Bombay High Court
Wasudev Bhanu And Ors. vs Bombay Gas Company Ltd., Bombay And Ors. on 21 December, 1967
ORDER
1. This is a group of applications filed by the applicants for recovery of their dues on computation of the benefit of the festival holidays in terms of money as per S. 33C(2) of the Industrial Disputes Act. The main Application No. 970 of 1960 was fixed on 30 July 1960. The remaining applications were filed in 1962, but for the purposes of recording evidence or for filing the documentary evidence all these applications have been treated as one proceeding.
2. It is necessary to trace the history of this litigation. This Court passed an order (Ex. 24) dated 15 June 1962 deciding Application No. 970 of 1960 on merits. This Court granted the application and issued a certificate for the recovery of Rs. 106.90 against the opponent-company. It seems the company filed Writ Petition No. 1239 of 1962 against the order of this Court.
3. This Court also passed an order dated 31 January 1964 in the ground consisting of Application (I.D.A. Nos. 1215, 1222 and 1223 and 1225 of 1962, 1232 to 1238, 1576, 1657 and 1830 of 1962 and 50 to 54 of 1963 similar to order (Ex. 24) dated 15 June 1962 in Application (I.D.A.) No. 970 of 1960. A certificate was issued in that group for recovery of the amount of Rs. 814.90 and costs against the opponent-company. The opponent-company filed Writ Petitions Nos. 315 and 534 to 552 of 1964
4. Their lordships allowed the writ petition No. 1239 of 1962 (vide Ex. 31) on 31 January 1964 and set aside the order of this Court, dated 15 June 1962, and remanded the case for further inquiry and for disposal of the application according to law. So far as the companion writ petitions were concerned, their lordships allowed them remanded the applications to this Court with a direction as follows :
"It will be open either party to raise before labour court such other contentions as may be open to them under the law."
5. After remand the applicants filed applications for amendment of the main application. They sought the permission of this Court to amend para. 2 of the application by adding to or explaining their contentions in the original Para. 2 [vide Ex. 42 in Application (I.D.A.) No. 970 of 1960 and Ex. 37 in Applications (I.D.A.) Nos. 1214 and 1216 to 1221 of 1962 and 50 to 54 of 1963]. The opposite party opposed this amendment (vide Ex. 45). This Court passed an order below [Ex. 42 of Application (I.D.A.) No. 970 of 1960 and EX. 37 of Application (I.D.A.) No. 1214 of 1962], dated 30 April 1965, on hearing the parties. The amendment was allowed.
6. The application relied upon the agreement dated 24 October 1951 as basis of a contract which constituted the terms and conditions of service of the applicant. According to the applicant it was an express term or in any even was implied condition of service that the applicant would be entitled to get paid festival holidays on completion of a period of three months' continuous service as badli or a temporary servant of the company. The company was called upon to file an additional written statement. The company had filed its written statement at Ex. 50 in Application (I.D.A.) No. 970 of 1960 and at Ex. 44 in Applications (I.D.A.) Nos. 1214 and 1216 to 1221 of 1962, etc. Applicant in Application (I.D.A.) No. 970 of 1960 was present on 22 August 1966 in Court. He was examined by the Court, but later on he remained absent. His application was dismissed 4 July 1967. It seems that the bench clerk was under the impression that roznama must be written in the main application as the remaining applications were proceeded with, therefore, he has continued to write the roznama, but this was his mistake.
7. The remaining applications in which Sri Gole has appeared were continued. Evidence is recorded and they will be disposed by this common judgment.
8. The points for determination My findings on these points are as are as follows : follows :
(1) Whether the agreement dated No.
24 October 1951 is "settlement" as
defined by the Industrial Disputes
Act ?
(2) If not, whether there was an Yes.
implied term or condition of
employment of badli workers,
that they should get paid festival
holidays as per agreement dated
24 October 1951 ?
(3) Whether the agreement lays down No.
that the badli worker must put in
continuous service of three months
immediately before he was entitled
to claim a paid festival holiday ?
(4) Whether badli worker who had worked Yes.
continuously for a period of three months
was eligible to get a paid festival holiday ?
(5) Whether applicant has fulfilled the Yes.
condition as required by the "terms and
conditions of employment to get a paid
festival holiday" ?
(6) Whether to get a paid festival holiday Yes.
is "benefit" computable in terms of money ?
(7) Whether S. 33C(2) has retrospective Yes.
effect ?
(8) whether this Court has jurisdiction ? Yes.
(9) What order ?
As per Order.
9. Before these cases were remanded, the applicants' contention was that the agreement dated 24 October 1951 is a "settlement" as defined by the Industrial Disputes Act and the settlement conferred a benefit or paid festival holidays, which could be computed in terms of money.
10.Their lordship held in the writ petitions that the applicants had failed to prove that the agreement dated 24 October 1951 was a "settlement" as defined by the Industrial Disputes Act before its amendment in 1956. There was no evidence on record to hold that there was no evidence on record to hold that there was any conciliation proceeding, in which the agreement dated 24 October 1951 was signed by the parties and, therefore, the agreement dated 24 October 1951 could not be held as "settlement" within the meaning of the terms as defined by S. 2 at the relevant time. Their lordship also held that applicants could not get the benefit of S. 18 of the Industrial Disputes Act, because S. 18 is applicable only to "settlement" as defined by the Industrial Disputes Act. This was the common point involved in all the applications. Hence these cases were remanded for recording further evidence.
11. The application have led no evidence to prove that there was a "conciliation proceeding" as defined by the Industrial Disputes Act. It will have therefore to be held that the agreement dated 24 October 1951 is not a "settlement" as defined by the Industrial Disputes Act at the relevant time and the applicants cannot get the benefit of S. 18 of the Industrial Disputes Act.
12. In the alternative applicants sought to make out a case that there was an "implied" term or condition of employment that the applicants should get paid festival holidays in accordance with the stipulation contained in agreement dated 24 October 1951.
13. Before we proceed to discuss the evidence of the parties in support of this alternative case, it is necessary to state what is the law on the point of "an implied term or condition of employment."
14. A "contract of employment" may be made by word of mouth of partly in writing or partly oral or even by implication. The common law of master and servant speaks of the "implied" covenants between an employee and and employer [vide Shardaprasad Onkarprasad Tiwari and others v. Central Railway (Divisional Superintendent, Nagpur) (1960 - I L.L.J. 167)]. The terms and conditions of employment may be :
(1) Statutory (e.g., model or certified standing orders);
(2) contractual;
(3) settled by awards of industrial tribunals or by settlements and agreements as defined by S. 2(p) of the Industrial Disputes Act;
(4) implied by virtue of customs or practice;
(5) implied by virtue of the conduct of the parties;
15. The case of the applicants after the amendment is twofold, viz. :
(1) That the source of the title to the right to get paid festival holidays is Clause 4 of the agreement dated 24 October 1952 itself. This means that there was an express agreement in writing between the parties or in the alternative.
(2) substances of Clause 4 of the said agreement dated 24 October 1951 was an implied term or condition of the contract of employment as the same was extended or made applicable to all badli workers who joined the services of the company after 24 October 1951.
So far as the first aspect of the case is concerned, viz., express agreement dated 24 October 1951, the applicants have failed to prove that they were parties to this agreement. There is nothing on record to hold that the applicants were the members of the Engineering Workers' Union (Red Flag) of which Sri K. N. Joglekar was the then president. This is not "settlement" and S. 18 of the Industrial Disputes Act is not applicable to it.
So far as the second aspect of the case of the applicants is concerned, it will be necessary to proceed to find out
(a) whether agreement dated 24 October 1951 was a contract relating to term and conditions of employment entered into on behalf of the opponent-company;
(b) whether the company by its conduct made it as part of the contract of employment of the applicants who joined the company after 24 October 1951.
16. At this stage it is necessary to refer to the statutory powers of the conciliation officers and the usual procedure followed by the conciliation officer under the Industrial Disputes Act.
17. Chapter II of the Industrial Disputes Act mentions the authorities under this Act. Section 4 of the Industrial Disputes Act (1947) as in force on 24 October 1951 lays down :
"4. Conciliation officers. - (1) The appropriate Government may, by notification in the official gazette, appoint such number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.
(2) A conciliation officer my be appointed for a specified area or for specified industries in a specified area or for one one or move specified industries and either permanently or for a limited period."
18. It must be remembered that a conciliation officer appointed under the Industrial Disputes Act is "charged with duty of mediating and promoting the settlement of industrial disputes."
19. Section 12, Sub-section (2) relates to the duties of conciliation officer. It lays down that -
"12. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay investigate the dispute and all matters affecting the merits and the right settlement there of and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute."
20. Thus, apart from mediation, one of the duties of the conciliation officer is to investigate the dispute and all matters affecting the merits.
21. Section 20 relates to the commencement and conclusion of preceding under the Industrial Disputes Act. Sub-section (1) relates to the commencement of conciliation proceedings pertaining to an industrial dispute in public utility service. Supposing the opponent-company is a public utility service, it is not proved that the union had served a notice of strike before 24 October 1951 and in pursuance of the strike, the conciliation proceeding was started. What seems to have happened before the parties arrived at the agreement dated 24 October 1951 is that the union had raise industrial dispute regarding the terms and conditions of employment of badli and temporary workers and in connexion with that dispute. The then conciliation officer wanted to mediate or make investigation into the industrial dispute raised by the union. He must have asked the parties to appear before him for purposes of discussion and during the course of discussion, the agreement must have been arrived at.
22. It is common knowledge that the conciliation officers hold preliminary discussion with the parties to the industrial disputes (exception the case of public utilities where notice of strike is given). After ascertaining that the union has adequate following of the workers of the industrial establishment, the conciliation officers issues notices to the parties informing them that he had taken the disputes in conciliation. Notices informing the parties that the dispute is taken in conciliation by the conciliation officer are published in the industrial establishment. It is only after the order is passed by the conciliation officer that he has taken the matter in conciliation proceeding is started. Before that stage, it is only mediation. Before the stage, it is only mediation. This agreement seems to have been arrived at during this stage prior to proper conciliation as such. It is, therefore, binding on the agreement. The company has nowhere disputed the terms of the agreement dated 24 October 1951. The applicants have produced copy and the representative of the company has given his consent to exhibit the copy. Application have proved that it formed part of contract of employment, so far as the badli and temporary workers on the muster-roll of the company on 24 October 1951 were concerned.
23. Now as regards the second part of the contention of the applicants that this agreement has become an implied term or condition of contract of employment by virtue of the conduct of the company, it is necessary to refer to the case-law on the point and evidence of the parties.
24. Their lordship of the Labour Appellate Court have decided in Vazir Sultan Tobacco Company, Ltd., Hyderabad v. Their workmen [1952 - I L.L.J. 813] as follows :
"We hold that the industrial concerns at least after 1945, must be deemed to have regarded it as an implied term of employment that the workmen would have the right to raise at the end of the year of service, a claim to bonus out of any 'available surplus' of profits of the year."
25. This decision would to prove that so far contracts of employment of industrial workers are concerned, there cab be certain implied terms of conditions conferring certain rights on the employees.
26. In Railway Employee's Co operative Bank Ltd., Madras v. Labour Court, Madras, and another [1960 - I L.L.J. 345], their lordships of the Madras High Court allowed the claim for overtime wages under S. 33C(2) based on an oral assurance. They have observed as follows at p. 349 :
"... it was the case of workers that at the time when the normal house of work were increased there was an undertaking or an assurance that they would be paid overtime wages. Undoubtedly, if this was established, the workers would be entitled to the benefit of such arrangements and the monetary value could be evaluated by the labour court under S. 33C(2) of the Industrial Disputes Act."
27. This decision goes to prove that the source of the right to claim the benefit can be an oral assurance. In this case the agreement is in writing. This can, therefore, be the evidence of the implied term of conditions of the service, if the company has extended the benefit of this to temporary or badli employees, who joined the services of the company after 24 October 1951.
28. Regarding the right of the employees to claim paid festival holidays, Justice Sri Sen gave an award in Nanu (Brass) Works published in 1948, Bombay Government Gazette p. 4445, laying down that apart from the holidays given to workers, under the Factories Act, workers are entitled to get paid festival holidays. This award was paid festival holidays. This award was followed in Strawboard Manufacturing Company case [1953 - I L.L.J. 186].
29. Agreement dated 24 October 1951 between this company and the union can be a piece of evidence and cab be looked into to find out the intention of the parties as to whether the company wanted to treat Clause 4 as a term or condition of employment for badli temporary employees, In Godawari Sugar Mills, Ltd., Laxmiwadi, and another v. Their employees [1952 I.C.R. 29], an important point regarding admission of an unregistered agreement was decided. The point for consideration was whether the industrial court could or could not look into the "agreement" between the company and the union for want of registration under the provisions of the Bombay Industrial Relations Act, 1946. The agreement was arrived at between the union and the company, when the dispute regarding bonus was pending before the industrial court. It was held by the learned president of the industrial court that Ss. 44 and 48 of the Bombay Industrial Relations Act, 1946, were not applicable to the agreement in question. According to the learned president of the industrial court the agreement was not arrived at between the parties in a conciliation proceeding. The company had contended that the agreement had put an end to the dispute. The contention of the union was that the company was not entitled to produce the evidence regarding the agreement for want of registration. The decision of the learned president of the industrial court was that the contention raised by the union was not tenable and the agreement could be looked into. It is true that the learned president has observed that the question of enforcement of the agreement was not involved. The company had contended that the terms of the agreement had been reduced to writing and, therefore, no oral evidence could be admitted as to the intention of the parties entering into that agreement. The learned president also held that the time for payment was not essential part of the agreement and therefore the agreement must stand and must be given effect to.
30. The principles laid down in this case would be applicable. The agreement in Godavari Sugar Mills case [1952 I.C.R. 29] (vide supra) was acted upon by the parties. Part-payment of the bonus was made in accordance with the terms of the agreement. The industrial court held that the agreement must stand and must be given effect to. There was no conciliation proceeding when the agreement was arrived at and therefore the procedural provisions regarding registration under the Bombay Industrial Relations Act were not obligatory on the parties. In this case also according to the company on conciliation proceeding as such was pending. It is held, therefore, that the parties could arrive at an agreement and the procedural or substantive provisions of the Industrial Disputes Act, viz., Ss. 2(p) and 18, were not applicable to the agreement dated 24 October 1951. In this proceeding under S. 33C(2) it is necessary to ascertain the intention of the parties and therefore the terms of the agreement can be looked into.
31. The intention of the parties was to give badli and temporary workers who had put in a continuous service of three months should be entitled to get paid festival holidays. This agreement satisfied all the essential conditions required for a contract, viz. :
(1) The company had agreed expressly or impliedly to perform the undertaking to give paid festival holidays and union had agreed to accept the offer.
(2) Both parties intended that the agreement shall give rise to a legally recognized obligation.
(3) Both parties are the persons whom Indian law acknowledges as competent to enter into contracts. They have the capacity.
(4) The agreement must be supported by consideration.
(5) The object of the agreement must be legal (see Industrial Law by Cooper, p. 167) :
"Consideration in the contract of service will usually take the form of performance of service on the one side and payment of wages on the other."
32. Giving of compensation amounting to wages for festival holidays will be valid consideration for performance for performance of continuous service of three months in the case of badli and temporary service. Thus the agreement dated 24 October 1951 was a contract enforceable as against the company by the parties to the contract.
33. It is the case of the applicants who joined the company after 24 October 1951 that it was an implied term or condition of their contract of employment that they should get benefit of the contract dated 24 October 1951 and the company has given effect to this implied condition for some times in the past. The applicants had also filed application before the Payment of Wages Authority and the company deposited the amount due to them as was for festival holidays for the year 1955. It is not disputed by the company that at present the company pays wages for festival holidays in the case of badli and temporary workers who joined the services after 24 October 1951 in accordance with the terms of the contract. The company has disputed its liability for payment for a period in between 1955 and date of stoppage of payment. The defence of the company is that whatever payments were made before 1955 to the applicants who joined the services after 24 October 1951 were made due to mistake.
34. The defence of the company is not consistent. In one breath, the company contends that a badli or temporary worker is not entitled to claim benefit of Clause 4 of the agreement, unless he has put in continuous three months' service before each festival holiday for which the badli or temporary worker claims payment for the festival holiday. This was the defence taken before the Payment of Wages Authority in Writ Applications Nos. 7197 and 7198 of 1956. The learned authority overruled this contention of the company and directed the company to pay wages for the festival holidays [vide the order dated 31 March 1959 of the authority (Ex. 11 in I.D.A. Application No. 970 of 1960)]
35. With respect I agree with the view taken by the learned authority on all points raised by the parties before the learned authority including interpretation of Clause 4 of the agreement. This issue is, therefore, concluded.
36. The company seems to have raised for the first time a new defence that agreement dated 24 October 1951 is not a "settlement" as contemplated by the provisions of the Industrial Disputes Act at the relevant time and applicants are not entitled to get benefit of the agreement dated 24 October 1951, in these proceedings. It was possible for the company to take up this contention before the learned Authority under the Payment of Wages Act. But it was not raised. This circumstance is against the company and is in favour of the applicants. The company had not contended before the Payment of Wages Authority that some payments for festival holidays were made through mistake. These defences are afterthoughts and the company wanted to evade its liability for payment on the technical ground that the agreement dated 24 October 1951 was not a "settlement" and as the applicants had based their claim on the terms of "settlement" they are not entitled to get wages for compensation for festival holidays.
37. The representative of the applicants has filed a tabular statement at Ex. 7 dated 20 December 1962. This consists of twelve columns. Entries made in Col. 4 relate to "number of paid holidays that occurred during the course of employment." Entries made in Col. 6 relate to number of holidays for which payments were made in the past. Entries made in Col. 7 indicate the amount of wages paid including dearness allowance for holidays as mentioned in Col. 6.
38. It is the case of the applicants that the company had paid them compensation for the holidays mentioned in Col. 6 in pursuance of the agreement dated 24 October 1951 and they are entitled to get compensations for the remaining holidays which are mentioned in Col. 9. The opponent was called upon to file its own tabular statement giving the details. The company has filed a separate statement in each application consisting of five columns. Entries made in Col. 3 go to indicate the payments made by the "company." The company has given the reasons for making payments (of course, these reasons are stated without prejudice to the contentions taken up in the written statement). But the fact remains that the company has made payments in the past for holidays on quite a number of occasions to many of the applicants. The only defence of the company is that they were made out of mistake of the time office staff though the applicants were not covered by the agreement dated 24 October 1951.
39. We will have to discuss the oral evidence of the parties on this point, later on but at this stage it is necessary to point out the background of the industrial dispute regarding payment of compensation for festival holidays to permanent and temporary workers between the parties and possible effects or consequences of the system of "collective bargaining" or "awards of tribunals" (adjudication) in the light of which, the conduct of the parties will have to be viewed so far as the payments made in the past to temporary or badli workers for festival holidays during the period of their employment are concerned.
40. The right of industrial employees to claim paid festival holidays by raising a demand has been adjudicated upon by the industrial tribunal since 1948. In the light of the award of industrial tribunals and Labour Appellate Tribunals on this demand, employees and unions have entered into settlements and agreements. Thus certain norms standardizing the terms and conditions of employment about paid festival holidays have been evolved. "Government of Bombay had appointed a norms committee in 1958" to suggest norms in relation to various industrial matters . . . which have formed subject-matter of disputes in the industries . . ."
41. In the report submitted by the committee, they have made the following observations about the importance of fixation of norms regarding the terms and conditions of employment :
"The question of fixation of norms has assumed great importance at present. Both employers and workers feel that in the light of the experience gained as a result of the conciliation and adjudication machinery, it would be possible for them to discuss and settle these matters expeditiously across the table, as such a method is more conducive to better industrial relations and industrial peace. The committee feels that fixation of norms is highly desirable as it will assist the employers and the workers in knowing the conditions of service which should ordinarily be available in a particular industry and will also help towards standardizing those conditions as far as possible and practicable." [See p. 3 of the Report of Norms Committee.]
42. This sort of feeling between the unions and the management of large industrial concerns must have come into existence sometime after the system of mediation, conciliation and adjudication was worked out successfully. In fact, for the very purposes of helping towards standardizing terms and conditions of employment, the Government of India had set up Labour Appellate Tribunal in 1950. Thus as a result of the system of mediation conciliation and adjudication, certain norms and yardsticks have been framed which should be used for the prevention and voluntary settlement of industrial disputes between the management and the union or workers.
43. Mr. K. W. Wedderburn in his book on "The Worker and the Law" (which deals with impact of law on the field of employment) has discussed the topic of "Collective agreements and the contract of employment" in Chap. IV, pp. 114 and 115. He has made the following observations :
"Now then does the collective agreement affect the workers' legal terms of employment ? For it is meant to do so - on hours, wages, overtime, holidays, sick pay, and now pension and redundancy. The national or district agreement is meant to have, as Professor Kahn-Freund says, a 'normative effect,' to provide a code for the industry. Yet the contract of employment is not compulsorily subject to collective terms. The first answer and one that will grow in importance, is that the contract of employment may, and often does incorporate the collective terms expressly . . . But suppose the worker's contract says nothing about collective agreements. Can the latter operate so as to bring an implied term into his contract ? Something that 'goes without saying' as Lord Weight put it in the case quoted on p. 64 . . . But if the express terms do not cover the point, the Court may take the view that the employer and employee must have adopted this collective term as governing their relations, e.g., on sick pay, or on piecerate guarantees."
44. Courts in India have also applied this principle of "implied terms or conditions of employment" as a result of collective bargaining and/or adjudication whenever these questions have arisen in the proceedings instituted by the workers for recovery of their dues from the employers.
45. A reference is already made to the decisions of the Madras High Court in Railway Employees' Co operative Bank v. Labour court. This decision was followed by Maharashtra High Court in Iypunny (C. K.) v. Madhusudan Mills and another [1964 - I L.L.J. 197]. The Supreme Court of India has put its seal of approval on this principle in the following cases :
(1) South Indian Bank, Ltd. v. Chacko (A. R.) [1964 - I. L.L.J. 19] and (2) Muhammad Qasim Larry v. Muhammad Samsuddin and another [1964 - II L.L.J. 430] it is necessary at this stage to point out from the last-mentioned decision of the the Supreme Court, the general observations that their lordships have made regarding the system of adjudication and the effect of awards on the contractual terms. On an analysis of the general observation, it will be seen that they have laid down three propositions, viz. :
"(1) If it is shown to the satisfaction of industrial adjudication that the terms of contract of employment, for instance, need to be revised in the interests of social justice, it is at liberty to consider the matter, take into account all relevant factors and if a charge or revision of the terms appears to be justified, it can, and often enough it dies, radically change the terms of the contract of employment.
(2) The development of industrial law during the last decade bears testimony to the fact that on references made under S. 10(1) of the Industrial Disputes Act, terms of employment have constantly been examined by industrial adjudication and wherever it appeared appropriate to made changes in them, they have been made in accordance with the well-recognized principles of fairplay and justice to both the parties.
(3) In a sense, the latter wage-structure must be deemed to be a contract between the parties, because that, in substance, is the effect of industrial adjudication."
46. On the basis of the abovementioned case-law, it can safely be stated that possible effects and consequences of the system of adjudication have been twofold, viz. :
(1) As a result of the development of industrial law during the last decade, by industrial adjudication, a set of well-recognized principles of fairplay and justice to both the parties for determining the terms and conditions of employment have come into existence.
(2) There has been a sort of standardization of the norms of terms and conditions of contract of employment by systems of collective bargaining and adjudication.
47. In the light of these propositions and principles we proceed to examine the details of the industrial disputes between this company and its workmen regarding the terms and conditions of contract of employment from 1946 to 1951. In the year 1946, there was an agreement between the management and the then union representing the majority of workers. This agreement provided for the wage structure and other terms and conditions of employment. This agreement was terminated and a fresh charter of 28 demands was submitted by the union to the management in February 1949. Conciliation proceedings were held and the Government of Bombay referred the industrial dispute to the industrial tribunal by their order dated 14 June 1949. The industrial tribunal gave two awards. Award Part I dated 22 November 1949 was published in Bombay Government Gazette dated 8 December 1949, and award Par II dated 30 March 1950 was published in Bombay Government Gazette at p. 1915. We are concerned with award Part II dated 30 March 1950. We are concerned with demand 6 which is discussed in Para. 87 of the award by the learned tribunal. The demand of the union was that the workers who were called to work on paid holidays, should be paid at double the rate and should be given a compensatory off. The learned industrial tribunal has referred to the then prevailing practice in the company to give ten paid holidays in the year. The learned industrial tribunal has, thereafter, proceeded to point out the distinction between Sundays and other holidays. It has observed that -
"Other holidays are observed because they are mostly festivals of religious or national importance."
48. It is needless to point out that the company used to give paid holidays to permanent employees and not to temporary or badli workers, whatever may be their length of service. Form the award it is also clear that the union had raised certain demands on behalf of the badli and temporary staff. The company was making some discrimination between the temporary and permanent workers in respect of basic wage and grant of paid holidays. The learned industrial tribunal has pointed out this discrimination in respect of basic wage in Para. 15 of the award and observed as follows :
"This discrimination in my view is both undesirable and unjustified."
49. The learned tribunal wanted to lay down the principle of fairplay and justice to both the parties when it made the abovementioned observation. The discrimination made by the company in respect of the grant of paid holidays to permanent and temporary or badli workers continued to remain in force for some time more till the union (red flag) made a demand to abolish the same. There were negotiations before conciliator before he entered upon conciliation and the agreement including Clause 4 dated 24 October 1951 was signed.
50. It is the case of the applicants that even after the agreement dated 24 October 1951, all the temporary or badli workers, might not have been entitled to claim the benefit of Clause 4 of the agreement dated 24 October 1951, but by overt acts of payment, the company has extended the benefit of Clause 4 of the agreement, to all temporary or badli workers, who had put in three months' continuous service. Thus Clause 4 had become an "implied condition or term of the contract of employment" in respect of all temporary or badli workers she had put in continuous service of three months and who were paid compensation for paid festival holidays.
51. It is necessary to point out that House of Lords have considered what is meant by "implied" condition of contract in Luxor (Eastborne), Ltd. v. Cooper [1941 A.C. 108]. It is true that in that case the point for determination was whether an agent engaged for bringing purchasers for sale of land was entitled to get commission as an "implied" condition of contract. But the requirements of law regarding an implied condition are the same in both a contract of employment and a contract of an agent, viz., implied terms, can only be justified under the compulsion of necessity. At p. 137 of the report, the following observation made by Lord Wright is very relevant :
"But it is well-recognized that there may be cases where obviously some term must be implied of the intention of the parties is not to be defeated, some term of which it can be predicated that 'it goes without saying,' some term not expressed but necessary to give to the transaction such business efficacy as the parties must have intended. This does not mean that the Court can embark on a reconstruction of the agreement on equitable principles, or on a view of what the parties should, in the opinion of the Court, reasonably have contemplated. The implication must arise inevitably to give effect to the intention of the parties."
52. In the light of these observations, the conduct of the parties subsequent to 24 October 1951 will have to be interpreted. There was the necessity to avoid unrest of the temporary or badli workers caused on account of the discrimination by the company in respect of permanent and temporary workers. With this purpose in view the company must have entered into the agreement dated 24 October 1951. Now the company cannot be permitted to say that there was no compelling necessity in respect of temporary or badli workers who were not the members of the union (red flag) and therefore the agreement does not cover them. If this contention is allowed to prevail, there will be continuation of discrimination, which was condemned by the learned industrial tribunal.
53. Reference was already made to the tabular statement filed by the applicants at Ex. 7 and the tabular statement filed by the company at Ex. 9. The company has also filed statements containing the details of the continuous service and breaks in the service in each application separately. The applicants have filed their affidavits and the company has filed counter-affidavits. The company has filed a consolidated statement at Ex. 85. Column 7 of this statement gives the information about the applicants who have filed affidavits after remand. Out of 27 applicants, only 12 applicants have filed their affidavits after remand. Out of 12 applicants who have filed their affidavits, only one applicant remained present in Court on the date fixed for recording evidence, for the purposes of cross-examination. This circumstance would go to prove that the remaining 11 applicants have not cared for their claims for recovery and therefore applications of 26 applicants out of this group consisting of 27 applications will have to be dismissed for non-prosecution.
54. V. Chockalingam, applicant in Application (I.D.A.) No. 1228 of 1962 was cross-examined by the learned counsel of the company. His affidavit is filed at Ex. 56 on 19 August 1965. He has stated in his affidavit that there was a contract between himself and the company that he should be given paid festival holidays and that the company gave him three paid holidays in 1951. Deposition of V. Chockalingam was recorded at Ex. 83. In his examination he has stated about the agreement dated 24 October 1951 between the company and union. He has also stated that the company has given effect to this agreement in case of some badli and some temporary workers. He has spoken of the applications filed before the Payment of Wages Authority and the practice started by the company to give paid festival holidays to all badli and temporary workers after the disposal of the applications by the Authority under the Payment of Wages Act since 1962. In cross-examination, he has admitted that there was a strike in 1952, but he has denied that he had joined the strike.
55. The company has filed a counter-affidavit of Sri Vasant Poshaji Vaity at Ex. 71 He has denied that the applicant was entitled to get paid festival holidays. He has admitted that the applicant was given paid holidays, but according to this witness, the payment was made through the mistake of the staff of the time office. This witness has further stated that the applicant was working as a badli lamp-lighter in the leave vacancy of some permanent employee and on resumption of duties, by the permanent employee, the services of the applicant were terminated and therefore he was not entitled to get paid festival holidays, though he may have joined services subsequently. In his cross-examination (vide Ex. 84) he has admitted that the company gives paid holidays at present to badli workers who have completed a continuous service of three months, He has admitted that he has not read the agreement dated 24 October 1951 and was not present when the agreement was signed. He has also admitted that he was not consulted before the agreement dated 24 October 1951 was arrived at. His attention was invited to the affidavit (Ex. 71) and the part of the affidavit dealing with the payments of wages for some festival holidays made to Chockalingam. The witness has stated that according to him these payments were made not as per agreement but according to the practice. He has further stated that he does not know whether the basis of the practice and the basis of the agreement were the same. He denies that the worker was not covered by the agreement. For the purposes of contradiction, relevant portion of the affidavit was pointed out to him. He was asked as to whether his statement made in the affidavit was correct, and he said that his statement made in the affidavit was correct. He has admitted that the company applied this agreement dated 24 October 1951 to some workers in the lighting department. He has also admitted that these workers were badli workers. He was shown Ex. 7. He has admitted that the workers whose names appear in Ex. 7 have been paid festival holiday wages as per settlement dated 24 October 1951. Thereafter the witness had changed his version. He has stated that unless he sees the statement of payments made to the applicant Chockalingam he could not say at the moment which payments were made through mistake. The witness was shown a statement filed by the company in Application (I.D.A.) No. 1228 of 1962 in respect of payments made to Chockalingam. The witness has stated that all the payments that were made in 1952 for festival holidays to Chockalingam were the payments made by mistake. He has also stated that in the year 1953 the payment for festival holiday Moharrum dated 19 September 1953 was also made through mistake. According to him the payments for the festival holidays dated 6 and 7 November 1953 were the correct payments. This mistake was committed by the time office who calculated the amount. That the payments for the festival holidays dated 31 October 1951 and 31 December 1951 were made through mistake. He had given the reason as to why the payments made in 1951 should be treated as payments made through mistake because according to the witness, Chockalingam should have put in continues service of three months in August, September and October 1951, to entitle him to get paid festival holidays in October 1951 and December 1951. At the fagend of the cross-examination he has denied that the company had made these payments because Chockalingam had completed three months' continuous service from May 1951 to July 1951 and he was entitled to get the amount as per the agreement.
56. On referring to Ex. 9/9 it will be clear that Chockalingam was a temporary or a badli worker till February 1957. Chockalingam was given paid holidays on 31 October 1951 and 25 December 1951. In the remarks column, the company has made an endorsement that Chockalingam had completed three months' continuous service from May 1951 to July 1951. Chockalingam was also given nine paid holidays in the year 1952. Thereafter the company has stopped making payments. According to the company there was break in the service from 30 August 1952 to 12 June 1953 and therefore Chockalingam was not given paid holidays up to 12 September 1953 but he was given paid holidays on 19 September 1953 for Moharrum and on 7 November 1953 which was a Diwali holiday. It is not possible to accept the contention of the company that Chockalingam was given paid holidays through mistake of the time officer for the years 1951 up to 1953. The witness has admitted in one breath that witness has admitted in one breath that there was a practice to give paid festival holidays to temporary or badli workers who had put in continuous service of three months. This must be in pursuance of the implied condition of service the basis of which was the agreement dated 24 October 1951. The evidence of the witness of the company prove that there was no implied condition to give paid festival holidays to temporary or badli workers is unreliable. The documentary evidence produced by the company is inconsistent with the defence taken by the company or its oral evidence, and the oral evidence of the company will have to be discarded.
57. Sri Bhadke for the company has argued that the company had not issued any notice or published any notice on the notice-board by virtue of which the temporary or badli workers who were not the members of the red flag union were entitled to get the benefits as per the agreement dated 24 October 1951. There is no substance in this argument. The fact remains that after the Payment of Wages Authority overruled the contention by its judgment, the company has stated giving paid festival holidays to temporary or badli workers and there is no evidence that the company had issued any such notice intimating to the badli or temporary workers that they are entitled get paid festival holidays subject to the condition put in this agreement dated 24 October 1951.
58. It is now necessary to discuss the contention of the company that the amount that the amount claimed by the applicants in these applications is not the computation so the benefit of the festival holidays but the amount claimed is the amount of wages and therefore these applications are not maintainable under S. 33C(2). In support of this contention, the company has relied upon the ruling of the Supreme Court in Kays Construction Company case [1965 - II L.L.J. 429]. In fact the company has raised this point in the supplementary written statement filed by the company on 25 November 1966. Sri Bhadke on behalf of the company wanted this Court to decide the point regarding jurisdiction in the light of the decision of their lordships of the Supreme Court in Kays Construction Company case [1965 - II L.L.J. 429] (vide supra) as a preliminary point. This Court has passed an order at Ex. 80 on 9 January 1967 that instead of giving the decision merely on the preliminary point, the decision of the Court would be postponed so far as the question of jurisdiction was concerned and the contention would be considered along with the other points for decision in this case. It is, therefore, necessary now to discuss the question of maintainability of the applications under S. 33C(2) of the Industrial Disputes Act, 1947.
59. Before we proceed to discuss this contention of the company regarding want of jurisdiction, it is necessary to point out that this company had raised a similar contention in Applications (I.D.A.) Nos. 463 to 469 and 471 of 1958 which were filed by workmen of heat appliances department for recovery of compensation under S. 33C(2) on the ground that the company did not give them "weekly-offs" in accordance with the award in Reference (I.T.) No. 54 of 1949. The company had relied upon the decision of their lordships of the Supreme Court in Kays Construction Company case [1965 - II L.L.J. 429] (vide supra). This Court overruled the contention of the company and made the following observations :
"I have gone through the judgment of their lordships of the Supreme Court in Kays Construction Company case [1965 - II L.L.J. 429] (vide supra). Their lordships have made a distinction between 'money due' and 'benefit computable in terms of money.' They have also observed that in those cases where there is question only of arithmetical calculation an application cannot lie under S. 33C(2) of the Industrial Disputes Act, 1947. They have distinguished the case of Punjab National Bank, Ltd. [1962 - I L.L.J. 234]. The test laid down by their lordships of the Supreme Court in Punjab National Bank case [1962 - I L.L.J. 234] (vide supra) applies to the facts of the case before me. Here the questions to be decided by the labour court is as to whether the applicants fall within the category of workers contemplated by Para. 115 of the award. The applicants have to establish that they have satisfied the conditions laid by the industrial tribunal in Para. 115 of the award and as a result of which they are entitled to get the benefit of a paid Sunday weekly-off. It is common knowledge that as a result of the terms and conditions of employment fixed by industrial adjudication workers are entitled to get certain facilities or benefits. If an employer refuses to implement the award, i.e., refuses to give these facilities and benefits to the employees, legislature has made a provision under S. 33C(2) for computation of the benefit in terms of money. A paid weekly-off is a facility or a concession which certain employees may be entitled to get as a result of industrial adjudication and computation of such a benefit or a facility in terms of money cannot be said to be a matter of mere arithmetical calculation. In the case of a weekly-off there are two aspects. The first is that for the purpose of rest and recreation an employee is not required to report for work. Secondly, he must get compensation though he is not required to work on the weekly off because a daily-rated employee will have to suffer monetary loss if he is allowed a weekly-off without payment. It is possible for the labour court to compute the second aspect of the weekly-off in terms of money and the applicants are, therefore, entitled to get computation of the benefit of the paid weekly-off in terms of money and the applications are maintainable."
60. The company filed Special Leave Petitions Nos. 1321 to 1330 of 1966 to obtain leave to appeal. The company had taken up the contention that the labour court had no jurisdiction to entertain the application under S. 33C(2). Their lordships refused to grant special leave to appeal and the petitions of the company were rejected on 22 November 1966.
61. The point for determination of their lordships of the Supreme Court in Kays Construction Company case [1965 - II L.L.J. 429] (vide supra) was whether an application for recovery of back-wages awarded by labour court or tribunal should be filed under S. 33C(1) or it should be filed under S. 33C(2). Their lordships held (vide shortnote on p. 430) that it should be filed under S. 33C(1) of the Industrial Disputes Act because -
"A claim for back-wages for the period of unemployment under the terms of an award would be a claim for 'money due' within the meaning of S. 6H(1) of the Uttar Pradesh Industrial Disputes Act, 1947, and it would not fall within the scope and ambit of Sub-section (2) of S. 6H. No doubt some calculation calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of a type mentioned in Sub-section (2) and cannot be made to fit in the elaborate phrase 'benefit which is capable of being computed in terms of money,' The contrast in the two subsections between 'money due' under Sub. section (1) and the necessity of reckoning the benefit in terms of money before the benefit becomes 'money due' under Sub-section (2) shows that mere arithmetical calculations of the amount due are not required to be dealth with under the 'elaborate' procedure of Sub-section (2)."
61. Sri Bhadke has relied upon this part of the judgment of their lordships of the Supreme Court and has contended, that what the applicants want this Court to do is to count the number of festival holidays, which according to the applicants they were entitled to get and to multiply them by the figure of the daily wages and thus ascertain the 'amount due.' According to Sri Bhadke what is known as the process of "the computation of a benefit in terms of money" is not at all involved in this case and therefore this Court has no jurisdiction to entertain the claim of the applicants.
62. The agreement is ingenious indeed, but it is not convincing. Their lordships of the Supreme Court have discussed at great length the scope and ambit of S. 33C(2) in Central Bank of India v. Rajagopalan and others [1963 - II L.L.J. 89]. Those observations are still applicable to cases which involve the questions of (1) vesting of the right or title to the right in the workmen to monetary or non-monetary benefit in their character as workmen and (2) computation of those benefits.
63. These observations are as follows at p. 95 :
"... Before proceeding to compute the benefit in terms of money, the labour court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not deputed, nothing more needs to be done and the labour court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the labour court must deal with that question and decide whether the workman has the right to receive the benefit a alleged by him and it is only if the labour court answers this point in favour of the workman that the next question of making the necessary computation can arise . . . The claim under S. 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of that right and such an enquiry must be held to be incidental to the main determination which has been assigned to the labour court by Sub-section (2). As Maxwell has observed :
'where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.' We must accordingly hold that S. 33C(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers . . ."
64. It is, therefore, held that the question of jurisdiction of this Court, so far as these applications are concerned, will have to be decided in accordance with the principles or propositions of law laid down in Central Bank case [1963 - II L.L.J. 89] (vide supra) and Railway Employees' Co-operative Bank case [1960 - I L.L.J. 345] decided by the Madras High Court which has already been referred to.
65. Their lordships of the Supreme Court have applied the principles of law laid down in Central Bank case [1967 - II L.L.J. 89] (vide supra) and not the obiter dicta in Kays Construction Company case [1965 - II L.L.J. 429] (vide supra) in the following cases :
(1) State Bank of Bikaner and Jaipur v. R. L. Khandewal [1968 - I L.L.J. 589], and (2) East India Coal Company, Ltd. by (Chief Mining Engineer) v. Rameswar and others [1968 - I L.L.J. 6].
66. Their lordships have referred to three cases decided by them laying down the law so far as the jurisdiction of labour court under S. 33C(2) is concerned, viz. :
(1) Central Bank case [1963 - II L.L.J. 89], (2) Punjab National Bank case [1962 - I L.L.J. 234], and (3) Bombay Gas Company case [1963 - II L.L.J. 608].
67. They have laid down eight propositions of law from these three cases. We are concerned with proposition (4) which is as follows :
"(4) Section 33C(1) applies to cases where money is due to a workman under an award or settlement or under Chap. V-A of the Act already calculated and ascertained and therefore there is no dispute about its computation. But Sub-section (2) applies both to non monetary as well as monetary benefits. It the case of monetary benefit, it applies where such benefit though due is not calculated and there is a dispute about its calculation."
68. This case falls within the latter portion of this proposition and therefore this Court has jurisdiction to entertain these applications under S. 33C(2).
69. There is another aspect, viz., the applicants are entitled to get compensation from the company as the company has committed a breach of the "implied term or condition of employment" which conferred a benefit on the applicants in their capacity as workers. Their lordships of the Madras High Court have held in Presidency Talkies v. Mohammed Sheriff as follows :
"(i) that the labour court had jurisdiction to deal with the claim of the aggrieved workman under S. 33C(2) of the Act as the right to reemployment was already granted by the settlement and there was no necessity to obtain a prior adjudication of his before making the claim."
70. Principles laid down in this case will be applicable to the facts of the present case so far as the question of jurisdiction is concerned. The company has committed breach of the "implied term or condition" of contract of employment by refusing to give paid festival holidays. The applicants have sought payment to them of certain sum of money, representing the equivalent of compensation due to them for non-fulfilment of the obligation of giving paid festival holidays by the company. The claim of the applicants is for recovery of the compensation and not for wages as such. Amount of wages is equivalent to the amount of compensation, which is computable as monetary benefit. It is, therefore, held that the applications are maintainable under S. 33C(2) of the Industrial Disputes Act.
71. The company has contended that S. 33C has no retrospective effect. The company has contended that it was not the intention of the legislature that workers whose cause of action for computation of the benefits arose before 28 August 1956 should be permitted to file applications under S. 33C for recovery of their dues and therefore S. 33C was not given retrospective effect and hence these applications for the recovery of dues the cause of action for which arose prior to 28 August 1956 are not maintainable. There is no substance in this argument. Their lordships of the Supreme Court have dealt with the legislative history of S. 33C in Central Bank case [1963 - II L.L.J. 89 at 94-95] (vide supra). There are two points which must be remembered in connexion with this contention. The first point is that S. 20(2) of the Labour Appellate Tribunal Act was confined to the benefits claimable by workmen under an award or decision of an industrial tribunal. This limitation has not been in S. 33C(2). Another aspect is that the legislature recognized that individual workman should be given a speedy remedy to enforce the existing individual rights. Thus, while deciding this contention, viz., the retrospective effect of Act of 1956, we will have to take into consideration the intention of the legislature. Firstly, the legislature has expanded the scope of S. 33C(2) as compared to S. 20(2) of the Labour Appellate Tribunal Act. Secondly, the legislature has not put any limitation so far as the period for filing the applications under S. 33C(2) is concerned. The intention of the legislature must have been than apart from providing a remedy for implementation of awards and settlements, the legislature also wanted to provide a remedy for workers to recover their dues in respect of benefits conferred upon them by statutes or contract of employment. This sort of provision was not made in the Industrial Disputes Act in the year 1947 or Labour Appellate Tribunal Act, 1950. The legislature seems to have cured the defect in the legislation enacted for the recovery of dues of the workers as against the employers. It is, therefore, held that Amendment of Miscellaneous provisions Act, 1956, had retrospective effect and applications under S. 33C(2) are maintainable for recovery of dues as a result of computation of the benefits the causes of action for which arose prior to 28 August 1956.
72. The Trade Disputes Act (1929), which was the predecessor of the Industrial Disputes Act, had provided for administration of conciliation machinery. The object of that system was also to standardize the norms of terms and conditions of employment. The Industrial Disputes Act (1947) has provided for compulsory adjudication to accelerate achievement of the same object. We have seen that the company had settlement with red flag union in 1946 and from the time the company and the union attempted to fix up the terms and conditions of the employment of different categories of workers till 24 October 1951 either by agreement, settlement or by adjudication but the object was to maintain industrial harmony. It is not possible, therefore, to accept the contention of the company that the company paid wages for festival holidays to all temporary or badli workers after 24 October 1951, through mistake. In the case of applicant, Chockalingam, wages for 12 festival holidays were paid from 1951 to 1953. The time office staff could not have made all these payments through mistake. Also the same type to mistake could not have been committed in the case of a number of applicants and on a number of occasions. This conduct of the company is attributable to some managerial decision based on previous experience of having terms and conditions of employment (without any discrimination), to the satisfaction of the workers. All contentions of the company are, therefore, overruled.
73. The company will pay Chockalingam, applicant in Application (I.D.A.) No. 1228 of 1962, the sum of Rs. 83.55 (vide Ex. 9/9) and Rs. 25 as costs of the proceedings.
74. Section 33C of the Industrial Disputes Act, 1947, has been amended by the Industrial Disputes (Amendment) Act, 1964 (36 of 1964), which has come into force with effect from 19 December 1964 (vide Notification No. So 4301 dated 18 December 1964 issued by the Government of Maharashtra has issued the Notification No. I.D.A. 1165/LAB. II, dated 10 November 1965. By virtue of this notification, the Deputy Commissioner of Labour (Administration). Bombay, is authorized to issue certificate for the recovery of the amount as per S. 33C(1). Section 33C(4) of the Industrial Disputes Act requires the labour court to forward a decision to the appropriate Government, and the amount found due by the labour court may be recovered in the manner provided for in Sub-section (1) of S. 33C. In view of the notification issued by the Government of Maharashtra, the powers exercisable by the Government of Maharashtra, by virtue of Sub section (4) shall be exercisable by the Deputy Commissioner of Labour (Administration), Bombay. This decision, therefore, may be forwarded to the Deputy Commissioner of Labour (Administration), Bombay, for further action.
75. Remaining application of this group are dismissed. No order as to costs in these applications.