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18. It has also been submitted on behalf of the petitioners that the settlement dated 13.03.1999 which provided for the payment of incentives for loading/unloading of bags of food grains has never been terminated and that the circular 18/05 dated 15.12.2005 as issued by the respondent proposed to change the terms of the incentive scheme so as to adversely effect the workmen. It has been submitted on behalf of the petitioners in Writ Petition (C) 9260/16 vide their written submissions that on the opposition of the workmen to this adverse change of incentive scheme, the matter having been so taken up by the Labour Commissioner for Conciliation under Section 12 of the Industrial Disputes Act, 1947 in accordance with Section 33 of the enactment, the change in the service condition was kept in abeyance vide a circular no.5/06 dated 20.02.2006 issued by the FCI/ respondent. Inter alia it was submitted on behalf of the petitioners that there is no reference to the settlement dated 13.03.1999 in the judgment of the Hon'ble High Court of Bombay nor to the circular dated 15.12.2005 issued by the FCI. It has also been submitted on behalf of the petitioners that the learned CGIT has passed the impugned award without application of mind to the settlement in force and the proposed changes brought about by the circular dated 15.12.2005.

19. Inter alia it has been submitted that the award cannot be implemented retrospectively, unless it says so expressly and that furthermore, the FCI had not required the Tribunal to make the award retrospective. It has also been submitted on behalf of the petitioner that the settlement remained in force and had never been terminated and continued to operate even at the time of the adjudication by the Tribunal. Inter alia it has been submitted on behalf of the petitioners that the impugned award also does not adjudicate as to how the shift from the norm of 105 bags to 135 bags was justified and further submits that there has been a repeated submission made on behalf of the respondent that the settlement dated 13.03.1999 is legally valid and operative even after the making of the award and that the said submission is fundamentally destructive of the case of the respondent, in as much as the payment of incentives made and now sought to be recovered have been made in accordance with the said settlement and if the same is valid and operative, then no deduction can be made from the salaries of the workers. Inter alia it has been submitted on behalf of the petitioners that in view of the stand of the FCI i.e. the respondent that the settlement dated 13.03.1999 is still in force notwithstanding the award, the petitioners seek that the award be quashed, that the recoveries sought to be made be quashed and that a remand should be made to the Tribunal and liberty may be granted to the FCI to raise a dispute under Section 10 of the Industrial Disputes Act, 1947, to alter the incentive schemes and to make the FCI circular dated 15.12.2005 operative to replace the incentive scheme which forms the part of the settlement dated 13.03.1999, only after termination of settlement under Section 19(2) of the Industrial Disputes Act, 1947. It has been submitted further on behalf of the petitioners that the settlement dated 13.03.1999 includes a chart relating to the norms of bags below 66 Kgs and a 50 Kg bag falls within the category of bags below 66 Kgs and if the settlement continues to be valid and operative, the norm of 105 bags to 135 bags, would apply.

21. The petitioners have thus, sought that the impugned award be quashed and the amounts deducted by the FCI directed to be returned by the FCI to raise a dispute for the implementation of the impugned circular 18/05 but only after the FCI terminates the existing settlement dated 13.03.1999 under Section 19(2) of the Industrial Disputes Act, 1947.

22. The FCI through its written submissions as submitted in W.P.(C)9260/16, submitted that the present case relates only to the incentive scheme, which is applicable to departmental labour and that the handling operations were being carried out in bags of 95 Kgs and 66 Kgs till the year 2000 where a new category of bags of 50 Kgs was introduced as per the recommendation of the International Labour Organisation and related instructions issued by the Government of India and since a new category of bags of 50 Kgs had been introduced, the incentive rates needed to be prescribed for the said new category of 50 Kgs bags and that the corporation entrusted the study for the data of the new category of bags of 50 Kgs to the Delhi Productivity Council and that the Delhi Productivity Council studied the matter elaborately keeping in view all the aspects including time and motion study, health of labourers and recommended 155 bags of 50 Kgs as the datum for the category of 50 bags, but that the Labour Unions did not agree to the said datum and that the Saxena Committee was constituted to look into several aspects including the datum of further new category of bags and a report was submitted by the Saxena Committee which included the recommendation for fixing a datum of 135 bags for 50 Kgs. The respondents have submitted that the said Saxena Committee's report was circulated to the Unions and in fact the FCI Workers Union had written to the Respondent Corporation requesting for the implementation of the Saxena Committee's Report regarding recommendations made in relation to some other aspects.

that there is no extreme hardship that would be effected in the instant case which would affect the workmen adversely in as much as vide the Circular No.5/2006 dated 22.02.2006 itself it had been mentioned that in terms of the provisions of Section 33 of the ID Act, 1947 in as much as the Regional Commissioner (Central), New Delhi was then seized of the industrial dispute and had drawn the attention of the management to the provisions contained in Section 33 of the ID Act, 1947, the implementation of Circular No.18/2005 dated 15.12.2005 had been kept in abeyance and had been served on the FCI Handing Workers Union i.e. the petitioners and that there was notice enough to all the workmen of Circular No.05/2006 dated 22.02.2006 vide which it had been informed to the FCI Workers Union also that the implementation of the Circular No.18/2005 dated 15.12.2005 with regard to the payment of incentive wages as per revised norms to the Department/workers was stayed till the pendency of the dispute, which was then pending before the Conciliation authority and then continued to remain pending before the Industrial Tribunal was notice enough to the workmen that in the event of their claims not succeeding, the recoveries in terms of the revised norms dated 15.12.2005 vide Circular No.18/2005 would become recoverable in view of the unjust enrichment to the workers.