Madras High Court
Management Of Tamil Nadu Gears And ... vs Presiding Officer, Additional Labour ... on 17 August, 2000
Equivalent citations: (2001)IILLJ1689MAD
JUDGMENT Y. Venkatachalam, J.
1. Invoking Article 226 of the Constitution of India, the petitioner-management herein has filed the present writ petition seeking for a writ of certiorari to call for the records in I. D. No. 188 of 1988 on the file of the first respondent and to quash the award dated July 6, 1992, in I.D. No. 188 of 1988.
2. In support of the writ petition, the petitioner herein has filed an affidavit wherein they have narrated all the facts and circumstances that forced them to file the present writ petition and requested this Court to allow the writ petition as prayed for. Per contra, there is no representation on behalf of the second respondent, though they have been served notice long back.
3. Heard the arguments advanced by learned counsel appearing for the petitioner. Since there is no representation on behalf of the second respondent, the matter has to be decided on merits.
4. In the above facts and circumstances of the case, the only point that arises for consideration in this case is as to whether there are any valid grounds to allow this writ petition or not.
5. I have perused the contents of the affidavit together with all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by learned counsel appearing for the petitioner and as there is no representation on behalf of the second respondent, the matter is going to be decided on merits of the case.
6. The brief facts of the case of the petitioner as seen from the affidavit are as follows:
By letter dated September 4, 1987, the second respondent union which had only a few of the workmen of the petitioner as its member, demanded payment of "3 months full wages" as bonus for the year 1986-87. Closely following this and even without waiting for a reply, the second respondent addressed a printed stereotyped letter dated September 13, 1987, to the Labour Officer, Sivaganga, raising a dispute in regard to payment of "3 months full wages" as bonus for 1987 Deepavali. The petitioner by its letter dated September 26, 1987, replied that since in the years 1986 and 1987 the company had not been functioning to its full capacity, not more than 8.33 per cent. would be payable and since Deepavali was falling on October 21, 1987, efforts will be made to pay 8.33 per cent bonus in full settlement before then. By notice dated September 21, 1987, the Labour Officer called for remarks of the petitioner on the letter dated September 4, 1987, of the second respondent and also required both parties to appear for preliminary discussion on September 29, 1987. In the meantime the workmen's representatives entered into discussions in this regard with the management and an agreement was entered into under Section 18(1) of the Industrial Disputes Act on October 7, 1987, that only the minimum of 8.33 per cent. would be payable and that the same be disbursed before Deepavali. In accordance with that agreement, bonus at 8.33 per cent. for the year 1986-87 was disbursed to all the 47 staff and workmen who received the amount in full and final settlement of bonus and passed on the requisite acquittance therefor. The same was duly informed to the Labour Officer. Therefore, according to the petitioner, since the workmen have accepted payment of 8.33 per cent. bonus without any demur, the dispute, if any, must be deemed to have been settled and need not be pursued. But, by letter dated February 3, 1988, the second respondent denied the contention of the management stating that the payment of 8.33 per cent. received was not in full settlement of bonus but only an advance against bonus. Thereafter, conciliation proceedings started and ultimately on failure report of the conciliation officer, the Government issued G.O. No. 1089, dated May 25, 1988, referred to the first respondent for adjudication and thus I.D. No. 188 of 1988 came to be filed. In its claim statement dated January 9, 1989, the second respondent alleged that the petitioner-establishment had made good profits during the year 1986-87 and that, therefore, its demand for 3 months full wages as bonus by its letter dated September 4, 1987, and that since the management had not chosen to reply the said demand, it raised a dispute on September 13, 1987, thereafter only the management by letter dated September 26, 1987, sent its reply to the union. The second respondent further alleged that it had not accepted the payment of 8.33 per cent as bonus since the petitioner had good volume of orders and good production and profits and that, therefore, three months wages should be paid as against the bonus advance of 8.33 per cent. already paid. In fine, the second respondent prayed for an award of three months full wages as bonus for each of the workmen for the year ended 1986-87. By its counter-statement dated March 14, 1989, the petitioner submitted that by reason of its orders having been considerably reduced during the accounting year 1986-87, the petitioner had not been functioning to its full capacity; that the computation of available surplus under Section 5 of the Payment of Bonus Act revealed that no available surplus, much less the allocable surplus existed for the year 1986-87 and that, therefore, the minimum bonus of 8.33 per cent has been paid and among other things, it was also contended by the petitioner herein that the second respondent-union, which initially raised the dispute had lost its representative character to sustain the dispute as on the date of reference. Further, before the first respondent in adjudication the second respondent examined two witnesses solely for the purpose of establishing its representative character and filed ten documents relating to the union membership, minutes, subscription list of its members and none in support of its claims for 3 months' bonus. The petitioner examined one witness and marked 19 documents including income-tax assessment order for the year 1986-87, auditors report and certificate. Further, both parties argued orally before the first respondent and the petitioner herein submitted written arguments as well, wherein, inter alia, it stressed that exhibit M-16, the work-sheet prepared from the accounts of the petitioner-company and certified by the auditor for the year ended March 31, 1987, showed mat the available surplus was negative and, therefore, there was no allocable surplus and that bonus ought to be calculated only on the basis of allocable surplus and in this case in view of there being no allocable surplus, only the minimum of 8.33 per cent. was in law payable for the accounting year 1986-87. Ultimately, the first respondent proceeded to pass the impugned award dated July 6, 1992, inter alia, holding that the second respondent had the capacity to represent the workmen of the petitioner-establishment and to sustain the dispute, and ultimately that since the management had not produced any records with regard to its production, activity, profits and since it had adopted the five man committee approach, it has to be decided that the management had, as claimed by the union, made profits and in the above view the Labour Court held that the maximum of 20 per cent. bonus is payable. Aggrieved by the said award of the first respondent the present writ petition has been filed.
7. The impugned award is hereby challenged by the petitioner-management on the grounds that the first respondent erred in holding that bonus at 20 per cent is payable for the year 1986-87, ignoring the unchallenged work-sheet under the Payment of Bonus Act filed by the petitioner which showed that there was no available surplus, that the first respondent failed to exercise the jurisdiction vested in it under the Payment of Bonus Act, 1965, namely, that of having to consider the accounts and work- sheets of the management and of having independently to determine the available surplus and allocable surplus and to decide on that basis the quantum of bonus payable for the year, and that except for a bare mention of its having been marked as exhibit M-16, the first respondent failed to consider the audited report and certified work-sheet prepared by the petitioner's auditor and that such failure on the part of the first respondent is contrary to law and gross miscarriage of justice. They also contend that in the absence of any objection or rejoinder or counter worksheet filed by the second respondent to exhibit M-16, the first respondent ought to have, as laid down in Section 23 of the Payment of Bonus Act, 1965, accepted the accuracy of the work- sheet, exhibit M-16, and held that there being no available surplus, much less allocable surplus, no bonus in excess of the minimum of 8.33% already paid would be payable. Further, according to them, the observation of the Labour Court in the impugned award that "A perusal of all these shows that the company has been working well and profitably" is not only against the evidence on record but contrary to all laid down principles of adjudication in the matter of payment of bonus, and that so also, he was alike perverse in holding that "The management has not, either before the Labour Court or before the Court placed any material to show that only the minimum bonus is payable", ignoring the audit report and certificate along with the work-sheet filed and marked by him. Further, according to them, again the first respondent perversely accepted the belated contention of the second respondent that the signatures of workmen for payment of bonus on October 12, 1987, was obtained with only the amount filled and the text was later typed. The first respondent further on no evidence, perversely held that the petitioner, instead of settling the issue with the union had resorted to the five-man Committee method only to cheat the workmen. Further, according to them, in any event the observation that the management had adopted the five-man Committee method only to cheat the workmen is wholly unwarranted, especially in view of his finding that not all the workmen are members of the second respondent-union. They also contend that the first respondent in view of all the workmen having received without any demur, the bonus even as on October 12, 1987, in terms of the settlement dated October 7, 1987, thereby being bound by the said settlement, ought to have held that the settlement was binding individually on the workmen and so there existed no dispute as on the date of reference, viz., May 25, 1988, and that, therefore, the reference was bad in law and also that the first respondent ought to have likewise held that as on the date of reference, viz., May 25, 1988, the union had no representative character to maintain the dispute initially raised by it in September, 1987.
8. Having seen the entire material available on record and from the facts and circumstances of the case and also from the claims and counter-claims made by the rival parties, the following are the admitted facts in this case. The dispute in this case is with regard to payment of bonus for the year 1986-87. It is the case of the petitioner-management that since during the said period the company had not been functioning to its full capacity not. more than 8.33 per cent. would be payable, and even though initially the workers approached the Labour Officer, subsequently the workmen approached the petitioner through their five nominated representatives to discuss with the management directly and settle the matter of bonus. Pursuant to such discussion an agreement was entered into under Section 18(1) of the Industrial Disputes Act on October 7, 1987, that only the minimum of 8.33 per cent would be payable and that the same be disbursed before Deepavali. That being so, it is the grievance of the petitioner- management that in spite of all these the workers once again went for proceedings before the Labour Court which ended in I.D. No. 188 of 1988. Ultimately, the Labour Court held that the management has to pay the maximum of 20 per cent. bonus to the workmen on the particular year and aggrieved by the said award, this writ petition has been filed.
9. A perusal of the impugned award goes to show that the same is a speaking order and that apart it is a contested award. On behalf of both the sides, witnesses have been examined. Totally 26 documents have been marked during the proceedings before the Labour Court. In the impugned award it has been stated by the Labour Court that when on the side of the workmen it was demanded that since there was good production in the company and that there were lot of orders and that the company was running fully, the related documents such as order registers, production registers should be filed. But the respondent did not file this document before the workmen. Instead it has filed some documents before this Court stating that the workmen have agreed to receive bonus of 8.33 per cent. It has also clearly observed that if the management really wanted to give the bonus of 8.33 per cent they should have had talks with the petitioner-union before the Labour Officer. Profit and loss account, of the company for the year 1986-87 and the amount of production should have also been placed before the workmen and the dispute should have been solved. Instead, the management has taken five workmen, named them as a five-man committee and stated that they had talks with them and that a settlement was reached on October 7, 1987. The Labour Court has also recorded a finding that the management should have placed before this Court or before the Labour Officer, the evidence that only a minimum bonus could be given stating that 8.33 per cent bonus had been given and that was the full amount of the bonus for 1986-87 and that the amounts stood received in the receipts were only advance bonus, and that in the receipts, amount alone was written in hand and the rest had been typed. The Labour Court has also observed that since new machines have been acquired and production has increased, more electricity was required. Apart from that a generator has been purchased due to shortage of electricity and also several machines have been taken on lease, and the Labour Court hence recorded a finding that it is seen that the management was making profit. But it was argued that not much profit was made so as to give the demanded bonus. Further, in the impugned order it has been categorically found by the Labour Court that the management has been running by obtaining increased production with several machines, but it has formed a five-man committee instead of holding legal talks and has prevented the workmen from getting maximum bonus by settlement and that, therefore, the Labour Court held that in spite of increased production, to cheat the workmen, a settlement was entered into with a five-man Committee and there is no basis for giving minimum bonus. Therefore, in the above facts and circumstances of the case, I do not see any error or illegality in the impugned award as contended by the petitioner herein.
10. Therefore, in the above facts and circumstances of the case and also in view of my above discussions with regard to the various aspects of the case, I am of the clear view that the petitioner herein has failed to make out any case in their favour and that, therefore, there is no need for any interference with the award impugned in this writ petition. Thus, the writ petition fails and the same is liable to be dismissed for want of merits.
11. In the result, the writ petition is dismissed. No costs. Consequently, W.M.P. No. 25839 of 1992 also is dismissed.