Madras High Court
S. Ramaiah Mudaliar Bros. And Ors. vs Presiding Officer, Industrial ... on 24 August, 1989
Author: M. Srinivasan
Bench: M. Srinivasan
JUDGMENT Srinivasan, J.
1. These writ petitions arise out of a dispute relating to bonus for the year 1978-79 raised by workers in powerloom and handloom factories. The reference made by the Government contained two issues (1) whether the demand for payment of bonus for 1978-79 to the employees employed in the powerloom factories and under the handloom master weavers is justified; if so, to fix the quantum of bonus : (2) whether the amount paid for festival holiday at the rate of Rs. 3/- is justified, if not to what relief they are entitled.
2. The Industrial Tribunal answered the first question in favour of the workers and held that they would be entitled to the minimum bonus of 8.33%. As regards the second question, the Tribunal held that it would not be a matter falling within the jurisdiction of the tribunal and it is for the individual workman to put forward his claim under Section 33C(2) of the Industrial Disputes Act. Hence, that question was not adjudicated upon by the Tribunal.
3. The contentions raised by the writ petitioners are mostly technical. According to the writ petitioners Rule 34(7) of the Tamil Nadu Industrial Disputes Rules has been violated by the Tribunal, in as much as it had accepted 55 affidavits filed by the workers to the effect that such owner was having a factory, and it would fall within the scope of the Bonus Act. Learned counsel contended that the deponents of the affidavits should have produced themselves before the Tribunal for being cross-examined by the owners of the factories and in the absence of their offering themselves for cross-examination, the procedure adopted by the Tribunal in accepting the affidavits as such was against the express provisions of the law and thereby the principles of natural justice have been violated. Learned counsel also contended that excepting the solitary witness examined as M.W. 1, the owners of the factories were not permitted by the Tribunal to examine any other witness on their said. The first contention urged by learned counsel was that there is a discrepancy between the claim statement filed by the workers and the particulars contained in the 55 affidavits filed on their behalf and the same was overlooked by the Tribunal. The next contention put forward was that the applicability of the Act to each individual factory was not considered by the Tribunal separately. The last contention was that the Tribunal exceeded its jurisdiction in summoning 80 factory owners during the pendency of the proceedings and as they were not given any opportunity to take part in the conciliation proceedings which preceded the reference, the principles of natural justice stood violated.
4. Before dealing with each contention, the following facts have to be referred to. After the reference was taken by the Tribunal, a claim statement was filed on behalf of the workers on November 27, 1980. The annexure to the claim statement contained the particulars of the factories and their addresses as well as the number of looms owned by each factory and the total number of workmen employed in each of them. A counter-statement was filed in common by the owners of the factories on December 26, 1980. It is to be stated at this stage that the management was represented by two Associations viz., Sankarankoil Powerloom Owners Association and Sankarankoil Master Weavers Association. The reference itself referred only to two Associations and not to the individual factory owners. The validity of the reference was challenged by two of the factory owners in W.P. Nos. 2174 and 2175 of 1981. That was done only after the counter-statement was filed before the Tribunal. By order dated April 27, 1981, this Court dismissed the writ petitions, observing that it will be open to the writ petitioners to raise all the contentions placed before this Court before the Tribunal in the reference proceedings and that the Tribunal will go into those contentions and adjudicate them in accordance with law. Thereafter, the Tribunal issued summons to all the 80 factory owners listed in the annexure to the claim statement and they were made parties in the proceedings. On receipt of summons, the factory owners filed another counter-statement in June 1981 raising all objections as open to them under law.
5. On behalf of the workers, 55 affidavits were filed. Each affidavit was sworn to by one worker of one factory in which the names of the other workers working in the factory were mentioned. Each affidavits stated that the factory in which the deponent was working was governed by the Payment of Bonus Act 1965. After the affidavits were filed one counter-affidavit was filed on behalf of all the owners of the factories. In the counter-affidavit it was stated that most of the names referred to in the affidavits were fictitious and those persons were not working under the owners. It is also stated that in most of the establishments, there were only less than 10 looms. There was no statement that the number of workers was less than 10. The owners of the factories were content with filing the common counter-affidavit without giving the particulars with reference to each of them. They could have very well filed either one counter-affidavit or 55 counter-affidavits but giving the details with regard to each of them, as regards the number of workmen working therein.
6. On behalf of the workers, the Secretary of the Sarvasangam examined himself as W.W.I. In his chief-examination he sated that in all the 80 factories referred to in the claim statement, there were more than 10 workers working in each of them. There was no cross-examination on this statement made by him. W.W.I had also spoken about the 55 affidavits filed by the workers. On behalf of the factories, one of the owners by name Dharmalinga Mudaliar examined himself. He spoke only about his own factory and he deposed that he had eight looms and he had engaged only eight workers. He admitted even in the chief-examination that he had nothing to do with the other factories. In the cross-examination, he stated that he did not remember whether he had seen the 39th affidavit which related to his factory; nor did he remember whether he filed any counter-affidavit. According to him, it is only his advocate who should be enquired about it.
7. Some documents were filed on both sides and it may not be necessary to refer to them in detail for the purpose of this case.
8. The Tribunal accepted the facts stated in the 55 affidavits and held that as there was no counter-affidavit on behalf of the owners denying them, the owners were governed by the proceedings of the Payment of Bonus Act. The Tribunal considered the evidence of M.M.I and rejected the same on the ground that his own Income-tax return disproved his various that he had employed only eight workers. The Tribunal also referred to the statement of M.M.I that he had not seen the 39th affidavit which related to him.
9. The main contentions urged before the Tribunal were (1) The Sarvasangam was not a legal entity and as such it could not represent the employees; (2) The Associations of employers could not be made parties to the dispute and as such there was no industrial dispute as contemplated under the Act; and (3) The reference was vague and non-specific. The Tribunal found against all the three contentions of the owners. The Tribunal rightly held that the Sarvasangam was entitled to represent the employers as representation was permitted under the provisions of the Industrial disputes Act even though the Sangam was not a registered one. On the question of representation of the owners by the two Associations, the Tribunal placed reliance on Ex.W. 6 and W. 7 which proved that there were settlements under Section 12(3) of the Industrial Disputes Act and in those proceedings all the owners of the factories were represented by the two Associations. The Tribunal also made reference to other records which proved that the owners of the factories are always being represented whenever disputes arose between the workers and the management by the two Associations. The Tribunal also relied upon the fact that summons had been issued to all the individual factory owners and they had been made parties to the proceedings. The objection that the owners could not be represented by the two Associations was really without any substance as the individual owners of the factories were themselves party to the proceedings. The Tribunal rightly rejected that contention put forward by the owners of the factories. Their contention was also rejected by the Tribunal as it found that the reference was quite specific and clear and on the merits the tribunal held that the materials placed before it by the workers in the shape of the affidavits relating to each of the factory owners were sufficient to uphold the claim made by the workers. The Tribunal also relied upon the fact that the factory owners had been making only ex gratia payments to the workers under the label 'inam' or ex gratia payment though it was really bonus according to the Tribunal. On behalf of the workers a representation was made before the Tribunal that they were satisfied with the minimum bonus of 8.33% and the claim was confined to 55 factories relating to which affidavits were filed as well as 10 power loom owners who had remained absent in the proceedings. Thus, the Tribunal passed an Award declaring that the workers of the 55 factories with reference to whom affidavits were filed and the 10 power loom owners who had remained absent in the enquiry were entitled to minimum bonus of 8.33%.
10. Now turning to the contention raised by learned counsel for the writ petitioners. The first of them is based upon Rule 34(7) of the Tamil Nadu Industrial Disputes Rules. Under the said Rule, evidence shall be recorded either orally or through affidavit, but, in the case of affidavit, the opposite party shall have the right to cross-examine each of the deponents filing the affidavits. Learned counsel contends that with regard to 55 affidavits filed before the Tribunal, the owners of the factories had the right to cross-examine and the language of the Rule being mandatory, they cannot be deprived of the right just because they had not expressly requested the Tribunal to permit them to cross-examine. Two answers are put forward by learned counsel for the respondents with regard to this contention. First is that the Rule was not in force at the time of the enquiry and that the Rule was introduced only in 1985. The Rule as it stood before 1985 did not contain the provisions such as is found now in Clause 7 thereto. Rule 3 of the Rules which has been the same throughout is to the effect that the Tribunal may call for, admit or accept any evidence at any stage and in any manner which in equity and good conscience he thinks fit. That is in consonance with Section 11 of the Industrial Disputes Act. Under sub-section I of S. 11 the Tribunal shall follow such procedure as it may think fit subject to any Rules that may be made in that behalf. Hence, as the Rule stood at the time when the enquiry was held by the Industrial Tribunal in this case, there was no Rule making it obligatory for a deponent of an affidavit, to present himself for cross-examination before the Tribunal and at that time the Tribunal was entitled to treat the affidavits as part of evidence.
11. The second answer to the contention of learned counsel for the petitioner is that even though the Rule confers a right on the opposite party to cross-examine the deponent of an affidavit, the party concerned should inform the Tribunal that he would like to cross-examine the deponent. Unless the Tribunal or the opposite party is informed of the stand taken by the person concerned, it cannot be assumed that he was going to exercise his right of cross-examination. If an affidavit is filed in a court, then it is for the other party to say that he denies the contents of the affidavit and he wants to cross examine the deponent. Before the Tribunal, the owners of the factories had lot of opportunities to state that they wanted to cross examine the deponents of the 55 affidavits. The enquiry was pending for quite a long time and if only the owners of the factories had indicated that they would cross-examine the deponents the latter would have certainly produced themselves before the Court. Learned counsel for the respondents invites our attention to a statement made in the counter affidavit filed in C.M.P. No. 10542 of 1983 in W.A. No. 679 of 1983 which was filed by the owners of the factories against an interlocutory order passed in this writ petition. In the said interlocutory order, the writ petitioners were directed to pay 4% bonus as an interim measure till the disposal of the writ petition. But, against that order, an appeal was filed by the owners of the factories. In that appeal, there was an application for stay and in that application, a counter affidavit was filed on behalf of the workers. In para 8 of the said counter affidavit, it is stated as follows :-
"Before the Tribunal even though our demand was for a 15% bonus our union confined itself only for a relief of statutory minimum bonus so that the dispute may not be further protracted by going into the accounts and other details that are necessary to arrive at the quantum of bonus. It is not uncommon that when there are numerous parties before a quasi-judicial authority to let in evidence by filing necessary affidavits. In fact it was suggested to the writ appellants to name anyone of the individual deponents of the 55 affidavits filed on our side, so that, the individual could be brought for cross-examination. The writ appellants' counsel did not name any of the individual deponents and merely chose to argue the case."
The truth of the statement appears to be probable and it is supported by the statement made by M.W. 1 that he did not see the 39th affidavit which related to his factory. If the owners of the factories were not interested even in seeing the affidavits filed by the workers, naturally it can be inferred therefrom that they were not interested in cross-examining the deponents of the affidavits. No doubt, a counter-affidavit was filed in common after the 55 affidavits were filed by the workers, it was not pursued by the owners of the factories and no intimation was given to the tribunal that they wanted to cross-examine the deponents of the affidavits. Learned counsel for the petitioners contended vehemently that the failure on the part of the Tribunal to comply with the mandatory provision of Rule 34(7) of the Industrial Disputes Rules would amount to violation of the principles of natural justice. While pointing out that the Rule was not in force at that time, we would also hold that the writ petitioners have to blame themselves for not cross-examining the deponents of the affidavits and there was no error in the procedure adopted by the Tribunal. The Tribunal cannot be found fault with for not inviting the petitioners to cross-examine the deponents. There was no question of the petitioners being denied an opportunity of cross-examining the deponents. If the petitioners or the opposite party had stated that they would like to cross-examine the deponent, the latter would have presented themselves for cross-examination. The decisions relied on by learned counsel for the petitioners with regard to this aspect of the matter are not relevant as we have found that there is no question of any denial of opportunity to the writ petitioners and there was no violation of the principles of natural justice. We do not find any error in the acceptance by the tribunal of the affidavits filed by the workers.
12. The next contention of learned counsel that no opportunity was given to the owners of the factories for examining each individual owner before the Tribunal is also unsustainable. There is nothing on record to show that the owners of the factories were inclined to examined themselves as witnesses. There is nothing on record to show that the Tribunal prevented the owners of the factories from examining their witnesses. Learned counsel states that there is no record to the effect that the evidence on behalf of the management was closed after M.W. 1 was examined. We do not find any notes papers in this proceedings. But it is not made customary for the Tribunal to maintain notes papers to show that the evidence was close or not In the absence of any notes paper we cannot draw an inference that opportunity was denied to the petitioners to examine their witness. No such complaint has been made in the affidavit filed in support of the writ petition. Hence we cannot entertain such a contention which learned counsel put forward at the time of arguments.
13. The next contention relates to the discrepancy between the claim statement and the 55 affidavits filed by the workers. Learned counsel draws our attention to a comparative statement prepared by the writ petitioners which was included in the typed set of papers. It is seen from the comparative statement that the figures found in the claim statement differ from the figures found in the affidavits filed by the workers. The difference is explained by the Learned counsel for the respondent that usually no registers are maintained by the factory owners and there will be no record as such show how many workers are being employed by each factory owner. According to him, in most of the cases, factories belonged to families. As and when a member of the family comes to age, some looms will be allotted to that person and he will be carrying on business separately. According to learned counsel, the position will be changed from time to time and at the time the affidavits were filed by the workers, the correct position as was obtaining on that date was mentioned in the affidavits. This explanation seems to be acceptable. Even otherwise, we are of the opinion that the discrepancy as such cannot be made much of by the petitioners as the Tribunal had not relied upon the figures given in the claim statement as such. But the affidavits can be placed on a higher pedestal and they can be treated as evidence. The claim statement does not amount to evidence. Once the affidavits are filed before the Tribunal, it is for the opposite party to contradict the same by filing counter-affidavit with regard to each of the factories. The writ petitioners did not choose to do so. Having failed to file separated affidavits or one common affidavit containing relevant details pertaining to each factory owners, it is not open to the writ petitioners to rely upon the individual discrepancy between the claim statement and the 55 affidavits. The Tribunal having relied only upon the evidence supported by the affidavits, we do not find any error in the Award of the Tribunal.
14. The next contention is that the Tribunal has not decided upon the question of applicability of the Act with regard to each individual factory. The parties have decided to let in evidence in common while the workers had filed individual affidavits with regard to each factory. The owners of the factories did not choose to let in evidence individually but only examined one of the owners as M.W. 1. Admittedly he does not know anything about the other factories. As regards M.W. 1, the Tribunal has given proper reasons to reject his evidence as more than 10 workers were working. Hence, on the evidence available, the Tribunal is quite right in holding that the same will apply to all the 55 factories as well as the persons who remained absent at the time of enquiry. With regard to other 15 factory owners, the workers have given up their claim. Learned counsel contended that the Tribunal was not entitled to accept the abandonment of the claim with regard to 15 factories and the Tribunal ought to have passed an Award with regard to them also. Learned counsel contended that the Award is vitiated by its failure to deal with the 15 factories against whom claim was not given up. However, the contention was not pressed later. But, we are of the opinion that the contention is without any substance. It is certainly open to the workers to give up or abandon their claim at any stage of the proceedings with regard to any part of it. In Glaxo Laboratories (India) Ltd. v. Presiding Officer, Labour Court, Guntur (1977) Lab. I.C. 1523 (A.P.) a Division Bench of the Andhra Pradesh held that there is nothing in Section 10(4) or any other section of the Act specifying the duties of the Tribunal and requiring it to adjudicate upon the points in the order of reference which have been given up by the workmen through their unions without any allegations that they were unfairly given up because it is impossible for any Tribunal to adjudicate upon any point of dispute without evidence on record and those who give up the dispute are hardly likely to produce any evidence. Hence, we find that the contention is without any substance and it is hereby rejected.
15. The last contention urged by the Learned counsel is that the Tribunal exceeded its jurisdiction in summoning all the 80 factory owners. While developing this contention Learned counsel urged that the factory owners have no opportunity to take part in the conciliation proceedings and, therefore, the principles of natural justice were violated. We do not find any sub-stance in this contention again. Of course, there is no express provision in the Industrial Disputes Act for impleading any person as a party to the proceedings before the Tribunal. Section 11 of the Industrial Disputes Act is in general terms and under sub-section (1), the Tribunal is entitled to follow such procedure as it may think fit. Under Section 18(3) of the Act, the Tribunal is entitled to summon all other parties to appear in the proceedings as parties to the dispute and unless the Tribunal records the opinion that they were so summoned without proper cause, the Award of the Tribunal shall be binding on such parties. This indicates clearly that the Tribunal is entitled to issue summons to necessary parties. The only relevant question will be whether the parties are necessary for proper adjudication of the dispute or whether the adjudication of the dispute without the presence of such parties will be complete and effective. If these two tests are satisfied, then the Tribunal is well within its jurisdiction to summon parties concerned. In this case, there cannot be any dispute that all the 80 factory owners are necessary parties and in their absence the dispute cannot be effectively concluded. In fact, the objection raised by the factory owners in the beginning was that the reference was confined to two Associations, and unless individual factory owners were made parties to their reference, the reference would be invalid and that the same contention is said to have been urged in the writ petition filed earlier. Having taken that stand, it is not open to the factory owners to say that they have been wrongly impleaded as parties to the proceedings by the Tribunal. The argument that they had no opportunity to take part in the conciliation proceedings, and, therefore, the principles of natural justice are violated is also without any substance. If the parties have taken part in the conciliation proceedings they could have settled the dispute. That opportunity was available to them even before the Tribunal while the matter was pending before it and they could have well settled their disputes with the workers, if they were so inclined. There is no question of any violation of the principles of natural justice in not impleading the factory owners as parties to the proceedings before the conciliation officer.
16. Yet another contention was urged by Learned counsel with reference to W.P. Nos. 8432 and 8433 of 1982. These two writ petition have been filed by the owners of the factories who were absent during the proceedings before the Tribunal. Learned counsel submitted that the Tribunal ought not to have passed an Award as against the 10 persons who remained absent in the proceedings. There is no substance in this contention. It is not in dispute that these 10 persons have received summons from the Tribunal. Having received summons they chose to remain absent. The Tribunal is therefore entitled to pass Award on materials available to it. W.W. 1 who gave evidence before the Tribunal with regard to all the 80 factories mentioned in the claim statement that there were not more than 10 workers. That evidence is applicable to the 10 persons who remained absent before the Tribunal. As already pointed out there is no cross-examination on that statement made by W.W. 1 Hence, there was evidence before the Tribunal to show that even with regard to 10 persons who remained absent in the proceedings, there were more that 10 workers in each of them and the provisions of the Payment of Bonus Act were applicable to them. Consequently, the Award passed with regard to those 10 persons is quite valid and one in accordance with law.
17. In the result, all the contentions put forward by Learned counsel for the writ petitioners are rejected and the writ petitions fail and the same are dismissed with costs.