to the Respondent that the Circular of May 22, 1996 should be followed in terms of the Order of this Court dated September 19, 1996 in Writ Petition No. 1818 of 1996.
8. Having said so, the following order:
1) The impugned order dated February 27, 1997 in Complaint (ULP) Nos.321 of 1995, 989 of 1995 and 402 of 1996 is partly set aside to the extent that a section of transferred employees have not been given the benefit of payment in terms of Clause 21.1. To that extent Item No. 9 of Schedule IV has been infringed. Respondent No. 1 is directed to desist from the said unfair labour practice and to make payment to the transferred employees not paid in terms of Clause 21.1 for the alternate Saturdays that they had worked and to continue to pay in like manner on alternative Saturdays, when called upon to work.
2) There will also be a direction that the Respondent No. 1 in applying the Companys' Circular dated May 22, 1996, when the emergency and other staff as set out in the Circular are given accommodation, to allot the remaining accommodation available based on seniority amongst eligible employees entitled to category E Quarters in terms of the direction of the Division Bench of this Court dated September 19, 1996 in Writ Petition No. 1818 of 1996.
Rule made absolute in the aforesaid terms.
9. In the circumstances of the case, there shall be no order as to costs.
10. Certified copy expedited.
11. P.a. to give ordinary copy of this order to the parties concerned.