Himachal Pradesh High Court
Village Bated vs Hotel on 14 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14TH DAY OF NOVEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CIVIL WRIT PETITION 2935 OF 2019
Between:-
M/S SECURE METER LTD.
UNIT II & III
VILLAGE BATED, HARIPUR ROAD,
BAROTI WALA, DISTT. SOLAN,
HIMACHAL PRADESH-174103
THROUGH: GROUP VICE PRESIDENT LEGAL AND
TAXATION) & COMPANY SECRETARY)
PETITIONER
(BY MR. N.S. CHANDEL, SENIOR ADVOCATE WITH
MR. C.N. SINGH, ADVOCATE)
AND
WORKERS UNION OF SECURE METERS,
WORKERS UNION (INTUC),
REGD. NO. 1199,
SECURE METER LTD.
UNIT II & III
BAROTIWALA DISTT. SOLAN, H.P.
THROUGH ITS PRESIDENT/ GENERAL SECRETARY
RESPONDENT
(MR. V.D. KHIDTTA, ADVOCATE)
This petition coming on for orders this day, the court passed the following:
O R D E R
By way of instant writ petition filed under Art. 226 of the Constitution of India, challenge has been laid to order dated 11.9.2019 passed by learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla in App. No. 101 of 2019 (Annexure P-1), whereby learned Tribunal below, while disposing of an application preferred under S.10(4) and S.2(b) of the Industrial Disputes Act, 1947 (hereinafter, 'Act') read with S. 151 CPC, preferred on behalf of the respondent Union, passed an interim order, thereby directing the petitioner Management to pay increments to 168 workers, as was being paid, as per prevailing practice earlier to 'Long Term Settlement' prior to 2015, though ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 2 subject to the length of service and category. Apart from above, learned Tribunal below also held the members of the respondent Union entitled to receive enhanced wages with effect from October payable on 1.11.2019 alongwith arrears from April, 2015 till date.
.
2. Precisely, the facts of the case, as emerge from the record are that the respondent Union raised a demand on 5.1.2015, relating to the proposed 'long term settlement to be followed after April, 2015. Demands were relating to increase in salary, allowances, leave, medical facility, insurance and other issues related to the working conditions of the workmen. Since the conciliation proceedings inter se respondent Union and the petitioner Management failed, 'appropriate Government' made a reference under S. 10(2) of the Act as under, to the Industrial Tribunal-cum-Labour Court:
"Whether demands raised vide demand notice dated-05.01.2015 (Copy-enclosed) by the President & General Secretary, Secure Meters Workers Union (INUTC) Registration No. 1199, Secure Meter Ltd. Unit- II & III, Barotiwala, Distt. Solan, H.P. raised before and to be fulfilled by the Employer/ General Manger, M/s Secure Meters Ltd., Unit-II & III, Barotiwala, Distt. Solan, H.P. are legal and justified? If yes, what relief in terms of demand notice dated- 05.1.2015 regarding monetary benefits and other service benefits, the concerned workers are entitled to from the above Employer/Management?"
3. Since, during the pendency of the reference, the petitioner-
Management increased the salary of 83 workers, who were similarly situate to other 168 workers, respondent Union filed an application under S.10(4) and 2(b) of the Act in the pending reference before learned Tribunal below, praying therein to pass interim order, directing the petitioner Management to pay equal wages/salary to the workers, as was being paid to the workers prior to 2015. In the aforesaid application, respondent Union claimed that all the ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 3 251 workers performing same and similar work till 2015, were being paid similar salary but after raising of the demand notice on 5.1.2015, only 83 workers have been given a hike in their salaries and salary of 168 workers has not been increased after April, 2015, as a consequence of which, .
difference in their salary has crossed Rs. 6,000/- per month. Respondent Union though claimed that the intention of the petitioner Management is to create pressure upon 168 workers to leave the Union and frustrate the rights of the respondent Union, which were accruable in favour of the workers after long term settlement inter se parties. Respondent Union also termed the action of the petitioner Management to be against the settled principle of 'equal pay for equal work', besides being violative of S.9 of the Act, Fourth Schedule appended thereof. Respondent Union claimed that since all the workers are performing same nature of work, they are entitled to same wages, as were being given to them prior to April, 2015.
4. While contesting aforesaid application, petitioner Management inter alia raised preliminary objections that the application is not maintainable, because, issue raised in the application for interim relief is not a matter 'incidental' to the reference, as such, no relief can be granted under S.10(4) and 2(b) of the Act. Besides above, petitioner management also set up a case that the learned Tribunal below has no power to pass any interim orders in terms of S.11(3) and 11(8) of the Act. On merit, the petitioner Management set up a case before learned Tribunal below that the respondent Union has no locus standi to prefer the application and remaining 168 workers cannot be allowed to claim same and similar wages, as they are working in different categories having different duties, length of service, different qualifications and different levels of skill. Petitioner Management also averred in the reply ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 4 that the employees are being paid much higher than the minimum wages and so far as increments are concerned, same cannot be claimed as a matter of right but is the discretion of the Management. Moreover, the salary/wages of the employee depend upon his/her grade, qualification, length of service, level .
of skill, behaviour/ conduct and overall assessment. It is averred by the petitioner Management that the company has its own policy and procedure for granting increments to the employees and prior to the settlement, all the workers were following the process as per the company's policy and their increments were released accordingly. It is averred by the petitioner management that said settlement was terminated vide fresh demand notice dated 5.1.2015 and the parties pressing for the fresh demands opted to get adjudicated their demands by way of the present reference before learned Tribunal below and as such, they ceased their right to avail the same till the final outcome of the reference. Petitioner Management further averred that about 28-30 workmen approached the management and opted for the same prevailing procedure, which was being followed earlier vis-à-vis grant of increments and as such, they were extended benefits accordingly. Petitioner management further claimed that the learned Tribunal below is expected to confine its adjudication to the terms of reference alone and until the main issue is decided, no interim relief can be granted to the respondent Union.
While denying the claim of the respondent Union that Management has discriminated with the workers, petitioner Management justified its action on the ground that all 251 workers are not performing same and similar work and after raising demand notice dated 51..2015, they have not increased the salary of 83 workers, rather, all the workers are being extended all the statutory benefits as per their category, level of skill, length of service and ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 5 none of the workers is getting less than the minimum wages as notified by the Government from time to time.
5. Learned Tribunal below, taking note of the pleadings adduced on record by respective parties, allowed the application and by way of interim .
order, directed the petitioner Management to pay increments to all the 168 workers, as was being paid earlier to Long Term Settlement, though subject to their length of service and category. Being aggrieved and dissatisfied with the aforesaid order, petitioner Management has approached this Court in the instant proceedings, praying therein to set aside the aforesaid order.
6. I have heard the Learned Counsel appearing for the parties and gone through the records of the case.
7. In nutshell, case of the petitioner Management is that Industrial Tribunal-cum-Labour Court has no jurisdiction to grant/pass interim order in the nature of interim relief and it cannot travel beyond the ground and scope of the matter in dispute, as set out in terms of the reference and prayer made by the respondent Union in its prayer for interim relief. Apart from above, it has been claimed by the petitioner Management that the learned Tribunal below could not grant interim relief, which is not germane and even the claimant i.e. respondent Union has conceded and accepted the fact that the settlement was for a definite duration, which has come to an end and therefore, 'extension' or 'continuation' thereof cannot be termed as a matter incidental to the reference.
8. Mr. N.S. Chandel, learned senior counsel duly assisted by Mr. C.N. Singh, Advocate, vehemently argued that the learned Tribunal below, while passing the impugned order, has traveled beyond the reference and relief claimed and granted by way of interim relief is/was not 'incidental' to the main ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 6 relief, as was set up in the reference. Above named counsel further submitted that since the workers themselves refused to receive benefit of earlier scheme, after expiry of the same, they cannot claim to be covered by the same till the time, dispute occurred inter se parties on account of fresh .
demand is decided by the learned Tribunal below. Learned senior counsel further argued that the impugned order in the nature of granting interim relief is untenable since same is coram non judice i.e. without jurisdiction. He submitted that the power conferred is a power to grant an 'interim relief' under S. 2(b), which has to be distinguished from an 'interim order'. He further argued that the 'interim award' is a final adjudication of some of the issues referred, which is not the case in an interim order, which orders are passed by civil courts on the triple considerations of, 'prima facie case', 'balance of convenience' and 'comparative hardships'. To substantiate his aforesaid argument, he placed reliance upon judgment of Hon'ble Supreme Court in Management of Hotel Imperial v. Hotel Workers' Union¸ AIR 1959 SC 1342, which has been otherwise taken note by the learned Tribunal below, while passing the impugned order. Besides above, he also placed reliance upon other judgments viz. Schneider Electric IT Business India Pvt. Ltd. v.
. American Power Conversion (India) Pvt. Ltd. 2017 SCC OnLine Kar 4729, wherein it has been held that, "the definition of the word "award" shows that it can be either on interim or final determination either of the whole of the dispute referred to the tribunal or of any question relating thereto. Thus, it is open to the tribunal to give an award about the entire dispute at the end of the all proceedings and this will be final determination of the industrial dispute referred to it. It is also open to the tribunal to make an award about some of the matters referred to it, whilst some other still remain to be decided. This will ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 7 be in interim determination of any question relating thereto. In either case it will have to be published as required by S.17. Such awards are however, not in the nature of interim relief for they decide the industrial dispute or some question relating thereto. Interim relief on the other hand, is granted under .
power conferred on the tribunal under S.10(4) with respect to the matters, incidental to the points of dispute for adjudication. " Lastly, Mr. Chandel, learned senior counsel argued that the prayer of the respondent Union seeking parity of pay with 83 employees, who were part of the settlement dated 24.9.2012 and who later on opted out of the settlement and agreed to become part of the company's performance appraisal based increment incentive, cannot be accepted, for which they have to fill up the performance appraisal form and based on their performance and behaviour, they shall be given separate grades like 1.1, 1.2, 1.3, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, where 1.1 is the considered as the best and 3.3 as the lowest. It is argued by the learned senior counsel that based on the grades achieved by the respective employee, annual increments are decided and paid to them. He submitted that since 168 employees have chosen not to be part of the performance based incentive and decided to continue with the annual increment under the settlement, they were being paid the incentive strictly in terms of the settlement, as such, they cannot claim parity with other 83 works, who have been given increments on the basis of their performance appraisal.
9. Mr. V.D. Khidtta, Advocate, learned counsel for the respondent Union, while refuting the aforesaid submissions made on behalf of learned senior counsel for the petitioner Management, made this court to peruse S. 10(4) and S.2(b) of the Act, to argue that the learned Tribunal below, besides having power to pass interim award, has also the power to pass interim order.
::: Downloaded on - 21/11/2022 20:30:17 :::CIS 8He submitted that since it is not in dispute that 251 workers were performing similar work till April, 2015 and their salary was increased uniformly till April, 2015, 168 works, who had raised demand, could not be discriminated on the ground that previous settlement stands terminated on account of filing of fresh .
demand notice dated 5.1.2015. While referring to the provisions contained under S.9A of the Act, Mr. Khidtta, submitted that otherwise also, petitioner Management, could not effect any change in the conditions of the services of those workmen, who had raised fresh demand and matter had landed before reference court, without there being any notice. He submitted that since it is not in dispute that 83 workmen, who have been given increments in their salary are similar situate to 168 works coupled with the fact that the main dispute pending adjudication before learned Tribunal below is with regard to hike in salary, learned Tribunal below, rightly directed the petitioner Management to pay increments to 168 workers as were being paid as per provisions of Long Term Settlement prior to April, 2015, as has been done in case of other 83 workers. Mr. Khidtta, further submitted that the interim relief/order is based on interest of justice and balance of convenience and same is a step in aid to the main relief sought for in the reference. He submitted that in the case at hand, by way of interim order, directing the petitioner Management to pay increments to all 168 workers, as were being paid as per previous practice alongwith other benefits as per settlement prior to 2015, it cannot be said that the learned Tribunal below, while passing the aforesaid order, attempted to determine the main point in dispute, rather, it decided the point 'incidental' thereto.
10. Having heard Learned Counsel appearing for the parties and perused the material available on record, vis-à-vis reasoning assigned in the order ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 9 impugned in the instant proceedings, this court finds no illegality or infirmity in the impugned order. Bare reading of judgment passed by Hon'ble Apex Court in Hotel Imperial supra, relied upon by learned senior counsel for the petitioner Management, itself suggests that there is no bar for an industrial .
tribunal to grant interim relief, rather it suggests that ordinarily the interim relief should not be the whole relief that the party would get if they succeed finally. It would be apt to take note of following paras of Hotel Imperial case supra:
"21. After a dispute is referred to the tribunal under s. 10 of the Act, it is enjoined on it by s. 15 to bold its pro- ceeding expeditiously and on the conclusion thereof submit its award to the appropriate government. An "
award " is defined in s. 2(b) of the Act as meaning " an interim or final determination by an Industrial Tribunal of any industrial dispute or of any question relating thereto." Where an order referring an industrial dispute has been made specifying the points of dispute for adjudication, the tribunal has to confine its adjudication to those points and matters incidental thereto; (s. 10(4)). It is urged on behalf of the appellants that the tribunal in these cases had to confine itself to adjudicating on the points referred and that as the question of interim relief was not referred to it, it could not adjudicate upon that. We are of opinion that there is no force in this argument, in view of the words " incidental thereto " appearing in s. 10(4). There can be no doubt that if, for example, question of reinstatement and/or compensation is referred to a tribunal for adjudication, the question of granting interim relief till the decision of the tribunal with respect to the same matter would be a matter incidental thereto under s. 10(4) and need not be specifically referred in terms to the tribunal. Thus interim relief where it is admissible can be granted as a matter incidental to the main question referred to the tribunal without being itself referred in express terms.
22. The next question is as to how the tribunal should proceed in the matter if it decides to grant interim relief. The definition of the word "award" shows that it can be either an interim or final determination either of the whole of the dispute referred to the tribunal or of any question relating thereto. Thus it is open to the tribunal to give an award about the entire dispute at the end of all proceedings. This will be final determination of the industrial dispute ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 10 referred to it. It is also open to the tribunal to make an award about some of the matters referred to it whilst some others still remain to be decided. This will be an interim determination of any question relating thereto. In either case it will have to be published as required by s. 17. Such awards are however not in the nature of interim relief for they decide the industrial dispute or some question relating thereto. Interim relief, on the other hand, is granted under .
the power conferred on the tribunal under s. 10(4) with respect to matters incidental to the points of dispute for adjudication.
23. It is however urged on behalf of the appellants that even if the tribunal has power under s. 10(4) of the Act to grant interim relief of the nature granted in these cases it can only do so by submitting an award under s. 15 to the appropriate government. Reference in this connection is made to sections 15, 17 and 17-A of the Act. It is submitted that as soon as the tribunal makes a determination whether interim or final, it must submit that determination to government which has to publish it as an award under s. 17 and thereafter the provisions of s. 17-A will apply. In reply the respondents rely on a decision of the Labour Appellate Tribunal in Allen Berry and Co. Ltd.
v. Their Work. men(1), where it was held that an interim award had not to be sent like a final award to the government for publication and that it would take effect from the date of the order. We do not think it necessary to decide for present purposes whether an order granting interim relief of this kind is an award within the meaning of s. 2(b)and must therefore be published under s.
17. We shall assume that the interim order passed by the Tribunal on December 5, 1955, could not be enforced as it was in the nature of an award and should have been submitted to the government and published under s. 17 to become enforceable under s. 17-A. It is, however, still open to us to consider whether we should pass an order giving interim relief in view of this alleged technical defect in the order of the Industrial Tribunal. We have the power to grant interim relief in the same manner as the Industrial Tribunal could do and our order need not be sent to government for publication, for ss. 159 17 and 17-A do not apply to the order of this Court just as they did not apply to the decision of the Appellate Tribunal which was governed by the Industrial Disputes (Appellate Tribunal) Act, 1950 (No. XLVIII of 1950), (since repealed). We have already mentioned that this Court passed an order on June 5, 1956, laying down conditions on which it stayed the operation of the order of December 5, 1955, made by the Industrial Tribunal. We are of opinion that order is the right order to pass in the matter of granting interim relief to the workmen in these cases. Ordinarily, interim relief should not be ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 11 the whole relief that the workmen would get if they succeeded finally. In fairness to the Industrial Tribunal and the Appellate Tribunal we must say that they granted the entire wages plus Rs. 25 per mensem per head in lieu of food on the view that no suspension was possible at all in those cases and therefore the contract of service continued and full wages must be paid. Their orders might have been different (1) [1951] 1 L.L.J. 228."
.
11. While interpreting 'award', as defined under S.2(b) of the Act, Hon'ble Apex Court ruled that if question of reinstatement and/or compensation is referred to a tribunal for adjudication, the question of granting interim relief till the decision of the tribunal with respect to the same matter would be a matter incidental thereto under s. 10(4) and need not be specifically referred in terms to the tribunal. Thus interim relief where it is admissible can be granted as a matter incidental to the main question referred to the tribunal without being itself referred in express terms. It has been further held in the aforesaid judgment that definition of 'award' as given in S.2(b) clearly reveals that it can be either an interim or final determination either of the whole of the dispute referred to the tribunal or of any question relating thereto. Thus it is open to the tribunal to give an award about the entire dispute at the end of all proceedings. This will be final determination of the industrial dispute referred to it. It is also open to the tribunal to make an award about some of the matters referred to it whilst some others still remain to be decided. This will be an interim determination of any question relating thereto. In either case it will have to be published as required by S. 17. Such awards are however not in the nature of interim relief for they decide the industrial dispute or some question relating thereto. Interim relief, on the other hand, is granted under the power conferred on the tribunal under s. 10(4) with respect to matters incidental to the points of dispute for adjudication ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 12
12. After having carefully perused the aforesaid judgment passed by Hon'ble Apex Court, this Court is convinced that an industrial tribunal possesses power to pass interim relief while exercising power under S.10(4) of the Act, as a matter incidental to the main question referred to the Tribunal.
.
13. Similarly, High Court of Karnataka in M/s Darshak Ltd. v. Presiding Officer, 1985 SCC OnLine Kar 345, has held that the tribunal has power to grant an interim relief under S.10(4) but the same cannot be made in the form of an 'award', but only in the nature of an interim order. High Court of Karnataka has held as under:
"16. In the light of the discussion as above, my conclusions on the two questions of law arising for consideration in this case, set out in the first paragraph of this cider, are:
(1) The Industrial Tribunal/Labour Court has the power to grant interim relief during the pendency of a reference of an industrial dispute made under Section 10(1) of the I.D Act. (2) An interim relief could be granted, if only the interim relief sought for is incidental to any point of dispute and not independent and is a step in aid to the main relief sought for in the reference and if the granting of such interim relief is essential in the interest of justice and the balance of convenience is in favour of granting it.
(3) It should not involve determination/decision of any point of dispute or a point incidental thereto for, it can be done only in an interim award. Therefore an interim order should not be in the form of an award.
(4) Section 17 of the Act which requires publication of an award has no application to an order granting interim relief.
(5) Provisions of Section 33-C can be invoked for enforcement of an interim order."
14. Hon'ble Apex Court in Lokmat Newspapers Pvt. Ltd. v.
Shankarprasad, (1999) 6 SCC 275, has held that in appropriate cases, the Court to which such references are made has ample jurisdiction to pass interim orders and if the Court had found that the impugned retrenchment order was required to be stayed even though it had been passed after conciliation proceedings were over and when there was no prohibitory order ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 13 from any authority such retrenchment order could have been stayed. Further implementation of the impugned change could have been stayed. Hon'ble Apex Court held as under:
.
"49. It is because of the aforesaid provision of Section 59 of the Maharashtra Act that the referred dispute under Section 10 of the I.D. Act got disposed of. However, the fact remains that on the failure report submitted by the Conciliation Officer the appropriate Government had thought it fit to prima facie hold that the dispute was a real one which required adjudication by the competent Court under the I.D. Act. It is also necessary to note that in such references received by the competent Court under the I.D. Act in appropriate cases, the Court to which such references are made has ample jurisdiction to pass interim orders and if the Court had found that the impugned retrenchment order was required to be stayed even though it had been passed after conciliation proceedings were over and when there was no prohibitory order from any authority such retrenchment order could have been stayed. Further implementation of the impugned change could have been stayed vide The Management Hotel Imperial, New Delhi and others vs. Hotel Workers' Union (AIR 1959 SC 1342) and The Hind Cycles Ltd. and another vs. The Workmen (AIR 1974 SC 588)."
15. Hon'ble Apex Court in Goa MRF Employees Union v. MRF Limited, (2014) 14 SCC 483, held that Tribunal has power to grant relief in the nature of injunction under S.33-A of the Act. Hon'ble Apex Court held as under:
"10. Having regard to the above statement of the parties and the facts of the case, we are satisfied that it is not necessary to answer the question formulated in the order dated 8-3-2006. The decision of this Court in Hotel Imperial is holding the field for the last 53 years. Then there are decisions of this Court in Delhi Cloth and General Mills Co. Ltd. v. Rameshwar Dayal 1961 2 SCR 590, Lokmat Newspapers Pvt. Ltd. v. Shankarprasad 1999 6 SCC 275 which also have some bearing on the aspect of grant of interim reliefs by the Industrial Tribunals under the Act. Obviously, when such question arises in a given case, the same shall be decided by the Industrial Tribunal concerned appropriately having regard to the scheme of the Act and the above decisions."::: Downloaded on - 21/11/2022 20:30:17 :::CIS 14
16. Hon'ble Apex Court in Hind Cycles Ltd. and another v. Workmen, (1973) 3 SCC 544, upheld the order granting interim relief, using power under S.10(4) of the Act, whereby tribunal had granted interim relief to the workman .
according to the Central Wage Board for central industries. Hon'ble Apex Court held as under:
"3. It is brought to our notice that in view of certain technical aspects involved in the adjudication of certain matters covered by the Reference, the Tribunal has appointed Assessors for making recommendations regarding those matters. It is further represented that the Assessors appointed, at the suggestion of the employers have submitted their reports; but in respect of production bonus, the assessors appointed at the suggestion of the workmen have yet to investigate the matter and submit their report. Quite naturally, some more time may elapse by the time the final award is passed by the Tribunal.
4. The claim of the workmen for payment of interim relief was contested by the appellants on the ground that after the Reference, under certain Settlements, they have made substantial payments which have added to the emoluments of the workmen and hence no interim relief is necessary to the workmen. They further pleaded that if amounts have workmen, the company will not be able to bear the financial burden inasmuch as it has suffered a loss of over 37 lacs rupees during the year 1967-68 and as even, according to the workmen, the additional burden that the company will have to bear on that a core will be in the region of 1.92 lacs a year.
5. The Tribunal has proceeded on the basis that the additional emoluments, claimed to have been paid by the appellants after the Reference, must be considered to be payments made for the increased production shown by the workmen. This view of the Tribunal is criticized by Mr. Pal on the ground that the nature of the payment made under the settlement has been misunderstood by the Tribunal. Counsel has also pointed out that even the category of workmen who are eligible for interim relief as claimed by the Sabha, has also been misunderstood by the Tribunal. The more serious attack against the order of the Tribunal is that it has not considered one of the very material factors to be taken into account for such purpose, namely the financial capacity of the appellant to bear the additional burden. Mr. Pal, no doubt attempted to show by reference to the records that the appellant will not be able to bear the financial burden. Mr. H.K. Sowani, also tried to satisfy us that the appellant's financial capacity is sound.
6. We have thought it unnecessary to deal with the material on record, because such material will have to be considered by the Tribunal before a final adjudication is made by it in respect of matters referred to it. As the matter is still pending before the Tribunal, we have refrained from considering the materials on record and express an opinion on them one way or other, as that will embarrass the Tribunal on its final adjudication."::: Downloaded on - 21/11/2022 20:30:17 :::CIS 15
17. Division Bench of this Court in M/s Wipro Enterprises Private Ltd. v.
the Prisiding Officer, CWP No. 4970 of 2021, decided on 15.9.2021, held that labour court can even grant injunction by way of interim order. Relevant paras of above judgment are reproduced herein below:
.
"23. In Management of Hotel Imperial, New Delhi and others v. Hotel Workers Union, AIR 1959 SC 1342, a Three-Judges Bench of the Hon'ble Supreme Court has held as under:
"20. This, however, does not conclude the matter so far as the grant of interim relief in these cases is concerned. Even though there may be an implied term giving power to the Employer to suspend a Workman in the circumstances mentioned above, it would not affect the power of the Tribunal to grant interim relief for such a power of suspension in the Employer would not, on the principles already referred to above, take away the power of the Tribunal to grant interim relief if such power exists under the Act. The existence of such an implied term cannot bar the Tribunal from granting interim relief if it has the power to do so under the Act. This brings us to the second point, which has been canvassed in these Appeals.
21. After a dispute is referred to the Tribunal under Section 10 of the Act, it is enjoined on it by Section 15 to bold its proceeding expeditiously and on the conclusion thereof submit its award to the appropriate government. An"award"is defined in Section 2(b) of the Act as meaning"an interim or final determination by an Industrial Tribunal of any Industrial Dispute or of any question relating thereto."Where an order referring an Industrial Dispute has been made specifying the points of dispute for adjudication, the Tribunal has to confine its adjudication to those points and matters incidental thereto; (Section 10(4)). It is urged on behalf of the Appellants that the Tribunal in these cases had to confine itself to adjudicating on the points referred and that as the question of interim relief was not referred to it, it could not adjudicate upon that. We are of opinion that there is no force in this argument, in view of the words"incidental thereto"appearing in Section 10(4). There can be no doubt that if, for example, question of reinstatement and/or Compensation is referred to a Tribunal for adjudication, the question of granting interim relief till the decision of the Tribunal with respect to the same matter would be a matter incidental thereto under Section 10(4) and need not be specifically referred in terms to the Tribunal. Thus interim relief where it is admissible can be granted as a matter incidental to the main question referred to the tribunal without being itself referred in express terms."
24. Though the dispute in the case of Imperial Hotel was referred for adjudication under Section 10 of the Act, but the principle laid down in the said Judgment can be gainfully employed in the facts of the present case in ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 16 the light of the discussion as the powers of adjudicatory authorities to deal with the Complaints under Section 33-A are analogous to the powers of such authorities to deal with reference under Section 10 of the Act.
25. In Bidi Leaves and Tobacco Merchants' Association Gondia and others v. State of Bombay (now Maharashtra) and others, AIR 1962 SC .
486, the Constitutional Bench of the Hon'ble Supreme Court has held as under:
"15. It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act, 1947 is given wide powers and jurisdiction to make appropriate awards in determining in Industrial Disputes brought before it. An award made in an industrial adjudication may impose new obligations on the Employer in the interest of social justice and with a view to secure peace and harmony between the Employer and his Workmen and full cooperation between them. Such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding Industrial Disputes the jurisdiction of the Tribunal is not confined to the administration of justice in accordance with the law of Contract. Mukherjee, J., as he then was, has observed in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi the Tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing Agreement. It has not merely to interpret or given effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace." since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay, it has been repeatedly held that the jurisdiction of industrial Tribunals if much wider and can be reasonably exercised in deciding Industrial Disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd., v. Brijnandan Pandey; Patna Electric Supply Co. Ltd., Patna v. Patna Electric Supply Workers Union.
Indeed, during the last ten years and more industrial adjudication in this country has made so much progress in determining Industrial Disputes arising between industrial of different kind and their Employee that the jurisdiction and authority of industrial Tribunals to deal with such disputes with the object of ensuring social justice is no longer seriously disputed."
26. In Niemla Textile Finishing Mills Ltd. v. 2nd Punjab Tribunal and others, AIR 1957 SC 329, the Constitutional Bench of the Hon'ble Supreme Court has held as under:
"23. So far as delegated legislation is concerned, abstract definitions of the difference between the judicial and the legislative functions have been offered (See the distinction drawn by Mr. Justice Field in the Sinking Fund case, but they are of little use when applied to a situation of complicated facts. The function of a Court is to decide cases and leading jurists recognize that in the decision of many cases a Court must fill interstices in legislation. A legislator cannot anticipate ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 17 every possible legal problem; neither can he do justice in cases after they had arisen. This inherent limitation in the legislative process makes it essential that there must be some elasticity in the judicial process. Even the ordinary Courts of law apply the principles of justice, equity and good conscience in many cases; e.g., cages in tort and other cases where the law is not codified or does not in terms cover the problem under consideration. The Industrial Courts are to adjudicate on the disputes between Employers and their Workmen .
etc., and in the course of such adjudication they must determine the "rights" and "wrongs" of the claim,% made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing Labour Practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience."
27. Reference can be made to a Division Bench Judgment passed by the High Court of Rajasthan at Jodhpur in National Textile Corporation Ltd. and ors. v. State of Rajasthan and anr., 1989 Lab. IC 1722, in which it has been held as under:
"24. Thus, we have come to the conclusion that an Industrial Tribunal is competent to grant interim relief under Section 10(4) of the Act, with respect to matters incidental to the points of dispute for adjudication.
And that the Tribunal is competent to grant Ad hoc increase in matter of Industrial Dispute with regard to demand for increase in Wages, for the adjudication of which reference has been made to it by the State Government. The next question is under what circumstances an interim relief may be granted, it may be stated that granting of an interim relief is purely within the discretion of the Tribunal and this discretion is to be exercised with reason and sound judicial principles.
We may adopt the same principles which govern the exercise of discretion by the Civil Court while granting temporary injunction. The principles may be stated as under:
Firstly, that there is prima-facie case, meaning there by that there is serious question to be tried and an existence of right;
Secondly, that the Tribunal's interference is necessary to protect the party from that species of injury which is regarded by the Courts irreparable and;
Thirdly, the balance of convenience that is the Tribunal should weigh the amount of substantial mischief that is likely to be done to the party claiming interim relief, if the same is refused and compare it with that which is likely to be caused to the other side if the interim relief is granted."::: Downloaded on - 21/11/2022 20:30:17 :::CIS 18
28. From the above noticed exposition of law, it is clear that there cannot be an absolute embargo on the power of the adjudicatory authorities under the Act to pass Interim Order in appropriate cases while dealing with the complaint under Section 33A of the Act. It goes without saying that the relief which is finally claimed in complaint under Section 33A cannot be granted by way of interim order. However, in order to maintain equities and to protect the .
interest of justice, the adjudicatory authorities can pass such interim orders as may be deemed necessary to maintain the balance."
18. Having scanned the entire law as discussed herein above, this court finds that the industrial tribunal, while exercising power under S.10(4) of the Act, can pass interim order/relief but it must be incidental to the terms of reference and not an issue falling beyond or outside the terms of reference.
Similarly, interim relief granted should be capable of being enforced under the Industrial Disputes Act. An interim relief could be granted, if only the interim relief sought for is incidental to any point of dispute and not independent and is a step-in-aid to the main relief sought for in the reference and if the granting of such interim relief is essential in the interest of justice and the balance of convenience is in favour of granting it. However, interim relief, should not involve determination /decision of any point of dispute or a point incidental thereto for, it can be done only in an interim award, therefore, an interim order should not be in the form of an award.
19. In the case at hand, appropriate Government, while exercising power under S.10(2) has made reference to the following extent, whether the demand raised vide demand notice dated 5.1.2015, to be fulfilled by the employer are legal and justified, by using word 'relief.' if relief, as prayed for in the interim by the workers and accorded by the learned trial Court is perused juxtaposing the main reference made by the Government under S. 10(2) of the Act, it can be safely concluded that the issue raised by way of interim ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 19 application is incidental to the main reference and same is a step in aid to the main relief, sought for in the main reference.
20. In the case at hand, 168 workers have not been granted increments as was being granted prior to April, 2015 under Long Term Settlement. Though .
the petitioner Management has granted said increments to 83 workers, who have distanced themselves from other 168 workers, who have otherwise been denied the pay on higher rate on the ground that they raised fresh demand notice dated 5.1.2015, as a consequence of which, previous settlement has come to an end, as far as these workers are concerned. If material available on record is perused, it clearly reveals that the workers Union has raised demand of hike in their wages and same is pending adjudication before learned Tribunal below.
21. In the case at hand, management after raising demand notice dated 5.1.2015 though raised salary of 83 workers but denied said benefit to other 168 workers, who were members of the respondent Union. It is also not in dispute that prior to that, earlier Long Term Settlement was in force and all the workers were getting benefits as per said settlement uniformly.
22. Since the issue with regard to demand notice dated 5.1.2015 is pending adjudication with reference court, the petitioner management has declined to revise salary of 168 workers on the ground that previous settlement, on the basis of which 83 workers have been given hike, has terminated qua 168 workers, on account of their having submitted fresh demand. Bare reading of reply filed by the petitioner management itself shows that till 5.1.2015, all the workers were being paid uniformly, as per Long Term Settlement executed in the year 2012 and during this period, workers were paid in accordance with Long Term Settlement.
::: Downloaded on - 21/11/2022 20:30:17 :::CIS 2023. Though, in the case at hand, all the workmen were getting their wages as per Long Term Settlement till April, 2015 but since new demand raised vide demand notice dated 5.1.2015, could not be settled, some workmen, who did not opt for new demand from management, they are being paid as per .
prevailing practice whereas, persons, who decided to get their demand adjudicated by way of reference pending adjudication before learned Tribunal below, have been denied increments after April, 2015, even as per old prevailing practice.
24. Though, the petitioner management has claimed that 168 worker have ceased their right to avail increment after April, 2015, till decision of the reference pending in the court but such action of the petitioner is not only discriminatory but ex facie illegal and arbitrary. Even if these 168 workers were not willing to relinquish demand so raised vide demand notice dated 5.1.2015, under Long Term Settlement arrived between the petitioner management and workers, workers would not be denied benefit of increments, as were being earlier paid uniformly to all the workers, though as per their respective grades, qualifications, length of service, level of skill or other criteria in vogue till April, 2015. Action of granting hike to only 83 workers, who opted not to be part of other group of 168 workers, which otherwise decided to get their demand adjudicated in reference petition, cannot be said to be justifiable by any stretch of imagination, that too on the ground that 168 workers with the filing of reference before reference court, ceased to be covered by the previous settlement.
25. Since the demand raised in the interim application is incidental to main demand so raised in the reference, it cannot be said to be independent demand, rather, it is certainly a step in aid to the main relief. Perusal of ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 21 Demand notice dated 5.1.2015 clearly shows that rise/hike in wages is one of the main demands.
26. Order impugned in the instant proceedings reveals that one Sanjay Suman Srivastva, H.R. Business Partner Operations while deposing as PW-3 .
categorically admitted that 168 workers are entitled to revision since 2015, though subject to their entitlement. This witness further deposed that the management has been asking the workers to come to the table since long.
He also admitted that even after the expiry of the earlier Long Term Settlement, the terms of the settlement continue to be in operation, as such, it is difficult to apprehend as to why these 168 workers were not granted increments after April, 2015 as per prevailing practice. Till the time, issue in demand notice dated 5.1.2015 is finally adjudicated by the learned Tribunal below, issues with regard to salary/increments are definitely to be governed by previous settlement.
27. Though, this Court finds force in the submissions of Mr. N.S. Chandel, learned senior counsel that the respondents cannot claim equal pay for equal work, but definitely they are entitled to pay/increment, as per earlier Long Term Settlement, as are being paid to 83 workers. Petitioner management cannot discriminate with similarly situate persons, on the basis that they failed to abide by the terms of management, rather, till the time, issue with regard to demand notice dated 5.1.2015 pending adjudication before learned Tribunal below is decided, petitioner management is under obligation to pay all the 168 workers increments as per previous settlement, which is still in vogue.
28. Hon'ble Apex Court in L.I.C. of India v. D.J. Bahadur, AIR 1980 SC 2181 has held that unless the settlements of 1974 are subsequently altered ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 22 by fresh settlement, award or valid legislation, the same would continue to be in force. Hon'ble Apex Court held in the judgment supra as under:
"75. It is desirable to appreciate what is a settlement as understood in the Industrial Disputes Act. In essence, it is a contract between the employer .
and the workmen prescribing new terms and conditions of service. These constitute a variation of existing terms and conditions. As soon as the settlement is concluded and becomes operative, the contract embodied in it takes effect and the existing terms and conditions of the workmen are modified accordingly. Unless there is some thing to the contrary in a particular term or condition of the settlement the embodied contract endures indefinitely, continuing to govern the relation between the parties in the future, subject of course to subsequent alteration through a fresh settlement, award or valid legislation. I have said that the transaction is a contract. But it is also something more. Conceptually, it is a "settlement". It concludes or "settles" a dispute. Differences which had arisen and were threatening industrial peace and harmony stand resolved in terms of a new contract. In order that the new contract be afforded a chance of being effectively worked out, a mandate obliging the parties to unreservedly comply with it for a period of time is desirable. It was made "binding" by the statute for such period. Section 19(2) was enacted. The spirit of conciliation, the foundation of the settlement, was required by law to bind the parties for the time prescribed. Immediate reagitation in respect of matters covered by the settlement was banned. Section 23 (c) prohibited strikes by the workmen in breach of the contract and lockouts by the employer in respect of such matters. A breach of any term was made punishable by s.29. Certainty in industrial relations is essential to industry, and a period of such certainty is ensured bys. 19(2). On the expiry of the period prescribed in the sub- section, the conceptual quality of the transaction as a "settlement" comes to an end. The ban lifts. The parties are no longer bound to maintain the industrial status quo in respect of matters covered by the settlement. They are at liberty to seek an alteration of the contract. But until altered, the contract continues to govern the relations between the parties in respect of the terms and conditions of service."
29. Hon'ble Apex Court in Narendra & others v. State of U.P. & others, (2017) 9 SCC 426, has held that a purposive interpretation has to be given to ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 23 subserve the ends of justice, particularly when the cases of vulnerable groups are decided by the courts. Hon'ble Apex Court held as under:
"10) Prof. (Dr.) N.R. Madhava Menon explains the meaning and contour of social justice adjudication as the application of equality jurisprudence evolved .
by the Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the socio- economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Court has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. The Courts, in such situations, generally invoke the principle of fairness and equality which are essential for dispensing justice.
Purposive interpretation is given to subserve the ends of justice particularly when the cases of vulnerable groups are decided. The Court has to keep in mind the 'problem solving approach' by adopting therapeutic approaches to the maximum extent the law permits rather than 'just deciding' cases, thereby bridging the gap between law and life, between law and justice. The notion of access to justice is to be taken in a broader sense. The objective is to render justice to the needy and that means fair solutions to the conflict thereby providing real access to 'justice'.
11) Justice is a core value of any judicial system. It is the ultimate aim in the decision making process. In post-traditional liberal democratic theories of justice, the background assumption is that all humans have equal value and should, therefore, be treated as equal, as well as by equal laws. This can be described as 'Reflective Equilibrium'. The method of Reflective Equilibrium was first introduced by Nelson Goodman in 'Fact, Fiction and Forecast' (1955). However, it is John Rawls who elaborated this method of Reflective Equilibrium by introducing the concept of 'Justice as Fairness'. While on the one hand, we have the doctrine of 'justice as fairness', as propounded by John Rawls and elaborated by various jurists thereafter in the field of law and political philosophy, we also have the notion of 'Distributive Justice' propounded by Hume which aims at achieving a society producing maximum happiness or net satisfaction. When we combine Rawls's notion of 'Justice as ::: Downloaded on - 21/11/2022 20:30:17 :::CIS 24 Fairness' with the notions of 'Distributive Justice', to which Noble Laureate Prof. Amartya Sen has also subscribed, we get jurisprudential basis for achieving just results for doing justice to the weaker section of the society."
30. In view of the detailed discussion made herein above, as well as the .
law taken into consideration, this court sees no illegality in the order passed by the learned Tribunal below and same is upheld, as a consequence whereof, the petition is dismissed alongwith all pending applications. Interim directions, if any, stand vacated.
31. However, having taken note of the fact that the main dispute is pending adjudication for more than six years, this court hopes and trusts that the learned Tribunal below would make all out efforts to conclude the proceedings, expeditiously, preferably within six months from the date of receipt of a copy of this order.
(Sandeep Sharma) Judge November 14, 2022 (vikrant) ::: Downloaded on - 21/11/2022 20:30:17 :::CIS