Orissa High Court
Kalinga Jute Products (Pvt.) Ltd. vs Presiding Officer, Industrial ... on 10 October, 1979
JUDGMENT S.K. Ray, C.J.
1. This is an application by M/s. Kalinga Jute Products (Private) Ltd. for quashing the award of the Industrial Tribunal, Orissa, Bhubaneswar dated 3-8-1978 passed in Industrial Disputes Case No. 31 of 1976 (Annexure 23) and if necessary, to remand the matter to the Tribunal for fresh disposal in accordance with law, and to pass such other orders as may be deemed fit and proper.
2. In exercise of the powers conferred by Sub-section (5) of Section 12 read with Clause (d) of Sub-section (1)of Section 10 of the Industrial Disputes Act, 1947(hereinafter called the Act), the State Government in the Labour, Employment & Housing Department referred the following dispute to the Tribunal for adjudication:
Whether the existing wage structure of the Kalinga Jute Products Pvt. Ltd. Dhenkanal needs any revision ? If so, what should be the details?
This order of the Government of Orissa, opposite party No. 3 is Annexure 5 dated 22-11-76. The aforesaid Industrial Dispute case was registered on receipt of this Annexure 5.
3. The petitioner-company seeks to quash the award on three grounds, namely, (1) Reference made on 22-11-76 by the Government, Opposite Party No. 3, to the Presiding Officer, Industrial Tribunal, Opposite Party No. 1, was bad as there existed no industrial dispute after the settlement dated 5-6-76.
(2) The Tribunal has not correctly understood the import of the principles of wage fixation and has made a confusion of the principles, viz., region-cum-industry basis, financial capacity of the unit to bear the burden and productivity of the labour, and (3) The extent of revision allowed by the Tribunal is based on no material, is without any rational basis and as such, is perverse.
4. The first ground is now taken up. It is contended on behalf of the petitioner that the industrial dispute referred to the Tribunal under Annexure 5 was a part of the charter of demands and had been resolved on 29-5-76 long before the reference was made, and as such, the reference was bad because the industrial dispute referred having been settled was no longer a live issue. Consequently the impugned award is bound to be quashed as having been passed without jurisdiction. This contention is refuted by the learned Counsel for opposite party No. 2 on the footing that this settlement has not resolved the disputes under reference and that it is not legal, valid and enforceable as it was not "jointly" sent as required by Rule 64(5) of the Orissa Industrial Disputes Rules, 1969 (hereinafter referred to as the Rules).
5. To appreciate this contention it is now necessary to relate some antecedent facts leading up to the reference made by the State Government under Annexure 5.
6. The petitioner is a company incorporated under the Companies Act, 1956 having its registered office at Dhenkanal. During the year, 1975 the workers of the factory formed a trade union. This union is impleaded in this application as opposite party No. 2. On 18-12-76 a charter of demands (Annexure 1) was served on the petitioner. By this charter of demands the workers called upon the management of the company to comply with the demands or, in the alternative, to treat it as notice of strike under the Act. The demands were as follows:
(1) Recognition of the Kalinga Jute Products Labour Union as the collective bargaining agent on behalf of the workers of the Kalinga Jute Products in order to maintain code of discipline in Industry.
(2)(a) Settlement of the existing industrial disputes arising out of the victimisations, wrongful termination of services of 24 workers within the period from 1975 to 76 (list enclosed),
(b) While the union was under registration early disposal, withdrawal, cancellation of the suspension orders causing willful harassment of the leading trade union activities. (Sri Khageswar Behera, Babuli Sahu, Baidhar Parida, Jogendra Behera, Krushna Chandra Behera).
(c) Payment of their wages to the workers in par with the existing wage structure adopted in the neighboring Jute Industry.
(d) Payment of bonus for the year, 1974-75 @ 20% of the wages earned by the workers.
(e) Payment of project allowance @ 20% of the wages.
(3) Violation of obligatory Industrial provisions.
(a) Adoption of Certified standing orders.
(b) Works committee and other committees formation.
(c) Welfare of workers under Factory Act.
(d) Provident Fund benefit.
7. The conciliation officer proceeded to act under Section 12 of the Act. He did not take cognizance of some of the demands as they did not constitute industrial disputes and bifurcated the charter of demands into two categories, viz., economic demands and non-economic demands and issued two notices of conciliation both to the petitioner as well as to opposite party No. 2. Ext. L is the notice of conciliation dated 26-2-76 regarding non-economic demands and Ext, M is a notice of conciliation dated 20-4-76 in regard to economic demands Ext. M related to Items 2(c) (d) and (e) of charter of demands dated 18-2-76 which are the economic demands.
8. The conciliation officer submitted failure report with regard to the economic demands dated 30-5-76 (Ext, F).
9. Before the aforesaid failure report was submitted, parties, viz., the petitioner and opposite party No. 2 mutually negotiated both on the economic and non-economic demands and drew up minutes as per Annexure C to Ext. A. This Annexure C is extracted herein below:
A brief note of discussion made between the representative of the Management and the workers of the Kalinga Jute Products Pvt. Ltd., Dhenkanal, held on 25th, 26th and 29th May, 1976.
The above meeting was held on 25th afternoon and 26th morning of May, 1976 between the undersigned representative of the workers and the Management of Kalinga Jute Products, Dhenkanal in presence of Sri Sushil Pattanaik, President, Chamber of Commerce and Industries, Dhenkanal, at Dhenkanal.
This meeting discussed and unanimously resolved over the prevailing differences between the workers and the Management. It was felt and decided that most of the differences can be amicably settled in the common interest of the labour and Management as well as that of the society as a whole. Therefore, it is decided as per the following points with a view to establish mutual harmony and good understanding for the promotion of industrial peace, (1) It was decided that the question of job-categorisation and fixation of wages for each individual worker should be taken up for promotion of efficiency and expertise with a view to adopt a systematic wage structure for each individual worker of the factory.
(2) It was observed that certain discrepancies exist in the present wage structure which needs revision on the basis of seniority cum merit in a view to set right the discrepancies and discriminations.
(3) It was decided to take up and consider all cases of alleged dismissals, refusals and suspensions relating to a number of workers and has to be decided on merits by the Director Sri S.M. Agrawalla and the President of the Labour Union Sri P.C. Sahu as early as possible.
(4) It was further decided that the demand for wage increase above the present wage structure could only be reviewed on the basis of growth of production and such matter of production shall be dealt with through a joint production committee consisting of equal number of representatives of labour and the Management in order to achieve higher production. And in case of exigencies the matter shall be brought to the notice of the Directors and the President of the Labour Union whose decision shall be final.
(5) Regarding the finalisation of the matter in connection with the item No. 3 above, it was felt necessary to fix another date latest on 4-6-76 next and by that time all materials and information's can be collected in each individual case for necessary action.
(6) It was also decided not to adopt precipitate actions by any of the parties in future which will cause loss of production and mutual harmony or deterioration of the Industrial relation.
(7) Unfortunately immediately after the mutual discussions and bipartite decisions arrived between the representatives of either of the parties on the morning of 26-5-76 it could not be promptly communicated to the workers and the staff of the Management as a result of which excessive actions from both the labour and the Management reached at strike/lockout which continued from 26-5-76 to 29-5-76. However, both the parties after the rough discussion on the cause of action have come to the conclusion to drop this unhappy matter without any consideration of merit or demerit of the case and resolved to restore mutual harmony and industrial peace for a better future and to resume the factory on the morning of 31-5-76 next positively.
(8) Lastly, both the parties agreed on principle to refer the matter regarding minimum fair wages to be adopted in the Jute Products Industry in Orissa and particularly for this industry to the Government of Orissa for necessary suitable actions on this matter, Dated 29th May, 1976 Dhenkanal Representatives of the Representatives of the Management, Workers, Sd/ Illegible Sd/ Illegible 29-5-76 29-5-76 Sd/ Illegible Sd/ Illegible 29-5-76 29-5-76 Directors, President, Kalinga Jute Products, Kalinga Jute Products, Dhenkanal Labour Union Sd/llegible 29-5-76 President Dhenkanal Chamber of Commerce & Industry, Dhenkanal.
This was followed by drawing up of a memorandum of settlement between the management of the petitioner-company and the opposite party No. 2 in Form K, which is Ext. A, a copy of which is appended to the writ petition as Annexure 2. Representatives of the employers and the workman are signatories to this settlement as Annexure A. This settlement is extracted herein below without annexures:
FORM-K (Rule 64 of the Orissa Industrial Disputes Rules, 1959) (Memorandum of settlement dated 5-6-76 between the Management of Kalinga Jute Products Pvt. Ltd., Dhenkanal and its workman represented by the Kalinga Jute Products Labour Union, Dhenkanal.
Representing Representing
employer workman
(1) Sd/ Illegible (1) Sd/ Sri P.C. Sahu,
5-6-76 President
(2) Sd/ Illegible (2) Sd/ Sri Sadananda
5-6-76 Swai,
Vice-President
(3) Sd/ Sri Khageswar
Behera,
Secretary
SHORT RECITAL OF THE CASE
Whereas the workmen of [M/s. Kalinga Jute Products Pvt. Ltd. Dhenkanal represented through their above named union by their letter of demands dated 18-2-76 (Annexure A) raised an industrial dispute and while the said letter of demands was pending consideration of the employer, another industrial dispute was raised alleging illegal refusal of employment to Sri Bhaskar Ch. Senapathy and few others as annexed hereto as Annexure B. Whereas the conciliation officer of the District commenced conciliation proceedings on the dispute by his notice of conciliation dated 26-2-76 and on the earlier dispute (in respect only of items Nos. 2(c) (d) and (s) of Annexure A) by his conciliation notice dated 20-4-76.
Whereas conciliation proceedings in respect of the notice of conciliation dated 20-4-76 were held on 25-5-76 and were adjourned for further discussions.
Whereas on 26-5-76 the representatives of the parties had simultaneously commenced bipartite talks to resolve all their disputes and differences. Now, therefore, as per the wish and desire of the parties, the areas of agreement are reduced to writing as hereinafter contained.
TERMS OF SETTLEMENT
1. It is agreed by and between the parties that the 'brief note of discussion made between the representatives of the management and the workers of the Kalinga Jute Products Pvt. Ltd., as annexed here to as Annexure-C be accepted as and do form part of this settlement.
2. It is further agreed that the disputes between the parties having been resolved, the parties either severally or jointly may approach the conciliation officer to accept the settlement as having resolved all disputes pending with him,
3. It is further agreed that neither party shall resort to unilateral and direct action to enforce each others demands and that they shall take recourse to legal, constitutional and peaceful methods without affecting industrial harmony and production.
In token of the aforesaid agreement the parties to the settlement sign this instrument as hereunder signed:
By the employer By the workmen
1. Sd/Illegible 1. Sd/ P.C. Sahu
5-6-76 5-6-76, President
2. Sd/ Illegible 2. Sd/Sadananda
Swain (In Oriya)
3. Sd/ K.S. Behera
5-6-76
(Secretary)
Dated, Dhenkanal the 5th May, 1976
Witnesses with address:
Signed:1. Sd/ Illegible. 5-6-76
S.K. Patnaik,
Station Road, Dhenkanal.
2. Sd/ Gati Krishna Sahu,
5-6-76,
M/s. Kalinga Jute Products
(P) Ltd. Dhenkanal.
Copy to:
1. District Labour Officer-cum-Conciliation Officer, Dhenkanal, Angul.
2. Labour Commissioner, Orissa, Bhubaneswar.
3. Secretary to the Government of Orissa, Labour Department, Bhubaneswar.
A copy of the settlement, Ext. A was sent to the conciliation officer who upon receipt of it sent a report to the Government (Annexure 3) which is extracted in extenso herein below:
Report on the industrial dispute between the management of M/s. Kalinga Jute Products Pvt. Ltd., Dhenkanal and their workmen represented through Kalinga Jute Products Labour Union, Dhenkanal.
The Secretary, Kalinga Jute Products Labour Union, Dhenkanal, in their letter No. Nil dated 18-2-76 (copy enclosed vide appendix I) raised an Industrial dispute by way of submitting a charter of demand and demanded its fulfilment by the management of M/s. Kalinga Jute Products Pvt. Ltd., Dhenkanal. Besides other economic demands, the charter of demand included withdrawal of dismissal/discharge or termination order of 24 workmen issued by the management on various stages. After necessary enquiry it was found expedient to bifurcate the charter of demands for the purpose of convenience and issue conciliation notice separately in respect of the demand relating to dismissal/ discharge cases occurring enclosure 'B' of the letter of the union under reference.
When the conciliation was in progress the parties entered into; bipartite settlement and sent a copy of the same to this office under intimation to the Secretary, L.E. & H. Department and Labour Commissioner, Orissa. However, I am sending a copy thereof for ready reference. The conciliation is, therefore, treated as closed.
Sd/ Illegible 21-6-76, Conciliation-Officer-cum-Dist.
Labour Officer, Dhenkanal.
Angul".
The conciliation officer evidently was satisfied that the parties had entered into a bipartite settlement and had resolved all the disputes and, accordingly, he closed the conciliation proceedings, though earlier he had reported failure of conciliation regarding a part of the dispute. The Tribunal also has recorded finding in this impugned award in the following words:
Ext. A, which is in form K under Rule 4 of the Orissa Industrial Disputes Rules, 1959 clearly shows that the disputes between the parties were resolved.
10. In the aforesaid circumstances, we proceed to determine (a) whether the settlement was executed and sent to the relevant authorities in accordance with the Rules (b) whether the settlement has resolved disputes under reference, (c) whether reference is bad in view of the settlement and (d) whether the consequential award is without jurisdiction and is vitiated in view of the bad reference.
11. The first two questions of the four indicated above are taken up together as they are-inter-connected Ext. K (Annexure 1 to the writ petition) is the charter of demands dated18-2-76. It shows that there was dispute with regard to the claim for higher wages which is to be as per the existing wage structure of the neighbouring jute industries. This dispute inevitably involved the examination of the existing wage structure of the petitioner-company. The claim of higher wages brought within its sweep a consideration of the question whether the existing wage structure of the petitioner-company was fair and if not, if it needed any revision so as to comply with the demands for higher wages. Exhibits L and M which are the two conciliation notices issued by the conciliation officer take cognizance of the disputes. During the pendency of the conciliation proceedings the parties had mutual discussions on the "prevailing differences" (see paragraph2 of Annexure-C to Ext. A) and minutes of discussions were drawn up on 29-5-76. On5-6-76 parties amicably settled all the disputes as per charter of demands dated 18-2-76which was made part of the memorandum of settlement. This settlement was drawn up in Form K as per Rule 64(1) of the Rules. This being a settlement arrived at otherwise than in the conciliation proceedings, Sub-rule (2)of Rule 64 enjoins that such settlement, in order to be effective, shall be signed by (a) when the employer is an incorporated company or other body corporate, by the Agent, Manager, Secretary or other principal officer of the Corporation and (b) in the case of workmen either by the president and secretary of a Trade union of workmen, or by five representatives of the workmen duly authorised in this behalf at a meeting of the workmen held for the purpose, and one copy thereof to be sent to the Government and another to the conciliation officer as required by Section 2(p) of the Act. It will be found from Ext. A that it has been signed by the President, vice-President and Secretary of the Union on behalf of the workmen, and by the Director of the company and another on behalf of the company. A copy of this settlement was sent by the petitioner to the conciliation officer, Labour Commissioner and the Secretary to the Government of Orissa for information that the parties had resolved their disputes (see Ext. S and the deposition of M.W. 2). Exhibit A to which both the parties to the disputes were signatories contained an enforcement that copies of the settlement were to be sent to the conciliation officer, Labour Commissioner and the Secretary to the Government of Orissa. The petitioner in its written statement in paragraph 5 before the Tribunal categorically averred:
However, the parties continued their discussions and on 5-6-76 a bipartite settlement was reached resolving all the disputes. The settlement was in Form-K under Rule 64 of the Orissa Industrial Disputes Rules and duly forwarded to the Government, conciliation officer and the Labour Commissioner as required under law.
This averment has not been controverted in the written statement filed by the opposite party No. 2. The conciliation officer upon receipt of a copy of the settlement, Ext. A sent a report to the Government (Annexure-3) already extracted, stating that the parties had entered into a bipartite settlement and accordingly he treated the conciliation as closed.
12. It is contended on behalf of opposite party No. 2 that this set lenient not having been "jointly" sent to the authorities concerned was not a valid settlement and, therefore, not binding upon the parties. The onus is cleatly on the petitioner to show and prove that there existed a lawful settlement. As already discussed above, the settlement Ext. A along with its annexures clearly indicate that all the disputes raised in the charter of demands had been made subject-matter of the bipartite settlement which had been reduced into writing and had thereby been resolved. Assuming that this settlement had been sent to the Government by the petitioner and not jointly as required by Rule 64(5) of the Rules, the question is whether that would affect the validity of the settlement. Section 2(p) of the Act defines "settlement" as meaning "a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceedings where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer." On the evidence adduced before the Tribunal, which is on record, there is no manner of doubt that the agreement has been signed by the parties in the manner prescribed by law, that is, by Rule 64(2) of the Rules, and a copy thereof has been sent to the conciliation officer and the appropriate Government. Rule 64(5) requiring that the copy of the settlement shall be jointly sent, is a requirement in excess of Section 2(p) and cannot be held, therefore, to be mandatory. Section 18(1) of the Act provides that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the settlement and under Sub-section (1) of Section 19 of the Act such settlement shall come into operation on such date as is agreed upon by the parties to the dispute and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. Reading both these provisions together it is clear that the settlement between the parties came into operation on the date of signing, that is, on 5-6-76. It is not the intendment of law that the said operation is to be kept in abeyance until after a copy has been jointly sent. Viewed from this angle also, requirement of joint sending is not mandatory so as to affect the validity of the settlement or its coming into operation.
13. Further, in view of the Tribunals finding that the settlement Ext. A had been entered into in accordance with law it is not open to the opposite party No. 2 to challenge that finding on the ground that it had not been jointly sent. It has to be presumed for the purpose of this writ petition that all the procedural requirements had been complied with so as to confer validity on the settlement conceding that it had not been jointly sent as required by Rule 64(5), this default is a formal or technical one. Apart from this requirement of the rule being directory as indicated above, it should not be allowed to invalidate a settlement. Similar is the view of the Supreme Court in the case of the State of Madras v. C.P. Sarathy and Anr. . As laid down in Section 29(2) of the Act a settlement remains in operation for a period of six months and continues to operate also thereafter until it is legally terminated under Section 19(2). As in the present case the parties did not agree that the settlement should be binding for a fixed period, it remains binding on them for a period of six months and also thereafter until expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement. This notice not having been given, the settlement was binding on the date when the reference was made by the Government to the Tribunal.
14. We are of opinion, on the basis of the above analysis, that the settlement related to the dispute under reference, that it had been executed and sent to relevant authorities as required by Rule 64 and Section 2(p) and that it was, therefore, legal, valid and binding upon the parties, that is, the petitioner and opposite party No. 2 and came into operation with effect from 5-6-76 long before reference was made.
15. As already stated above, the charter of demands was made an annexure to the settlement Ext. A indicating thereby that all the disputes raised in the charter were settled. Clause (1) of the memorandum of settlement makes it clear that Annexure C to Ext. A is a part of the settlement. It is package deal. It appears from Annexure-C that the demand for revision of wage structure and the demand for fair wage were not only included in the charter of demands but were also settled by some way or other by paragraphs 1,4 and 8 of Annexure C to Ext. A. Mr. Palit, learned Counsel for the opposite party No. 2 relying upon Clause 8 of Annexure C argued that since the parties agreed to refer the matter relating to minimum fair wages to be adopted in the jute product industries to the Government of Orissa for necessary suitable action in the matter, it was open to the Government to refer that matter to the Tribunal. Suitable action includes adjudication by the Tribunal. Accepting that line of argument for the time being, it must be seen that reference by the Government unilaterally on receipt of the conciliation officer's report is against the tenor and intendment of Clause 8 of Annexure C to Ext. A. By Clause 8 both parties agreed to refer the matter to the State Government after which only the State Government would take suitable action. The precondition for the State Government taking suitable action which might include making a reference under Section 10 read with Section 12(5) of the Act, has not in the particular case, been fulfilled, because there was no reference by the parties to the State Government to take suitable action, Thereafter, this line of argument of Mr. Palit cannot be sustained.
16. It next falls for consideration whether the reference is bad in view of the settlement. In this connection it is necessary to advert to the legal position on the point. It is well settled by a long catena of decisions of the Supreme Court and also of other High Courts that no party bound by the settlement can raise an industrial dispute during the currency of the settlement and a reference of such industrial dispute and the consequential award would be illegal and inoperative. All settlements must be allowed to run their full life and during the currency of such a settlement, no dispute on matters settled can be raised or conciliated upon. Amicable settlement of disputes are binding on the Tribunal and award has to be passed in terms of the settlement (see the cases of State of Bihar v. D.N. Ganguli and Ors. and Sirsilk Ltd. v. Government of Andhra Pradesh ). Further, it has been laid down by the Supreme Court that bipartite settlements being an end to industrial disputes, settlements are preferred to industrial adjudication. Even where an industrial dispute has gone before the Tribunal, any settlement arrived at between the parties during the proceedings before the Tribunal and even where award has been passed but not published, the settlement must be given effect to and award must be passed in conformity with the settlement. Even when an award has been passed and the Government is informed of the settlement, publication of the award must be stopped as the award becomes infructuous in view of the settlement. If any party challenges the fairness of bona fide of such a settlement he can raise another dispute with regard to that point for industrial adjudication. In the case of New Standard Engineering Co. Ltd. v. N.L. Abhyankar and Anr. , the Supreme Court has repeated that settlements are given a place of preference in industrial law. Any attack on settlement on the ground of justness and fairness must be judged with reference to the time when such settlement was effected. It is not open to opposite party No. 2 to impeach the justness and and fairness of the present settlement as such a case was never raised before the Tribunal. In the case of Shukla Manseta Industries Pvt. Ltd. v. Workmen 1977-II L.L.J. 339, the Supreme Court has reiterated the legal position that where a settlement has not been terminated in accordance with Section 19(2) of the Act, no reference can be validly made. The Punjab & Haryana High Court in the case of Atlas Cycle Industries Ltd. v. Industrial Tribunal, Haryana and Ors. 1973-I L.L.J. 182, has expressed the similar view that the matter covered by settlement cannot be subject matter of a reference during currency of such settlement. In view of this legal position and in view of our conclusions that matters covered by the reference were subject matter of the settlement as had been settled, the reference must necessarily be held to be bad. It necessarily follows that the award must be held to be bad and is liable to be quashed. Ground No. 1, therefore, succeeds. On this sole ground the writ petition is bound to be allowed and Annexure 23, is bound to be quashed.
17. As regards ground No. 2, on a bare perusal of the award it appears that the Tribunal has not correctly understood the well-settled principles of wage fixation and has made a confusion in application of those principles. In fact, he has not come to a judicial conclusion as to application of those principles in this case. The Supreme Court in the case of Ahamedabad Mill Owner's Association, etc. v. Textile Labour Association said:
The problem of constructing a wage structure must be tackled on the basis that it should not be changed from time to time. It is long range plan and so in dealing with this problem the financial position of the employer has to be carefully examined. What has been the progress of the industry in question, what are the prospects of the industry in future, has the industry been making profits and if yes, what is the extent of profits, what is the nature of demand which the industry expects to secure, what would be the extent of the burden and its gradual increase which the employer may have to face? These and similar other considerations have to be carefully weighed before a proper wage structure can be reasonably constructed by industrial adjudication. A broad and overall view of the financial position of the employer must betaken into account and attempt should always be made to reconcile the natural and just claims of the employees for a fair and higher wage with the capacity of the employer to pay it and indetermining such capacity, allowance must be made to a legitimate desire of the employer to make a reasonable profit .
In the case of Messers. Unichem Laboratories Ltd. v. Workmen , it has been said:
two principal factors which must weigh while fixing or revising wage scales and grades are: (1) how the wages prevailing in the establishment in question compare with those given to the workmen of similar grade and scale by similar establishment in the same industry or in their absence in similar establishments in other industries in the region and (2) what wage scales the establishment in question can pay without any undue strain on its financial resources.
In the case of Shivraj Fine Arts Litho Works and others v. State Industrial Court, Nagpur and Ors. , it has been said:
The fixation of rate of wages which includes with n its compass the fixation of scales of wages and fitment of workmen into wage scales will also depend upon the paying capacity of the industry. The fair wage is a mean between the living wage and the minimum wage. Wages must be fair that is to say sufficiently high to provide a standard family with food, shelter, clothing, medical care and education of children appropriate to the workmen but not at a rate exceeding its wage earning capacity in the class of establishments to which he belongs. A fair wage it thus related to the earning capacity and workload. While the lower limit of wage structure is the minimum wage, any increase over that will depend upon the capacity of the industry to pay. The factors which determine the capacity to pay will be the productivity of the labour, the prevailing rates of wages in the same or similar industries in the same or neighbouring localities, the present economic position of the industry, its prospects in the near future, etc".
18. There is some discussion in paragraphs 18,19 and 21 of the award about the principles of religion-cum-industry. The Tribunal has taken the wage structure in industries in Andhra Pradesh and West Bengal's factories for determination of wage structure in the present case. But those regions cannot be claimed to be comparable to the region in which the jute industry at Dhenkanal is situated. While Dhenkanal is in Orissa, Andhra Pradesh and West Bengal are two separate States, It will be further seen that no particular establishment or a group of establishments have been considered comparable to the petitioner's industry. These are the settled guidelines for determination of wage structure which the Tribunal has omitted to follow. It is further to be found that though there were ample materials on record to compare the petitioner's factory with the factory at Rupsa, the Tribunal has not considered such materials. The materials are the testimonies of M.W. 1 and M.W. 2 and the award dated 30-9-78 relating to Rupsa Mill (Annexure 22). As regards the financial capacity of the petitioner-company to bear any additional wage burden the Tribunal has not given adequate attention to the settled principles regarding the same. There is practically no discussion regarding present economic position of the industry or its prospects in the near future and no weightage has been given to the continuous loss incurred by the petitioner-company for the last three years. There is satisfactory discussion as regards the prospects of the industry. Absolutely no attention has been given to the factor of productivity of the labour. It is, therefore, clear that on account of all these aforesaid lacunae the award is liable to be set aside. If this was the only ground available to the petitioner we should have remanded the matter back to the Tribunal for fresh consideration of the matter in the light of the principle enunciated by the different case laws which have been indicated above. The petitioner's counsel has thus been able to substantiate his third ground that for the extent of revision allowed by the Tribunal the award must necessarily be called arbitrary, conjectural and without any material to support for such revision.
19. In result, therefore, this writ application succeeds and the impugned award is quashed. In the peculiar circumstances of the case, there will be no order for costs.
N.K. Das, J.
20. I agree.