Delhi District Court
Reported As M/S Payen And Talbros Ltd vs Hans Raj Dlt on 16 January, 2010
1
IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D.83/08
Workmen Workmen
Represented through their Union
Engineering Workers Lal Jhanda Union,
C-12, Ramgarh, GT Karnal Road,
Jahangir Puri More, Delhli 33.
Versus
M/s Jay Industries Management
A-67/2, GT Karnal Road Industrial Area
Delhi 110033.
Date of institution 01.07.08
Arguments heard on 11.01.10
Date of award 16.01.10
AWARD
1.Workmen through their union, namely, Engineering Workers Lal Jhanda Union ( Regd.) has raised an industrial dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of reference :-
'' Whether demand of the workmen for HRA and CCA is justified; and if yes, what directions are necessary in this respect ?''
2. In the statement of claim, it is alleged that there are as many as 80 workers working on the establishment of the Management most of whom are members of 2 Engineering Workers Lal Jhanda Union. It is alleged that Union of the workmen had resolved to espouse cause of the workmen. Management allegedly fixes wages of the workmen at its whims and fancies without any rationality e.g. some of workmen doing similar work, possessing similar qualification are getting higher wages whereas other are getting lower wages. It is alleged that Management is paying HRA and CCA to workers at Sl No 51 to 80 apart from uniform and washing allowance. It is alleged that workmen at sl No 1 to 38 are not being provided HRA and CCA and workers shown at Sl No 39 to 50 are not being provided HRA which is their right. It is alleged that when single room is not available at rent of Rs. 1500 per month but this fact had not been taken into consideration by GNCT of Delhi in revising wages. It is alleged that even each and every government servant gets HRA @ 30% of his basic pay. On these facts, is is prayed that they are also entitled to HRA and CCA.
3. In the WS, it is alleged that cause of the workmen has not been duly espoused. On merits, case of the workmen is that they are getting more than minimum wages fixed by the Government which is inclusive of HRA and CCA. It is alleged that demand of the workmen is not based on settled principle of '' Industry-cum- Region Basis''. It is alleged that Management is paying 3 consolidates wages to its workmen including all components of wages like HRA, CA and other allowances. It is alleged that workers from Sl No 1 to 38 are the appointees who are getting consolidated salary and they have never made any request to bifurcate their wages indicating separately HRA and CA which is included in consolidated salary. As regards workmen appearing at Sl No 39-80, as per contract of employment, their wages were bifurcated in HRA and CA for enabling them to get income tax benefit. It is alleged that consolidates wages are inclusive of all allowances, therefore, claim of workmen for HRA @ 30% is bad.
4. On the basis of pleadings of the parties, following issues were framed :-
(1) Whether cause of the workmen has been duly espoused ?
(2) As per terms of reference.
5. In order to their case, workmen have examined Sh. Vipin Secretary of the Union whereas Management has examined Sh. P.C. Minda as MW--1.
6. I have heard AR for the parties have carefully gone through record of the case as also written submissions filed by the parties. My issuewise findings are as under:-
7. Findings on issue No 1 Issue No 1 is whether cause of the workmen has 4 been duly espoused. WW--1 Sh. Vipin Kumar Secretary of the Union in his affidavit has proved resolution passed by the Union on 8.8.06 as Ex WW1/1 which was passed in general body meeting. On the other hand, MW--1 Sh. P.C. Minda in his affidavit has deposed that no resolution was passed by the Union espousing cause of the workmen inasmuch no notice of the meeting was sent to members of the Union nor minutes of meeting have been placed on record.
8. It has been argued by AR for the workmen that since resolution of the Union espousing cause of the workmen has been placed on record as Ex WW1/1, it stands proved on record that cause of the workmen has been duly espoused.
9. On the other hand, AR for the Management has argued that on 4.7.09 an application was moved by AR for the management seeking production of constitution of the Union, membership register, Minutes book, subscription register, expenditure register, statutory returns, record of election, account book and proof regarding notice. It is argued that it was observed by the court that expenditure register and bank account pass book of the Union had no relevance, therefore, they were not summoned. However, union was directed to produce other records as referred to above. It is argued that in 5 compliance of order of the court, Union had produced three documents, copy of membership register, minutes book and copy of subscription receipts. It is argued that, it was informed that other record sought by the court are not available with the Union.
10. No suggestion was put to WW--1 that his union is not a registered union. Absence to put suggestion is suggestive of fact that Management does not dispute that the Engineering Workers Lal Jhanda Union is registered trade Union. Therefore, it can not be said that it is not a registered union.
11. AR for the workmen has relied upon an authority reported as M/s Payen and Talbros Ltd vs Hans Raj DLT 1968 Vol IV 130 wherein it has been held that when dispute referred to Tribunal was collective in nature for gratuity etc for the benefit of all the workmen employed in a particular company, it was per se an industrial dispute and no espousal or support for such a dispute was necessary. On the other hand, AR for the management has relied upon an authority reported as Management of Karnal Distillery Co. Ltd vs The workmen of Karnal Distillery Co. Ltd ( 1967 ) 69 PLR 160. But this authority relied upon by AR for the management is not applicable to the facts of the present case inasmuch as in that case workmen in their affidavits had categorically stated that 6 no dispute existed between them and the Management.
12. But since present dispute referred to this tribunal is for HRA and CCA for all the employees and it pertains to terms and conditions of the employment, is collective in nature, therefore, no espousal or support is necessary for such a dispute. I accordingly hold that dispute raised by the workmen is an industrial dispute under Industrial Disputes Act and after the same has been made over to this Tribunal by appropriate Government, it did not require espousal. This issue is accordingly decided in favour of workmen and against the Management.
13. Findings on issue No 2 Issue No 2 is whether demand of the workmen for HRA and CCA is justified; and if yes, what directions are necessary in this respect. WW--1 Sh. Vipin Kumar, Secretary of the Union has testified that there are about 90 workmen employed with Management. It is deposed that management fixes wages of the workmen at its whims and fancies without any rationality e.g. Some of workmen doing similar work, possessing similar qualification are getting higher wages whereas other are getting lower wages. It is deposed that Management is paying HRA and CCA to workers at Sl No 51 to 80 apart from uniform and washing allowance which is clear from document Ex WW1/2. It is deposed that workmen at sl No 1 to 38 are 7 not being paid HRA and CCA and workers shown at Sl No 39 to 50 are not being provided HRA which is their right. It is deposed that when single room is not available at rent of Rs. 1500 per month but this fact had not been taken into consideration by GNCT of Delhi in revising wages. It is deposed that even each and every government servant gets HRA @ 30% of his basic pay. Union is deposed to have sent letter of demand dated 28.8.06 and 16.9.06 requesting the Management to remove the anomaly existing in wages of various workers. It is deposed that they are also entitled to HRA and CCA. In his cross examination, he has admitted that workmen in the present case are getting above the minimum wages. He has also admitted that wages declared by appropriate Government is inclusive of HRA. He has also admitted that recommendations of Labour Commissioner to fix minimum wages at Rs. 8500 has not been implemented by the Government of NCT of Delhi.
14. MW--1 Sh. P.C. Minda in his affidavit has deposed that workmen is that they are getting more than minimum wages fixed by the Government which is inclusive of HRA and CCA. It is deposed that demand of the workmen is not based on settled principle of '' Industry-cum- Region Basis''. It is deposed that Management is paying consolidates wages to its workmen 8 including all components of wages like HRA, CA and other allowances. It is deposed that workers from Sl No 1 to 38 are the appointees who are getting consolidated salary and they have never made any request to bifurcate their wages indicating separately HRA and CA which is included in consolidated salary. As regards workmen appearing at Sl No 39-80, as per contract of employment, their wages were bifurcated in HRA and CA for enabling them to get income tax benefit. It is deposed that consolidates wages are inclusive of all allowances, therefore, claim of workmen for HRA @ 30% is bad. List of employees showing their wages as on 30.11.08 has been proved as Ex MW1/1. In his cross examination, he has stated that he could not tell if no HRA and conveyance allowance was being paid to 38 employees as mentioned in Ex WW- 1/2.
15. It has been argued by AR for the workmen that Management has been paying HRA and CCA to some of its employees and workmen in the present are not being paid the same, they are also entitled to HRA and CCA at par with other workers.
16. On the other hand, AR for the management has argued that to the admission of WW--1, workmen are being paid over and above Minimum wages as notified by appropriate Government which is inclusive of all 9 components such as HRA, CCA etc. So far as payment of HRA and CCA to other workers is concerned, it is argued that some of the workers had made a request that their salary may be bifurcated to enable them to get benefit of Income Tax and accordingly their salary was bifurcated. It is argued that workmen were being paid consolidated salary including allowances as claimed on the basis of contract entered between Management and workmen. It is argued that when workmen are being paid more than minimum wages and such wages include HRA and CCA, therefore, workmen can not be separately paid HRA and CCA.
17. So far as determination of slab of wages in the industrial establishments is concerned, private industries do not follow slab system for a particular post like Government. In Government services every category of employees is paid on the basis of pay scale prescribed by the government for a particular post. Such pay scales are given on uniform basis irrespective of the fact whether a particular employee is of more utility to the Government as compared to others. However, in the private establishments apart from educational and technical qualifications of workers, factors like experience, extra ordinary skill possessed by a particular workmen and his indispensability are paramount considerations for 10 determination of wages. If a workman is more indispensable for an industry, more are his wages and if his utility is less, it will affect his wages and wages will also be less. Uniformity in the pay scales irrespective of skill and experience of the workmen is not possible in the industrial establishments.
18. The workmen have only filed a list showing name of the workmen, date of appointment, post on which they have been working, their basic pay and total wages. They have not given any details of their educational and technical qualification or experience. Even the utility of a particular workmen for an industrial establishment is such a thing which is not tangible but can only be appreciated by the Management of a particular industry. Therefore, this list filed on behalf of workmen does not serve any purpose.
19. However, Management has produced on record Ex MW-1/1, list of employees working on various posts with the Management as on 30.11.08. This list shows name of the workmen, their designation, basic salary, HRA, conveyance and total salary. The example of die fitter can be taken. Virender Sharma, Devi Kishore, Niwas Yadav, Dwarika Parsad, Madan Lal Sharma, Narinder Kumar and Dharmender Sharma, who names appear at Sl No 5, 40,44, 55,59,65 and 72 respectively in the list. 11 Virender Sharma at sl No 5 has been working with Management since 9.5.79, he is 10th pass, his basic salary is Rs. 8686, he is getting HRA of Rs. 2115 and his total salary is Rs. 10,800. Devi Kishore at sl No 40 has been working with Management since 1.4.85, he is 12th pass, his basic salary is Rs. 8850, he is getting HRA of Rs. 1700 and his total salary is Rs. 10,550. Niwas Yadav at sl No 44 has been working with Management since 1.8.97, he is 12th pass, his basic salary is Rs. 6200, he is getting HRA of Rs. 1900 and his total salary is Rs. 8100. Dwarika Parsad at sl No 55 has been working with Management since 12.5.88, he is 5th pass, his basic salary is Rs. 8285, he is getting HRA of Rs. 2200, conveyance Rs. 375 and his total salary is Rs. 10,800. Madan Lal Sharma at sl No 59 has been working with Management since 1.8.97, he is 10th pass, his basic salary is Rs. 6600, he is getting HRA of Rs. 2400, conveyance Rs. 800 and his total salary is Rs. 9800. Narinder Kumar at sl No 65 has been working with Management since 1.7.2003, he is 9th pass, his basic salary is Rs. 6800, he is getting HRA of Rs. 2700 , conveyance Rs. 800 and his total salary is Rs. 10,300. Dharmender Sharma at sl No 72 has been working with Management since 2.12.04, he is 9th pass, his basic salary is Rs. 6200, he is getting HRA of Rs. 2200, conveyance Rs. 800 and his total 12 salary is Rs. 9200.
20. From the table, it is clear that Management has been paying some amount to the workmen under head of HRA and conveyance allowance but the same varies according to qualifications possessed by them, experience and length of service. But Management has given explanation that at the request of some of the workers, their wages have been bifurcated in basic pay, HRA and conveyance allowance to enable them to get benefit under Income Tax. In these circumstances, it can not be said there is any parity between between different kinds of workmen keeping in view their educational, technical qualification, experience and their utility for the industrial establishments.
21. It is admitted case of the workmen that they are being paid more than Minimum Wages Act prescribed by appropriate Government. Minimum Wages take into consideration all factors like expenses on hiring a house and transportation. Therefore, when the workmen have been getting more than minimum wages and such wages take into account HRA and CCA, in my opinion, they are not entitled for HRA and CCA separately on the same pattern as government officials get.
22. It is not case of the workmen that in other similar industrial establishments, workers are being paid higher 13 rate of wages as compared to workmen. For that purpose, they will have to prove financial capacity of the establishment and pay structure of their counterparts working in the industries producing similar goods and services. No evidence in this regard has been led by the workmen, therefore, in my view, nothing has been brought on record on the basis of which it could be said that workmen are entitled for enhancement of their wages keeping in view wages prevailing in similar industries in the region.
23. Even otherwise AR for the Management has argued that on 4.7.09 an application was moved by AR for the management seeking production of constitution of the Union, membership register, Minutes book, subscription register, expenditure register, statutory returns, record of election, account book and proof regarding notice. It was observed by the court that expenditure register and bank account pass book of the Union had no relevance, therefore, they were not summoned. However, union was directed to produce other records as referred to above. In compliance of order of the court, Union had produced three documents, copy of membership register, minutes book and copy of subscription receipts and it was informed that other record sought by the court are not available with the 14 Union. When the record of election of the union has not been produced, there is no satisfactory evidence on record if Vipin Kumar is General Secretary of the Union. When it has not been proved that he is elected general secretary of the Union, I hold that he was not competent to sign and verify the statement of claim. I, therefore, hold that demand of the workmen for HRA and CCA is not justified and they are not entitled for any relief. Secondly, in view of the fact that WW--1 failed to prove that he is General Secretary of the Union, I also come to the conclusion that he has failed to prove that he has filed the present statement of claim on behalf of workers of the Management. This issue is accordingly decided in favouor of Management and against the workmen.
24. Relief :- In view of my findings on issue No 2, demand of the workmen for HRA and CCA is not justified and they are not entitled for any relief. Reference is answered in these terms. Award is accordingly passed. Same be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court on 16.01.10 (BABU LAL)
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.
15 I.D. No 37/08 16.01.10 Present None for the parties
Vide separate award, it has been held that demand of the workmen for HRA and CCA is not justified and they are not entitled for any relief. Reference is answered in these terms. Award is accordingly passed. Same be sent to GNCT of Delhi for publication. File be consigned to record room.
( BABU LAL) POIT-II/KKD COURTS DELHI/16.01.10