Skip to content


Sheo Narayan Choudhari and anr. Vs. Industrial Court (A.W. Kanwadikar) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1968)ILLJ105MP
AppellantSheo Narayan Choudhari and anr.
Respondentindustrial Court (A.W. Kanwadikar) and ors.
Cases Referred and Gimbniji v. Bind Basni Prasad
Excerpt:
.....of the madhya pradesh industrial employment (standing orders) act, 1961. any change in any industrial matter mentioned in schedule i made in the circumstances enumerated in section 34, any change in contravention of the terms of a registered agreement or settlement, or an order, decision or award and failure to carry out the terms of a registered agreement or settlement, or an order, decision or award. but, here, there is no question of the redaction in the petitioners' wages belong a change made in any standing order or any change in contravention of the terms of a registered agreement, settlement or effective award, or one arising out of failure to carry out the terms of a registered agreement or settlement, or an order, decision or award under the act. 6. if, therefore, the..........contended on be naif of the employer, that if, respondent 3, that item 9 of schedule i relates to wages of employees as a class and does not cover wages of an individual employee; that the question of the redaction in the petitioners' wages falls under item 6 of schedule ii, namely,employment including-(i) reinstatement and recruitment;(ii) unemployment of parsons previously employed in the industry concerned; and that, therefore, if the petitioners were in any way aggrieved by the reduction effected in their wages, they should have approached the labour court aftermakung an approach as contemplated by the proviso to sub-section (3) of section 31 and as there was no such approach, the labour court had no jurisdiction to entertain their applications.8. in our view, the industrial court.....
Judgment:
ORDER

P.V. Dixit, C.J.

1. The two petitioner, who are employed as masons in the Bhilai Steel Plant, Bhilai, filed separate applications under Section 61 of the Madhya Pradesh Industrial Relations Act, 1960 (hereinafter referred to as the Act), in the labour court, Raipur, for restoration of the reduction effected by the management, namely, respondent 3, the General Manager of the Hindustan Steel, Ltd., in their wages as a measure of punishment after finding that some charges had been established against them.

2. The labour court found that the reduction in the wages of the applicants was an ' 1llegal change ' within the meaning of Section 34 of the Acc and accordingly made an order directing respondent 3 to withdraw the ' change ' and restore the reduction in the wages of the petitioners. Thereupon, respondent 3 preferred revision petitions before the industrial court, Indore, against the common decision of the labour court granting the petitioners' applications under Section 61 of the Act. The industrial court took the view that the matter of the reduction of the petitioners' waged was an industrial matter as specified in Schedule II to the Act and consequently the petitioners who desired to have the out in their wages restored could move the labour court for that purpose only under Section 31](3) of the Act after approaonlng the employer with a request for tae change and if no agreement was reached in respect of the change within the prescribed parlor; and that as admittedly the petitioners did not approach the employer as required by the proviso to Sub-section (3) of Section 31, the labour court had no Jurisdiction to entertain their applications. The industrial court also held that the reduction in the petitioners' wages did not amount to an illegal change as defined by Section 31 of the Act, On this view, the in Justrial court set aside the decision of the labour court and dismissed the petitioners' applications.

3. The question raised by this petition is whether the petitioners' applications under Section 61 of the Act for a restoration of the cut in their wages were maintainable. That question has to be answered on a consideration of the effect of certain pro visions of the Act to which a reference must first be made. Section 2(7) of the Act defines ' change ' as meaning 'an alteration in an industrial matter.' The definition of 'industrial matter' as given by Section 2(18) is that it means

any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment or refusal to employ and includes....

Section 31 of the Act runs thus;

31. Notice of change.-(1) An employer intending to effect any change in respect of an industrial matter specified in Son. I shall give notice of such intention in the prescribed form and manner to the representative of employees and to such other persons as may be prescribed.

(2) A representative of employees desiring a change in respect of an industrial matter, which is neither covered by standing orders nor is specified in Schedule If. shall give notice thereof in the prescribad manner to the employer concerned and to such other persons as may be prescribed.

(3) A representative of employees or an employee desiring a change in respect of an industrial matter specified in Sch II or any other matter arising out of such change may make an application to labour court in such manner as may be prescribed:

Provided that no such application shall lie unless the representative of employees or the employee, as the case may be, has in the prescribed manner approached the employer with the request for the change and no agreement has been arrived at in respect of the change within the prescribed period.

An 'illegal change' has been defend by Section 34 as meaning a change in any standing order made except in accordance with the provisions of the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961. any change in any industrial matter mentioned in Schedule I made in the circumstances enumerated in Section 34, any change in contravention of the terms of a registered agreement or settlement, or an order, decision or award and failure to carry out the terms of a registered agreement or settlement, or an order, decision or award. Section 61 of the Act provides that the labour court shall have the power, Inter alia to decide whether any change is illegal under the Act and to require any employer to withdraw any change held to be illegal.

4. It will be seen from the aforeiald provisions that any change in respect of an industrial matter specified in Schedule I can be effected by an employer only in accordance with Sub--section (1) of Section 31; if a representative of employees desires a change in respect of an industrial matter not covered either by standing orders or by Sch II, then he has to proceed in accordance with Sub-section (2) of Section 31; and if a representative of employees or an employee desires a change in respect of an industrial matter spacified in Schedule II or any other matter arista g out of such change, then be can move the labour court for redress only after an application as contemplated by the proviso to Sub-section (3) of Section 31 read with Rule 34 of the Madhya Pradesh Industrial Relations Rules, 1961, is made and no agreement is arrived at between the employer and the employee in respect of the change.

5. The definition of ' illegal change ' given by Section 31 does not touch in any way a change which can be made only in accordance with Sub--sections (2) and (3) of Section 31. By that provision any change in any industrial matter mentioned in Schedule I which can be effected only under Sub-section (1) of Section 3l is declared to be illegal if made in the circumstances enumerated in Section 31](b) Section 34 no doubt speaks of other illegal changes. But, here, there is no question of the redaction in the petitioners' wages belong a change made in any standing order or any change in contravention of the terms of a registered agreement, settlement or effective award, or one arising out of failure to carry out the terms of a registered agreement or settlement, or an order, decision or award under the Act.

6. If, therefore, the matter of reduction in the petitioners' wages is an industrial matter falling under Schedule I and if the reduction has not been made in accordance with Sub-section (1) of Section 31, then the reduction would clearly be an ' illegal change' under Section 34 of the Act and the petitioners have the right to move the labour court to declare the change to be illegal, praying that the employer be directed to withdraw the change and restore the out in the wages. If, on the other hand, this matter of reduction in wages is an industrial matter specified in Schedule It. then the question of the change in the form of reduction in wages being declared illegal by an application under Section 61 of the Act cannot; arise and the only remedy available to the petitioners is by an application to the labour court for restoration of the reduction in the wages after complying with the requirements of the proviso to Sub-section (3) of Section 31. It is common ground that Sub-section (3) of Section 31 has no applicability here.

7. The petitioners' contention is that' wages including the period and mode of payment' is anitem specified in suh I (item 9 of Suh. I); and that, therefore, a reduction in the wages of an employee would be an Industrial matter falling under Schedule I ani as their wages were reduced by the employer without following the procedure laid down in Sub--section (1) of Section 31, the reduotiou in their wages was an illegal change within the meaning of Section 34 for the redress of which they ware entitled to approach the labour court under Section 61 of the Acc On the other hand, in is contended on be naif of the employer, that if, respondent 3, that item 9 of Schedule I relates to wages of employees as a class and does not cover wages of an individual employee; that the question of the redaction in the petitioners' wages falls under item 6 of Schedule II, namely,

employment including-

(i) reinstatement and recruitment;

(ii) unemployment of parsons previously employed in the industry concerned;

and that, therefore, if the petitioners were in any way aggrieved by the reduction effected in their wages, they should have approached the labour court aftermakung an approach as contemplated by the proviso to Sub-section (3) of Section 31 and as there was no such approach, the labour court had no Jurisdiction to entertain their applications.

8. In our view, the industrial court was right in dismissing the petitioners' applications on the ground that the labour court had no jurisdiction to entertain them inasmuch as the petitioners had filed them without first approaching the employer as required by the proviso to Section 31](3). While considering the provisions of the Industrial Relation Act, I960, one cannot overlook the underlying principle of the Act which is collective bargaining. The Act recognizes the fact that labour is organza d In most industries and if labour is organ zed in any industry, then its union is the moat appropriate body to act and appear for labour in its representative capacity, and proceeds on the basis that redress of grievances should not be individual but should be collective. the provisions of Section 31 have been enacted on this basic principle. The schemes of the three Sub-sections of Section 81 are different. Sub-section (1) deals with the making of any change by an employer in repeat of any industrial matter specified in Sch I. If an employer intends to effect any change in such an industrial matter, he is required to give notice of his intention in the prescribed form and manner to the representative of employees and to such other persons as may be presoribed. Rule 31 of the Madhya Pradesh Industrial Relations Ruler, 1961, prescribes the form and manner in which notice to the representative of employees should be given and also tative that the employer shall send a copy of such notice to the chief conciliator, the conciliator for the industry concerned in the local area, the Registrar and the labour officer of the industry for the local area concerned. It will be noted that in regard to matters with which Sub-section (1) of Section 31 is conoerned. an individual employee does not come into the picture at all. the reason is that the matters which have been enumerated in Schedule I are all those which affect the employees as a class. A glance at the items specified in Sch I is sufficient to show that Schedule I enumerates the industrial matters in which the employees as a class are interested. Item 9, when it speaks of ' wages including the period and mode of payment' refers to wage-scale of labourers as a ciass and not to wages of an individual employee. That the industrial matters specified in Schedule I are of general interest to all the employees and not of a particular interest to an individual employee becomes clear from the fact that, as provided by Sub-section (1) of Section 31, notice of a change in an industrial matter mentioned in Schedule I have to be given to the representative of employees and not to any particular employee. Section 3(27) defines ' representative of employees ' as meaning

a representative of employees entitled to appear or act as such under Section 27,

and Section 27 lays down the priority in which the representatives of employees are entitled to appear or act, the first preference being given to a representative union. Section 26 also emphasizes the fact that except when permitted an individual employee cannot appear in proceedings before a conciliator, an arbitrator, a labour court, the industrial court or a board. it says that save as pro-vided in Section 2) no employee shall be allowed to appear or act in any proceeding under the Act except through the representative of the employees. Section 28 provides that a conciliator, an arbitrator, a labour court, the industrial court, or a board may, if he or it considers it expedient for the ends of justice, permit an individual, whether an employee or not, to appear in any proceeding before him or it. It is thus clear that the Act attaches considerable importance to the appearance of, and the view presented by, a rep-esentatlve union and regards that the point of view of an individual employee can be presented through the representative of the employees.

9. That Section 31](1) deals with the change in an industrial matter affecting employees as a class becomes further clear by a reference to Sections 32 and 33 and Sections 39 to 46 of the Act. Section 32 lays down that where an employer or a representative of employees gives a notice of a proposed change under Sub-section (1) or (2). then, if in the opinion of the Government, such a change affects the majority of employees or employers engaged in an industry in any local area, the Government may, by notification, declare that the whole of such industry is effected by sach change and thereupon it shall be deemed to be so affected. The object of Section 32 is clearly to widen the scope of a charge intended under Sub-section (1) or (2) and make it one as affecting not only the employees or the employer in the particular industry in which the change Is Intended to', also as effecting the majority of employees or employers engaged in the industry in any local area. Again, a change proposed under Sub--section (1) or (2) is settled either by an agreement registered under Section 33, or by a settlement arrived at in conciliation proceedings regulated by the provisions contained in Sections 39 to 45 of the Acc, or by an award of an arbitrator. In respect of an Industrial matter where a notice of change has been given under Section 31(1) or 31(2), the matter is also determined, if there is no agreement, settlement or award, by the issue of a notification by the Government under Section 43(5) that no settlement has been arrived at in the dispute. All these provisions point to the fact that Section 31(1) is concerned with a change in an Industrial matter which affects the employees as a class. Likewise, Section 31(2) is also concerned with industrial matters affecting employees as a class.

10. If, as we think Section 31(1) deals with a change in an industrial matter affecting employees as a class and item 9 of Schedule I does not cover the grievance of an individual employee about his wages, then dearly if the employer reduced the petitioners' wages without following the procedure laid down in Section 31. (1), it cannot be held that the change in the form of reduction in the petitioners' wages amounted to an illegal change within the meaning of Section 31 of the Act. Tae petitioners' applications under Section 61 of the Act for a declaration of chat change to be illegal and for a witadravral of that change were, therefore, altogether misconceived.

11. The matters which are of particular interest to individual employees are enumerated in Suh. II, and if a change in respect of any such matter is desired by an employee, then he can approach the labour court for that purpose after complying with the requirements of the proviso to Section 31(3). Item 6 of Schedule II refers to

employment including

(1) reinstatement and recruitment;

(ii) unemployment of persons previously employed in the industry concerned.

The term ' employment' as used in item 6 in Schedule II is wide enough to include any matter relating to wages of an individual employee; It is not confined only to matters relating to bara state of employment. Section 31(3) no doubt gives to a representative of employees also the right to move the labour court for a change in respect of an industrial matter specified in Schedule II. But there may be cases in which the representative may not be sufficiently interested to ventilate the grievance of an individual employee, and, therefore, the legislature has expressly conferred a right upon the employee who has a grievance in regard to mutters contained in Schedule it to move the labour court for redress. the matter of redaction in the petitioners' wages clearly fell under item 6 of Suh. If. That being so, they could move the labour court for a chaage in respect of that matter only after approaching the employer with a request for a change in accordance with the proviso to Section 31(3), In the present case, as admittedly no such, approach was made, the labour court had no jurisdiction to entertain the petitioners' application the proviso to Section 31(3) distinctly says that no such application shall lie unless the employee has in the prescribed manner approached the employer with a request for a change and no agreement has been arrived at in respect of the change within the presoibed period. In our opinion. the industrial court was right in dismissing the petitioners' applications.

12. The view taken by us as regards the scope and effect of the three sub-sections of Section 31 finds support in the observations of the Bombay High Court in Usmin Habb v. State of Bombay 1955-II L.L J. 494 and Gimbniji v. Bind Basni Prasad 1955-II L.L.J. 202 explaining the purpose and schemes of Sections 42(2) and 42(4) of the Bomnay Industrisl Relations Act, 1946 (11 of 1947), which are somewhat analogous to Sections 31(2) and 31(3) of the Madhya Pradesh Iadustnal Relations Act, 1960.

13. For all these reasons, this petition is dismissed with costs. Counsel's fee is fixed at Rs. 100. Tae outstanding1 amount of the security deposit after deduction of costs shall be refunded to the petitioners.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //