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Mansukh Gopinath Jadhav Vs. W.M. Bapat and Others - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberW.P. No. 632 of 1981
Judge
Reported in[1981(43)FLR243]; (1982)ILLJ144Bom
ActsBombay Industrial Relations Act, 1946 - Sections 27A, 30, 32, 33-A, 42(2), 72, 73-A, 78(1)A, 80; Payment of Wages Act - Sections 7, 23
AppellantMansukh Gopinath Jadhav
RespondentW.M. Bapat and Others
Excerpt:
(i) labour and industrial - settlement - sections 27a, 30, 32, 33-a, 42 (2), 72, 73-a, and 80 of bombay industrial relations act, 1946 and sections 7 and 23 of payment of wages act - writ petition filed challenging settlement arrived at between union and management on ground that it was contrary to provisions of law - under act of 1946 individual employees restrained from appearing in proceedings or objecting to course adopted by representative union for settlement which representative union enters for benefit for large number of its employees - dissatisfaction of some of employees should not be permitted to disturb bargaining power of union - not open for employee to challenge settlement arrived at between union and management on ground that same was contrary to law - writ petition not.....pendse, j.1. the petitioner is an employee of respondent no. 2, the sanjivani (takal) sahakari sakhar karkhana limited and the petition is filed in a representative capacity on behalf of all the employees of respondent no. 2 to challenge the validity of the award dated january 28, 1981 passed by the industrial court, poona, in a reference under s. 73-a of the bombay industrial relations act, 1946 (hereinafter referred to as the 'act').2. respondent no. 2 is running a sugar factory at shingnapur, district ahmednagar and the provisions of the act are made applicable to the sugar industry. the respondent no. 3 is a registered trade union under he trade union act. 1926 as well as the representative and approved union under the provisions of the act for the sugar industry in the local area of.....
Judgment:

Pendse, J.

1. The petitioner is an employee of respondent No. 2, the Sanjivani (Takal) Sahakari Sakhar Karkhana Limited and the petition is filed in a representative capacity on behalf of all the employees of respondent No. 2 to challenge the validity of the Award dated January 28, 1981 passed by the Industrial Court, Poona, in a reference under S. 73-A of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the 'Act').

2. Respondent No. 2 is running a Sugar Factory at Shingnapur, District Ahmednagar and the provisions of the Act are made applicable to the sugar industry. The respondent No. 3 is a registered trade union under he Trade Union Act. 1926 as well as the representative and approved union under the provisions of the Act for the sugar industry in the local area of Kopargaon Taluka. The conditions of service of the employees working in the sugar factory in Kopargaon Taluka were settled by various trade unions with the employers and these settlements were to expire on September 30, 1978. Prior to the expiry of this period, a charter of demands was served by the trade unions on the employers. There are two central organisations of the Maharashtra Sugar Workers to which various trade unions of the sugar workers are affiliated and these two central organisations are :- (1) Maharashtra Rajya Sakhar Kamgar Pratinidhi Mandal and (2) Maharashtra Rajya Sakhar Kamgar Kriti Samiti. Though the charter of demands was submitted by several trade unions, no effective settlement could be arrived at between the employer and the employees in spite of the appointment of a Tripartite Committee under the Chairmanship of the Labour Minister. Ultimately, various trade unions gave a call for the strike in the sugar industry and that led to the intervention by the Chief Minister in the demands made by the employees.

3. The Chief Minister of Maharashtra gave certain Award on November 26, 1979, and on the strength of that Award, a Tripartite agreement between Maharashtra Rajya Sahakari Sakhar Karkhana Sangh Limited and Deccan Sugar Factories Association and the Maharashtra Rajya Sakhar Kamgar Pratinidhi Mandal was arrived at on January 21, 1980. Maharashtra Rajya Sakhar Kamgar Pratinidhi Mandal was representing the workers in the sugar industry. By this agreement certain advantages in regard to the basic wages and dearness allowance were conferred on the employees and cl. '10(c) of the agreement provides that every sugar factory should enter into an agreement with its recognised union as pert he agreement and should implement it. In pursuance of this agreement, the respondent No. 2, Karkhana issued an officer order on February 15, 1980, providing for implementation of the terms of the agreement from January 1, 1980. Prior to this date, the employees working in respondent No. 2 factory had gone on strike from January 22, 1980 to January 24, 1980, Subsequently, the strike was declared as illegal by the Labour Court. The second respondent implemented the agreement by giving first installment to the workers on April 21, 1980, and the second instalment was paid at a later date. Before the third and the last instalment was due, the respondent No. 3 which is the representative and approved union under the Act served a notice of change as contemplated under S. 42(2) of the Act on the Managing Director of the Karkhana. The copy of that notice is annexed as Ext. 'C' to the petition. By this notice, the Managing Director of respondent No. 2 was Intimated that the representative - union desires a change a specified in the annexure to the letter. The annexure to the letter sets out that the second respondent is not implementing the tripartite agreement reached on January 21, 1980, and the respondent No. 3 called upon the respondent No. 2 to implement the same forthwith.

4. The notice of change led to the filing of the reference for arbitration under S. 73-A of the Act before the Industrial Court at Poona and the proceedings were numbered as Reference (IC), No. 44 of 1980. During the pendency of the reference, an amicable settlement was arrived at between respondents Nos. 2 and 3 and on January 28, 1981, a joint application was filed before the Industrial Court for passing the Award in terms of settlement. The copy of the settlement is annexed as Ext. 'CU-1' to the petition. The Member of the Industrial Court thereupon passed the award in terms of the settlement. The relevant Clause in the consent agreement arrived at between respondents Nos. 2 and 3 is clause 9 and that clause has given rise to the filing of this petition. By clause 9 it was provided that in view of the heavy expenditure incurred by the union, it was agreed between respondent No. 2 and respondent No. 3 the Karkhana should deduct an amount equivalent to 7% of the net arrears payable to the employees under the agreement and pay the said amount of contribution of the employees directly to their representative union, the Industrial Court noticed that though prima facie, the said term may appear detrimental to the interests of the employees, still for the reasons given in the settlement and this amount being a sort of contribution to be made by the employees towards the huge expenses incurred by the representative-union for the efforts and measures undertaken and also to further the interests of the workers, the settlement inclusive of clause 9 is just and reasonable and in the interest of the employees. The petitioner has challenged the validity of the Award relating to C.9 of the consent terms by this petition filed under Art. 226 of the Constitution of India.

5. The petitioner claims that though the respondent No. 3 is a representative and approved Union of the Sugar Industry in the local area, i.e., Kopargaon Taluka, most of the employees of respondent 2 are not members of respondent No. 3 union. The petitioner claims that in view of cl.9 of the consent terms, each of the employees of respondent No. 2 is going to suffer loss of an amount of Rs. 50 approximately. The petitioner claims that about 550 workmen of respondent No. 2 out of 750 workmen are supporting the claim made by him. The challenge to cl. 9 of the consent terms is based on two or three grounds. The petitioner claims that cl.9 of the consent terms is in contravention of the provisions of Section 7 and S. 23 of the Payment of Wages Act, 1936. The second contention is that the Award passed by the Industrial Court travels beyond the reference filed by the representative-union and the last contention is that the Industrial Court had no jurisdiction to entertain the reference as the dispute squarely falls under S. 78(1)A(iii) of the Act within the exclusive jurisdiction of the Labour Court. The petitioner claims that on these counts though the Award should be upheld, cl.9 of the consent terms should be struck down as invalid.

6. The respondents Nos. 2 and 3 oppose the claim made by the petitioner and a preliminary objection is raised to the maintainability of the petition itself. It was urged that in the provisions of representation contained in the Act, it is not open for any employees to appear in the proceedings when the proceedings are conducted by the representative-union. The respondents claim that cl.9 of the consent terms is not, at all, in contravention of S. 7or S. 23 of the Payment of Wages Act. It is urged that what has been provided by the impugned clause is not deduction out of the wages due to the employees but the contribution made by the employees but the contribution made by the employees for the cause of the union. The counsel for respondents Nos. 2 and 3 placed reliance upon the provisions of S. 7(2)(h) of the Payment of Wages Act to urge that the contribution, even if, treated as deduction is perfectly valid as it has been approved by the Court. The challenge of the petitioner to the Award on the ground that it travels beyond the claim made in the reference is denied and so also the contention that the Industrial Tribunal had no jurisdiction to entertain the dispute or to pass the Award. After considering the rival claims, in our judgment the petition is misconceived and the petitioner is not entitled to any relief.

7. Before adverting to the contentions of Dr. Kulkarni, the learned counsel appearing in support of the petition, it would be appropriate to deal with the preliminary objection raised by Shri Cama and Shri Shetye the learned counsel appearing for respondents No. 2 and 3 respectively, to the maintainability, of the petition. The respondents claimed that the petitioner could not lodge the petition in this Court under Art. 226 of the Constitution of India and circumvent the provision of the Act which prevent an individual employee or a group of employees from appearing in the proceedings where the representative - union is represented. To appreciate the submission, it is necessary to refer to certain provisions of the Act. It is not in dispute that the respondent No. 3 is an approved representative-union of sugar industry in the local area of Kopargaon. An 'approved union' means a union on the approved list maintained under Section 12 of the Act, while the 'representative-union' is one for the time being registered as a representative-union under the Act. Section 27A of the Act provides that no employee shall be allowed to appear or Act in any proceeding under the Act except through the representative of employees. The representative union for an industry is recognised as the representative of the employees under S. 30 of the Act. A power had been conferred under S. 32 of the Act on the Industrial Court if it considers it expedient for the ends of justice to permit an individual, whether an employee or not, to appear in any proceeding before it. Section 33-A of the Act, inter alia, provides that in dispute between the employees and the employees referred to arbitration under S. 72 all persons who are parties to the dispute, a hall be entitled to appear and act in the proceedings provided that where the number of employees on either side exceeds five, then such employees shall elect two persons from amongst themselves to appear and act for them. Section 80 of the Act requires the Labour Court to issue notice to all parties affected by the dispute and can permit the parties so affected to appear in the proceedings. Considering all these relevant provisions of the Act, it is obvious that save and except the representative-union, no other person or an employee are permitted to appear in the proceedings taken under the Act.

8. The Supreme Court was required to consider the ambit of these provisions in a decision in the case of Santuram Khud ai v. Kimatrai Printers and Processors Pvt. Ltd., and others, : (1978)ILLJ174SC The Supreme Court, after taking the review of the relevant sections, held that Legislature has clothed the representative-union with plenary power to appear or act on behalf of the employees in any proceedings under the Act and has deprived the individual employees or workmen of the right to appear or act in any proceedings under the Act where the representative union enters appearance or act as representative of employees. The Supreme Court observed that these salient provisions were made to advance avowed policy of preventing the exploitation of the workers and augmenting their bargaining power. The Supreme Court further held that where the representative union enters appearance, then the employee does not get a right to enter appearance even on the ground that union is not acting for and on behalf of the employees but is acting mala fide an against the interests of the employees. The Supreme Court held that if the employees find that the representative-union is acting in a manner which is prejudicial to their interest, then their remedy lies in invoking the aid of the Registrar under Chapter III of the Act and asking him to cancel the registration of the union. Relying heavily upon the dictum laid down by the Supreme Court it was urged on behalf of the respondents that the petitioner could not have appeared before the Industrial Court or raised any objection to the pass of the Award when respondent No. 3 was acting and prosecuting the proceedings on behalf of the employees and, therefore, it would not be appropriate to permit the petitioner to challenge the Award by this petition filed under Art. 226 of the Constitution of India. We find considerable merit in the preliminary objection raised by the respondents of the maintainability of the petition. The combined effect of the various Sections of the Act is to restrain the individual employee from appearing in the proceedings or objecting to the course adopted by the representative union for the settlement which the representative union enters into for the benefit of a large number of employees. The petitioner could not have resisted the settlement arrived at between respondent Nos. 2 and 3 before the Industrial Tribunal, nor could have challenged the passing of the Award and as such it would not be proper to permit the petitioner to raise objection to the passing of the Award, merely because, the petitioner claim that he represents some of the employees in the Factory of respondent No. 2. It is desirable that the bargaining power of the representative union should not be disturbed by an individual employee or a group of employees resisting the decision taken by the representative-union, for the benefit of a large number of employees in a particular industry.

9. Dr. Kulkarni did not very seriously dispute that before the Industrial Tribunal it was not possible for the petitioner or any other employees to appear or resist the passing of the Award. Dr. Kulkarni did initially submit that the decision of the Supreme Court would not apply because of the certain amendments carried out in the Act, but at a later stage, very rightly accepted the position that an individual employee or a group of employees cannot resist the proceedings before the industrial Tribunal. Dr. Kulkarni urged that it may be that the petitioner could not have appeared before the industrial Tribunal but it is certainly open for him to maintain this petition when the settlement and the Award passed is in contravention of the provisions of the Payment of Wages Act. It is urged that merely because an employee is not permitted to appear in the proceedings under the Act, that would not give a Charter to the representative-union to enter into settlement which are void on the face of it, We do not find much merit in the submission because, in our judgment, if any employee is permitted to open the settlement arrived at between the representative-union and an Award passed thereto on these grounds, then, there would be spate of litigation leading to the industrial unrest. The rivalries between the unions or the dissatisfaction of some of the employees should not be permitted to disturb the bargaining power of the representative union. The anxiety of the Legislature in making provisions of the Act enabling only representative-union to represent the employees is very salutary and we are no inclined to hold that it is open for an employee to challenge the settlement arrived at by the representative-union or an Award passed thereon on the ground that the settlement is contrary to the provisions of law. In these circumstances we are inclined to accept the preliminary objection of the respondents and hold that the petitioner is not entitled to file this petition.

10. Apart from the conclusion recorded by us about the maintainability of the petition, we propose to examine the grievance of the petitioner in respect of the validity of cl.9 of the consent terms and the Award passed in pursuance thereof. The submission of Dr. Kulkarni is that cl.9 of the settlement is in contravention of the provisions of Section 7and Section 23 of the Payment of Wages Act. Before assessing the merit in this submission., it would be appropriate to set out cl.9 of the consent terms in detail.

'The employees and their representative unions functioning in the Sugar Industry in 'Maharashtra Rajya Sakhar Kamgar Pratinidhi Mandal' duly registered under the Trade Unions Act with a view to giving proper guidance to employees, educating and training the employees in trade union activities and framing unanimous character of demands as also approaching the various employers, in the sugar industry, their associations, various authorities under the State and the Central Government. Accordingly, the said Mandal served a charter of demands on the Associations of the Employers, the individual employers as well as the State Government. For this purpose, the representative-unions, being the constituents of the said Mandal, were advised by the Mandal to under take the following activities :

For the purpose of securing the demands of the employees such as wage scales, dearness allowance, annual increments, classification, gratuity, etc., the representative-unions functioning in the Sugar Industry in Maharashtra State had undertaken whir/wind tours in the entire Stated, addressed a number of meetings at different places, arranged rallies, stage demonstrations, attended various meetings convened by their various meetings convened by their employers and their associations as also Government Officials and the State and General Ministers during the last three years and had to incur a huge expenditure on this account.

It was, therefore, decided that the representative union, after entering into an agreement/settlement with their respective employers, shall collect a certain amount from the arrears payable to the employees under the settlement/agreement or award. It was also decided that a reasonable percentage of the said certain amount shall be paid by the representative-unions to the Pratinidhi Mandal as their contribution towards the Mandal's activities.

In view of the heavy expenditure incurred as aforesaid by the Union, it is hereby agreed by and between the parties that the Karkhana shall deduct an amount equivalent to 7% of the net arrears payable to the employees under this agreement/settlement or award through pay sheet as contributions of employees towards the aforesaid expenses and pay the same to the representative-union directly'.

The settlement was arrived at on January 28, 1981 and as mentioned herein above, the representative-union was fighting for the rights of the employees for a considerably long time. It is also necessary to mention at this stage that by the settlement arrived at between respondents Nos. 2 and 3, the benefits conferred upon the employees are far greater in number than those were assured by the Chief Minister and by the Tripartite agreement arrived at on January 21, 1981. By the settlement between respondents Nos. 2 and 3, during the pendency of the petition of reference before the Industrial Tribunal, the employees of respondent No. 2 were given graduated D.A. and special allowance which was not provided by the Award of the Chief Minister. An ad-hoc increase in wages from October 1, 1978, was made applicable to all the employees other than the skilled, while the Chief Minister's Award limited it only to the Supervisors. In addition to what was awarded by the Chief Minister, the settlement has given all the employees a special allowance of Rs. 22.16 per month with effect from October 1, 1978. The unskilled employee in addition to the amount of Rs. 2 awarded as increment by the Chief Minister, get Re. 1 more by the settlement. The settlement also conferred on the employees who have reached the maximum in their respective scales, the increment at the last drawn rate of increment at the last drawn rate of increment plus Rs. 2 per annum. The benefit of the settlement, was made available to the employees who were in service on October 1, 1978, and who were engaged in manufacturing of sugar and were covered by the recommendation of the second wage Board for the sugar industry but did not remain in service thereafter because of the superannuation or death. All these advantages were conferred on the employees of respondent No. 2 though that was not what was provided by the award of the Chief Minister. In other words, the respondent No. 3 union secured larger and greater benefits to the employees of respondent No. 2 by arriving at a settlement than what was provided by the tripartite agreement arrived at in pursuance of the Chief Minister's award. This aspect is highlighted only to emphasise that the respondent No. 3 was acting bona fide for the benefit of the employees of the sugar industry and that of respondent No. 2 and the settlement was certainly not to the detriment of the interests of the workers.

11. With this background, now it is necessary to consider whether clause 9 of the consent terms offends the provisions of S. 7and S. 23 of the Payment of Wages Act. Section 7(1) provides that the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under the Act. Section 23 of the Payment of Wages Act declares that any contract or agreement, whether made before or after the commencement of the Act and whereby any employed person relinquishes any of the rights conferred by the Act shall be null and void in so far as it purports to deprive him of such rights. It was urged on behalf of the petitioner that the expression 'wages' as defined under S. 2(vi) means all remuneration expressed in terms of money or capable of or payable to a person employed in respect of his employment and would include any remuneration payable under any award or settlement between the parties or an order of the Court. There cannot be any dispute that the expression 'wages' would cover every payment which the employee is entitled to recover from his employer either under the contract or by settlement or by an order of the Court. Relying upon these provisions, it was urged that Clause 9 of the settlement provides for deduction of 7% of the net arrears payable to the employees under the settlement and, therefore, such settlement is in contravention of the mandate of S. 7(1) of the Payment of Wages Act. The submissions cannot be accepted for various reasons. In the first instance, it must be noticed that the employer who is liable to pay the wages to the employee is not making any deduction under the settlement arrived at. The payment to the employees is assured but what has been provided is that the employees would contribute 7% of the arrears to the union. The deductions, therefore are not made by the employer nor such deductions would gain any advantage to the employer. Explanation 1 to S. 7of the payment of Wages Act makes it clear that every payment made by the employed person to the employee or his agent shall be deemed to be deduction from wages. What is important to no is that deduction is made either by the employer or his agent and by no stretch of imagination, the representative union could be said to be an agent of the employer. Secondly, sub-section (2) of S. 7permits deductions from the wages of an employed person in certain contingencies and clause (h) to sub-section (2) of Section 7 of the Payment of wages Act permits deductions required to be made by an order of the Court or other authority competent to make such order. There are other clauses in the sub-section which permit deduction with the authorisation of the employee for payment of premium of his Life Insurance Policy or payment of Co-operative Societies or payment of Insurance premium on Fidelity Guarantee Bonds, etc. The reading of S. 7 of the Payment of Wages Act makes it clear that an employer of his agent cannot deduct any part of the wages due to the employee but in certain contingencies, such a deduction can be made with the consent or approval of the employee. In other words, S. 7 of the Payment of Wages Act does not create a blanket ban for deduction, but provides for deductions in certain cases, subject to the approval of the employee. In the present case, the deductions are approved by the employees because the representative union is entitled to represent the employees of the sugar industry in the local area. The representative-union has under taken several steps to secure the demands of the employees, such as wages scales, dearness allowance, annual increments, gratuity, etc. and for securing them these advantages, the employees through their representative - union agreed that 7% of the net arrears should be contributed for the working of the union and be paid directly to the representative union. We do not find anything illegal in the action of the employer or the representative - union in arriving at such a settlement and, in our judgments, cl.9 of the settlement in no way contravenes the provisions of Section 7 of the Payment of Wages Act. There is one more aspect of the matter which cannot be overlooked. Clause (h) to sub-section (2) of Sections 7 of the Act as mentioned hereinabove enables deductions required to be made by an order of the Court. Though respondents Nos. 2 and 3 had arrived at the consent terms, the deduction was not made on the strength of such settlement but is made because of the order passed by the Industrial Court. In other words, the consent terms received a seal of approval of the Industrial Court. The Industrial Court very rightly took into consideration the fact the employees received several additional advantages than those provided by the Chief Minister's award and to secure these advantages, the union was required to undertake several steps and, therefore, the settlement providing for contribution of 7% of the net arrears to the union directly was just and reasonable in the circumstances of the case. In our judgment, once the settlement arrived at by the respondents received the seal of approval by the Industrial Court, the deduction is perfectly permissible under cl. (h) of sub-s. (2) of S. 7 of the Payment of Wages Act. We wish to make it clear that the grievance of the petitioner that the employees have been deprived of 7% of the arrears and that amounts to deduction is not correct because there is no deduction in any of the amounts due to the employees and cl.9 of the consent terms merely provides for the contribution of that amount to the representative-union. The submission on behalf of the petitioner that cl.9 of the settlement is in contravention of S. 7 and S. 23 of the Payment of Wages Act is misconceived and deserves to be turned down.

12. Dr. Kulkarni then submits that the recognised union has arrived at the settlement and secured the award without the petitioner or the employees of respondent No. 2 union knowing the implications of the settlement. The learned counsel argued that though the employees of respondent No. 2 union are happy with the offer, terms, of the settlement cl.9 of the consent terms is to their detriment and, therefore, they are entitled to claim that the representative-union should not have provided for contribution of 7% of the net arrears to the union directly from the employer. The submission cannot be entertained because it must be remembered that when the representative - union enters into a settlement, it is really the settlement arrived at by the employees themselves. It is not also permissible for the employee to claim that part of the settlement which is advantageous to him is acceptable to him, while one which is detrimental to him, should be turned down, In arriving at the settlement, the parties have to give and take and merely because some part of the settlement is not found advantageous by some of the employees, the settlement cannot be termed as contrary to law By the settlement arrived at between the respondents. Large number of advantages and in fact, more than what was awarded by the Chief Minister was conferred on the employees and in such circumstances, it is not permissible to complain that the contribution of 7% of the net arrears to the union is to the detriment of the employees. The 7% of the net arrears works out to hardly Rs. 150 per employee and it could not be, by any stretch of imagination, turned as detrimental to their interest, In this connection, the reliance placed by Mr. Cama on the decision of the Supreme Court in the case of Herbertsons Ltd. v. The Workmen of Herbertsons Ltd., and others, A.I.R. 1977 S.C. 322, is appropriate. The Supreme Court observed that when a recognised union negotiates with an employer the workers as individuals do not come into the picture and it is not necessary that each individual worker should know the implications of the settlement as the recognised union protects the legitimate interests of the workers while entering into the settlement. The Supreme Court further observed that the justness and fairness of the settlement has to be considered in the light of the conditions that were in force at the time of the reference as the negotiations take place in the atmosphere of give and take and are encouraged in the interests of general peace and well-being. The settlement, therefore, observes the Supreme Court, has to be taken as a package deal and when the labour has gained in the matter of wages, the settlement cannot be said to be unfair and unjust merely because there is some reduction in the matter of dearness allowances. In our judgment, the settlement entered into by respondents Nos. 2 and 3 is very just and fair and it does not in any way contravenes the provisions of S. 7 and Section 23 of the Payment of Wages Act. The grievance of the petitioner that it is detrimental to the interests of the employees is without any substance and deserves to be repelled.

13. Dr. Kulkarni challenged C.9 of the consent terms on the ground that the award passed in terms thereof has travelled beyond the reference made by respondent No. 3 union. The learned counsel relied upon the judgment of the Supreme Court in the case of Workmen of British India Corporation Ltd. v. British India Corporation Ltd., 1965 II L.L.J. 433, and submitted that the question of deduction of contribution of 7% of the net arrears to the union did not comprise the reference or it could not have been considered even as incidental to the proceedings adopted by the union. The submission of the learned counsel cannot, be accepted. The reference made by the union to the Industrial Court was for implementation of the award passed by the Chief Minister and it was in respect of the service conditions of the employees. The employees were demanding higher wages, dearness allowance and other benefits and the representative-union was insisting that respondent No. 2 should implement the same. Dr. Kulkarni urges that the respondent No. 2 had already started implementing the Award given by the Chief Minister and the reference was sought by the union only with an idea to secure an approval of the Court to their proposed desire of obtaining deduction of 7% of the net arrears. We are not impressed by this submission. In the first instance, the Tripartite agreement entered into on January 21, 1980, specifically provided that every sugar factory should enter into an agreement with the recognised union as per the terms of the Tripartite agreement. In spite of this, no agreement was arrived at between respondent No. 2 and respondent No. 3 but on the other hand, the respondent No. 2 merely issued an Office Order on February 15, 1980. Prior to this date, the employees of respondent No. 2 had gone on strike which was subsequently declared as illegal. As respondent No. 2 had not entered into an agreement with the representative-union, it was necessary for respondent No. 3 to seek the reference. The grievance of Dr. Kulkarni that the reference was sought only with a view to secure deduction not permissible under the Payment of Wages Act is without any substance. Once the reference was filed, the respondent No. 2 and the representative-union arrived at certain terms and the terms conferred many advantages on the employees which were not given by the Chief Minister's Award. In these circumstances, it is impossible to conceive that the reference was sought only with a view to by-pass the provision of Section 7 of the Payment of Wages Act. In the settlement arrived at between the respondents, the terms referred to service conditions of the employees. The reference itself was for implementation of the Award which refers to the service conditions. In these circumstances, it is futile to claim that cl.9 which provides for contribution of the employees to the funds of the union is beyond the scope of the reference. The reference was for securing better conditions of service for the employees and after those advantages were granted, cl. 9 providing for contribution is merely an outcome to the sanction of the additional advantages. In our judgment, the settlement was perfectly within the compass of the terms of the reference and the grievance that Clause 9 travels beyond the terms of the reference is not correct.

14. The last submission urged by Dr. Kulkarni is that the Industrial Court had no jurisdiction to entertain the reference made by the union. The learned counsel urged that under S. 78(1)A(iii) of the Act, the dispute regarding any change made by the employer or desired by an employee in respect of the industrial matter specified in Schedule III (except item (5) thereof) and matters arising out of such change could be entertained only by the Labour Court and not by the Industrial Court. The learned counsel submitted that the reference filed by the union before the Industrial Court in these circumstances, was misconceived. The submission is not correct. In the first instance, there was no dispute between the employer and the employee in respect of change or the matters arising out of such change. The employer, respondent No. 2, has no objection to the contribution made by their employees to the union directly. In the absence of any dispute about the change desired by the employee in respect of any industrial matters specified in Schedule III of the Act, the submission of Dr. Kulkarni that only the Labour Court and not the Industrial Court had jurisdiction cannot be accepted. The other aspect of the matter is that the dispute covered by Item 5 of Schedule III are excluded from the jurisdiction of the Labour Court and are to be tried exclusively by the Industrial Court. Item 5 in Schedule III reads as under :

'Construction and interpretation of awards, agreements and settlements'. The dispute before the Industrial Tribunal was in respect of implementation of the Award given by the Chief Minister and the question was one incidental to the subject covered by Item 5 in Schedule III. Apart from these considerations, we are not inclined to accept the submission of Dr. Kulkarni that Industrial Court had no jurisdiction because the award which is beneficial to the employees in general should not be disturbed on these technical considerations. No prejudice whatsoever is shown by the reference being entertained by the Industrial Court. We are not inclined to disturb the award in exercise of the writ jurisdiction even assuming that the contention of Dr. Kulkarni about the jurisdiction is correct. The writ jurisdiction is to be exercised for advancing the cause of justice and not to defeat the same on technical considerations. Dr. Kulkarni invited our attention to the decision of the single Judge of this Court in the case of Municipal Corporation of Greater Bombay v. N. L. Abhyankar and others, : (1979)IILLJ258Bom and urged that the learned Judge had concluded that the deductions were authorised under Section 7(2)(h) of the Payment of Wages Act by an order of the Court and such Court means the Labour Court. In our judgment the decision relied upon by the learned counsel would not help him in his contention that the Industrial Court in the present case had no jurisdiction to decide the matter. In our judgment, the challenge to the award is misconceived and deserves to be turned down.

15. Accordingly, the petition fails and the rule is discharged, but in the circumstances of the case, there will be no order as to costs.


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