Madras High Court
The Management Of vs The Presiding Officer on 23 November, 2009
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:23-11-2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.4938 and 5833 of 2009 ..... The Management of Bata India Limited Plot No.73 & 74, SIPCOT Industrial Complex Hosur 635 126. ... Petitioner in WP.4938/2009 Hosur Bata Employees Union (Regn No.406/97 DRP) rep. By its General Secretary Door No.New 1/484, Old 1/328 M.G.R.Nagar, Mookandapally Hosur, Krishnagiri District. ... Petitioner in WP.5833/2009 vs. 1.The Presiding Officer Industrial Tribunal Tamil Nadu Chennai 600 104 ... Respondent No.1 in both Wps 2.The Workmen rep. By Podhu Seyalalar Hosur Bata Employees Union Door No.1/484, M.g.R.Nagar Mookkandapalli Hosur 635 126. ... R.2 in WP.4938 of 2009 3.The Management of Bata India Limited Plot No.73 & 74, SIPCOT Industrial Complex Hosur 635 126. ... R.2 in WP.No.5833 of 2009 Writ petitions filed under Article 226 of the Constitution of India for the issue of a writ of Certiorari as stated therein. For petitioner : Mr.A.L.Somayaji,Sr.Counsel & R.2 in WP.5833/09 for M/s.T.S.Gopalan & Co., For respondent No.2: Mr.V.Prakash,Sr.Counsel in WP.4938/09 & for Mrs.Ramapriya Gopalakrishnan petitioner in WP.5833/09 .. COMMON ORDER
These writ petitions are directed against the award passed by the Industrial Tribunal, Chennai in I.D.No.29 of 2006 dated 12.02.2009, refixing the wages of workmen of Hosur Bata Employees Union. While W.P.No.4938 of 2009 is filed by the management of Bata India Limited, W.P.No.5833 of 2009 is filed by the workmen who made the claim before the Industrial Tribunal.
2. Bata India Limited is a multinational Indian subsidiary company and leading manufacturer of footwears having its Head Office at Gurgaon, Haryana. It has factories in India at Bangalore, Calcutta, Delhi, Faridabad, Hosur and Mokamehghat in Bihar and it has about 1600 showrooms of its own in the country and 2000 showrooms run by its dealers. That apart, there are many number of retail footwear shops.
2(a). The issue involved in the award relates to the wages of workers in Hosur factory of Bata India Limited. The Hosur factory is said to have been started in March, 1994 engaged in the manufacturing of shoes and sandals for men and women including the premium quality footwears such as, Hush Puppies, Hush Puppies Z Strap, Pinoso, Pinoso Wallapy, Pinoso New, Bounce 1, 2, 3, Ananda Bounce, Wind Classic, Flesmoc, Gap, Ambassador, Top, Ladies Massagio, Ladies Sandal, Dr.Scholl, etc. 2(b). It is stated that there are 124 permanent workers in the said manufacturing unit and 22 permanent managerial staff. That apart, there are 9 apprentices, 25 casual workers and one managerial staff engaged on contract basis, 12 security personnel and 14 housekeeping personnel in the facotry and one Ayah who works in the creche in the factory.
2(c). The Hosur Bata Employees Union, Hosur, is a registered Trade Union of workers of the factory at Hosur, which is stated to be the only Trade Union, in which all the 124 permanent workers including 84 female workers are members and the Union was formed in the year 1997. It is stated that the Union entered into various settlements with the management in respect of service conditions of the workers in the Hosur factory and the last of such settlement was dated 26.4.2004, which was in fact for a period of two years viz., till 31.3.2006.
2(d). It is stated that on 30.1.2006, the Employees Union issued notice to the management of their desire to terminate the settlement and on 8.2.2006 the Union raised fresh charter of demands. There were bilateral negotiations between the management and the workers Union in respect of the charter of demands before the Labour Officer, Krishnagiri, which failed to bring in a settlement and the Conciliation Officer sent his failure report on 20.9.2006, pursuant to which the Government issued G.O.(D) No.788 dated 09.11.2006, referring to the following issues to the Industrial Tribunal for a decision:
" (a). Whether the demand of the petitioner union that the basic wage for all the grades be increased by Rs.4000/- is justified? If so, to what relief is the petitioner entitled to?
(b) Whether the demand of the petitioner union that the fixed D.A. be increased from Rs.850/- to Rs.3000/- is justified? If so, to what relief is the petitioner entitled to?
(c) Whether the demand of the petitioner union that the variable D.A. be calculated on quarterly basis at the rate of Rs.20/- per point is justified? If so, to what relief is the petitioner entitled to?
(d) Whether the demand of the petitioner union that the House Rent Allowance paid to the workers be increased from Rs.275/- to Rs.2000/- is justified? If so, to what relief is the petitioner entitled to?
(e) Whether the demand of the petitioner union that the Washing Allowance paid to the workers be increased from Rs.75/- to Rs.500/- is justified? If so, to what relief is the petitioner entitled to?
(f) Whether the demand of the petitioner union that the Good Will Allowance paid to the workers be increased from Rs.278/- to Rs.1000/- is justified? If so, to what relief is the petitioner entitled to?
(g) Whether the demand of the petitioner union that the Annual Extra paid to the workers be increased from Rs.62/- to Rs.500/- and be paid in the month of January is justified? If so, to what relief is the petitioner entitled to?
(h) Whether the demand of the petitioner union that the Snacks Allowance paid to the workers be increased from Rs.220/- to Rs.520/- is justified? If so, to what relief is the petitioner entitled to?
(i) Whether the demand of the petitioner union that the workers involved in hard work be paid a Skill Allowance of Rs.2000/- per month is justified? If so, to what relief is the petitioner entitled to?
(j) Whether the demand of the petitioner union that the number of working days be reduced from 6 days to 5 days a week and that the working pattern be determined by discussions between the management and the union is justified? If so, to what relief is the petitioner entitled to?
(k) Whether the demand of the petitioner union that the workers be paid Conveyance Allowance of Rs.50/- per day is justified? If so,to what relief is the petitioner entitled to?
(l) Whether the demand of the petitioner union that the workers who are asked to report for work prior to their shift timings be paid a shift allowance of Rs.25/- per day is justified? If so, to what relief is the petitioner entitled to?
(m) Whether the demand of the petitioner union that the workers be paid a Hill Station Allowance of Rs.750/- per month is justified? If so, to what relief is the petitioner entitled to?
(n) Whether the demand of the petitioner union that the workers be paid a sum of Rs.120/- towards Service Weightage is justified? If so, to what relief is the petitioner entitled to?
(o) Whether the demand of the petitioner union that the workers be given one month's wage as festival advance is justified? If so, to what relief is the petitioner entitled to?
(p) Whether the demand of the petitioner union that the workers be provided one Sweater and one Jerkin worth Rs.1000/- every year is justified? If so, to what relief is the petitioner entitled to?
(q) Whether the demand of the petitioner union that the workers be given casual leave for 15 days and sick leave of 10 days is justified? If so, to what relief is the petitioner entitled to?
(r) Whether the demand of the petitioner union that the workers be paid a Medical Allowance of Rs.6000/- per annum is justified? If so, to what relief is the petitioner entitled to?
(s) Whether the demand of the petitioner union that the workers be provided 3 sets of uniform (Pant and shirt for male workers and Churidhar for female workers) with stitching charges is justified? If so, to what relief is the petitioner entitled to?
(t) Whether the demand of the petitioner union that the workers be provided 2 pairs of shoes/sandals and 2 pairs of socks of Bata Shatak make every year is justified? If so, to what relief is the petitioner entitled to?
(u) Whether the demand of the petitioner union that the workers be paid a Heat Allowance/Dust Allowance of Rs.250/- per month is justified? If so, to what relief is the petitioner entitled to?
(v) Whether the demand of the petitioner union that the workers exposed to chemicals be paid a Chemical Allowance of Rs.50/- per day is justified? If so, to what relief is the petitioner entitled to?"
3. As far as the first demand of increasing the basic wages by Rs.4000/- in respect of all grades, it is stated that there are three grades among the operators in the factory. A-Grade operators consist of 4 persons of the employees Union while B-Grade operators consist of 95 members and C-Grade operators consist of 25 members. A-grade operators are drawing basic wages of Rs.1520/- p.m., B-Grade operators are drawing basic wages of Rs.1320/- p.m., and C-Grade operators are drawing Rs.1120/- p.m. and the overall present pay package for A-Grade operators is stated to be about Rs.5495/- p.m. including the production incentive of average of Rs.750-800 per month, plus bonus of average of Rs.80-90 per month and the payment made towards ESI/PF. The overall present pay package for B-Grade operators is about Rs.5295/- per month including production incentive of average of Rs.600-700 p.m., plan bonus of an average of 80-90 p.m. and the payment made for ESI/PF and in respect of C-Grade operators, the present pay package is Rs.5095/- p.m. including the production incentive of Rs.600-700 p.m., plan bonus of Rs.80-90 p.m. and the payment made towards ESI/PF.
3(a). The increased basic wages of Rs.4000/- is claimed on the basis that overall pay package of workers in Hosur factory is lower than the workers in other factories of Bata India Limited except the factory at Peenya, Bangalore, where it is stated that the pay package is similar to that of Hosur factory. The claim is made on the basis that the cost of living in Hosur is higher since several leading industries are having their manufacturing units there, that I.T. Corridor, Bangalore is located en route Hosur, that it is a hilly area and that even though there are no comparable footwear industry in Housr, there are other factories, where the basic wages is paid much more, while the turnover and profit margin of Bata India Limited at Hosur is the same as that of other industries. A reference about various industries in Hosur other than shoe manufacturing industries like, TTK Prestige Limited, Titan Industries Ltd., Avtec Ltd., Hindustan Power Plus Ltd., Luk India Ltd., TVS Motor Company Ltd., Easun, Rayrolle (P) Ltd., Exide Industries Ltd., Asia Tobacco Co. Ltd. and Kanthal Ltd. are indicated to show that more basic salary is being paid to their workers. It was, based on the same, increase in the basic wages has been demanded by the Hosur Batta Employees Union.
3(b). Likewise, demand has been made for the increase of Dearness Allowance (D.A.) from Rs.850/- to Rs.3000/-. It is stated that fixed dearness allowance of Rs.850/- p.m. is paid based on the settlement dated 26.4.2004, which is very low and not sufficient to lead a decent life with family. In that regard also, the Employees Union has quoted various other factories in Hosur including Sundaram Fasteners Limited, where fixed D.A. of Rs.6385/- p.m. is stated to have been paid as per the settlement entered on 31.12.2004.
3(c). Likewise, the demand of variable dearness allowance calculated on quarterly basis at the rate of Rs.20/- per point. It is stated that from 1995 onwards, the management has been paying dearness allowance at the rate of Rs.4.93 for every additional increase in points and after the settlement was entered on 19.8.1998, for the first time, the management started to pay both fixed and variable dearness allowance to the workmen.
3(d). As per the settlement dated 19.8.1998, the variable dearness allowance calculated taking the base year 1982=100 per cent up to the average of 358 CLI points : Rs.4.93 per point of rise or fall; per point over and above 358 CLI points : Rs.7 per point of rise or fall.
3(e). It has been the case of the Employees Union that the management has not paid the variable dearness allowance as per the settlement. The complaint is that the management as per the agreement, having agreed to pay Rs.4.93/- for every CPI point up to 358 points, has paid the said amount for 253 to 358 CPI points and for 252 points, the fixed amount of Rs.150/- has been unilaterally taken into consideration. By the subsequent settlement entered on 26.4.2004, a ceiling limit was made up to Rs.1640/- p.m. for continuation of neutralization and consequently, the management paid Rs.36.42 instead of enhancing variable D.A. by Rs.126/-. The frozen rate which was imposed by the company which was selling some of its lands and was not financially sound was in force only till 30.9.2006 and therefore, from 1.10.2006, the management has to pay the additional amount of Rs.89.58 per month towards variable dearness allowance. It is also stated that in other factories of Bata India Limited in West Bengal, Bangalore and Delhi the variable dearness allowance has been given effect to on quarterly basis and in the showrooms also the variable dearness allowance has been paid to the workers on half yearly basis and only in Hosur factory, the revision of variable dearness allowance has been effected on yearly basis and therefore, the employees Union has demanded that variable dearness allowance has to be calculated on quarterly basis at the rate of Rs.20 per point.
3(f). Regarding the claim of increase in House Rent Allowance (H.R.A.) from Rs.275/- to Rs.2000/-, it is on the basis that in Hosur, getting accommodation for such a low amount is not possible, especially when most of the members are married, having children and to have a decent accommodation and hence, the claim of minimum of Rs.2000/- per month towards H.R.A. has been demanded. The comparison has also been made in respect of various industries in Hosur area in that regard.
3(g). Likewise, Washing Allowance is claimed to be increased from Rs.75/- to Rs.500/-, for which also the comparison with Avtec Limited, Power Products Division, Hosur is made wherein, it is stated, an amount of Rs.1600/- per month has been paid. It is stated that in Hindustan Power Plus (P) Ltd., Hosur, the washing allowance is paid at the rate of Rs.810/- p.m. and in Ashok Leyland Limited, Unit II, Hosur, it is paid at the rate of Rs.415/- p.m. and in Luk India (P) Ltd., it is paid at the rate of Rs.295/- p.m. and in Kanthal Limited, Hosur, the washing allowance is paid at the rate of Rs.360/- p.m. 3(h). Regarding Goodwill Allowance, the claim is made to increase from Rs.278/- to Rs.1000/- on the basis of long, continuous, sincere and dedicated service and loyalty of workers. In this respect also, the comparison with other companies in Hosur has been made.
3(i). Regarding the claim for increase from Rs.62/- to Rs.500/- in respect of Annual Extra payable to the workers, it is stated that presently in January every year, the wages is increased by Rs.12/- as annual extra and thereafter in the month of April, it is increased by Rs.50/-. Thus, the total amount of annual extra given is Rs.62/- and that was given effect by way of settlement of the year 2004. Now, the claim is made for Rs.500/- towards the annual extra to be paid once in the beginning of January of every year, instead of two instalments and comparison has been made based on various companies in Hosur area. The same is the demand in respect of snacks allowance from Rs.220/- to Rs.520/- on the basis that the workers in the factory in general shift are working from 8.30 am to 5.00 pm and that the 4 technicians in the factory are working by rotation from 7.30 am to 4 pm and there is no canteen facility available to the workers.
3(j). In addition to the above said demands for increase, the claim of Rs.2000/- per month is made as Skill Allowance for the hard work like, toe lasting, heel lasting, roughing, cementing, sole pressing, pre-forming, sole stitching and leather cutting, which are all of mental strenuous. In that regard, it is stated that special skill is required since the company is developing new models of footwears and skill is also required in cutting, stretching and finishing footwears in new manner.
3(k). The next demand relates to the number of working days to be reduced from 6 days to 5 days a week on the basis that in all the factories of Bata India Limited, except Peenya factory, Bangalore, the workers only work five days with both Saturday and Sunday being holidays and they are working for 230 days in a year, while the workers in Hosur factory are working for 293 days in a year.
3(l). The further demand for conveyance allowance of Rs.50/- per day is made on the basis that most of the workers are to travel nearly 10 km. per day from their place of residence to the place of work and the Union has also quoted the instances of other factories in Hosur region paying such conveyance allowance.
3(m). The other claim relates to the shift allowance of Rs.25/- per day in respect of workers who are asked to report for work prior to their shift time. The said demand is made on the ground of hardship faced by the workers. For example, on rotation basis, if a worker who has to report at 7.30 a.m. is called upon to report earlier, it is difficult for him to have breakfast, etc. The Union has also made a demand of hill station allowance of Rs.750/- per month on the basis that additional expenses are incurred in hill stations. It is quoted that other factories in Hosur are paying such allowance. For example, Hindustan Power Plus Limited is paying Rs.400/- per month and TVS Motor Company Limited, Hosur is paying the allowance of Rs.300/- p.m. 3(n). That apart, the Union has also claimed Rs.120/- towards service weightage for the persons who are in continuous service for more number of years, festival advance of one month wages, since, at present, during Deepevali festival an allowance of Rs.2000/- is paid. The claim for providing sweater and one jerkin worth Rs.1000/- every year on the basis of climatic condition in Hosur region both during rainy season and cold season. It is quoted that several other factories in the area are providing the said benefit.
3(o). The claim of casual leave for 15 days and sick leave for 10 days while, at present, the workers in Hosur factory are entitled for 7 days casual leave per year and one day of privilege leave for every 20 days of work called as annual compulsory privileged leave, apart from 4 days bonus holidays in the event of workers working for 240 days a year. That apart, at present they are given 9 days leave for national and festival holidays, however, the workers are not entitled for any sick leave. Therefore, the claim for sick leave has been made.
3(p). In addition to that, a claim for Rs.6000/- per year as medical allowance is made on the basis that E.S.I. coverage for medical facilities given at present are inadequate, that there is no ESI hospital available in Hosur and that the doctors available are not able to treat major ailments. A comparison is made with the benefits given by other industrial units in the area.
3(q). That apart, a claim for three sets of uniform pant and shirts for male workers and churidhar for female workers with stitching charges is made quoting that most of the factories are providing the same. Further, the claim for two pairs of sandals, shoes and two pairs of socks for every year is also made. In addition to that, the heat allowance/dust allowance of Rs.250/- per month has been claimed based on the peculiar functioning of workers in the process of shoe making. Chemical allowance of Rs.50/- per day is also claimed since the workers are exposed to chemicals during the manufacturing process.
4. The said claim of the Employees Union was resisted by the management before the Industrial Tribunal through its counter statement stating that the primary importance is to improve the market for its products and therefore major part of its working capital is invested in marketing and based on the demand in the market, new manufacturing units are opened and accordingly, after the first factory was started in Bata Nagar, West Bengal in 1936, the manufacturing units were expanded at various places like, Batagunch in Bihar, Faridabad in Haryana, Peenya in Bangalore and it was in 1994, the export oriented unit was started at Hosur. However, at that time, in Tamil Nadu various leather processing industries have come up in large number and therefore, the international price for leather footwear was not remunerative to match the export price of Bata Limited, Hosur.
4(a). It was in those circumstances, in the year 1999, the management had to surrender its status as export oriented unit so as to divert its products from Hosur unit to domestic market and by that time, there was mushroom growth of leather footwear manufacturing units in India in a large extent. Even the international manufacturers of footwears had experienced their market having come down drastically. It is stated that most essential component of shoe upper which requires special skill had become costlier, which resulted in the leading manufacturing units in India including Bata India Limited to outsource the shoe upper, which necessarily required the saving in the labour cost. Therefore, the wage revision was depending upon the marketing demand.
4(b). The first long term settlement with workmen at Hosur was entered on 19.8.1998 for three years by the increase in wages of Rs.952/- per month per workman and the settlement was in force till 18.8.2001. Since in the next three years, there was a set back, the next settlement was arrived at only on 26.4.2004, by which there was a wage increase of approximately Rs.1000/-. It is also stated that Hosur unit has the capacity to produce 2500 pairs per shift and the productions are only high premium shoes and ultimately, it was not able to produce more than 700 shoes per conveyor per shift. It was in those circumstances, the employer informed the workmen at the time of settlement on 26.4.2004 that the wages beyond Rs.1000/- could not be paid. However, it was agreed that certain incentive schemes can be implemented for the benefit of the workmen to enable the employer to augment the production.
4(c). It is stated that the Government of Tamil Nadu issued a notification under the Minimum Wages Act, fixing the minimum wages for employment in footwear manufacturing industries and as per the notification for the Consumer Price Index of the Chennai City, 1982=100 for February, 2007 and the minimum wages is Rs.1820/- (basic pay Rs.1820/- and D.A. Rs.1997 and the total would be Rs.3817/-). As against the said minimum wages prescribed by the Government, the lowest paid workmen in the Hosur unit was getting wages of Rs.5345/- with various other benefits and perquisites and therefore, according to the employer the wages paid is more than the minimum wages prescribed by the Government.
4(d). It was the specific case of the management by way of counter statement before the Industrial Tribunal that the dispute seeking revision of wages depends on the financial capacity of the employer taking into consideration the region-cum-industry principle as a relevant factor. It is also stated that if, in a company, the workers of one unit raise a dispute, then the financial capacity of the employer of that unit alone should be the criterion. It is stated that from the inception, the Hosur unit has been continuously incurring loss except in two years viz., 2004 and 2005 when a marginal profit was earned.
4(e). It is also stated that the Bata company is a holder of the profit and after the tax in proportion to sales was ranging from 3.94 percentage in the year 1999 to 2.05 and 0.52 percentage in the year 2000 and 2001 and it was a negative figure in the year 2002 and 2004, the capital turn over for the corresponding period was also 2.12 to 1.95 times, which is significantly low and there was no dividend declared after 2001 and therefore, it is stated that the financial position of Bata India Limited at Hosur is in such manner which cannot bear any additional burden by way of increase in wages.
4(f). It was also the case of the management before the Industrial Tribunal that other known footwear manufacturers in Tamil Nadu like, Florind Shoes, KH Leathers, Nag Yang Shoes, Sara Leathers, Saleem Shoes, M.M. Company, Nag Leathers are employing more workers than Bata India Limited, Hosur, out of whom, three were functioning even before Bata India Limited at Hosur was started and the daily output in respect of some of them was high and the wages paid to their workmen are far lesser than the wages received by the workmen of Bata India Limited, Hosur. Therefore, by applying the principle of region-cum-industry wise comparison, the employees union has not made out a case for wages revision.
4(g). It is also stated that the wages of workmen of Bata India limited in its manufacturing units are fixed based on negotiated settlements and except Southcan, wages of employees of all other units are lesser than the employees of Bata India Limited, Hosur. It is admitted that 124 workers are in Hosur unit, out of whom 84 are women employees. It is stated that among 84 women employees, spouses of 52 women employees are working in reputed industries in Hosur and the earnings of the women employees are only a second source of income to their families. This point was highlighted for the purpose that the productivity of women employees is not same when compared to men employees.
4(h). Regarding variable Dearness Allowance, it is stated by the management that the management on its volition in the year 1995 made an increase in basic wages and started paying fixed allowance comprising of Rs.150/- plus various dearness allowance at Rs.4.93 for every point over and above 252 points of the All India Consumer Price Index of Chennai City 1982=100. The management has also voluntarily introduced H.R.A., goodwill allowance and washing allowance and instead of scale of pay with minimum and maximum and annual increment, the annual extra was introduced and that was not automatic and subject to the satisfaction of management about performance.
4(i). It is stated that the negotiations were always for wage increase, as a package to be apportioned under the various components of wages and therefore, the quantum of each component of wages was not agreed or determined or decided on any rational principle. It is also stated that it was agreed for the period of settlement ending 30.9.2006 with maximum variable D.A. of Rs.1640/- shall be maintained for the period from 1.10.2004 to 30.9.2006 and from 1.10.2006 the management released an increase of Rs.140/- from 1.1.2007 and increase of Rs.217/- by way of variable D.A. and therefore, it is stated that the demand of revision of wages should be referable to the financial standing of the Hosur unit and on the basis of region-cum-industry principle.
4(j). It is also stated that the demand of wage revision cannot be based on the wage structure in engineering and other industries in Hosur. It is also stated that even if the increase of wages is considered, it must be a total package and should not be by item-wise and it was only based on that way, two earlier settlements were entered. It is stated that if the demand of union item-wise is taken into consideration every worker will be entitled approximately to Rs.25,000/- per month which is 3 to 4 times more than the existing emoluments. A reference to increase of basic wages granted in various industries is stated to be not relevant since those industries have nothing to do with the manufacturing of footwear or leather products.
4(k). Likewise, it is stated that the claim of fixed dearness allowance is made on the basis that the same was granted by other factories which are not manufacturing the products made by Bata India Limited and hence, the same is not sustainable. It is also stated that in respect of variable dearness allowance, the wages paid by the employer is more than the minimum wages fixed by the Government. Regarding HRA and washing allowance, it is stated to be a package deal. That apart, it is stated that the goodwill allowance has no rational basis. It is also stated that the annual extra is in lieu of annual increment in the scale of wages. It is stated that the snacks allowance goes with goodwill allowance and the skill allowance has been in vogue since the inception of the factory and there is no necessity to have another allowance.
4(l). Regarding 5 days a week, a reference is made to the Factories Act, which permits the employer to require the employees to work for 8 hours a day and if the claim of the Union is accepted, according to the respondent, it will amount to increase of wages by 16 2/3% which is not justifiable. It is stated that there can be no shift allowance as the employees are working only one shift and Hosur is not a hill station and therefore, no hill allowance is possible and it is not correct to state that the respondent is paying Rs.2000/- as festival advance and on the other hand, the respondent is paying only Rs.1000/- as festival advance.
4(m). As far as the meeting of personal needs is concerned, the workman has to meet all his personal needs from his wages, providing of sweater and jerkin does not arise and the present leave benefits are sufficient, fair and liberal and at present, the management is paying 4.75% as contribution to ESI and that is an adequate protection to medical needs and presently, the management is providing working overcoat once in a year, which is washed at the cost of management every week and it is more than sufficient and based on the environment, shoes or sandal are not necessary for all except maintenance workmen for whom there is already provision for free supply of shoes. It is also stated that there is no necessity for heat allowance since the working condition is normal and the workers working in cement are provided with mask and high velocity fan for ventilation and driers are provided and therefore, the demands made by the Union in those heads are stated to be unreasonable.
5. Before the Industrial Tribunal, on behalf of workers Union two witnesses were examined, while on behalf of management one witness was examined. On the side of workers, 29 documents were marked as Exs.W1 series to W29 while on the side of management 37 documents were marked as Exs.M1 series to M37.
6. The Industrial Tribunal, after taking note of the pleadings, evidence and submissions made on the side of the respective parties, held that the wage structure in respect of employees of Bata India Limited, Hosur has to be made from 1.4.2006 and passed the award. The operative portion of the award is as follows:
" In the result, award is passed holding that the petitioner Union is entitled for the following relief: From 1.4.2006 onwards.
1)Increase in the Basic wage : Rs.750/-
2)Increase in V.D.A. : Rs.1128/-
3)H.R.A. :Rs.1000 (Rs.1275/-)
4)Increment is fixed as Rs.40/- for A Grade and Rs.35/- for B & C grade workers from January 2009 onwards.
5)Snacks Allowance : Rs.270 (Rs.490)
6)SHSCHC (Adhoc) Allowance : Rs.750/-
7)Convenyance Allowance :Rs.101/- (Rs.10600/- A grade)
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Rs.3999/-
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An Incentive Bonus 100% to be added along with the above said wages. (Minimum Rs.900/- p.m. Work to be given for every worker for a month).
8) The petitioners are entitled for One pair of Shoes with socks and One pair of Sandal for alternative years. All other issues have been answered negatively. No costs."
7. Accordingly, the basic salaries of the Grades A, B and C employees stated above which were Rs.1520/-, Rs.1320/- and Rs.1120/- have been increased by an additional amount of Rs.750/- with effect from 1.4.2006. In respect of the claim of fixed dearness allowance, the same has been retained as Rs.850/- which was already paid by the employer without any enhancement. In respect of variable D.A. paid at the rate of Rs.2256/- for each of the employees of each grade, the same has been increased by a sum of Rs.1128/-. The house rent allowance which was Rs.275/- in respect of all classes of employees has been increased by a sum of Rs.1000/- making it as Rs.1275/- as against the claim of Rs.2000/- by the workmen. The increment is fixed at Rs.40/- for Grade A, Rs.35/- for Grade B and Grade C workers payable from January, 2009. The snacks allowance which was Rs.220/- for each of the employees in each grade has been increased by Rs.270/- making the total Rs.490/- as against the claim of Rs.520/- by the Employees Union. The conveyance allowance of Rs.101/- has been granted. In addition to that SHSCHC (ad hoc) allowance of Rs.750/- has been granted. The other issues raised by the workmen are negatived by the Industrial Tribunal. In addition to the incentive bonus of 100% and one pair of shoes with socks and one pair of sandals for alternative years has been granted.
7(a). The Industrial Tribunal, by referring to Ex.M2, salary structure, has found that the salaris paid to the workers in Grade 'A' category at Rs.9359/-; for Grade 'B' at Rs.9087/-; and for Grade 'C' at Rs.8804/- per month are insufficient and refixed the said salaries as per the award at Rs.10600/- for Grade 'A' workers, Rs.10500/- for Grade 'B' workers and Rs.10400/- for Grade 'C' workers. The Tribunal also concluded that the difference of salary approximately comes to Rs.4584/-, Rs.4684/- and Rs.4794/- in respect of Grades 'A', 'B' and 'C' workers respectively.
7(b). In respect of the increase of Rs.1128/- regarding variable D.A., the Tribunal has taken note of the fact that the workers are at present given variable D.A. of Rs.2254/-. The calculation is taken upto 252 points Rs.150/- in between 252 and 358 points 106 x 4 =Rs.424/-. It has taken the further points at the rate of Rs.7/-; 598 358 = 240 points (106 x 4 = 424 + 240 x 7 =1680) totalling Rs.2256/-. An increase of variable D.A. was made for Rs.1128/- by fixing the future calculation point as Rs.7.25 per point ensuring the eligibility of the workmen in future as per the increase of index points.
7(c). Before the Tribunal, both the management and workmen have filed a joint memo to the effect that both of them have agreed to continue the incentive scheme which is in vogue and the plan bonus which is being paid and therefore, the Tribunal has not made any change in respect of them.
8. The above said award is questioned by the employer. As submitted by Mr.AL. Somayaji, learned senior counsel, the Tribunal has not chosen to give proper reasonings for additional amount granted under the award in respect of wages. He would submit that Ex.W16, the wages slips, on which reliance was placed by the Tribunal are relating to various other companies like, Avtec Ltd., Titan, Ashok Leyland, Lck India (P) Ltd., Titan, TVS Motor Co., Ltd., Exide and TTK Prestige, which are having factories in and around Hosur and they are admittedly not manufacturing shoes as in the case of Bata India Limited and hence, the said wage slips are not proper for the purpose of fixation of wages. In this regard, he would rely upon the judgments in Kamani Metals and Alloys Ltd., vs. Their Workmen (1967 II LLJ 55), Greaves Cotton & Co., Ltd., and others vs. Their Workmen (1964 I LLJ 342), French Motor Car Company Ltd., vs. Their Workmen (1962 II LLJ 744), Indian Oxygen Ltd., vs. Its Workmen and others (1963 II LLJ 83), Workmen of British India Corporation vs. British India Corporation (1965 II LLJ 433), Workmen of Indian Oxygen vs. Indian Oxygen [(1985) 3 SCC 177], Lipton Ltd., vs. Their Employees (1959 I LLJ 431). Therefore, according to him, for the purpose of fixing wages, the comparison should be made with the nearest shoe manufacturing units, whereas the Tribunal compared with the industries which are not in any way connected with the manufacturing of shoes.
8(a). It is his further submission that under the impugned award, the Tribunal has given a finding about the capacity of the employer to make payment on the basis that Directors salary has been increased which is not proper and without consideration of the real issue. It is his submission that the mere reliance on balance sheet is not sufficient for the purpose of pay fixation and what has to be seen is whether there is expansion of industry and whether the company is having the capacity to make payment by that unit. It is his further submission that the Tribunal has relied upon a memorandum of settlement entered in Batanagar Unit in the year 2008 as exhibited in Ex.M.34, and Ex.M.36 which is the wages slip of Kolkatta unit and according to him, the Tribunal has misconstrued the wage slip as an evidence for payment for every week, whereas the wage slip shows that payment was made in a fortnight viz., once in two weeks, and therefore, the wages mentioned therein in respect of each of the workmen related to six weeks while the Tribunal has construed it as wages for three weeks, which is a total misapplication of the exhibits. It is his submission that the workmen have admitted that payment was made in Batanagar unit as per Ex.W-12 dated 06.09.2004, once in a fortnight and hence, the finding arrived at by the Industrial Tribunal is basically on a mistaken notion.
8(b). It is his submission that the joint memo filed by the parties is not relating to incentive bonus, but to incentive scheme which is in vogue and therefore, the direction to pay Rs.1300/- per month as incentive bonus is a misnomer. According to the learned senior counsel, the method of calculation followed by the Tribunal at para 61 is incorrect. He has submitted that the Tribunal having increased the variable D.A. to an extent of Rs.1128/-, has not chosen to discuss the reason based on which such increase has been made.
8(c). That apart, his submission is that the ad hoc amount of Rs.750/- granted on the basis of SHSCHC has not been even explained as to what are the heads under which such allowances are granted. Therefore, his contention is that the entire award in refixing the wages is liable to be set aside on the ground that the Tribunal has assessed the same mistakenly by taking note of wage slips filed before it as weekly slip while the same is for a fortnight and also on the ground that Ex.M.34 wage slip on which reliance was placed by the Tribunal relates to Bata Nagar, which is not nearest and comparable or doing a similar business as that of Hosur unit. According to him, the incentive bonus directed to be granted at the rate of Rs.1300/- is a total misnomer since the joint memo relates to the incentive scheme which according to him is Re.1/- of basic pay of Rs.99/- and there is no discussion about the region-wise industries and comparable industries and no particulars have been given and the wages have been increased based on Ex.M.34, which is not comparable to the Hosur unit.
8(d). It is his further submission that the Labour Court while deciding about the issue under Labour law does not pose as a benevolent despot and he relied upon the judgment in J.K.Iron and Steel Co., Ltd., Kanpur vs. The Iron and Steel Mazdoor Union, Kanpur (AIR 1956 SC 231) and the Constitution Bench judgment of the Supreme Court in New Maneckchowk Spinning and Weaving Company Ltd., vs. Textile Labour Association, Ahmedabad (1961 I LLJ 521). His submission is that the concept of social justice applies equally to both the employer and workmen. He would rely upon the judgments in Crown Aluminimum Work vs. Their Workmen (1958 I LLJ 1), Greaves Cotton & Co., Ltd., and others vs. Their Workmen (1964 I LLJ 342), and French Motor Car Company Ltd., vs. Their Workmen (1962 II LLJ 744) and submit that the amount awarded is contrary to the judgments of the Supreme Court.
8(e). He would also rely upon the judgments in Management of the Kirlampudi Sugar Mills Ltd., vs. The Indusrial Tribunal, A.P. (1971 II LLJ 491) and Sarabhai Chemicals Staff Association vs. Sarabhai Chemicals [1984 I GLR 566 (Gujarat)] and submit that there should not be any narrow outlook for the purpose of deciding these matters. He would also submit that Exs.M.14, 15, 16, 17 and 18 have been totally rejected by the Tribunal which are relevant. It is his submission that when an error on the face of the record is admitted, the matter has to be remitted back for arrival of a fresh decision.
9. On the other hand, it is the submission of Mr.V.Prakash, learned senior counsel for the Employees Union that while exercising jurisdiction of this Court for certiorari in respect of Labour Court award, the mere existence of some error in the award is not sufficient, if the award is otherwise just and reasonable. According to him, the contentions raised on behalf of the management are technical and one has to see the substantial basis of the award to decide as to whether justice has been rendered in fixing the fair wages.
9(a). It is his submission that in respect of construction of wages award, different yardstick has to be followed as it is not a mathematical formula and it is a humane approach, which is required based on the existing circumstances and reasonable requirements of a family with children and in that regard, capability of the employer or any other comparison would not play major role. It is his submission that it is a concept of fair wage which has to be decided and the fair wage may be higher than minimum wage, but it is lower than the living wage. Even assuming that the living wage as found in the directive principles of the Constitution of India is not possible, one has to consider about the fair wage to provide the minimum requirements of life.
9(b). To substantiate his contention that ultimately it is the substantial justice which has to be rendered in the labour matters and therefore, the industrial jurisprudence is different from other ordinary jurisprudence, he would rely upon the judgments in Western India Automobile Association vs. The Industrial Tribunal, Bombay (1949 LLJ 245), State of Madras vs. C.P.Sarathy (1952 I LLJ 174), Patna Electric Supply Company Ltd., vs. Patna Electric Supply Workers' Union (1959 II LLJ 366), New Maneckchown Spinning and Weaving Company Ltd., vs. Textile Labour Association, Ahmedabad (1961 I LLJ 525), Varma (A.R.) and another vs. Mettur Industries Ltd., (1961 I LLJ 456), J.K.Cotton Spinning and Weaving Mills Company Ltd., vs. Labour Appellate Tribunal of India and others (1963 II LLJ 436), Kamani Metals and Alloys Ltd., vs. Their Workmen (1967 II LLJ 55), Killick Nixon Ltd., vs. Killick and Allied Companies Employees Union (1975 II LLJ 53) and Greaves Cotton & Co., Ltd., vs. Their Workmen (1964 I LLJ 342).
9(c). Therefore, his substantial contention is that while deciding about fixation of wages, one has to take into consideration the entire aspects of the matter. According to him, it is the life of an individual and therefore, the region-wise principle is a recognized concept for wages revision and if there are no comparable industries in the area, it is the region which has to be taken into consideration including other industries for the purpose of deciding wage structure. It is his submission that the evidence on the side of workmen is very clear that there are no footwear industries in Hosur except some in Ambur and in such circumstances, various other industries situate in Hosur area which are paying more have been taken into consideration and inasmuch as workmen are living in the area, it is the requirement of workmen living in the area which has to be taken into consideration and the Tribunal has correctly taken into consideration and fixed the basic wages.
9(d). It is his case that a total reading of the impugned award has to be made and according to him, the award has rendered, if not a total justice to the workmen, but a substantial justice in the form of distributive justice concept. When the payment to workers in other industries in the region is admitted and is not decided anywhere as erroneous, the principle followed by the Tribunal in deciding the wages by applying region-wise principle is not improper. He has also taken this Court to the cost aspect of life in the area and contended that what is awarded is for the bare survival of the workmen with family.
9(e). It is his submission that the finding given by the Tribunal about capability and capacity of the employer to pay higher salary cannot be said to be perverse for this Court to interfere. It is his reiteration that while arriving at such over all conclusion, if there are some errors, that would not enable this Court to interfere to set aside the award under Article 226 of the Constitution of India, especially when the claim is for Certiorari under the Constitution of India.
9(f). It is his submission that even the management witness has supported the case of the workmen and the management has specifically stated that in Hosur area there is no industry like, Bata India Limited and therefore, by relying upon Ex.M.22, the Tribunal has come to the conclusion about the capacity of payment by the management and that cannot be said to be incorrect. It is his case that the finding of fact cannot be interfered with by this Court under Article 226 of the Constitution of India, especially in labour matters.
9(g). It is admitted by the learned counsel for the management and the workmen that they have not narrowed down their arguments in respect of any of the issues, particularly, regarding the wage fixation which has been effected under the impugned award by the Tribunal with effect from 1.4.2006. By justifying the same, the learned counsel for the workmen would rely upon the judgment in The monthly rated workmen at the Wadala Factory of the Indian Hume Pipe Co., Ltd., vs. The Indian Hume Pipe Co., Ltd., (AIR 1986 SC 1794), apart from the provisions of the Industrial Disputes Act,1947, particularly section 17-A regarding the term, enforceability of the award. He would also rely upon various judgments to show that the capacity to pay should be judged taking into consideration the depreciation as well as tax liability. He would rely upon the judgments in Wenger & Co., vs. Their Workmen (1963 II LLJ 403), M/s.Woolcombers of India Ltd., vs. Woolcombers Workers Union (1974 I LLJ 138) and M/s.Unichem Laboratories Ltd., vs. The Workmen (1972 I LLJ 576) in the matter of fixation of payment of wages. He would also rely upon the judgment in Western India Match Company Ltd., vs. Their Workmen [1963 II LLJ 459 (SC)], Hindustan Times Ltd., vs. Their Workmen (1963 I LLJ 106) and Greaves Cotton Co. Ltd., vs. Their Workmen (1964 I LLJ 342).
9(h). He would justify the grounds for enhancement under each and everyone of the heads by the Tribunal including variable D.A. which has been increased by 50%. He would also submit that the Industrial Tribunal has in fact not enhanced the fixed D.A., but it has been given by way of distribution justice on variable D.A. He would submit that it is not as if the Tribunal has accepted the entire demands made by the workmen, but it has considered the substantial grounds for the purpose of arriving at the conclusion.
9(i). To reiterate his stand that the mere error is not sufficient to set aside an award, he would rely upon the judgments Ebrahim Aboobakar and Hawabai Aboobakar of Bombay vs. Custodian General of Evacuee Property, New Delhi (AIR 1952 SC 319), Hari Vishnu Kamath vs. Ahmad Ishaque and others (AIR 1955 SC 233), Shri Ambica Mills Co., Ltd., vs. S.B.Bhatt (AIR 1961 SC 770), Maharashtra Academy of Engineering and Educational Research vs. State of Maharashtra ( 2001 (10) SCC 166) and Neltaon India and others vs. Bipin V.Patel [(2006) 9 SCC 192]. He would rely upon the judgment in Polychem Ltd., vs. R.D.Tulpule,I.T., Bombay (1972 II LLJ 29) to substantiate his contention regarding the compliance of the directive principles of State policy to make better wages.
10. Before adverting to the correctness or otherwise of the impugned award passed by the Industrial Tribunal, it is relevant to consider the scope of this Courts jurisdiction under Article 226 of the Constitution of India, while dealing with the award of Labour Court to set aside the same by way of Certiorari, especially when it relates to fixation of wages structure. In the earliest judgment of the Constitution Bench of the Supreme Court in Ebrahim Aboo bakar and Hawabai Aboobakar of Bombay vs. Custodian General of Evacuee Property, New Delhi (AIR 1952 SC 319), while dealing with the powers of the High Court under Article 226 of the Constitution of India to issue a writ of Certiorari against the proceedings of the Additional Custodian of Evacuee Property under the Bombay Evacuees (Administration of Property) Act, 1949 and the subsequent orders declaring the appellant as an intending evacuee, it was held as follows:
" 13. The remaining three questions canvassed before us, unless they are of such a nature as would make the decision of the respondent dated 13th May,1950, a nullity, cannot be the subject-matter of a writ of certiorari. It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. The three questions agitated before us do not seem to be questions which bear upon the jurisdiction of the court of appeal, or its authority to entertain them."
Of course, while deciding so, the Constitution Bench held that it is the appellate authority which has the jurisdiction to decide the soundness of the decision of the inferior Court as a Court of appeal but not a Writ Court.
11. While dealing with the writ jurisdiction of the High Court under Article 226 of the Constitution of India against the Election Tribunal, a Constitution Bench of the Supreme Court in Hari Vaishu Kamath vs. Ahmad Ishaque and others (AIR 1955 SC 233), held as follows:
" 23. It may, therefore be taken as settled that a writ of 'ceritorari' could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with refernece to this matter however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr.Pathak for the first respondent contended on the strength of certain observations of Chagla,C.J. In 'Batuk K. Vyas v. Surat Borough Municipality' AIR 1953 Bom 133 (R), that no error could be said to be apparent on the face of the record if it was not self-evident, & if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."
12. Again, in Shri Ambica Mills Co. Ltd. vs. Shri S.B.Bhatt and another (AIR 1961 SC 970), the power of this Court under Articles 226 and 227 of the Constitution of India has been explained in the words of P.B.Gajendragadkar,J. in the following words:
" 7. The first contention which the learned Attorney-General has raised before us on behalf of the appellant is that the High Court has exceeded its jurisdiction under Articles 226 and 227 in interfering with the decision of the Appellate Authority. He contends that at the highest the error committed by the Appellate Authority is one of law but it is not an error apparent on the face of the record, and he argues that it was not within the competence of the High Court to sit in appeal over the judgment of the Appellate Authority and examine meticulously the correctness or the propriety of the conclusions reached by it.
8. The question about the nature and extent of the jurisdiction of the High Courts in issuing a writ of certiorari under Article 226 has been the subject-matter of several decisions of this Court. It is now well settled that the said writ can be issued not only in case of illegal exercise of jurisdiction but also to correct errors of law apparent on the face of the record. In this connection it may be pertinent to refer to the observations made by Denning,L.J., in Rex v. Northumberland Compensation Appeal Tribunal (1952) 1 KB 338. "The writ has been supposed to be confined to the correction of excess of jurisdiction," observed Lord Justice Denning, "and not to extend to the correction of errors of law; and several Judges have said as much. But the Lord Chief Justice has, in the present case, restored ceritorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record even though they do not go to jurisdiction". There is no doubt that it is only errors of law which are apparent on the face of the record that can be corrected, and errors of fact, though they may be apparent on the face of the record, cannot be corrected (vide: Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam (1958 SCR 1240). It is unncessary for us to consider in the present appeal whether or not a certiorari can issue to correct an error of fact on the ground that the impugned finding of fact is not supported by any legal evidence. Thus it would be seen that the true legal position in regard to the extent of the court's jurisdiction to issue a writ of certiorari can be stated without much difficulty. Difficulty, however, arises when it is attempted to lay down tests for determining when an error of law can be said to be an error apparent on the face of the record. Sometimes it is said that it is only errors which are self-evident, that is to say, which are evident without any elaborate examination of the merits that can be corrected, and not those which can be discovered only after an elaborate argument. In a sense it would be correct to say that an error of law which can be corrected by a writ of certiorari must be self-evident; that is what is meant by saying it is an error apparent on the face of the record, and from the point of view, the test that the error should be self-evident and should not need an elaborate examination of the record may be satisfactory as a working test in a large majority of cases; but, as observed by Venkatarama Ayyar,J., in Hari Vishnu Kamath v. Syed Ahmed Ishaque (1955 (1) SCR 1104 at p.1123) "there must be cases in which even this test might break down because judicial opinions also differ, and an error that may be considered by one Judge as self-evident might not be so considered by another". Judicial experience, however, shows that though it cannot be easy to lay down an unfalling test of general application it is usually not difficult to decide whether the impugned error of law is apparent on the face of the record or not."
13. The Supreme Court in Syed Yakoob vs. K.S.Radhakrishnan (AIR 1964 SC 477), again reiterated that under Article 226 of the Constitution of India, if there is a manifest error or misinterpretation of statute, the same can be corrected by a writ of Certiorari. The relevant portion of the judgment is as follows:
" 8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each cases and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
14. Again, while deciding about the finding of the Industrial Tribunal regarding the retrenchment of employees in the light of Article 226 of the Constitution of India and the jurisdiction of the High Court, the law has been reiterated by the Supreme Court in M/s.Parry and Co. Ltd., vs. P.C.Pal and others (1970 II LLJ 429 SC) in the following way:
" 11. The grounds on which interference by the High Court is available in such writ petitions have by now been well established. In Basappa v. Nagappa (1955) S.C.R. 250; AIR (1954) SC 440, it was observed that a writ of certiorari is generally granted when a court has acted without or in excess of its jurisdiction. It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal is disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. In Dhrangadharu Chemical Works Ltd., v. State of Saurashtra, (1957) SCR 152; AIR (1957) SC 264, this court once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open to question under Art.226 unless it could be shown to be wholly unwarranted by the evidence. Likewise, in the State of Andhra Pradesh v. S.Sree Ram Rao, AIR (1963) SC 1723 this Court observed that where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where its conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion interference under Art.226 would be justified. ...."
15. In Ramniklal N.Bhutta and another vs. State of Maharashtra and others [(1997) 1 SCC 134], Jeevan Reddy,J., while speaking about the powers under Article 226 of the Constitution of India, has held that the exercise is in furtherance of interest of justice and not merely making out a legal point, since it is discretionary in nature. Of course, that was a case under the Land Acquisition Act. The relevant portion is as follows:
" 10. .......... The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. ......."
16. The Supreme Court held that the High Court under Article 226 cannot convert itself into a Court of appeal and examine the facts for correctness of the decision as to whether the view is proper or not. The said observation was made by the Supreme Court in Shama Prashant Raje vs. Ganpatrao and others [(2000) 7 SCC 522], while dealing with the powers of the High Court against the orders of Tribunal, especially with reference to Rent Control Tribunals. The relevant paragraph is as under:
" 5. .......Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently, Article 226 is not intended to enable the High court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made, but notwithstanding the same, on a mere perusal of the order of an inferior tribunal if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the interior tribunal or the inferior tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal. .........."
17. The same view was again reiterated in Maharashtra Academy of Engineering & Educational Research vs. State of Maharashtra [(2001) 10 SCC 166] in the following words:
" 2. ..... It is well settled that an order of an inferior tribunal or a statutory authority could be interfered with by the High Court while exercising jurisdiction under Article 226 of the Constitution, only if the Court comes to the conclusion that the order is contrary to certain provisions of law or the authority concerned has no jurisdiction or the authority concerned took into consideration certain extraneous materials, not germane to the issue or the authority concerned failed to take into consideration certain materials which are otherwise relevant or the finding is one on the materials which could not have been arrived at by any reasonable man. ....."
18. From the above said categorical legal position, it is clear that the scope of jurisdiction of this Court under Article 226 of the Constitution of India in issuing writ of Certiorari is restricted to cases where there are manifest error in the impugned order or the order is contrary to the provisions of law or the order has been passed without jurisdiction or in cases where the authority, while passing orders has taken into consideration certain extraneous matters which are not relevant or in cases where the authority has failed to take into consideration certain relevant factors, particularly the basic principle that on the materials available, no ordinary reasonable person would come to such a conclusion.
19. The Federal Court of India in Western India Automobile Association vs. The Industrial Tribunal, Bombay and otherS (1949 LLJ 245) was dealing with the manner in which Courts should approach the industrial adjudications including that of wage revision. In that case, the issue was, as to whether the dispute relating the reinstatement of a dismissed employee is referable to the Industrial Tribunal for adjudication under the Industrial Disputes Act, 1947 and it was held that the Tribunal is not fettered with limitations in adjudication and any decision on industrial dispute does not wholly rely on the ordinary law. The relevant portion is as follows:
" ......Moreover, the relief is not of such an unusual character that it may be wholly ruled out as one of the legal reliefs which the courts can grant. This relief of reinstatement is on the same footing as a relief of restitution. Restitution can be granted in integrum in certain cases. All that is required is that the ex-employee should be restored to his previous position so far as capacity, status and emoluments are concerned and there is nothing extraordinary in such restoration being ordered when considered necessary in the interests of peaceful settlement of industrial disputes. Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. The award of the tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law, but the tribunal is not fettered in any way by these limitations. In Volume I of "Labour Disputes and Collective Bargaining" by Ludwing Teller, it is said at page 536 that industrial arbitration may involve the extention of an existing agreement or the making of a new one, or in general the creation of new obligation or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements. In our opinion, it is a true statement about the functions of an industrial tribunal in labour disputes."
20. While distinguishing the power of arbitrator in a civil dispute from that of adjudication by a Industrial Tribunal, the Constitution Bench of the Supreme Court presided over by M.Patanjali Sastri,CJ. in State of Madras vs. C.P.Sarathy (1952 I LLJ 174) held as follows:
" .......... But the adjudication by the tribunal is only an alternative form of settlement of the disputes on a fair and just basis having regard to the prevailing conditions in the industry and is by no means analogous to what an arbitrator has to do in determining ordinary civil disputes according to the legal rights of the parties. Indeed, this notion that a reference to a tribunal under the Act must specify the particular disputes appears to have been derived from the analogy of an ordinary arbitration. For instance, in Ramayya Pantulu v. Kutty & Rao (engineers) Ltd. It is observed.
"that if a dispute is to be referred to a tribunal the nature of the dispute must be set out just as it would if a reference were made to an arbitrator in a civil dispute. The tribunal like any other arbitrator can give an award on a reference only if the points of reference are clearly placed before it."
The analogy is somewhat misleading. The scope of adjudication by a tribunal under the Act is much wider as pointed out in the Western India Automobile Association's case [See 1949 LLJ p.245] and it would involve no hardship if the reference also is made in wider terms provided, of course, the dispute is one of the kind described in S.2(k) and the parties between whom such dispute has actually arisen or is apprehended in the view of Government are indicated either individually or collectively with reasonable clearness. The rules framed under the Act provide for the tribunal calling for statements of their respective cases from the parties and the disputes would thus get crystallised before the tribunal proceeds to make its award. On the other hand, it is significant that there is no procedure provided in the Act or in the rules for Government ascertaining the particulars of the disputes from the parties before referring them to a tribunal under S.10(1)."
21. Holding that in appropriate cases, the Industrial Tribunal can impose new obligations unlike in contractual matters, P.B.Gajendragatkar,J. in Patna Electric Supply Company Ltd., vs. Patna Electric Supply Workers' Union (1959 II LLJ 366) held as follows:
"....... There is no doubt that in appropriate cases industrial adjudication may impose new obligations on the employer in the interest of social justice and with the object of securing peace and harmony between the employer and his workmen and full cooperation between them. This view about the jurisdiction and power of the industrial tribunals has been consistently recognised in this country since the decision of the Federal Court in Western India Automobile Association vs. Industrial Tribunal, Bombay [1949 LLJ 245]. In that case the employer had challenged the jurisdiction of the industrial tribunal to direct the reinstatement of his employees; and it was argued that such a direction was contrary to the known principles which govern the relationship between master and servant and was outside the jurisdiction of the tribunal. This contention was negatived by the Federal Court, and it was observed that industrial adjudication does not mean adjudication according to the strict law of master and servant. "The award of the tribunal", observed Mahajan,J., in delivering the judgment of the Court, "may contain provisions for the settlement of a dispute which no Court could order if it was bound by ordinary law, but the tribunal is not fettered in any way by these limitations". The same view has been more emphatically expressed by Mukherjee,J., in the Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi [1950 LLJ 921]:
"In settling the disputes between the employers and the workmen", observed the learned Judge, "the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or to give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace."
In Rohtas Industries, Ltd. vs. Brijnandan Pandey [1956 II LLJ 444] Mr.Justice S.K.Das has expressed the same conclusion when he observed that:
" a court of law proceeds on the footing that no power exists in the courts to make contracts for people; and the parties must make their own contracts. The courts reach their limit of power when they enforce contracts which the parties have made. An industrial tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimization."
Thus there can be no doubt that an industrial tribunal has jurisdiction to make a proper and a reasonable order in any industrial dispute; and in that sense the respondent may be right when it contends that it was within the competence of the tribunal below to entertain its grievance about housing accommodation and to give it appropriate relief in that behalf."
22. In the Constitution Bench judgment of the Supreme Court in New Maneckchowk Spinning and Weaving Company Ltd., and others vs. Textile Labour Association, Ahmedabad (1961 I LLJ 521), while dealing with a question viz., whether the jurisdiction of the industrial Court can be invoked to impose new obligations upon the parties and if so, the same is possible in respect of the concept of bonus, reiterating the judgment of the Federal Court in Western India Automobile Association vs. The Industrial Tribunal, Bombay and otherS (1949 LLJ 245) referred to above, it was held as follows:
" Two questions immediately arise in this connection: the first relates to the jurisdiction of the industrial court to impose new obligations upon the parties and the second is, whether, if the industrial court has jurisdiction to impose new obligations, it could do so in a matter of this kind considering the concept of bonus as laid down by the decisions of this Court.
So far as the first question is concerned (namely, the general power of an industrial court to impose new obligations upon the parties), the matter is now well-settled by the decisions of the Federal Court and also of this Court. It was held by the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay, and others [1949 LLJ 245], that-
"adjudication does not in our opinion mean adjudication according to the strict law of master and servant. The award of the tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law, but the tribunal is not fettered in any way by these limitations."
The Federal Court also approved the view of Ludwing Teller that-
"industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of a new obligation or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements." (see p.256).
This court also in Rohtas Industries Ltd., v. Brijnandan Pandy [1956 II LLJ 444] held that-
"A court of law proceeds on the footing that no power exists in the courts to make contracts for people; and the parties must make their own contracts. The courts reach their limit of power when they enforce contracts which the parties have made. An industrial tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimization." (See p.449).
In Patna Electric Supply Company v. Patna Electric Supply Workers' Union [1959 II LLJ 366], this Court held that-
"There is no doubt that in appropriate cases industrial adjudication may impose new obligations on the employer in the interest of social justice and with the object of securing peace and harmony between the employer and his workmen and full co.operation between them." (see p.370), and approved of the decision of the Federal Court in Western India Automobile Association case [1949 LLJ 25] (supra). There is no doubt, therefore, that it is open to an industrial court in an appropriate case to impose new obligations on the parties before it or modify contracts in the interest of industrial peace or give awards which may have the effect of extending existing agreement or making a new one. This, however, does not mean that an industrial court can do anything and everything when dealing with an industrial dispute. This power is conditioned by the subject-matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to that matter as laid down by the legislature or by this Court."
23. The said established view of the Supreme Court that the industrial adjudication is not merely adjudging the contractual rights based on the strict principles of law, was followed by the Division Bench of this Court in Varma (A.R.) and another vs. Mettur Industries Ltd., (1961 I LLJ 456) Rajamannar,CJ. and Veeraswami,J. speaking for the Bench observed as follows:
" The learned Judge drew attention to the distinction between the termination of an employment simpliciter and termination of employment as a punishment for misconduct and considered that as under the standing orders applicable to the case, no enquiry was necessary in the case of termination of employment simpliciter, the respondent 1 acted within its powers in terminating the services of the appellant 1 without an enquiry, by recording its reasons in writing for the termination. The learned Judge was further of the opinion that there was no scope for the application of the principles of natural justice to a relationship of the kind where the rights of parties were provided for and determined by statutes, rules framed under the statutes and other statutory instruments, that the labour court ignored the rights which the management had under the standing orders and that the principles of natural justice could not be invoked to set aside something properly done in the exercise of a lawful power.
In this appeal before us Sri Mohan Kumaramangalm, the learned counsel for the appellants contended that the learned Judge was in error in taking a too narrow view of the nature and scope of the jurisdiction of the labour court in the matter and quashing its award on the ground that the respondent 1 was entitled in the exercise of its undoubted contractual power to terminate the services of the appellant 1 irrespective of other considerations. We are of the opinion that the learned counsel is right in his contention. When a dispute between a workman and his employer regarding the termination of his services had developed into an industrial dispute, sponsored and supported by the concerned labour union, the matter is no longer confined to the limits of contractual rights but other considerations having a larger bearing upon industrial relations and industrial peace come into play. The principle of the industrial law in providing for adjudications of labour disputes is obviously to conserve and promote just and equitable relations between employers and employees and secure industrial peace through the process of collective bargaining, negotiation, conciliation or adjudication of such dispute. In our view, it is inherent in the nature of things, therefore, that settlement of such dispute is above the realm of merely adjudging contractual rights as between an individual employee and his employer with reference to particular terms and conditions of employment. An industrial dispute raised by a group of employees arrayed as a union, by reason of the collective force and exigencies of conserving equitable relations and industrial peace, opens up a wider field beyond individual contractual relations and may involve the question whether even though an action on the part of the management may be within the contractual power, it is an unfair labour practice, victimisation, mala fide or otherwise improper from the standpoint of just and equitable labour relationship. The jurisdiction of the labour court or an industrial tribunal to which such a dispute is referred for adjudication, should necessarily extend and include a power to investigate and adjudicate upon such questions, unfettered by considerations based on contractual rights as between a particular workman and his employer. It is here that the nature and scope of the jurisdiction of the labour court or the industrial tribunal adjudicating upon industrial disputes differ from those of the civil courts, which can only decide strictly confining themselves to the contractual terms and conditions.
That such is the nature and wide scope of the jurisdiction of industrial tribunals has been long settled. The point was specifically decided by their lordships of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay and others [1949 LLJ 245]."
24. The avowed object of the industrial adjudication and settlement that it is on the basis of the principle of fair play and justice was reiterated by the Supreme Court in J.K.Cotton Spinning and Weaving Mills Company Ltd., vs. Labour Appellate Tribunal of India and others (1963 II LLJ 436) and the relevant portion is as follows:
" Then Mr.Pathak was driven to contend that the ground of social justice given by the Labour Appellte Tribunal in support of its award is really not sound in law, and he referred us to the observations made by this Court on some occasions that the considerations of social justice were "not only irrelevant but untenable" vide J.K.Iron and Steel Company Ltd., Kanpur v. Iron and Steel Mazdoor Union, Kanpur [1956 I LLJ 227] and Muir Mills Company Ltd. vs. Suti Mills Mazdoor Union, Kanpur [1955 I LLJ 1]. In our opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation. The development of industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasized the relevance, validity and significance of the doctrine of social justice vide Crown Aluminimum Works v. Their Workmen [1958 I LLJ 1] and State of Mysore v. Workers of Gold Mines [1958 II LLJ 479]. Indeed, the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, or one-sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded one the basic ideal of socio-economic equality and its aim is to assist the removal of socio-economic disparities and inequialities; nevertheless, in dealing with industrial matters, it does not adopt a doctrine approach and refuses to yield blindly to abstract notions, but adopts a realistic pragmatic approach. It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capital and labour, and good relationship. The ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with that ultimate object in view that industrial disputes are settled by industrial adjudication on principles of fair-play and justice. That is the reason why on several occasion industrial adjudication has thought it fit to make reasonable provisions for leave in respect of the workmen who may not strictly fall within the purview of the Factories Act or the Shops and Commercial Establishments Act. We are, therefore, satisfied that there is no substance in the grievance made by Mr.Pathak that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on grounds of fair-play and social justice."
25. While deciding about the principles to be followed in fixation of wage structure, the Supreme Court has evolved the concept of minimum wage which is a statutory compulsion, fair wage to provide sufficient standard of family regarding food, shelter, medical care, education, etc. and the living wage which is a measure of comfort and which is the ultimate goal, in The Kamani Metals and Alloys Ltd., vs. The Workmen (AIR 1967 SC 1175: 1967 II LLJ 755) held as follows:
" 7. Fixation of a wage-structure is always a delicate task because a balance has to be struck between the demands of social justice which requires that the workmen should receive their proper share of the national income which they help to produce with a view to improving their standard of living and the depletion which every increase in wages makes in the profits as this tends to divert capital from industry into other channels thought to be more profitable. The task is not rendered any the easier because conditions vary from region to region, industry to industry and establishment to establishment. To cope with these differences certain principles on which wages are fixed have been stated from time to time by this Court. Broadly speaking the first principle is that there is a minimum wage which, in any event, must be paid, irrespective of the extent of profits, the financial condition of the establishment or the availability of workmen on lower wages. This minimum wage is independent of the kind of industry and applies to all alike big or small. It sets the lowest limit below which wages cannot be allowed to sink in all humanity. The second principle is that 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 workman but not at a rate exceeding his wage earning capacity in the class of establishment to which he belongs. A fair wage is thus related to the earning capacity and the workload. It must, however, be realised that 'fair wage' is not 'living wage' by which is meant a wage which is sufficient to provide not only the essentials above mentioned but a fair measure of frugal comfort with an ability to provide for old age and evil days. Fair wage lies between the minimum wage, which must be paid in any event, and the living wage, which is the goal. As time passes and prices rise, even the fair wage fixed for the time being tends to sag downwards and then a revision is necessary. To a certain extent the disparity is made up by the additional payment of dearness allowance. This allowance is given to compensate for the rise in the cost of living. But as it is not advisable to have a 100 percent neutralisation lest it lead to inflation, the dearness allowance is often a little less than 100 per cent neutralisation. In course of time even the addition of the dearness allowance does not sufficiently make up the gap between wages and cost of living and a revision of wages and/or dearness allowance then becomes necessary. This revision is done on certain principles.
26. It was also held in that case that while fixing fair wages, the capacity of the industry to bear the burden is a relevant factor. Regarding the comparison of units in deciding wages, it was held that care must be taken that differently placed units are not taken as guidance while distinguishing the differences. The relevant portion of the judgment is as follows:
" 10. The next part of the inquiry involved the application of the principle of industry-cum-region. This principle is that fixation or revision of scales of wages, pays or dearness allowance must not be out of tune with the wages, etc., prevalent in the industry or the region. This is always desirable so that unfair competition may not result between an establishment and another and diversity in wages in the region may not lead to industrial unrest. In attempting to compare one unit with another care must be taken that units differently placed or circumstanced are not considered as guides, without making adequate allowance for the differences. The same is true when the regional level of wages are considered and compared. In general words, comparable units may be compared but not units which are dissimilar. While disparity in wages in industrial concerns similarly placed leads to discontent, attempting to level up wages without making sufficient allowances for differences, leads to hardships."
27. In Crown Aluminimum Works vs. Their Workmen (1958 I LLJ 1 SC), the Supreme Court held that ultimately in deciding wage structure, for the restoration of peace and goodwill in the industry, a fair and justice basis should be the primary objective. It was also held that the concept of social justice applies equally to both the employer and the employee. The relevant portion is as follows:
".... There can be no doubt that in fixing wage structures in different industries, industrial adjudication attempts, gradually and by wages though it may be, to attain the principal objective of a welfare State, to secure to all citizens justice, social and economic." To the attainment of this ideal the Indian Constitution has given a place of pride and that is the basis of the new guiding principles of social welfare and common good to which we have just referred.
Though social and economic justice is the ultimate ideal of industrial adjudication, its immediate objective in an industrial dispute as to the wage structure is to settle the dispute by constituting such a wage structure as would do justice to the interests of both labour and capital, would establish harmony between them and lead to their genuine and wholehearted co-operation in the task of production. It is obvious that co-operation between capital and labour would lead to more production and that naturally helps national economy and progress. In achieving this immediate objective, industrial adjudication takes into account several principles such as, for instance, the principle of comparable wages, productivity of the trade or industry, cost of living and ability of the industry to pay. The application of these and other relevant principles leads to the constitution of different categories of wage structures. These categories are sometimes described as living wage, fair wage and minimum wage. These terms, or their variants, the comfort or decency level, the subsistence level and the poverty or the floor level, cannot and do not mean the same thing in all countries nor even in different industries in the same country. It is very difficult to define or even to describe accurately the contents of these different concepts. In the case of an expanding national economy the contents of these expressions are also apt to expand and vary. What may be a fair wage in a particular industry in one country may be a living wage in the same industry in another country. Similarly, what may be a fair wage in a given industry today may cease to be fair and may border on the minimum wage in future. Industrial adjudication has naturally to apply carefully the relevant principles of wage structure and decide every industrial dispute so as to do justice to both labour and capital. In deciding industrial disputes in regard to wage structure, one of the primary objectives is and has to be the restoration of peace and goodwill in the industry itself on a fair and just basis to be determined in the light of all relevant consideration. ......"
28. In Killick Mixon Limited vs. Killick and Allies Companies Employees Union (1975 II LLJ 53), while holding that there is no single approach possible for the purpose of fixing the wage level and further holding that the degree of sacrifice is necessary, the Supreme Court indicated 14 important aspects to be taken into consideration, which are as follows:
" 33. All that the management wants in this case in that D.A. must not go on rising with the soaring price index and a limit should be imposed. We have already observed that in view of the status of the company the capacity to pay will not alone be of moment in favour of removal of the ceiling. The problem will have to be viewed from the following important aspects:
(1)Condition of the wage scales prevalent in the Company.
(2)Condition of wage level prevalent in the industry and the region.
(3)The wage packet as a whole of each earner in the company with all amenities and benefits and its ability and potency to cope with the economic requirements of daily existence consistent with his status in society, responsibilities, efficiency at work and industrial peace.
(4)The position of the company concerns relation to other comparable concerns in the industry and the region.
(5)Peremptive necessity for full neutralisation of the cost of living at the rock-bottom of wage scale if at or just above the subsistence level.
(6)The rate of neutralisation which is being given to the employees in each salary slab.
(7)Avoidance of huge distortion of wage differentials taking into reckoning all persons employed in the concern.
(8)Degree of sacrifice necessary even on the part of workers in general interest.
(9)The compulsive necessity of securing social and distributive justice to the workmen.
(10)Capacity of the company to bear the additional burden.
(11)Interest of national economy.
(12)Repercussions in other industries and society as a whole.
(13)The state of the consumer price index at the time of decision.
(14)Forebodings and possibilities in the foreseeable future as far as can be envisaged."
29. At the same time, it is to be taken note that while taking a decision in respect of fixation of wages, it cannot be put under any straight jacket formula since it requires various aspects to be considered. It should also be taken note that industrial adjudicator must be careful in embracing the concept of social justice since it is only to strike a balance in the interest of maintaining industrial peace, such decision is taken. In fact, in J.K.Iron and Steel Co., Ltd., Kanpur vs. The Iron and Steel Mazdoor Union, Kanpur (AIR 1956 SC 231) while deciding about the scope and authority of the industrial adjudicator under the Industrial Disputes Act, it was held that irrelevant consideration should be ignored and the real questions are to be considered. The relevant portion of the judgment is as follows:
" 42. It is pertinent at this stage to refer to a decision of this Court reported in 'Muir Mills Co.Ltd., v. Suti Mills Mazdoor Union, Kanpur', (S) AIR 1955 SC 170 at p.175 (D) where Bhagwati,J. delivering the judgment of the Court said-
"The considerations of social justice imported by the Labour Appellate Tribunal in arriving at the decision in favour of the respondent were not only irrelevant but untenable."
In the present case also we are of opinion that the Adjudicator and the Labour Appellate Tribunal had adopted the attitude of benevolent despots and have based their conclusions on irrelevant considerations and have ignored the real questions that arose for decision and the issues that arose out of the pleadings of the parties."
Therefore, on a general analysis of the legal position regarding fixation of wages, the yardstick that should act as a guide is not only to secure the social and distributive justice condition of wage level, but also to look into the position of the company comparable to other concerns in the industry as well as the region.
30. The main contention raised in this case on behalf of the employer as urged by Mr.AL.Somayaji, learned senior counsel is that the industry-cum-region formula has not been properly applied by the Industrial Tribunal under the impugned award. The main attack is with reference to Ex.W16 which are the pay slips filed on behalf of the workmen in respect of a different companies. The contents of Ex.W16 relating to Luk India, Avtec Ltd., Titan, Ashok Leyland, etc., as extracted by the Tribunal in the impugned award, which is vehemently opposed on behalf of the employer for taking it as a basis for fixing the wages, are as follows:
S.No. Name of the Company Designation Basic pay Total Earnings 1 AVTEC Ltd., (Power Production) Operator Rs.3303/-
Rs.21,896/-2
Titan Co., Technician Rs.2100/-
Rs.13,187/-3
Ashok Leyland Rs.1383/-
Rs.16,879/-4
Nippon Electricals (Home Applicances) Operator Rs.950/-
Rs.9310/-5
Easun Group of Cos.
Workman Rs.2797/-
Rs.12,833/-6
TTK Prestige Worker Rs.3715/-
Rs.9,857/-7
Hindustan Lever Co.(in 2006) Workmen (Gr.II) Rs.147.74 Rs.137.30 8 ICICI Bank Senior Operator Rs.2301/-
Rs.18,048/-
31. No doubt, the said document consists of pay slips relating to various industries which are not comparable to the business of Bata India Limited, since it is not in dispute that those companies covered under Ex.W16 are all involved in different types of business and manufacturing activities but are all situate in Hosur region. The contention of the learned senior counsel is that the proper approach is that the document must be relatable to the business of the employer concern which should situate within the region. It is his contention that in respect of different types of manufacturing process, different yardsticks are to be applied for the purpose of fixing the wages since it depends upon the nature of manufacturing activities, number of employees employed, marketing position of the products manufactured, etc. and therefore, according to him, fixing the wages on the basis of pay slips issued by various kinds of companies whose business and manufacturing activities are not comparable with the business and manufacturing activities of Bata India Limited in Hosur is not proper.
32. It is true that the Tribunal in the impugned award has placed major reliance on Ex.W16 and concluded that the workers working in Hosur area in different companies are getting quite reasonable wages and thus, the paying capacity of all the employers in Hosur region is on the higher side.
33. It is also not in dispute that in Hosur area there are no other industries comparable to the manufacturing process of Bata India Limited. It is relevant to point out that on behalf of the management steps have been taken to produce at least two documents viz., salary slips of similar industries in Ambur in Exs.M14 and M15, but the Tribunal found on fact and appreciating the documents that there are some corrections in the Xerox copies filed and that the names of workers and the numbers are scored out and therefore, credibility cannot be given to those documents.
34. The employer has also produced Ex.M30, the pay slip relating to a clothing company in Hosur and Bangalore to show that less salary viz., Rs.3400/- is being paid in the textile company, but the Tribunal rejected the said document produced by the management as not pertinent to wages in Hosur area. The further document produced as Ex.M17 is relating to Ponds India Limited, which has also been considered and rejected by the Tribunal on the basis that it is not relating to a regular worker. The Tribunal ultimately concluded that region (Hosur) wise scale of pay has to be taken note. The Tribunal has taken note of Ex.W16 for the purpose of increasing gross pay, but, not accepted the same in toto. The Tribunal has also taken note of the capacity of the management to pay and the funds available for distribution to the workers.
35. In this connection, it is relevant to note that the Supreme Court, while considering the contention that the Tribunal has relied more on the region aspect on industries-cum-region formula and compared with the concerns which are not comparable, in Graves Cotton & Co., Ltd., vs. Their Workmen (1964 I LLJ 342) held as follows:
" ... The main attack of the appellants is on the award as regard wages and dearness allowance. It is urged that the industry-cum-region formula, which is the basis for fixation of wages and dearness allowance has not been properly applied by the tribunal and it had been carried away by the recommendations of the tripartite conference which suggested need-based minimum wages. It is also urged that whatever comparison was made was with concerns which were not comparable and the wages awarded were even higher than those prevalent in any comparable concern. It is also urged that the tribunal did not consider the total effect of the increase it was granting in basic wage and dearness allowance together as it should have done, for the purpose of finding out whether the total pay-packet in the appellants' concerns can bear comparison with the total pay-packet of the concerns with which the tribunal had compared the appellants' concerns. In this connexion it is urged that in fixing scales of wages the tribunal increased the maximum and the minimum and the annual rate of increment and decreased the span of years in which the maximum would be reached. Adjustments made by the tribunal are also attacked and so is the order making the award enforceable from 1 April 1959. As to the factory-workmen it is urged that the tribunal made no attempt to make a comparison with wages prevalent even in what it considered to be comparable concerns. Lastly it is urged that the tribunal created a new category of factory-workmen called higher unskilled which was not demanded and which in any case did not exist in any comparable concern.
The first question therefore which falls for decision is whether the tribunal went wrong in not following the industry-cum-region principle and in leaning on the recommendations of the tripartite conference. It is true that the tribunal begins its award with a reference to the recommendations of the tripartite conference wherein the need-based minimum wage was evolved. It is urged that this disposed the tribunal to pitch wage-scales too high. It is however clear from the award that though the tribunal discussed the recommendations of the tripartite conference at some length, when it actually came to make the award it did not follow those recommendations. The reason why it referred to those recommendations was that the respondent-workmen based their claim on them and wanted that the tribunal should fix wage-scales accordingly. But the tribunal's conclusion was that it was not feasible to do so,though looking at the financial stability of the appellants emoluments needed upgrading. It then went on to consider the wages prevalent in comparable concerns and finally fixed wages for the appellants on the basis of wages prevalent in such concerns. Though therefore the recommendations of the tripartite conference are referred to in the tribunal's award, its final decision is not based on them and what the tribunal has done is to make comparison with what is considered comparable concerns so far as clerical and subordinate staff are concerned. We are therefore not prepared to say that reference to the recommendations of the tripartite conference in the opening part of the award was irrelevant and therefore the rest of the award must be held to be vitiated on that ground alone.
The main contention of the appellants however is that the tribunal has gone wrong in applying the industry-cum-region formula which is the basis for fixing wages and dearness allowance and has made comparison with concerns which are not comparable. It is also urged that the tribunal has relied more on the region aspect of the industry-cum-region formula and not on the industry aspect when dealing with clerical and subordinate staff and in this it went wrong. Reference in this connexion is made to two decisions of this Court,namely, Workmen of Hindusthan Motors v.Hindusthan Motors [1962 II LLJ 352] and French Motor Car Company v. Their workmen [1962 II LLJ 744] and it is emphasized that the principles laid down in Hindusthan Motors case [1962 II LLJ 352] were more applicable to the present case than the principles laid down in the French Motor Car Company case [1962 II LLJ 744]. In the Hindusthan Motors case [1962 II LLJ 352] this Court observed that it was ordinarily desirable to have as much uniformity as possible in the wage-scales of different concerns of the same industry working in the same region, as this puts similar industries more or less on an equal footing in their production struggle. This Court therefore applied the wage-scales awarded by the Third Major Engineering Tribunal in Bengal in the case of Hindusthan Motors [1962 II LLJ 352] (vide supra) also. It is urged that the tribunal should have taken into account comparable concerns in the same industry and provided wage-scales on the same lines so that, so far as manufacturing concerns in the present appeals are concerned, there will be equality in the matter of competition. In the French Motor Car Company case [1962 II LLJ 744] (vide supra), however, this Court held so far as clerical staff and subordinate staff are concerned that it may be possible to take into account even those concerns which are engaged in different lines of business, for the work of clerical and subordinate staff is more or less the same in all kinds of concerns. We are of opinion that there is no inconsistency as urged in the principles laid down in these two cases. As we have already said, the basis of fixation of wages and dearness allowance is industry-cum-region. Where there are a large number of industrial concerns of the same kind in the same region, it would be proper to put greater emphasis on the industry part of the industry-cum-region principle as that would put all concerns on a more or less equal footing in the matter of production costs and therefore in the matter of competition in the market and this will equally apply to clerical and subordinate staff whose wages and dearness allowance also go into calculation of production costs. But where the number of comparable concerns is small in a particular region and therefore the competition aspect is not of the same importance, the region part of the industry-cum-region formula assumes greater importance particularly with reference to clerical and subordinate staff and this was what was emphasized in the French Motor Car Company case [1962 II LLJ 744] (vide supra) where the company was already paying the highest wages in the particular line of business and therefore comparison had to be made with as similar concerns as possible in different lines of business for the purpose of fixing wage-scales and dearness allowance. The principle therefore which emerges from these two decisions is that in applying the industry-cum-region formula for fixing wage-scales the tribunal should lay stress on the industry part of the formula if there are a large number of concerns in the same region carrying on the same industry; in such a case, in order that production cost may not be unequal and there may be equal competition, wages should generally be fixed on the basis of the comparable industries, namely, industries of the same kind. But where the number of industries of the same kind in a particular region is small, it is the region part of the industry-cum-region formula which assumes importance particularly in the case of clerical and subordinate staff, for as pointed out in the French Motor Car Company case [1962 II LLJ 744] (vide supra) there is not much difference in the work of this class of employees in different industries. In the present case it does appear that the tribunal has leaned more on the region part of the industry-cum-region formula and less on the industry part. But we think that it cannot be said that the tribunal was wrong in doing so for two reasons. In the first place these four companies are not engaged in the same line of industry; but on account of certain circumstances, namely, that Greaves Cotton & Co. is the controlling company of the other three, it has been usual to keep the same scales for clerical and subordinate staff in all these concerns. In the second place, it is not clear as was clear in the Hindusthan Motors case [1962 II LLJ 352] (vide supra) that there are a large number of comparable concerns in the same region. As a matter of fact the main company out of these four is Greaves Cotton & Co., Ltd., which is in the main an investment and financial company and the tribunal was therefore right in taking for comparison such companies as would stand comparison with the main company in the present appeals (namely, Greaves Cotton & Co.,)."
36. Applying the said yardstick to the impugned award of the Tribunal, it is clear that the Industrial Tribunal has in fact considered the documents filed on the side of management on the basis of industries-cum-region formula and rejected the same since those documents are not reliable evidence, but at the same time, not wholly relied upon Ex.W16 and fixed the wages in between the two by striking a balance, which, in my view, cannot be said to be either totally unwarranted or perverse.
37. It is, taking note of the higher side of salary under Ex.W16 produced on the side of the workmen, the Tribunal has fixed the salary in respect of each of Grades A, B and C workmen in Bata India Limited at Rs.10600/-, Rs.10500/- and 10400/- respectively.
38. While considering the capacity of the employer, the Tribunal under the impugned award has found on admitted facts that the salary paid to the persons working in showrooms as well as to the Directors of the management has been increased by about 50% to 100% every year and came to a conclusion that such increase is not possible unless the company earns enormous profits and relying upon the statement that Hosur unit generally gets profits, has held that surplus amounts are available and therefore, the employer has the capacity to pay more wages. The Tribunal has made comparison with other workers and done the wage revision, I am of the view that there is no perversity in arriving at such a conclusion by the Tribunal and such conclusion cannot be said to be without any basis or whatsoever.
39. As repeatedly held by the Apex Court, there cannot be a hard line to be drawn or strict arithmetic formula to be followed in deciding the matters of wage fixation. In such matters, what has to be seen is the necessity for fixation of wages based on various conditions including living condition, capacity of the employer to make payment which depends upon not only marketing of products, but also the conduct of the employer in making payment to other members of the staff. It is also to be seen that at least the fair wages are paid for the workmen while comparing with other workers in the region, especially in the absence of any credible material placed on the side of the management to show that in similar industries in the region the wages are paid less. On the other hand, it is available on evidence that in respect of industrial workers in region wise, salary is paid more and therefore, the reasonable wages has been fixed by the Industrial Tribunal, though not based on correct and calculable precision.
40. The judgment relied upon by the learned senior counsel for the employer reported in French Motor Car Company Ltd., vs. Their Workmen (1962 II LLJ 744) relates to wages and scales of pay for clerical staff, workshop employees and subordinate staff, wherein the Tribunal while fixing wages which should be on industry-cum-region basis, especially when dealing with workshop employees, took into account the wages prevailing in similar concerns in the region, which were larger concerns than the appellant before the Supreme Court. It was in those circumstances, the Supreme Court held that the award cannot be upheld, especially when evidence was let in in respect of concerns in the line of businesses which were nearer to the business carried on by the appellant company. The Supreme Court also held as follows:
" ... It appears that evidence was given before the tribunal for purposes of comparison of concerns which were in the line of business nearly similar to the business carried on by the appellant company. Consequently, it would not be necessary to take fresh evidence on the point and the tribunal should proceed to fix the wage-structure afresh after excluding for purposes of comparison concerns in absolutely different lines of business and also concerns which are disproportionately larger than the appellant company."
41. On the facts of this case, even though it is true that under the impugned award, the Tribunal has referred to different types of industries situate in the same region of Hosur as stated above, the Tribunal itself has taken into consideration Ex.W16, but not solely depended upon the same, and arrived at a conclusion that there were no credible evidence available on the side of employer regarding wage structure based on region wise and similar industries.
42. In fact, in the circumstances where there was no comparable concern in the line of business in the same region, the Supreme Court in Indian Oxygen Ltd., vs. Its Workmen and others (1963 II LLJ 83) has taken the view that the Tribunal was justified in looking for comparing with the concerns which were nearly similar to the company in respect of which wage structure of the employees was to be fixed. Such situation is prevalent in the case on hand wherein also there is no evidence to show that in Hosur region there are similar concern doing the business of the employer herein, viz., Bata India Limited. In those circumstances, the Tribunal has taken note of Ex.W16 relating to other companies in the same region as a guiding factor to arrive at its own conclusion. In the said judgment relied upon by the learned counsel for the petitioner/employer in Indian Oxygen Ltd., vs. Its workmen and others (1963 II LLJ 83) the Supreme Court also held as under:
"... As to the contention that the tribunal compared the appellant-company with concerns which were really not comparable, it may be mentioned that at present the appellant is the only company of its kind carrying on business in Bombay. There was thus no comparable concern in its own line of business in that region. Therefore, the tribunal would be justified in looking for comparison at concerns nearly similar to the appellant. The appellant also conceded, and we think rightly, that the nearest industry for purposes of comparison with the appellant-company was the engineering industry. The workmen on the other hand wanted that the appellant-company should be compared with the oil refineries and Greaves Cotton & Co., Ltd., Imperial Tobacco Ltd., Associated Cement Companies Ltd., and some other concerns. The tribunal held that the oil refineries stood in a class by themselves. It also held that Greaves Cotton & Co., Ltd., was a managing agency concern and was therefore not comparable. It also refused to compare the appellant-company with the Associated Cement Companies on the ground that it had no factory in Bombay but only its head office. The tribunal also was not prepared to compare the appellant-company with the Imperial Tobacco Company which was in an altogether different line of business. The tribunal was prepared to compare the appellant with the engineering firms which the appellant itself relied on except one concern which was considered by the tribunal to be too small. It seems to us therefore that for the purpose of comparison the tribunal rightly took into account practically the companies suggested by the appellant. The tribunal also mentioned some other companies which were indicated on behalf of the workmen, for example, the Indian Cable Company, Ltd., and the Automobile Products. These also cannot be said to be non-comparable, though they are not quite as near the appellant company as the engineering concerns which the appellant company relied on. In the main, however, it appears that the tribunal has relied on the engineering concerns on which the appellant-company relied, though, as already indicated, it has given a slightly higher scale in some cases to the workmen of the appellant-company apparently in view of the fact that appellant company was always a leading employer in the matter of wage scales. We are therefore of opinion that the tribunal cannot be said to have made any mistake in the matter of taking into account comparable concerns."
43. Similar was the view taken by the Supreme Court in Workmen of British India Corporation Ltd., vs. British India Corporation Ltd., (1965 II LLJ 433 SC), wherein it was held as follows:
" Turning now to the question of wages, the tribunal pointed out that there was no woollen mill in the region. It had therefore to decide with what other industry the wages prevalent in the mills had to be compared. It came to the conclusion that the nearest industry which could be taken into consideration for purposes of comparison was the cotton textile industry. It pointed out that both cotton textiles and woollen textiles are parts of the textile industry, the difference being only in the material used. It therefore held that it would be proper to consider the wages paid in the cotton textile industry in Kanpur for purposes of comparison. We are of opinion that the tribunal cannot be said to be in error when it took the cotton textile industry in Kanpur for purposes of comparison as there are no other woollen mills in that region."
44. The Supreme Court has reiterated the concept, of course while dealing with Dearness Allowance stating that it is the local flavour, viz., the wagering of markets where the employee resides that has to be taken into consideration, even if he is employed in national, multi-national, trans-national or empire industries. That was in Workmen Employed by M/s. Indian Oxygen Ltd., vs. M/s.Indian Oxygen Ltd., [(1985) 3 SCC 177] where the Supreme Court also held as follows:
" 14. On behalf of the Karamchari Union, it was contended that in devising a dearness allowance formula, the region-cum-industry principle should ordinarily be accepted. As pointed out earlier, dearness allowance generally has a local flavour. A man is exposed to the vagaries of the market where he resides and works, even though he may be employee of a national, multi-national or transnational industrial empire. The workman is concerned withthe vagaries of price fluctuation in the area in which he resides and works for gain and to which he is exposed. Therefore, the region-cum-industry principle must inform industrial adjudication in the matter of dearness allowance. In Woolcombers of India Ltd., v. Woolcombers Workers Union (1973 SCC (L&S) 551), this Court following its earlier decision in Greaves Cotton and Co. vs. Workmen (1964 I LLJ 342), held that in devising basic wages and dearness allowance structure, industrial adjudication sometimes leans on the industry part of the industry-cum-region formula and at other times, on the region part of the formula as the situation demands. This well-recognised principle of industrial adjudication cannot be given a go-by on the specious plea that the workmen are employed by an industrial undertaking which has an all India operation. In this case, the Tribunal has overlooked this important principle of industrial adjudication."
45. The industry-cum-region formula may be followed in flexible manner to the effect that in certain circumstances it may lean on the industry part of the industry-cum-region formula and other items on the regional aspects of the industry-cum-region formula, as laid down by the Supreme Court in Greaves Cotton and Co. v. Workmen (AIR 1964 SC 689) in the following words:
" In devising basic wages and dearness allowance structure, industrial adjudication sometimes leans on the industry part of the industry-cum-region formula and at other times, on the region part of the formula as the situation demands. This well recognised principle of industrial adjudication cannot be given a go-by on the specious plea that the workmen are employed by an industrial undertaking which has an all India operation."
46. The same was reiterated with approval by the Supreme Court in The Monthly rated Workmen at the Wadala Factory of the Indian Hume Pipe Co. Ltd., vs. The Indian Hume Pipe Co.Ltd., Bombay (AIR 1986 SC 1794) in the following words:
" Mr.Pai apprehended the possibility of similar demand by the workers in other factories which would render the working of the factory itself difficult and sometimes compel it to close them down. He has made available to us a statement showing the amounts that the company will have to dole out if the present system is to continue. In respect of 80 monthly rated workmen the difference payable will be Rs.75,000/- per month, which works out to Rs.9,00,000/- per year. If this slab system is to be introduced for 4000 employees, the liability will be about Rs.4,50,00,000/-. Though at the first flush one would be tempted to agree with Mr.Pai, the temptation will disappear when we inform ourselves of the fact that in a catena of decisions this Court has laid down the industry-cum-region basis as the acceptable basis while working out dearness allowance. This is the usual alarmist cry of the employers. Uniformity of wage structure throughout the country if accepted will be giving a go-by to the well settled principle of industry-cum-region. This Court has time and again laid down the industry-cum-region principle whenever the question of wage structure arose. As an answer to this plea of the respondent, we will only read the following passage from the Judgement in the case of Workmen v. Indian Oxygen Ltd., (AIR 1986 SC 125) to which one of us was a party. Desai,J. While repelling the plea that in an industrial undertaking which has an all India operation, the unit as a whole should be considered, observed thus:
"14. On behalf of the Karmachari Union, it was contended that in devising a dearness allowance formula, the region-cum-industry principle should ordinarily be accepted. As pointed out earlier, dearness allowance generally has a local flavour. A man is exposed to the vagaries of the market where he resides and works, even though he may be an employee of a national, multi-national or trans-national industrial empire. The workman is concerned with the vagaries of price fluctuation in the area in which he resides and work for gain and to which he is exposed. Therefore, the region-cum-industry principle must inform industrial adjudication in the matter of dearness allowance. In Woolcombers of India Ltd., v. Woolcombers Workers Union (1974 (1) SCR 504 : (AIR 1973 SC 2578) this Court following its earlier decision in Greaves Cotton and Co. v. Workmen (1964 (5) SCR 362 : AIR 1964 SC 689) held that in devising basic wages and dearness allowance structure, industrial adjudication sometimes leans on the industry part of the industry-cum-region formula and at other times, on the region part of the formula as the situation demands. This well recognised principle of industrial adjudication cannot be given a go-by on the specious plea that the workmen are employed by an industrial undertaking which has an all India operation. In this case, the Tribunal has overlooked this important principle of industrial adjudication. ........"
47. The contention of the learned senior counsel for the management Mr.AL.Somayaji, that the Tribunal while fixing the wages has acted against the legislature or against the principles laid down by the Supreme Court, and therefore, the matter has to be referred back by way of remand to the Tribunal for a fresh decision is not sustainable on the facts and in the circumstances of the case for more than one reason which I have elaborately explained above. First of all, there are no hard and fast rule for fixing the wage structure which depends upon the multifarious factors like, capacity of the employer to pay, the necessity of the workmen to live decently, comparison of industries region-wise and industry-wise, cost of living including accommodation available on reasonable rental basis so as to decide about fair wages for a person with minimum number of family members to lead a decent life.
48. In my considered view, there is absolutely nothing to presume that under the impugned award of the Tribunal there is any violation of statutory principles or the principles laid down by the Apex Court. The concept of region-wise industries which is stated to have been not followed by the Tribunal in this case is a fallacy since the Tribunal has taken efforts to decide on the existing available materials. In fact, it is relevant at this stage to point out that the management which has raised the issue on the basis of region-wise industries for the purpose of fixing the wages, has chosen to produce various documents relating to various parts of the country wherein certainly the way of life, cost of living and other conditions are different from the region in question viz., Hosur. The management having taken such steps in producing documents relating to other regions which are not connected with Hosur region cannot be expected to contend that the Tribunal has taken note of the region wise concept without following region-cum-industry concept. The reference made by the management on the wage slips as seen in Exs.M3 and M4 relating to Bataganj Exs.M5 and M6 relating to Bata Faridabad, Exs.M8, M9 and M10 series relating to Bata Southcan are all not relating to Hosur region and they relate to the places which are situate far away. While it is true that the comparison must be made on the basis of industries wise, the consideration of industries situate in that particular region is a relevant factor in the absence of any related industries available in Hosur region, especially when the management has not chosen to produce any credible evidence to that effect, and I do not see any flagrant violation of any principle of law laid down by the Supreme Court in the impugned decision of the Industrial Tribunal in this case.
49. The next important contention raised on behalf of the management as insisted by the learned senior counsel is about Ex.M36. The contention is that the wage slips in Ex.M36 in respect of four workers viz., U.Chakraborthy, Pradip Saha, Pronab Sarkar and Manoranjandas belonging to Kolkatta Unit, are all relating to wages paid once in fortnight, whereas the Tribunal under the impugned award has treated the same as wages for a week and held that there is vast difference of salary, and the same has not been explained by the employer. The relevant portion of the award against which the issue has been raised by the learned senior counsel is as follows:
" Ex.M.36 is the Kolkata wage slip for four workers as follows:
Name Week No. Gross Deduction Net Amount U.Chakraborthy 44 of 2008 Rs.4455.21 2155.21 Rs.2300 "
46 of 2008 Rs.3723.22 2023.22 Rs.1700 "
48th 2008 Rs.3686.69 2086.69 Rs.1600 Total Rs.11865.12 6265.12 Rs.5600/-
Pradip Saha 44/2008 Rs.4578.78 Rs.678.78 Rs.3900 "
46/2008 Rs.3966.84 Rs.566.84 Rs.3400 "
48/2008 Rs.4921.10 Rs.721.10 Rs.4200 Total Rs.13466.72 Rs.1966.72 Rs.11500/-
Pronab Sarkar 44/2008 Rs.3868.74 Rs.568.74 Rs.3300 "
46/2008 Rs.3673.73 Rs.473.73 Rs.200 "
48/2008 Rs.4138.02 Rs.638.02 Rs.3500 Total Rs.11680.49 Rs.10000/-
Manoranjandas 44/2008 Rs.4530.25 Rs.3430.25 Rs.1100 "
46/2008 Rs.4141.45 Rs.3641.45 Rs.500 "
48/2008 Rs.5025.39 Rs.3825.39 Rs.1200 Total Rs.13697 Rs.10897.09 Rs.2800/-
50. A reference to Ex.M36 makes it abundantly clear that the salaries shown in the wage slips are paid to the concerned employees once in two weeks and they do not denote the salaries paid for every week. For example, the net amount shown as Rs.10000/- in respect of Pronab Sarkar is not relating to three weeks, but it relates to six weeks and therefore, it is submitted that a patent mistake has been committed by the Tribunal in this regard. However, it is relevant to point out that the Tribunal has not taken Ex.M36 alone for the purpose of deciding and fixing the wages under the impugned award. In fact, the Tribunal in paragraph 58 has specifically stated as follows:
" ....... Even though the Management has produced the Pay slip of four workers, on that basis we could not arrive the monthly wages of the workers. Even both sides are not so clear to mention how much could have been the wages of those workers. From these documents, I am of the view that for 3 weeks take home salaries alone comes to Rs.10,000/- Gross pay comes Rs.13,500/- Therefore the salary of the Batanager unit must have been not less than Rs.14000/- p.m."
(Emphasis supplied)
51. The more relevant aspect is the further contention about Ex.M36. Even though it appears to be the contention of the learned senior counsel appearing for the workmen that the salary given to employees at Batanagar, Calcutta under Ex.M36 is more and the salary of the workers at Hosur must be fixed at Rs.3000/- higher than Ex.M.36, the reason adduced therefor appears to be that in Bata Nagar, the management is providing free hospital, housing, school facilities and catering to its workers and admittedly such facilities are not available to the workers in Housr factory. In fact, the Tribunal has taken note of the fact that the learned counsel for the respondent management has not disputed the same and in the absence of any specific evidence, the Tribunal has fixed the salary at Rs.10600/-, Rs.10500/- and Rs.10400/- for A, B and C Grades employees and therefore, it is clear that the Tribunal has not solely relied upon Ex.M36 in respect of which are mistakes and in my view, that itself cannot be a ground for interfering with the award passed by the Tribunal, which, cannot be said to be unfair, unjust or excess on a overall view.
52. It is also relevant to point out that the respective senior counsel appearing on behalf of both the parties have admitted that after reopening the case before the Tribunal, the parties have not narrowed down their arguments, relying upon the Calcutta based wage slips alone. In fact, the Tribunal itself has not based its decision on Ex.M36 alone, as I have narrated above.
53. The next contention raised on behalf of the employer is relating to the fixation of an amount of Rs.750/- for SHSCHC allowance, which according to the learned counsel has not been a demand of the workmen at all. However, Mr.V.Prakash, learned senior counsel for the workmen would explain the above said term as follows:
Skill, Hill, Shift, Child, Heat and Chemical.
As I have enumerated above, the workmen have made the claim under various heads which include goodwill allowance, house rent allowance, washing allowance, annual extra, snacks allowance, skill allowance, conveyance allowance, shift allowance, hill station allowance and service weightage. All these have been demanded by the employees Union in the demand and therefore, it cannot be said that such demand has been made and the Tribunal has awarded the amount of Rs.750/- without restricting under any head. In fact, while granting the said sum of Rs.750/-, the Tribunal has held that all the demands made by the workmen in other respects have been negatived.
54. It is also relevant to point out that the Tribunal has not enhanced the fixed D.A. and only increased to 50% the variable D.A. and a reading of the award shows that it is a total wage factor that has been considered considering the totality of situation, which, in my considered view, cannot be said to be unjust and excess and on the other hand, it can be certainly termed as a distributive process which has been attempted to be done by the Tribunal to the maximum possible extent on the available evidence. The Tribunal has taken note of the capacity of the employer to pay which is adjudged by various factors including the salary of the managerial staff and showroom staff, apart from the tax liability, as held by the Supreme Court in catena of cases. The Tribunal has also taken note of the nature of work exercised by the workmen and exercised its judicial discretion which cannot be said to be either perverse or unreasonable.
55. In Hindustan Times Ltd., vs. Their Workmen (1963 I LLJ 108), the Supreme Court has held that while deciding the method of wage fixation, if the discretion is exercised by the Tribunal which is not unreasonable, there is no necessity to interfere especially when the discretion so exercised depends upon the facts and circumstances of the case and no general formula can be laid down in that regard. The Supreme Court in that case has held as follows:
" The Tribunal rejected the workmen's claim for giving effect to its award from April 1956. Wherever however the tribunal has given relief the tribunal has directed that the award should come into effect from the date of reference, i.e., 23 January 1958. On behalf of the company Mr.Pathak contends that there is no reason why the award should be given effect to from any date prior to the date of its pronouncement. We are not impressed by this argument. No general formula can be laid down as to the date from which a tribunal should make its award effective. That question has to be decided by the tribunal on a consideration of circumstances of each case. There have been cases where this Court had made an award effective from the date when the demand was first made. There are other cases where the orders of the tribunal directing award to be made effective from the date of the award have not been interfered with. It is true that in some cases this Court has modified the tribunal's award in such a case it does not appear however that any general principles have been laid down. Indeed difficult and not even desirable that this Court should try to lay down general principles such matters that require careful consideration of the peculiar circumstances of case for the exercise of discretion. It is sufficient to say that we find no reason to interfere with the tribunal's direction this matter that the reliefs given by it would be effective from the date of the reference."
56. Again, while deciding about the effect from which the fixation of wages must be given, the Tribunal has taken note of the fact that under Ex.W11 settlement dated 26.4.2004, which is for two years expired on 31.3.2006 and next wage revision has to be done from 1.4.2006 and the workmen have immediately raised the dispute, and decided that the wage structure has to be made with effect from 1.4.2006. That is also based on the discretion of the Tribunal. Further, the question as to the date from which the wage structure is to be given effect, depends upon the discretion of the Court and unless the discretion is exercised capriciously or unreasonably, there is no scope for interference in respect of giving effect to the wage structure.
57. That was also the view of the Supreme Court in Western India Match Company Ltd., vs. Their workmen (1963 II LLJ 459) wherein the Supreme Court has held that normally the adequacy or otherwise of evidence let in before the Tribunal is not the concern of the Court and on the other hand, there is nothing wrong in referring to the nature of evidence for the purpose of deciding as to whether the ultimate conclusion is fair and reasonable. The relevant portion of the judgment is as follows:
" ... We have to mention here that our purpose in referring to these details of evidence is not to find out whether the tribunal has come to a wrong conclusion on fact but only to see if it has made any mistake in applying the correct principles or has come to conclusion that is unreasonable, arbitrary or perverse. On an analysis of the materials on the record we are clearly of opinion that the correct principles have been applied in a fair and reasonable manner and the conclusion reached cannot be challenged before us."
xxxxxxxx "The question as to the date from which the benefit granted by an award should take effect must generally be left to the discretion of the tribunal making the award and this Court ordinarily refused to interfere with the exercise of that discretion. We are unable to find any special circumstances in this case that would justify any departure from our established practice."
58. In such view of the matter, looking into the entire aspects of the issues involved in this case, I am of the considered view that the proposed increase of wages under the impugned award is neither unreasonable, nor unfair, nor exorbitant, since all the relevant factors necessary for the purpose of fixing the award have been taken note of by the Tribunal. On the over all view of the entire award, I am of the view that there is no abnormal situation for this Court to interfere. As stated above, a few minor mistakes which have not seriously affected the fixation of wages structure, cannot alone be the reasons for interfering with the award. Similarly the claim made by the workmen in the writ petition in W.P.NO.5833 of 2009 is also not acceptable for the above said reasons.
In such view of the matter, the impugned award passed by the Industrial Tribunal stands confirmed and both the writ petitions are dismissed. No costs.
kh To The Presiding Officer Industrial Tribunal Tamil Nadu Chennai 600 104