Industrial Disputes Act, 1947 - Sections 33C and 36A
1. This is a reference made to me under S. 36A of the Industrial Disputes Act, 1947, for interpretation of the award in Reference (I.T.) No. 165 of 1957 in the dispute between the Krishna Steel Industries (Private), Ltd., Bombay, and the workmen (including the staff) employed under it. The dispute in the said reference related to three demands -
(1) production bonus,
(2) lockout and lay-off wages for the period from 25 February 1957 to 24 April 1957, and
(3) the reinstatement of two workers Sri Mohamed Yasin and Kasim Sharmuddin.
With regard to the said two workers the demand stood thus :
'Sri Mohamed Yasin, T. No. 136, and Sri Kasim Sharmuddin, T. No. 121, should be reinstated immediately on the same post and with the same conditions of service, which they were getting prior to their termination of service. They should also be paid full wages for the period from 26 April, 1957 to the date of their reinstatement. They should also be given other benefits which may be given to other workmen during the intervening period.'
2. In the reference the award dated 12 June 1959 was given by the then industrial tribunal consisting of Sri J. A. Baxi and it has been published in the Bombay Government Gazette, Part I-L, dated 25 June, 1959, at pp. 2772 to 2787. The demand 3 regarding the reinstatement of the aforesaid two workers has been considered from Para. 35 at p. 2785 onwards and in Para. 38 the tribunal has observed :
'. . . Considering all the circumstances I am satisfied that in selecting these two men for disciplinary action and punishment, the company has been actuated by a motive to victimize them for being members of the works committee. The misconduct alleged against them is not proved and therefore they should be reinstated in their former posts.'
Then in Para. 39 follow the directions :-
'For these reasons I set aside the dismissals of Yasin and Kasim and direct that they should be reinstated in service with full pay from the date of suspension till reinstatement together with all advantages which may have been given to other workmen during the period.'
3. It appears that the workers were chargesheeted on 26 April 1957 and suspended with effect from the same date. Eventually they were dismissed for an alleged misconduct on 6 May, 1957 and in implementation of the award they have already been reinstated on 19 August, 1959 together with payment of back-wages from 26 April, 1957 to 19 August, 1959. As conceded on behalf of the company, it is further prepared to give and has already given all the other advantages or benefits due to the workmen concerned. There has arisen a difference between the parties only on one point and that is with respect to the payment of production bonus for the intervening period. In making the present reference by the Government letter No. AJK 8160/LAB-II, dated 10 August 1960, it has there been stated :
'I am directed to enclose a copy of a letter dated the 23 April 1960 and its accompaniment from the secretary, Engineering Mazdoor Sabha, Bombay, on the above subject and to state that in the opinion of Government a doubt has arisen as to the interpretation of the directions of the tribunal in Para. 39 of the award dated 12 June, 1959 of the industrial tribunal. Bombay, in Reference (I.T.) No. 165 of 1957 in the dispute between the Krishna Steel Industries (Private), Ltd., Bombay, and the workmen (including the staff) employed under it as it is not clear whether the directions in the said paragraph entitle Sri Mohamed Yasin and Sri Kasim Sharmuddin to claim production bonus for the period during which they were removed from service, as the other workmen who were in the service then were paid the same ...'
4. In its letter dated 23 April 1960, the Engineering Mazdoor Sabha has stated inter alia :
'There workmen were reinstated by the company and they were paid basic wags and dearness allowance only. These workmen were not paid production bonus which was paid to other workmen and which they would have earned, had they been in the employment from 26 April, 1957 to 19 August, 1959. The sabha contends that these workmen are entitled to production bonus for the said intervening period. It seems that contention of the company is that these workmen are not entitled to production bonus for the said intervening period. In view of the above difference between the company and the workmen represented by the Engineering Mazdoor Sabha, it is requested that the tribunal may be pleased to interpret the directions given in Para. 39 of the award and clarify the following issue :- 'Whether Sri Mohamed Yasin and Sri Kasim Sharmuddin are entitled to production bonus earnings for the period of 26 April 1957 to 19 August 1959.''
5. As stated above, one of the demands in the reference related to production bonus whereby it was desired to reintroduce an earlier production bonus scheme in place of the one introduced by the company with effect from 19 February, 1957. The matter went up to the Supreme Court and there the parties have taken a consent order with which we are not directly concerned in the present reference. It is an undisputed fact that the scheme now in force is that which the company introduced with effect from 19 February, 1957 and this will be the scheme applicable for the intervening period from 26 April, 1957 to 19 August, 1959 in respect of which the production bonus is claimed on behalf of the concerned workers. The said scheme is no the record of the main reference and in accordance therewith the workers eligible to the production bonus have already been paid the same. The two concerned workmen are respectively assistant chargeman and tongsman and these categories are covered in the existing scheme of production bonus which is paid on certain percentage basis groupwise. The other assistant chargeman and tongsmen have received the production bonus admissible to them during the intervening period and the concerned workmen are denied the same on the ground that they had not put in any work during the period in question.
6. Sri Joshi for the company referred to Paras. 6 and 7 of the written statement filed on behalf of the company and argued that production bonus paid by the company depends on actual production turned out with the result that unless a workman has actually worked and contributed to production, he cannot lay claim for such bonus and that accordingly a workman who is on leave is not eligible to production bonus. He further pointed out that even if the concerned workmen had not been dismissed, there could be no guarantee that they would have been on work all throughout the period in question and earned the production bonus in respect thereof; and moreover the production bonus is neither an advantages nor a benefit given to all the workmen of the company, depending as it does on the actual production and the workers' contribution to the same. Sri Ram Desai after referring to the sabha's statement filed in reply to the company's written statement argued that the production bonus scheme which is on the record of the main reference does clearly indicate that the rates of production bonus are fixed for the categories to which the concerned workmen belong and the payment of production bonus to these categories is on group basis and does not vary from workman to workman. There would thus be no difficulty in computing the bonus payable to the concerned workmen and it should not be open to the company to deny their claim on the ground that they have not put in any production during the intervening period, when in fact this position arose due to the company's own wrongful act in victimizing them by dismissals which have not been upheld by the industrial tribunal.
7. In my opinion there is not much force in the contentions raised on behalf of the company and if such arguments were to prevail, a worker may be found disentitled even to claim back-wages or other benefits for the period during which he remained under forced unemployment resulting from the wrongful dismissal by an employer. In the present case but for the management's own wrongful act of victimization, the workers would have been in a position normally to contribute to production during the period they remained under forced unemployment and it should not be open to the management to take advantage of its own wrong. The analogy of a worker going on leave has no application, inasmuch as his going on leave is an act of his volition and if, during the leave period he has not contributed to production there does not arise any case for his eligibility to production bonus. A wrongful dismissal of a worker by way of victimization as in the present case is an act imposed on him by an employer with ulterior motive. Thus the wrongful dismissal of a worker stands altogether on a different footing where the worker for no fault of his own has been removed from service and consequently prevented from doing his normal work which he would have otherwise done under ordinary circumstances. Ordinarily when the dismissal of a worker is set aside and he is directed to be reinstated with back-wages and all other benefits, he is entitled to be placed in status quo ante as if he had never been dismissed. In the award ambiguity has been left in this connexion and it has been stated in clear terms that the concerned workmen should be reinstated in service with full pay from the date of suspension till reinstatement together with all advantages which may have been given to other workmen during the period. The other workmen during the period have got the advantage of earning production bonus, which advantage the concerned workmen were deprived of because of the wrongful action on the part of the company as amounting to victimization. If production bonus is not an advantage or benefit forming part of the service conditions of the workmen concerned, we fail to understand for what the production scheme as is in operation in the company stands. So long as the production bonus scheme prevails in the company as it now admittedly does, it forms part of the service conditions of the workers who are entitled to earn the same as per its terms and the payment thereof does not depend on the mere pleasure of the company. In my opinion, the position taken up by the company is misconceived and it is not open to the management to deny the advantage or benefit of production bonus to the reinstated workmen for the intervening period, namely, 26 April 1957 to 19 August 1959.
8. In this reference made under S. 36A of the Act, I have only to interpret the relevant portion of the award and not to determine the amount of production bonus due to the workers concerned. For the purpose of computing or determining the benefit if so necessary, the proper steps may be taken under S. 33C of the Act or by raising an independent industrial dispute according as it may be open under law. In so far as this reference is concerned, I hold that under the directions given in Para. 39 of the award it is open to the concerned workmen to claim production bonus, as the other workmen who were in service then were paid the same, during the period they were removed from service, i.e., from 26 April, 1957 to 19 August, 1959, and I decide the point referred to me for interpretation accordingly.