Kerala High Court
Unknown vs Government Of India To Be Represented
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934
WP(C).No. 2541 of 2011 (P)
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PETITIONER
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I.R.E. STAFF AND WORKERS UNION REG.NO. 2/73,
UDYOGAMANDAL REP.BY GENERAL SECRETARY
(MOHANDAS, AGED 49, S/O.A.P.SIVASANKARAN NAIR,
KOTTAYATH HOUSE, KODUVAZHANGA, NEERIKODE P.O.
ALUVA 683 511).
BY ADVS.SRI.K.S.MADHUSOODANAN
SRI.T.V.JAYAKUMAR NAMBOODIRI
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
SRI.P.K.RAKESH KUMAR
SMT.M.A.RUXANA
RESPONDENS
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1. GOVERNMENT OF INDIA TO BE REPRESENTED
BY SECRETARY, MINISTRY OF HEAVY INDUSTRIES AND
PUBLIC ENTERPRISES, DEPARTMENT OF PUBLIC
ENTERPRISES, BLOCK NO.14, CGO COMPLEX,
LODI ROAD, NEW DELHI.
2. SECRETARY, DEPARTMENT OF ATOMIC ENERGY,
GOVERNMENT OF INDIA, CHATHRAPATHI SIVAJI MAHARAJ MARG,
MUMBAI, 400 001.
3. INDIAN RARE EARTHS LIMITED, PLOT NO.1207,
VEER SAWARKAR MARG, NEAR SIDHI VINAYAK TEMPLE,
PRABHADEVI, MUMBAI 400 028, REPRESENTED BY
CHAIRMAN AND MANAGING DIRECTOR.
4. INDIAN RARE EARTHS LTD., RARE EARTHS
DIVISION, (GOVERNMENT OF INDIA UNDERTAKING)
UDYOGAMANDAL, 683 501 REPRESENTED BY CHIEF GENERAL
MANAGER.
R1 &R2 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASG OF INDIA
R3 &R4 BY ADV. SRI.E.K.NANDAKUMAR
BY ADV. SRI.A.K.JAYASANKAR NAMBIAR
BY ADV. SRI.K.JOHN MATHAI
BY ADV. SRI.P.BENNY THOMAS
BY ADV. SRI.P.GOPINATH
BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2012,
THE COURT ON 21.05.2012 DELIVERED THE FOLLOWING:
MG
WP(C).No. 2541 of 2011 (P)
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APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1:- COPY OF THE REPLY OF THE 2ND RESPONDENT BEARING NO.3/4(1) (1)/
2006-PSU/6735 DATED 14.11.08.
EXT.P2:- COPY OF THE LETTER DATED 23.12.2005 BEARING NO.10/4(1)/
2005PSU/423 ADDRESSED TO THE CMD OF UCI LIMITED.
EXT.P3:- COPY OF THE LETTER DATED 17.03.2006 BEARING NO.10/4(1)/2005-
PSU/2142 OF THE 2ND RESPONDENT TO THE CMD OF UCIL.
EXT.P4:- COPY OF RELEVANT PAGES OF CLAUSE 2.(6) OF NATIONAL COAL WAGE
AGREEMENT -VII DATED 15.07.2005.
EXT.P5:- COPY OF THE LETTER BEARING NO.L-29011/15/2010-IR(M) DATED
22.10.10.
EXT.P6:- COPY OF THE LETTER DATED 07.10.2008 OF THE 4TH RESPONDENT
BEARING NO.HRM/L&IR/DA/2008.
RESPONDENT'S EXHIBITS:
EXT.R4(A):- COPY OF THE FAILURE OF CONCILIATION REPORT DATED 31.05.2010
ADDRESSED TO THE SERETARY, MINISTRY OF LABOUR, BY THE
ASST.LABOUR COMMISSIONER (CENTRAL), ERNAKULAM.
EXT.R4(B):- COPY OF THE COMMUNICATION DATED 22.10.2010 FROM THE
GOVERNMENT OF INDIA.
//TRUE COPY//
PA TO JUDGE
MG
P.N.RAVINDRAN, J.
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W.P(C).No.2541 of 2011
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Dated this the 21st day of May, 2012
JUDGMENT
The petitioner, a registered recognized trade union representing the workers employed in Indian Rare Earths Ltd., has filed this writ petition aggrieved by the refusal of the second respondent to place the issue regarding approval of 100% DA neutralization irrespective of basic pay to all workmen employed in Indian Rare Earths Ltd., before the Government of India. The brief facts of the case are as follows:
2. A conciliation settlement was entered into between respondents 3 and 4 and the trade unions representing employees of the Indian Rare Earths Ltd. on 6.12.2005. Though the petitioner is not a signatory to the said conciliation settlement, it is binding on all the employees of Indian Rare Earths Ltd., including members of the petitioner union, by virtue of sub-
section (3) of section 18 of the Industrial Disputes Act, 1947. In paragraph 5.2 of the memorandum of settlement arrived at on 6.12.2005 it was agreed by and between the parties that W.P(C).No.2541 of 2011 -:2:- neutralization of dearness allowance will be continued to be determined on graded basis as per the guidelines issued by the Government of India, as indicated therein. Paragraph 5.2 of the conciliation settlement arrived at on 6.12.2005 is extracted below:-
"5.2 DA neutralization will continue to be determined on graded basis as per the guidelines of Government of India, as hitherto, as under:-
Basic Pay Neutralization Percentage
Upto 100% of the quarterly average
Rs.6,550 increase or decrease of AICPI
Above 7% of the quarterly average increase
Rs.6,550/- or decrease of AICPI
The variable DA calculation on the above
basis shall be as illustrated in the Annexure "B".
Neutralization of DA with reference to the quarterly All India Consumer Price Index level shall be for the month of June, July, August/September, October, November/ December, January, February/March, April and May as existing at present."
In paragraph 5.3 of the conciliation settlement arrived at on 6.12.2005 it was stipulated that if the Government of India approves 100% DA neutralization irrespective of any Basic Pay to W.P(C).No.2541 of 2011 -:3:- similarly placed public sector units of the Department of Atomic Energy, Indian Rare Earths Ltd. will also adopt the 100% DA neutralization system, subject to obtaining specific Government approval. Paragraph 5.3 of the conciliation settlement arrived at on 6.12.2005 is extracted below:-
"5.3. It is agreed that if the Government of India approves 100% DA neutralization irrespective of any Basic Pay to similarly placed PSU of DAE, IREL will also adopt the 100% DA neutralization system subject to obtaining specific Government approval."
It was stipulated in paragraph 25 of the conciliation settlement arrived at on 6.12.2005 that the settlement will be in operation for a period of five years from 1.7.2003 to 30.6.2008 and notwithstanding the expiry of the period of the settlement, it shall continue to be binding as provided under section 19 of the Industrial Disputes Act, 1947. Paragraph 25 is extracted below:-
"25.0 PERIOD OF SETTLEMENT:
In view of the Government of India's directives, this settlement will be in operation for a period of 5 (five) years with effect from 1.7.2003 to 30.6.2008. Notwithstanding the expiry of the period of this settlement, it shall continue to be binding as provided under W.P(C).No.2541 of 2011 -:4:- Section 19 of the Industrial Disputes Act, 1947. In the event of any of the provisions of this settlement becoming legally invalid and unenforceable or superseded by any legislation, award, order or agreement between the parties, such invalidity, unenforceability and supersession shall not effect the remaining provisions of this settlement."
3. In terns of the stipulations in the conciliation settlement referred to above, the third respondent sent letters dated 7.10.2008 and 24.10.2008 to the second respondent, Secretary to Government, Department of Atomic Energy, requesting him to take up the issue regarding 100% DA neutralization irrespective of any Basic Pay with the first respondent. It was pointed out in the said letters that 100% DA neutralization irrespective of any Basic Pay has been granted to employees of Uranium Corporation of India Ltd., and therefore, in terms of the stipulations in paragraph 5.3 of the conciliation settlement arrived at on 6.12.2005, the matter may be placed before the Government of India. By Ext.P1 letter dated 14.11.2008, the first respondent declined to take up the matter with the Government of India on the ground that 100% DA neutralization irrespective of any Basic Pay in the case W.P(C).No.2541 of 2011 -:5:- of workmen of Uranium Corporation of India Ltd., was granted as a special case and cannot be quoted as a precedent and therefore it has been decided not to take up the issue with the Department of Public Enterprises of the Government of India. Hence this writ petition challenging Ext.P1 and seeking the following reliefs:-
i. Call for records connecting Exts.P1 to P5 from the respondent concerned.
ii. Call for Ext.P1 from 2nd respondent and issue a writ of certiorari to quash the same.
iii. Issue writ of mandamus directing respondents 1 to 4 to allow 100% D.A. Neutralization to the workmen of the 4th respondent for the period from 1.7.03 to 30.6.08 irrespective of any Basic Pay.
4. The petitioner contends that the second respondent had himself taken up the issue regarding 100% DA neutralization irrespective of any Basic Pay in the case of workmen of Uranium Corporation of India Ltd., as can be seen from Ext.P2 letter dated 23.12.2005 and that the Government of India granted approval for 100% DA neutralization irrespective of any Basic Pay to workmen of Uranium Corporation of India Ltd. It is stated that 100% neutralization of dearness allowance was approved in the case of workmen of Uranium Corporation of India Ltd., based on W.P(C).No.2541 of 2011 -:6:- Ext.P4 National Coal Wage Agreement-VII which contemplates payment of 100% DA neutralization irrespective of any Basic Pay for all workmen. It is also stated that though pursuant to Ext.P1 letter the petitioner had raised an industrial dispute before the Government of India, by Ext.P5 letter dated 22.10.2010, the Government of India informed the General Secretary of the petitioner union that as the Government had not accorded specific approval of 100% DA neutralization to employees of Indian Rare Earths Ltd., the dispute cannot be construed as an industrial dispute and therefore, the Government does not consider it fit for adjudication. It is contended that the refusal of the second respondent to seek the approval of the first respondent for 100% DA neutralization irrespective of any Basic Pay notwithstanding the fact that such neutralization was given to workmen of Uranium Corporation of India Ltd., is arbitrary and discriminatory and violative of Article 14 of the Constitution of India. It is also stated that though as per the memorandum of settlement arrived at on 3.7.2010 between the management of Indian Rare Earths Ltd. and its workmen represented by different unions, it was agreed that 100% DA neutralization will be adopted for all W.P(C).No.2541 of 2011 -:7:- workmen in the revised pay scale, the claim based on paragraph 5.3 of the settlement arrived at on 6.12.2005 relates to the period from 1.7.2003 to 30.6.2008 and therefore, the second respondent ought to have taken up the issue with the first respondent for approval.
5. The 4th respondent has filed a counter affidavit dated 9.7.2011. It is stated that though pursuant to the memorandum of settlement arrived at on 6.12.2005, the issue regarding 100% DA neutralization irrespective of any Basic Pay was taken up by the third respondent with the second respondent, the second respondent informed the third respondent that the benefit of 100% DA neutralization irrespective of any Basic Pay cannot be extended to those Central Public Sector Enterprises which have opted for five year periodicity in wage negotiation and that the special dispensation granted in the case of the workmen of Uranium Corporation of India Ltd., cannot be quoted as a precedent in the case on hand. It is stated that the third respondent was unable to obtain necessary approval from the Government of India for implementation of 100% DA neutralization irrespective of any Basic Pay as contemplated in W.P(C).No.2541 of 2011 -:8:- the long term settlement dated 6.12.2005. It is also stated that though the petitioner union had raised an industrial dispute, the Government of India declined to refer the dispute for adjudication on the ground that the dispute raised is not an industrial dispute and that after the industrial dispute was raised, the petitioner union signed a long term settlement dated 3.7.2010 whereby the benefit of 100% DA neutralization irrespective of any Basic Pay was granted to the workmen of the fourth respondent with effect from 1.7.2008. It is contended that in the absence of a stipulation in the long term settlement dated 3.7.2010 regarding 100% DA neutralization for the period from 1.7.2003 to 30.6.2008, the petitioner is estopped from raising a claim in respect of that period. The petitioner has filed a reply affidavit dated 16.7.2011 and produced along with it as Ext.P6, a copy of the letter dated 7.10.2008 sent by the third respondent to the second respondent wherein it was pointed out that workmen of other public sector units, namely Uranium Corporation of India Ltd., under the Department of Atomic Energy, and Electronics Corporation of India Ltd., are being paid 100% DA neutralization and therefore the second respondent ought to have taken up the W.P(C).No.2541 of 2011 -:9:- issue with the Government of India. It is also stated that in view of Ext.P6 letter the fourth respondent is estopped from objecting to the request made by the petitioner union and that the long term settlement arrived at on 3.7.2010, which takes effect only with effect from 1.7.2008, does not stand in the way of the workmen from pursuing their rights under the long term settlement arrived at on 6.12.2005 for 100% DA neutralization for the period from 1.7.2003 to 30.6.2008.
6. Respondents 1 and 2 have filed a counter affidavit dated 6.8.2011 wherein it is stated that Indian Rare Earths Ltd. and Uranium Corporation of India Ltd., are not similarly placed, that 100% DA neutralization irrespective of any Basic Pay was implemented in Uranium Corporation of India Ltd., as a special case and that the two companies are not similarly placed and cannot be compared to each other. It is also stated that Coal India Ltd., whose mines are situated in close proximity to the mines of Uranium Corporation of India Ltd., had implemented 100% DA neutralization for their workmen irrespective of any Basic Pay, that thereupon unions representing workmen of Uranium Corporation of India Ltd., demanded immediate W.P(C).No.2541 of 2011 -:10:- implementation of 100% DA neutralization for the workmen of Uranium Corporation of India Ltd., irrespective of any Basic Pay on par with Coal India Ltd., that a strike notice was also served and therefore, it became necessary for the second respondent to take up the issue regarding payment of 100% DA neutralization irrespective of any Basic Pay to workmen of Uranium Corporation of India Ltd., with the competent authorities. It is also stated that in view of the memorandum of settlement arrived at on 3.7.2010 whereby the workmen were granted the benefit of 100% DA neutralization irrespective of basic pay, the petitioner is estopped from raising the issue regarding 100% DA neutralization irrespective of any Basic Pay covering an earlier period. The petitioner has filed a reply affidavit dated 25.8.2011 wherein inter alia it is contended that signing of the memorandum of settlement that was arrived at on 3.7.2010 does not take away the rights of the workmen under paragraph 5.3 of the long term settlement arrived at on 6.12.2005 and that even on the terms of the memorandum of settlement arrived at on 3.7.2010, the petitioner is entitled to pursue its claims under paragraph 5.3 of the memorandum of settlement arrived at on 6.12.2005. W.P(C).No.2541 of 2011 -:11:-
7. I heard Sri.K.S.Madhusoodanan, learned counsel appearing for the petitioner, Sri.P.Parameswaran Nair, leaned Assistant Solicitor General of India appearing for respondents 1 and 2 and Sri.Benny P.Thomas, learned counsel appearing for respondents 3 and 4. The learned counsel appearing for the petitioner contended that in view of paragraph 5.3 of the memorandum of settlement that was arrived at on 6.12.2005, the management was bound to seek the approval of the Government of India to implement 100% DA neutralization irrespective of any Basic Pay in Indian Rare Earths Ltd., if the Government of India approves 100% DA neutralization irrespective of any Basic Pay to similarly placed public sector units of the Department of Atomic Energy. The learned counsel appearing for the petitioner contended that it is not in dispute that the Government of India had approved 100% DA neutralization irrespective of any Basic Pay to employees of Uranium Corporation of India Ltd., which is a similarly placed public sector unit of the Department of Atomic Energy and therefore, the management was bound to seek the approval of the Government and the second respondent was bound to forward the request of the third respondent to the first W.P(C).No.2541 of 2011 -:12:- respondent for approval. With reference to the memorandum of settlement arrived at on 3.7.2010, the learned counsel for the petitioner contended that the said settlement was entered into pursuant to the submission of a Charter of Demands on 15.5.2008 by the petitioner union, that in that Charter of Demands the petitioner union had proposed that the present scale of pay of all the 10 grades of workmen be revised by adding the variable DA amount equivalent to 100% AICPI (All India Consumer Price Index) points as on 30.6.2008 with the starting basic pay of each scale and 50 per cent of the above sum be allowed as fitment benefit and had also made various other proposals, that the said proposal was accepted by the management and it was agreed by and between the parties that 100% DA neutralization will be adopted for all the workmen with effect from 1.7.2008, that the issue regarding 100% neutralization of dearness allowance for the period from 1.7.2003 to 30.6.2008 was not a demand made by any of the trade unions and therefore, the mere fact that for the period commencing from 1.7.2008, the demand for neutralization of 100% dearness allowance was acceded to, is not a reason to hold that the claim W.P(C).No.2541 of 2011 -:13:- for 100% DA neutralization irrespective of any Basic Pay during the period from 1.7.2003 to 30.6.2008 does not survive. Relying on the decision of the Andhra Pradesh High Court in Singareni Collieries Co. Ltd. v. Industrial Tribunal (C) Hyderabad, 1988 Lab. I.C. 1271, the learned counsel for the petitioner contended that the settlement arrived at on 3.7.2010 cannot be considered as a final settlement in respect of demands which have not been considered and which were never the subject matter of the conciliation and therefore, the claim made under the long term settlement arrived at on 6.12.2005 cannot be said to have been foreclosed. The learned counsel lastly contended that in any view of the matter it was for the Department of Public Enterprises of the Government of India to take an appropriate decision in the matter and not for the Department of Atomic Energy and therefore, the second respondent ought to have forwarded the request made by the third respondent to the Department of Public Enterprises for approval. Per contra, the learned counsel appearing for the respondents contended that in view of the long term settlement arrived at on 3.7.2010 and the neutralization of 100% DA with effect from 1.7.2008, the W.P(C).No.2541 of 2011 -:14:- workmen of Indian Rare Earths Ltd. cannot have any claim whatsoever under paragraph 5.3 of the memorandum of settlement arrived at on 6.12.2005 and therefore, the challenge to Ext.P1 is without any merit.
8. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. In paragraph 5.3 of the memorandum of settlement arrived at on 6.12.2005, extracted above, it was stipulated that if the Government of India approves 100% DA neutralization irrespective of any Basic Pay to similarly placed public sector units of the Department of Atomic Energy, Indian Rare Earths Ltd., will also adopt neutralization of 100% DA subject to obtaining specific Government approval. Such approval was sought when the third respondent sent Ext.P6 letter dated 7.10.2008 followed by the letter dated 24.10.2008. In both the letters it was pointed out that neutralization of 100% DA has been extended to workmen of Uranium Corporation of India Ltd., under the Department of Atomic Energy and Electronics Corporation of India Ltd. The second respondent, instead of forwarding the request to the Department of Public W.P(C).No.2541 of 2011 -:15:- Enterprises, rejected the request for approval of the Government of India on the ground that employees of Uranium Corporation of India Ltd., stand on a different footing and they were given 100% DA neutralization irrespective of any Basic Pay as a special case. In my opinion, the stand taken by the second respondent cannot be countenanced. Under the terms of the memorandum of settlement arrived at on 6.12.2005 it was for respondents 3 and 4 to take up the issue with the Government of India. It is also not in dispute that the Government of India had granted approval of 100% DA neutralization irrespective of any Basic Pay in respect of workmen of Uranium Corporation of India Ltd. The question whether 100% DA neutralization irrespective of any Basic Pay for workmen of Indian Rare Earths Ltd. should be allowed or not, is a matter admittedly within the competence of the Department of Public Enterprises. Even in the case of Uranium Corporation of India Ltd., such approval was granted by the Department of Public Enterprises and not by the Department of Atomic Energy. This fact is clear from Ext.P2 letter sent by the Under Secretary, Department of Atomic Energy to the Chairman and Managing Director of Uranium Corporation of India Ltd., wherein it is stated W.P(C).No.2541 of 2011 -:16:- that reference has been made to the Department of Public Enterprises seeking approval for 100% neutralization of DA irrespective of any Basic Pay. However, in the case of the demand by employees of Indian Rare Earths Ltd., the second respondent took the stand that the special dispensation granted in the case of workmen of Uranium Corporation of India Ltd., cannot be treated as a precedent and he declined to take up the issue with the Department of Public Enterprises. In the light of the admitted fact that it was for the Department of Public Enterprises to decide whether the approval sought should be granted or not and as the Secretary to Government, Department of Atomic Energy was not the competent authority, the stand taken in Ext.P1 cannot be sustained. It was for the Department of Public Enterprises to decide whether, having regard to the facts and circumstances, the request made in Ext.P6 letter and in the letter dated 24.10.2008 to implement 100% DA neutralization irrespective of any Basic Pay in Indian Rare Earths Ltd., should be granted or not. I am therefore, of the considered opinion that the stand taken in Ext.P1 cannot be sustained.
9. That takes me to the question whether, as contended by W.P(C).No.2541 of 2011 -:17:- the learned counsel for the respondents, the issue raised by the petitioner survives after the signing of the memorandum of settlement arrived at on 3.7.2010. Though a copy of the memorandum of settlement arrived at on 3.7.2010 and the Charter of Demands have not been produced, copies thereof were made available to me by the learned standing counsel appearing for respondents 2 and 3. The petitioner union had submitted a Charter of Demands along with a letter dated 15.5.2008 to the Chairman and Managing Director of Indian Rare Earths Ltd. The said letter along with the relevant portion of the Charter of Demands is extracted below:-
I.R.E. STAFF AND WORKERS UNION Reg. No. 2/73 UDYOGAMANDAL - 683 501 Ref:
Date: 15th May 2008 To THE CHAIRMAN & MANAGING DIRECTOR Indian Rare Earths Ltd;
Plot No: 1207, Veer Savarkar Marg, Near Siddhi Vinayak Temple Prabhadevi-MUMBAI-400 028.
Respected sir, Our long term settlement, dt.06.12.2005 singed in respect of workmen under unionized categories in IRE Ltd., RE Division, Udyogamandal W.P(C).No.2541 of 2011 -:18:- for the period of 5 years from 1st July, 2003 expires on 30th June 2008. We hereby forward fresh Charter of Demand in 14 pages for negotiation and for a quick finalization to enable the settlement come into force with effect from 1st July 2008.
During the last 5 years, the cost of living has escalated phenomenally and as a result, the living standards have fast eroded making it an almost impossible task to make both ends meet for the employees.
The performance of our unit in the last 5 years was excellent in respect of production and profits. This achievement in productivity and profit from year to year was the result of the combined efforts of the workmen and management.
We also suggest a meaningful and purposeful scheme for workers participation in management for joint functions in different levels with Trade union's representatives in Board Level. A joint standing committee with representatives of the management and workers should be constituted to correct and monitor the company's performance in the area of planning, production, inventory, pricing and other related matters for the smooth functional activities of our unit.
The present wages is not sufficient to maintain life style expenditure due to price hike in all commodities.
At this juncture the enclosed Charter of W.P(C).No.2541 of 2011 -:19:- Demand is prepared keeping in mind the status of our company, with reference it's performance, profit, strategical importance and exiting high cost of living.
We assure you that we will give you sincere support for the betterment of the company's and employees good future.
Thanking you
K.S.Mohandas, Shibu Baby John,
Gen.Secretary, President,
IRE Staff Workers Union, IRE Staff Workers Union, Udyogamandal. Udyogamandal.
CHARTER OF DEMAND CHAPTER I
1. PERIOD OF SETTLEMENT The period of this settlement should be for 5 years from 1st July 2008 to 30th June 2013.
2. WAGE STRUCTURE: We propose the following wage structure:
(A) SCALE OF PAY: The present scale of pay of all the 10 grades of workmen shall be revised by adding the variable DA amount equivalent to 100% AICPI points as on 30.6.2008 with the starting Basic pay of each scale and a revision of 50 per cent on the above sum shall be allowed as fitment benefit. The pay scales should be open ended with percentage of increments of the running Basic pay.
(B) VARIABLE DEARNESS ALLOWANCE W.P(C).No.2541 of 2011 -:20:- (VDA): The industrial Dearness Allowance at AICPI points (Base year 1960=100) as on 30.6.2008 shall be merged with the Basic pay of every workman. For the purpose of fixation of the 100% VDA, ie 26.6% shall be merged with the Basic pay of every employee. (C) SERVICE WEIGHTAGE: 2% of the Basic pay as on 30.6.2008 of employees upto 10 year of service, 2.5% of Basic pay of employees from 11 to 20 year of service and 3% of Basic pay of employees above 20 year service shall be allowed as service weightage for every employees.
(D) PERSONAL PAY: The personal pay of each workmen as on 30.6.2008 shall be added with the Basic pay of each employees for their fixation of revised Basic pay.
(E) MINIMUM ASSURED BENEFIT: All the workmen should be assured the minimum benefits in the revised scales by adding the following elements with their Basic pay as on 30.6.2008.
i) The 100% VDA (26.6%) as on 30.6.2008.
ii) 50% of the sum of Basic Pay and the above 26.6% VDA as fitment benefit for the revised scale of Pay.
iii) Service weightage referred in 2(C) above
iv) Personal Pay referred above in 2(D) The figure so arrived shall be corrected to the next higher 10s. And that figure will be his/her new Basic Pay after revision.
In the Charter of Demands, the petitioner union had proposed W.P(C).No.2541 of 2011 -:21:- that the present scale of pay of all the 10 grades of workmen be revised by adding the variable DA amount equivalent to 100% AICPI (All India Consumer Price Index) points as on 30.6.2008 with the starting basic pay of each scale and 50 per cent of the above sum be allowed as fitment benefit. Likewise, other trade unions had also submitted their Charter of Demands. It was after the trade unions submitted their Charter of Demands that the third respondent sent Ext.P6 letter dated 7.10.2008 followed by the letter dated 24.10.2008 to the second respondent requesting the second respondent to take up the matter with the Department of Public Enterprises for obtaining the necessary approval in order to enable Indian Rare Earths Ltd. to take further action in the matter. A series of discussions were thereafter held and a memorandum of understanding was entered into on 7.5.2010.
Still later, conciliation proceedings were held and the memorandum of settlement was arrived at on 3.7.2010. In paragraph 5.1 of the said settlement it is stipulated as follows:-
"5.1. Subsequent to the Wage Settlement w.e.f.
01.07.2008, 100% DA neutralization will be adopted for all workmen in the revised pay scale. Thus VDA as on 1.7.2008 will be Nil for AICPI 3150 points and the first instalment W.P(C).No.2541 of 2011 -:22:- of VDA would become due from 1.10.2008 and thereafter shall be revised quarterly (i.e. 1st January, 1st April, 1st July and 1st October) based on increase/decrease in the quarterly average of AICPI for the quarters Sept.-Nov., Dec.-Feb., March-May and June-Aug., respectively. The variable DA on the above basis on 1.7.2008 payable to workmen shall be as illustrated in Annexure-B."
In paragraph 22 it was stipulated as follows:-
"22. It is further agreed by the parties that this settlement is in full and final settlement of demands raised by the unions in their respective Charter of Demands and that the unions shall not raise any demand involving further financial commitment on the part of the Company during the period of operation of this settlement."
10. With the memorandum of settlement arrived at on 3.7.2010, the request for 100% DA neutralization was implemented with effect from 1.7.2008 as claimed in the Charter of Demands. By virtue of paragraph 22 of the memorandum of settlement arrived at on 3.7.2010, the unions are precluded from raising any demand for the period covered by the said memorandum of settlement, namely, for the period from W.P(C).No.2541 of 2011 -:23:- 1.7.2008 to 30.6.2013. The demand in the instant writ petition for 100% DA neutralization irrespective of any Basic Pay relates to a period prior to that, namely, the period from 1.7.2003 to 30.6.2008. The effect of a settlement arrived at under section 12 (3) of the Industrial Disputes Act, 1947 on a pending demand, which was not taken care of by the settlement, was considered by the High Court of Andhra Pradesh in Singareni Collieries Co. Ltd. v. Industrial Tribunal (C) Hyderabad, 1988 Lab. I.C. 1271. It was held that the sanctity of a settlement is confined to the terms of the settlement which has been signed and sealed between the parties, that a settlement will be deemed to be a full and final settlement in regard to all the demands which have been considered in the settlement, but demands which have not been considered and which have never been the subject matter of the terms of the settlement cannot be deemed to have been foreclosed by the terms of the settlement. It was also held that demands which are inextricably linked with the terms of the settlement and which have not been pressed or which have been given up will be deemed to have been withdrawn, but demands arising independently of the terms of the settlement cannot be W.P(C).No.2541 of 2011 -:24:- deemed to have been withdrawn by virtue of a settlement arrived at between the parties. In the instant case, the memorandum of settlement arrived at on 3.7.2010 does not stipulate that the workmen have agreed to give up their claims under paragraph 5.3 of the settlement arrived at on 6.12.2005 for 100% DA neutralization irrespective of any Basic Pay as in the case of Uranium Corporation of India Ltd., for the period from 1.7.2003 to 30.6.2008. As stated earlier, it was after the trade unions submitted their Charter of Demands which led to the memorandum of settlement dated 3.7.2010, that in terms of the stipulations in paragraph 5.3 of the settlement dated 6.12.2005, the third respondent sent Ext.P6 letter dated 7.10.2008 followed by the letter dated 24.10.2008 to the second respondent requesting the second respondent to take up the matter with the Department of Public Enterprises for obtaining the necessary approval in order to enable Indian Rare Earths Ltd. to take further action in the matter. Necessarily therefore, it cannot be said that the settlement arrived at on 3.7.2010 foreclosed the claims of the workmen for benefits under paragraph 5.3 of the settlement arrived at on 6.12.2005. I therefore, find no merit in the W.P(C).No.2541 of 2011 -:25:- contention of the learned counsel for the respondents that the workmen are precluded from raising a claim for 100% DA neutralization irrespective of any Basic Pay for the period from 1.7.2003 to 30.6.2008.
I accordingly allow the writ petition, quash Exts.P1 and direct the second respondent to forward the request made by the third respondent in its letters dated 7.10.2008 and 24.10.2008 to the Secretary to Government, Department of Public Enterprises, Ministry of Heavy Industries and Public Enterprises, within two weeks from the date on which the petitioner produces a certified copy of this judgment before him. It will be open to the petitioner to submit a detailed representation highlighting the grievances of the workmen and setting out its contentions along with a certified copy of this judgment to the second respondent who in turn shall forward the said representation also to the competent authority. The competent authority in the Government of India shall thereupon consider the same and take an appropriate decision in the matter expeditiously and in any event within a period of six months from the date of receipt of the papers from the second respondent. The Government of India W.P(C).No.2541 of 2011 -:26:- shall after a decision is taken in the matter, communicate it to respondents 3 and 4. The parties shall bear their respective costs.
P.N.RAVINDRAN, Judge.
ahg.
P.N.RAVINDRAN, J.
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W.P(C).No.2541 of 2011
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JUDGMENT 21st May, 2012