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Indian Hume Pipe Co. Ltd. Vs. the Presiding Officer, Labour Court, Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 53 of 1961
Judge
Reported inAIR1964AP56
ActsIndustrial Disputes Act, 1947 - Sections 2, 10(1), 10(4) and 25H
AppellantIndian Hume Pipe Co. Ltd.
RespondentThe Presiding Officer, Labour Court, Andhra Pradesh and ors.
Appellant AdvocateV.K. Vaidya, ;M.P. Ugle and ;M. Ram Mohan Rao, Advs.
Respondent Advocate3rd Govt. Pleader and ;M. Bhujangarao, Adv.
Excerpt:
.....articles like hume pipes and r. it could relate to a contemplated employment as well. but this failed. the labour court did not apply its mind to the problem that if they had failed to re-join service on the terms offered by the management, they could claim wages from 12-9-1958 when they offered themselves for re-employment......or unskilled manual, supervisory, technical or clerical work for hire orreward, whether the terms of employment be express orimplied, and for the purpose of any proceeding under thisact in relation to an industrial dispute, includes any such person who has been dismissed, discharged, or as a conseqence of that dispute or whose dismissal, discharge or refrenchment has led to that dispute, but does not includeany such person .....'12. sri vaidya says that it is plain from this clause that a person could be said to fulfil the definition of a 'workman' only when the jural relationship of employer and employee exists but when that is determined by reason of the workman being retrenched and compensation therefor paid, the claimants could not be regarded as workmen with respect to whom.....
Judgment:

Chandra Reddy, C.J.

1. In this appeal, the Indian Hume Pipe company Ltd. Bombay challenges the conclusions of our learned brother Seshachalapathi J., who dismissed Writ Petition No. 376 of 1959 for the issue of a writ of certiorari to quash the award dated 16-2-1959 of the Labour Court, Guntur.

2-3. The appellant engages itself in the manufacture and sale of cement concrete articles like Hume Pipes and R.C.C. poles etc. and has a number of branches spread over India and Ceylon, one such being Located at Ramavarappadu near Vijayawada. By a notice dated 12-5-1958, all the workmen in the Ramavarappadu factory were individually notified that, with effect from 12-6-1958, they would be retrenched as the factory had no orders and also as sufficient stock of steel was not available. Pursuant to this notice, the workmen !n that factory numbering about 40 were retrenched with effect from 12-6-1958 and were paid retrenchment compensation. In this enquiry, that retrenchment is not in issue.

4. Some lime later i.e., on 5-9-1958, the appellant Issued a notice to the retrenched workmen in these words:

'We are in need of some unskilled workers, on temporary, basis in our R. C. C. Pipes manufacturing job industry and they will be recruited on 12th September 1958 at 7-30 A.M.

All the retrenched workmen are hereby given notice of re-employment to offer themselves for the same, on the appointed date and in case the workmen concerned do not turn up and accept the offer on the specimen date of recruitment, their preferential claim for re-employment will be forfeited and such claims will not be considered thereafter.'

5. In response to the notice, all the workmen reported themselves to duty on 12-9-1958. A flat rate of 0-12-0 besides an allowance ot 0-11-0 per day was offered to the workmen, these wages being lower than those paid to the persons who offered themselves for re-employment. Some of them demanded that the wages prevailing before retrenchment should be paid to them. The management refused to comply with this demand and so 14 of the workmen did not join duty.

Upon a report of the affected workmen, conciliation proceedings were initiated by the Labour Officer but no settlement could be effected as each side stuck to its position. Thereupon, the management engaged new hands on its own terms. The Commissioner of Labour reported the matter to the State Government and the latter issued a notification under Section 10(1) of the Industrial Disputes Act, 1947 (hereafter to be referred to as the Act) referring the dispute in the following terms to the Labour Court, Guntur.

'How far the employers of the Indian Hume Pipe Company, Ramavarappadu Branch are justified in offering to the retrenched workers wages at a lower rate at the time of re-employment than what they were getting at the time of retrenchment,'

6. Before the Labour Court, both sides filed statements putting forward their respective cases. The stand taken by the workmen before the Labour Court was that the attempt of the management to designate all the work-men who were working in the factory for over ten years and performing skilled and semi-skilled jobs In the manufacturing process as unskilled workmen and to offer a flat rate of Rs. 1-7-0 per day amounted to unfair labour practice and that the 14 workmen who declined to join duly on the terms offered for re-employment should be reinstated on the emoluments they were getting prior to 12-6-1958. They also claimed back wages at the old rates from 12-9-1953 still the date of re-instatement.

Three of the objections formulated by the management in their reply statement are these:

(1) As the workmen were retrenched with effect from 12-6-1958 and retrenchment compensation also paid, there was no jural relationship of employer and employee between the management and the workmen and consequently there was no industrial dispute within the terms of the Industrial Disputes Act, 1947 and therefore the reference was incompetent.

(ii) The management was not bound to re-employ them on the same conditions as to wages as were prevailing prior to the retrenchment and that it was open to the management to engage workmen on its own terms provided only the claims of the retrenched workmen were considered in reference to others and

(iii) The question of re-instatement was beyond scope of the reference and that the claim for back wages was unsustainable and misconceived.

7. Before the Labour Court, the management did not lead any evidence, oral or documentary, while the workmen were represented by the Union and they examined three-witnesses and marked some documents.

8. By an award dated 6-2-1959, the Labour Court held that there was an industrial dispute within the scope of Act and hence the reference was in order, that the management was not justified in offering to the retrenched workmen on re-employment, wages at a rate lower than what they were getting at the time of retrenchment and that the workmen were entitled to be re-employed and restored to their original position on the same emoluments as they were getting before.

The Labour Court also awarded back wages at Rs. 1-7-0 per day from 12-9-1958 till the date of the award and at the pre-retrenchment rates till the date of re-employment. It is to remove this award on certiorari that the jurisdiction of this Court was invoked.

9. The same points were canvassed before our learned brother Seshachalapathi, J. A grievance was also made before him that the appellant did not have adequate opportunity of putting forward its case before the Labour Court. But the learned Judge thought thai the petitioner before him had no legitimate grievance in that behalf. That complaint is not repeated before us and therefore we need not make any further reference to it. On the principal questions that were agitated before film, the learned Judge upheld the view of the Labour Court negativing all the submissions made on behalf of the management.

10. In support of this appeal, all the three contentions indicated above are urged before us. We shall now deal with them seriatim.

11. On the controversy bearing on the competence of the reference, what is contended on behalf of the appellant is that as the claimants before the Labour Court ceased to be workmen within the meaning of Section 2(s) of the Act from the date they were retrenched and since they cannot be regarded as being in the employ of the appellant not having joined the service the pre-requisite of an industrial dispute, which could form the basis of a referenceis absent in this case and so, it was not open to the Government to invoke Section 10(1) of the Act.

In support of this contention, our attention is drawn to the definition of 'workman' in Clause (s) of Section 2of the Act in so far as it relates to the present enquiry:

''Workman means any person including an apprentice employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire orreward, whether the terms of employment be express orimplied, and for the purpose of any proceeding under thisAct in relation to an industrial dispute, includes any such person who has been dismissed, discharged, or as a conseqence of that dispute or whose dismissal, discharge or refrenchment has led to that dispute, but does not includeany such person .....'

12. Sri Vaidya says that it is plain from this clause that a person could be said to fulfil the definition of a 'workman' only when the jural relationship of employer and employee exists but when that is determined by reason of the workman being retrenched and compensation therefor paid, the claimants could not be regarded as workmen with respect to whom an industrial dispute can be said to have arisen.

We find it difficult to accede to this proposition, It is true that there was retrenchment with effect from 12-6-1958 and that was not called in question in these proceedings. All the same, it cannot be postulated that the relationship of employer and employed has ceased by reasonof the retrenchment in view of Section 25H read with Section 2(k) of the Act. Section 2(k) runs as follows:

'Industrial dispute' means any dispute or difference Between the employers and employers o; 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 labourof any person.'

13. It is suggested that the dispute relating to the amoluments of persons, who were not in the actual employment at the relevant time, cannot fall within the ambit of an industrial dispute within the words of Section 2(k). In our judgment, the question that was referred to thelabour Court is included within the scope of the definition of 'industrial dispute' construed in the light of Section 25H. The definition is of wide amplitude and takes in contemplated employment and is not confined to existing employment. That the present one is a case of contemplated employment could be gleaned from Section 25H of the Act which recites:

'Where any workmen are retrenched and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen to offer themselves for re-employment and the retrenched workmen who offer themselves for re-employment shall have preference over other persons.'

14. This section clothes a retrenched workman with a right of re-employment. If this right is denied to him, 9 surely he is free to raise a dispute by reason of the provisions of Section 2(k) of the Act, which envisages disputesconnected with the employment or with the condition of labour of any person. There is no warrant for confining the dispute envisaged in Section 2(k) to an existing employment. It could relate to a contemplated employment as well. Having regard to the right conferred upon a retrenched workmen by Section 25H of the Act, a dispute concerning his appointment would fall within the sweep and range of that definition.

15. We are supported in this, opinion of ours by a judgment of the Federal Court in 'Western India Automobile Association v. Industrial Tribunal, Bombay, AIR 1949 FC 111. The principle enunciated there is that a dispute relating to the reinstatement of dismissed employees was a matter which was referable to the Tribunal. It was observed by their Lordships:

'Reinstatement is the employment of a person, non-employed and is thus within the words of Lord Porter 'all employment'. Thus, it would include cases of re-employment of persons, victimized by the employer. The words of the definition may be paraphrased thus: 'any dispute which has connection with the workmen being in, or out of service or employment.'.'

In another part of the judgment, it was held:

'Any dispute connected with employment or non-employment' would ordinarily cover all matters that require settlement between workmen and employers whether those matters concern the causes of their being out of service or any other question and it would also include within its scope the reliefs necessary for bringing about harmonious relations between the employers and the workers.'

16. The only question therefore is whether the rats of wages could form the subject-matter of an industrial dispute. The answer to that must be in the affirmative. The terms of employment and conditions of labour constitute one of the classes of industrial disputes as is apparent from Section 2(k) of the Act.' It would be illogical to say that while a dispute relating to re-employment falls within the definition, a dispute relating to terms of employment and conditions of service falls outside its pale. There can be little doubt that the terms under which the retrenched workmen should be re-employed are embraced within the meaning of 'terms of employment or with the conditions of labour of any person'. For these reasons, we negative the contention that there was no industrial dispute within the purview of Section 2(k) of the Act to justify a reference under Section 10 of the Act.

17. This leads its to the vital question as to whether an employer is bound to re-employ workmen on the same conditions as to wages as were prevailing before retrenchment. As already stated, the contention of the appellant in this behalf is that its right to engage workmen on its own terms was not curtailed by Section 25H which only provided for giving preference to retrenched workmen.

The learned counsel urges that if the intention of the Legislature was that the same terms as to emoluments and conditions of labour were to govern re-employment, it would have so expressed itself in the section and in the absence of any such provision, a further condition, namely payment of the same wages as before retrenchment cannot be added. We are afraid we cannot Rive effect to this argument. It is no doubt true that the section does not specifically enjoin upon the employer paying the same wages that prevailed prior to the retrenchment. But that does not enable the employer to offer wages tower thatthose received by the workmen before retrenchment. THE word 're-employment', in our opinion, connotes employment on the same terms as before. The meaning given in the Oxford English Dictionary is 'to employ again, to take back into employment'. . This implies employment on the same terms and conditions of service. In our considered judgment, the obligation to employ the workmen on the same conditions as to emoluments etc., is implicit in the concept of re-employment, There is no warrant for limiting the scope of Section 25H to the mere taking back the retrenched workmen. The object of the Industrial Disputes Act being to establish industrial peace and harmonious relations between labour and capital, it should be liberally construed. A construction which would aid the policy underlying the statute, should be adopted.

We feel that the light vested In retrenched workmen under Section 25H is based upon humane considerations. Since the intendment of the clause is to benefit retrenched workers, we should be slow to cut down its content, for all these reasons, we are inclined to the view that the retrenched workmen are entitled to claim the same emoluments as at the time of retrenchment and that the employer is not at liberty to change the wage structure at his will. It appears from the award and from the judgment under appeal that an attempt was made by the appellant to show that there was no skilled or semi-skilled workers in the factory at any time .and there were only unskilled workers for the purpose of justifying the offer of Rs. 1-7-0 per day as for an unskilled worker. But this failed. The material on record which was discussed both by the labour Court and our learned brother establishes that there were skilled and semi-skilled workers who had put in a number of years of service and that the character and type of the work of the factory, which they were expected to do laid not undergone any change. It follows that the management was really seeking to convert skilled and semi-skilled workers into unskilled workers by offering a flat rate of Rs. 1-7-0 per day as wages inclusive of dearness allowance.' That being the real position, there was no justification for the appellant to treat the respondents as unskilled workers and offer reduced wages. We accept the interpretation placed on this section by our learned brother who affirmed the conclusion of the labour Court.

18. The only point that survives is whether it was within the jurisdiction of the Labour Court to give back wages. The argument advanced by Sri Vaidya for the appellant on this issue is that having regard to the terms of the reference under Section 10(1)(c) of the Act, it was beyond the competence of the Labour Court to give such relief. This is not one of the questions that was involved in the reference and, therefore, the Labour Court should have refrained from deciding that issue. We are not persuaded that this contention is admissible. The direction as to back wages is certainly comprehended within the expression 'matters incidental thereto' occurring in Section 10(4) of the Act. The machinery for the settlement of disputes cannot be considered to be effective if it does not provide for awarding relief as to conditions on which the re-employment or re-instatement should be effected. We therefore feel that it was within the province of the Labour Court to grant back wages. '

19. This leads us to the question whether the workmen in this case could claim back wages. The answer to this depends upon whether the management was in any wayresponsible for the workmen not joining service. We must observe that this question was not approached by the Labour Court in its proper perspective. The Labour Court having observed that 'the demand of the workmen to be re-employed and restored to their original position on the amoluments that they were getting on 12th June 1958 could not be conceded in full' and that 'they ought to have rejoined service on the wages offered by the management under protest and then have raised this dispute', held that the employer was liable to pay the respondents back wages at Rs. 1-7-0 each per day etc. The Labour Court did not apply its mind to the problem that if they had failed to re-join service on the terms offered by the management, they could claim wages from 12-9-1958 when they offered themselves for re-employment. It should have gone into the question as to where the responsibility lay for the workmen not entering upon their duties. Was it the insistence of the management upon the workmen executing a deed of agreement, accepting lower wages as spoken to by P.W. 1, one of the witnesses for the respondents, or, was it a case of the workmen of their own accord refraining from taking up work because they felt that the other of lower wages was not justified? If it is the former, the management will be liable to pay back wages. If, on the other hand, it is the latter, they are dis-entitied to ask for back wages since they coutd have resumed work in the factory and then raised a dispute with respect to the wage structure.

It is pertinent to note in this connection that it was alleged in the statement filed on behalf of the workmen before the Labour Court that 'the attempt of the management to designate all the workmen who were working in the factory for over ten years and performing skilled and semi-skilled jobs in the manufacturing process as unskilled workmen and on that basis offering them a flat rate of Rs. 1-7-0 per day was not justified and that it amounted to an unfair labour practice. It is not stated that the insistence by the management on the execution of an agreement by the workmen accepting the terms of emoluments as offered by the management resulted in their not resuming their work. But that is the case put forward by the respondents through P.W. 1.

This matter has not received the attention it should have at the hands of the Labour Court. Without deciding that Question, the Labour Court awarded back wages at the rate proposed by the management. This aspect of the matter does not seem to have been presented before our learned brother in the manner it is argued before us. That is obviously the reason why our learned brother has not dealt with this aspect of the matter. We have, therefore, to quash the order in so far as the award gives back wages to the workmen. It is open to the Tribunal to consider the question indicated by us above and arrive at a decision afresh in the light of the remarks made by us. The parties will bear their own costs in this appeal.


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