Bombay High Court
Empress Mills Co-Operative Society ... vs Presiding Officer, Iii, Labour Court ... on 17 July, 1987
Equivalent citations: 1988(1)BOMCR275
JUDGMENT M.M. Qazi, J.
1. All these petitions are being disposed of by this common judgment since the question involved is common.
2. The petitioner is a Co-operative Society formed by the employees working in the Empress Mills, Nagpur. respondent No. 2 is working as a Clerk with the petitioner. There seems to be no dispute that respondent No. 2 and other employees of the petitioner society were being paid wages as applicable to the employees of the Empress Mills. The wages of the employees of the Empress Mills were revised and an agreement to that effect was entered into on 9-1-1976 between the mills Management and the Rashtriya Mill Mazdoor Sangh, Nagpur. In view of this revision respondent No. 2 and other employees of the petitioner society requested the petitioner for the increase in their wages. The petitioner society in its general body meeting dated 12-9-1976 resolved to pay the wages to respondent No. 2 and other employees of the society so as to bring them on par with the wages of the Empress Mill employees. However, inspite of this resolution, the petitioner society did not pay the wages and hence respondent No. 2 was constrained to approach the Labour Court. The application was filed under section 33-C(2) of the Industrial Disputes Act, 1947. The claim of the respondent No. 2 was contested by the petitioner society on various grounds. However, the Labour Court after taking into consideration the evidence allowed the application and directed the petitioner society to pay the amount as claimed. It is this order, which is being challenged by way of this petition.
3. The only question that falls for my consideration is whether in the absence of the notice under section 42 of the Bombay Industrial Relations Act, 1946, the petitioner society could be directed to pay the amount as claimed to the respondent No. 2. According to Mr. Puranik, since no notice of change was given as required under section 42 of the Bombay Industrial Relations Act, 1946, the impugned order cannot be sustained. He has heavily relied on the decision reported in 1956 Labour Law Journal (Vol. II) page 149 Gajanan Mahadeo v. David Mills Ltd. and others. In my view, this decision does not at all support him. On the other hand, this decision supports the contention of respondent No. 2. The petitioners in that decision were employees who had filed an application before the Labour Court, alleging that their employer had suddenly reduced the dearness allowance which was being paid to them, without following the procedure laid down in section 42(1) of the Bombay Industrial Relations Act. Therefore, they contended that the employer should be compelled to set aside the change and to pay dearness allowance as before. The Labour Court and the Industrial Court accepted the contention of the petitioners and granted them the relief which they sought. The Labour Appellate Tribunal reversed the decision of the two Lower Tribunals and, therefore, the petitioners employees challenged the said decision before the High Court under Article 227 of the Constitution. It is in this context that this Court observed as under :
"We cannot possibly take the view that any party is entitled to compel the other party to do something which is illegal. If in making the change the employer stopped doing something which was illegal and started doing something which alone he could do under the law, then no notice was required to be given by him under section 42(1). Notice under section 42(1) needs only be given when what the employer is doing is in accordance with law and he wishes to bring about a change."
The High Court ultimately dismissed the petition.
3. In the present case, it was the practice which was being followed by the petitioner society for decades that it was paying its employees the same wages as were applicable to the employees of the Empress Mills. Since there was increase in the wages of the Empress Mills employees, there was no justification for the petitioner society in not increasing the wages of the respondent No. 2, who is an employee of the petitioner society. In view of this, there could be no doubt that the action of the petitioner society in not implementing the general body resolution amounts to continuing an illegal act.
4. Mr. Puranik then referred to another decision reported in 1956 Labour Law Journal (Vol. I) page 653. Sudam Silk Mills and another v. Rege (S.S.) Government Labour Officer. This decision, in my view, is not relevant at all. In this decision, the employer was prosecuted for an offence under section 109 of the Bombay Industrial Relations Act, 1946, on the complaint filed by the Government Labour Officer, Bombay, under section 82 of the Bombay Industrial Relations Act, 1946. The complaint was that the employer introduced a three-loom system per weaver in place of a two-loom system in February 1953 without following the procedure prescribed by section 42(1) of the Bombay Industrial Relations Act, 1946. The defence of the employer was that the workers willingly accepted the change in the two-loom system. The defence was negatived. On the contrary, it was found that the workers submitted to the work under a three-loom system under pressure. The employer was convicted by the Labour Court and the High Court also maintained the sentence and conviction of the employer.
5. In my view, the question of giving notice of change arises only if the change sought to be effected by the employer is likely to affect the employees. As has already been pointed out above, the petitioner is infact guilty of an illegal action in not bringing the wages of the respondent No. 2 on par with the wages of the Empress Mills employees' inspite of the fact that it has resolved in the General Body meeting held on 12-9-1976. Thus, as observed in 1956 Labour Law Journal (Vol. 11) page 149 (cited supra), there can be no question of giving notice of change under section 42(1) for doing something which alone has to be done under the law, and as has already been shown above, the change which is being demanded and which has also been agreed to by the petitioner society in its General Body meeting, referred to supra, there can be no question of giving notice of change, since the change sought to be made is obviously to the benefit of the employees. In my view, there is much substance in the contention of Mr. Palshikar that the resolution dated 12-9-1976 is in the nature of an agreement between the petitioner society and its employees. It is significant to note that the objection on the ground of notice was raised for the first time by the first time by the petitioner society only after the matter was remanded by this Court vide judgment dated 21st December, 1983 passed in Writ Petition No. 2964 of 1979, in which the High Court has upheld the validity of the resolution of the General Body dated 12-9-1976. In view of the these facts it would be too late in the day to allow the petitioner society to wriggle out of its own resolution.
6. Mr. Palshikar has invited my attention to the decision reported in 1985 Labour and Industrial Cases (Vol. 18) page 220 (Rashtriya Motor Karmachari Congress Union (INTUC), M.P.S.R.T. Corpon, Nagpur and others v. Madhya Pradesh State Road Transport Corporation, Bhopal and another). Para 16 of this decision reads thus -
"16. Shri Dabir, learned advocate for respondent No. 1 Corporation, tried to urge that before passing the resolution it was incumbent on the management of the C.P.T.S. Ltd. to give notice of change as contemplated by section 31 of the C.P. and Berar Industrial Disputes Settlement Act, 1947, and as no such notice was given and as the procedure prescribed by sections 34 to 37 was not followed the change effected by the resolution dated 30-7-1954 did not become effective as a valid condition of service. Section 31(1) contemplates that 'if an employer intends to effect a change in any Standing Order settled under section 30 or in respect of any industrial matter mentioned in Schedule II, he shall give 14 days notice of such intention in the prescribed form to the representative of employees.' But, the Standing Order relating to superannuation was not framed under section 30 of the C.P. and Berar Industrial Disputes Settlement Act, 1947, nor was it a matter covered by any item mentioned in Schedule II. A plain reading of the items in Schedule II will show that the notice of change is necessary only when the Management proposes to do something derogatory to the interest of the employees like withdrawal of any privilege or concession enjoyed by the employees. No notice of change is required for conferring more privileges or granting more concessions to the employees. The Board of directors, therefore, were competent to raise the age of superannuation to 60 years and that this was one of the service conditions of the employee of the C.P.T.S. Ltd. when the undertaking was taken over by the M.P. Govt. by the notification dated 31st August, 1955."
The above decision, in my view fully supports the contention of Mr. Palshikar that the notice of change is necessary when the management proposes to do something derogatory to the interest of the employees like withdrawal of any privilege or concession enjoyed by the employees. No notice of change is required for conferring more privileges or granting more concessions to the employees.
7. Mr. Palshikar has also referred to the decision Tamil Nadu Electricity Workers Federation by its General Secy. S.G. Krishnan and another v. Madras State Electricity Board by its Chairman. Relevant portion of para 7 reads as under.
"......... It appears to us to be very clear that section 8-A was never designed to prevent the implementation of any change, which is not change imposed by the employer on the workman, but which is based upon the consent of the workmen to the offer by the employer, upon the exercise of their judgement that the change was beneficial. Nor can we agree that section 33(1) would prohibit such a change, even though it may be that a period of conciliation had been commenced."
In The Management of Indian Oil Corporation Ltd. v. Its Workmen, the Supreme Court has observed in para 10 as follows---
"10. On the other hand Mr. Sen Gupta appearing for the respondents drew our attention to the decision of this Court in Tata Iron and Steel Co. Ltd. v. The Workmen, where this Court, while pointing out the object of section 9-A, observed as follows :
"The real object and purpose of enacting section 9-A sees to be to afford an opportunity to the workmen to consider the effect of the proposed change and, if necessary, to represent their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. The approach on the part of the industrial employer would reflect his harmonious and sympathetic co-operation in improving the status and dignity of the industrial employee in accordance with the egalitarian and progressive trend of our industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labour's subservience to capital."
The observations made by this Court lay down the real test as to the circumstances in which section 9-A would apply. In the Instant case, however, we are satisfied (1) that the grant of the compensatory allowance was an implied condition of service and (2) that by withdrawing this allowance the employer sought to effect a change which adversely and materially affected the service conditions of the workmen. In these circumstances, therefore, section 9-A of the Act was clearly applicable and the non compliance with the provisions of this section would undoubtedly raise a serious dispute between the parties so as to give jurisdiction to the Tribunal to give the Award. If the appellant wanted to withdraw the Assam Compensatory Allowance it should have given notice to the workman, negotiated the matter with them and arrived at some settlement instead of withdrawing the compensatory allowance overnight."
From the decision, cited supra, it does appear that the notice of change is necessary only in the event when the change sought to be effected would affect the employees adversely. In the facts and circumstances of the present case, the respondent No. 2 is merely insisting on the petitioner society to implement its own resolution and follow the practice which is has followed so long which is obviously to the benefit of the employees of the petitioner society. In fact, there appears to be much substance in the contention of the respondents that the overwhelming majority of members of the society wants to increase wages of respondent No. 2 by bringing it on par with the wages of the employees of the Empress Mills employees, and it is only the Secretary who is coming in the way of implementation of the resolution of the General Body of the petitioner society. The petition is thus wholly without substance and the same is dismissed with costs. Rule is discharged.