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Sindhu-hochtief (India) (Private), Ltd. Vs. Pratap Dialdas and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Petition No. 113 of 1965
Judge
Reported in(1968)IILLJ515Bom
ActsIndustrial Disputes Act, 1947 - Sections 2, 10, 10A and 17
AppellantSindhu-hochtief (India) (Private), Ltd.
RespondentPratap Dialdas and anr.
Excerpt:
.....- sections 2, 10, 10a and 17 of industrial disputes act, 1947 - dispute in respect of payment of bonus - arbitrator passed award - award challenged on ground that disbursement of bonus as directed will not fall within definition of industrial dispute - undisbursed bonus not dispute under section 2 (k) and cannot be referred to arbitration even with consent of parties - award liable to be quashed and set aside. - - 14 as well as farther directions which are given to the trustees of that trust in cls. i may mention that the memorandum of agreement which was made between the petitioners on the one hand and the workmen on the other also contains recitals which clearly go to show that what was intended to be referred to the arbitration of sri pratap dialdas was an industrial dispute as..........the learned arbitrator also gave directions as regards the manner in which the distribution of bonus awarded was to be effected and amongst the several directions that were given by the arbitrator, one related to the manner in which all undisbursed bonus accumulations remaining unpaid should be disposed of by the petitioners. this particular direction is to be found in clause (l) of para, 14 of the award and it runs as follows : '(l) i further award that the members of the above committee will immediately after publication of this award, form themselves into a public trust under the indian trusts act under the indian trusts act under the name and style of gandhidham workman's welfare trust. the company shall hand over to the trust so formed, after the expiry of one year and thirty.....
Judgment:

1. In pursuance of an order made by the Under Secretary, Ministry of Labour and Employment, Government of India, New Delhi dated 26 August, 1964, under Sub-section (3) of S. 10 of the Industrial Disputes Act, the dispute arising out of the demands made by the workmen of the petitioner Sindhu Hochtief (India) (Private), Ltd., through their union - Kandla Port and Dock Mazdoor Sangh, Gandhidham, was referred to the sole arbitration of Sri Pratap Dialdas of Bombay. It appears that the workers' demand which was referred to the arbitration of Sri Pratap Dialdas was in respect of bonus for the years 1954-55, 1955-56 and 1956-57 and till the date of the closing down of the establishment of the petitioner. The arbitrator made and published his award on 2 November, 1964. While giving his award in respect of the demand for bonus for the said years made by the workers, the learned arbitrator also gave directions as regards the manner in which the distribution of bonus awarded was to be effected and amongst the several directions that were given by the arbitrator, one related to the manner in which all undisbursed bonus accumulations remaining unpaid should be disposed of by the petitioners. This particular direction is to be found in Clause (l) of Para, 14 of the award and it runs as follows :

'(l) I further award that the members of the above committee will immediately after publication of this award, form themselves into a public trust under the Indian Trusts Act under the Indian Trusts Act under the name and style of Gandhidham Workman's Welfare Trust. The company shall hand over to the trust so formed, after the expiry of one year and thirty days of the publication of this award under S. 17 of the Industrial Disputes Act, all the undisbursed bonus accumulations as remaining unpaid as mentioned in Sub-para. (a) above, along with all the record relating to the payment and disbursement of the bonus under this award.'

2. Clause (g) referred to in Clause (l) provided that the company shall commence payment to bonus after thirty days of the publication of this award and to continue to make such disbursement for a period of one year from that date. In other words, reading Cls. (g) and (l) together the learned arbitrator gave directions that the company should made disbursements in the matter of bonus awarded for a period of one year from the date of the publication of this award and thereafter whatever undisbursed bonus accumulation might remain as unpaid, the direction in Clause (l) stated that the company shall hand over the said undisbursed bonus accumulations to the trust, viz, 'Gandhidham Workmen's Welfare Trust.' It is this last direction, which was given by the arbitrator in Clause (l) of Para. 14 of his award that is being challenged by the petitioners as being illegal and beyond the jurisdiction of the arbitrator, and by the petition the petitioners are seeking to quash or set aside the aforesaid direction contained in Clause (l) of Para. 14 as well as farther directions which are given to the trustees of that trust in Cls. (m) and (n) of Para. 14 of the award.

3. The sole ground on which these directions are challenged as being beyond the jurisdiction of the arbitrator is that the subject matter as to what should happen to undisbursed bonus or unpaid bonus that might remain over after the company makes disbursement of the bonus as directed by the award did not fall within the definition of an 'industrial dispute' under S. 2(k) of the Industrial Disputes Act, 1947, read with S. 10A under which only such a dispute could be referred to arbitration, There is no doubt that the present reference to the learned arbitrator was under S. 10A of the Industrial disputes Act, which provides for voluntary reference of an industrial dispute to arbitration. It is obvious that what could be referred to arbitration under S. 10A must be an industrial dispute as defined by S. 2(k) of the Act. Section 2(k) defines 'industrial dispute' as follows :

'(k) 'industrial dispute' means any dispute of difference between employers and employers, or between employers and workmen, or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person.'

4. It is obvious that the subject-matter as to what should happen to the undisbursed bonus cannot be an industrial dispute within the meaning of that expression as given by S. 2(k) of the Act, inasmuch as it cannot be a dispute or difference connected. with the 'employment or non-employment or the terms of employment or with the conditions of labour' of the workmen. The demand for bonus and a dispute relating thereto would be an industrial dispute and it was such a dispute that was obviously referred to the arbitration of Sri Pratap Dialdas under S. 10A of the Act. I may mention that the memorandum of agreement which was made between the petitioners on the one hand and the workmen on the other also contains recitals which clearly go to show that what was intended to be referred to the arbitration of Sri Pratap Dialdas was an industrial dispute as defined by S. 2(k) of the Industrial Disputes Act, 1947, though one of the terms of agreement, being Para. 2 thereof provided that the arbitrator shall have power to decide the extent of and manner in which unclaimed or undisbursed bonus shall be utilized. It appears that prior to the execution of this agreement on 6 August 1957 yet another agreement had been signed by the parties on 9 April, 1957, but that agreement was later found to contain matters which went beyond the scope of the Industrial Disputes Act and therefore, a fresh agreement was executed between the parties on 6 August, 1957. The relevant recitals of the agreement, dated 6 August, 1957 run as follows :

'A joint meeting of the parties was held on 9 April, 1957 and an agreement signed on the same day. The agreement in question, it was later discovered went beyond the scope of the Industrial Disputes Act, 1947, and as such a fresh agreement had to be signed well within the scope of the Act. Hence, this agreement.'

5. The operative part of the agreement contains four classes. Clause 1 in terms refers to arbitration the workers' demand for bonus for the years 1954-55, 1955-56 and 1956-57 and till the date of the closing down of the establishment under S. 10A of the Industrial Disputes Act. Clause 2 as indicated earlier, provides that the arbitrator shall have power to decide the extent of and the manner in which the unclaimed or undisbursed bonus shall be utilized. Clause 3 provides for three months' period within which the arbitration was to be held. It is, therefore, clear that the dispute about bonus for the relevant years was referred to the arbitration of Sri Pratap Dialdas under S. 10A of the Industrial Disputes Act, 1947, and it is obvious that the reference under S. 10A could only be of an industrial dispute as defined by S. 2(k) of the Act. As I have said earlier, the question as to what should happen to the undisbursed bonus cannot fall within the definition of 'industrial dispute' as given by S. 2(k) of the Act. If that be so, even by consent of parties as is to be found in Clause 2 of the agreement, such a matter cannot be referred to arbitration under S. 10A of the Act. In my view therefore, the directions of which complaint is made by the petitioners [directions found in Paras. 14(l) to 14(n)] as to how the undisbursed bonus should be disposed of by the petitioners would be beyond the scope and jurisdiction of the arbitrator. The petitioners are, therefore, right in their contention that the said direction are liable to be quashed or set aside.

6. Sri Joshi, appearing on behalf of respondent 2 (the Kandla Port and Dock Mazdoor Sangh), has contended that if these directions touching the undisbursed bonus were quashed or set aside, the petitioners would be at liberty to utilize the moneys represented by such undisbursed bonus in any manner the company wishes and the union would be deprived of the benefit of that amount which has been directed to be handed over by the company to the trust. Sri Kaka, appearing on behalf of the petitioners, has stated before me that the petitioners will be given an undertaking that they do not wish to claim any beneficial interest in that amount of undisbursed bonus and that the petitioner company is prepared to keep that amount with the Regional Labour Commissioner, Central Bombay, with whom the amount has been deposited during the pendency of this petition and the Court may be given appropriate directions in that behalf.

7. I, therefore, record the undertaking which has been given by the petitioner-company through their, counsel Sri Kaka to this Court that the petitioner-company does not and will not claim any beneficial interest in the said amount that is lying with the said Regional Labour Commissioner. I further direct that the said amount should remain with the said Regional Labour Commissioner for a period of six months, within which time respondent 2 may obtain appropriate relief from appropriate authorities in respect of that amount, failing which the Regional Labour Commissioner will pay over that amount to the appropriate authority under the Bombay Labour Welfare Fund Act, 1953. The petition is, therefore, allowed is terms of prayer (a). No order as to costs.


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