C.A. Vaidialingam, J.
1. A request is made on behalf of the second respondent for some more time to file a counter-affidavit. It is found that notice has been served on them as early as 12-12-1957. I further find that there is a special order of my learned brother, Varadaraja Iyengar J., directing this O.P. to be posted today. Hence the request for adjournment on this ground is refused.
2. This is an application under Article 226 of the Constitution for calling for the records connected with the award of the Industrial Tribunal, No. II, Ernakulam in Industrial Dispute No. 37/56 dated 23-10-1957 and published in the Kerala Gazette on 13-11-1957 and to quash the same. The application also prays for other reliefs regarding the expunging of certain observations contained in the said award.
3. The short facts leading up to this application as disclosed by the affidavit filed in support of the application are as follows: The petitioner company operates a Can Factory for manufacture of cans for distribution of Kerosene and allied products. The workers in this Can Factory work on piece-rate as long as they work in the Can Factory.
4. It is also stated that the actual working hours of the factory are 8 A.M. to 5 P.M., with an interval of an hour between 12 Noon and 1P.M., for lunch and rest. According to the Management, the prescribed working hours have to be followed by the workmen working in the premises and it is also in conformity with the standing orders of the company.
It is further stated that in spite of this direction regarding the normal working hours, on 4-11-1955, 45 piece-rate workers from the Can Factory left the work spot at 4.30 P. M. and this was brought to the notice of the Secretary of the second respondent Union. But the representations made by the management were of no avail. The matter was pursued again when the company found that the workmen were acting in disregard of the direction of the management regarding the normal working hours of the company.
It is stated that subsequently, the Secretary of the second respondent Union assured the Management that such practice on the part of the-workmen will cease and that they will work according to time. But the management did not notice any improvement in the attitude of the workmen. In consequence, the management started disciplinary proceedings- against some of the workmen and actually charge-sheets were also issued to four of the workmen on 30-11-1955.
5. It is further stilted that due to the good offices of the Labour Officer, Ernakulam, representatives of the management and the Union met and in the conference it was mentioned on behalf of the Union that the maximum number of cans to be manufactured on any day has been fixed at 6000 and as per the custom and practice the workmen are entitled to leave the work spot as soon as this quota has been manufactured and according. to the Union the management were trying to go back on such arrangement.
This position taken up by the Union was not accepted by the Management. But in view of the intervention of the Labour Officer the management ultimately agreed to drop all disciplinary actions taken against the workmen and also agreed to refer the matter for adjudication before the Tribunal.
6. Subsequently, the Government referred the following dispute for adjudication to the Industrial Tribunal:
'Whether the piece-rate workers of the can factory are free to leave the installation as soon as the work prescribed for the day is finished or whether they should adhere to the normal working hours of the Installation?'
7. According to the management, the questions referred for decision to the Industrial Tribunal were elaborately considered by the Tribunal and the Tribunal, on a consideration of the evidence placed before it, accepted the contention of the management that the manufacture of 6000 cans stated by the Union is not the maximum but it is only the minimum.
It is also stated that their case that the Can Factory workers were also bound by the working hours of the company, namely 8 A.M. to 5 P.M. with an interval of one hour on week days, and 8 A.M. to 1 P.M., on Saturdays was also accepted by the Tribunal.
8. Notwithstanding these findings, the Tribunal has ultimately considered certain other matters which do not form the subject of reference and has finally held that workmen doing piece-rate work in the Can Factory should be allowed to leave the Terminal after the day's work is over and that they need not adhere to the formal working hours.
This direction given by the Tribunal is challenged as one without jurisdiction. Incidentally, the Tribunal has made some remarks at the concluding portion of paragraph 8 of its award and objection is also taken by the management regarding these observations.
9. Mr. Gangadhara Menon, learned counsel for the Union, has contended that the order of the Tribunal is one within its jurisdiction. The learned counsel also contended that the decisions arrived at by the Tribunal were absolutely necessary in view of the question that was referred to it for decision. He has also invited my attention to theevidence on record of one of the witnesses for the Union, namely, WW2. WW2 was a Can Factory worker working in the Burmah-Shell company and according to him piece-rate Can Factory workers in the Burmah-Shell can go home after their work.
According to the learned counsel, the Tribunal is not strictly limited to the points that have been referred to and it had to consider the general question about the conditions of service of piece-rate workers in the can factory.
I must also say, that this contention of Mr. Gangadhara Menon, has also been attempted to be supported by the learned Government Pleader appearing for the State.
10. After giving my consideration to the contentions raised by the learned counsel on all sides, I am not able to accept the contention of Mr.Gangadhara Menon that the directions given by the Tribunal in the concluding portion of its award is one passed with jurisdiction.
11. As stated earlier, the question that wasreferred to the Tribunal was a very simple one, namely, whether piece-rate workers of the can factory are free to leave the installation as soon as the work prescribed for the day is finished or whether they should adhere to the normal working hours of the installation. In this connection it is desirable to take note of the points urged both on the side of the management and on the side of the Union before the Tribunal.
These contentions have been set out by the Tribunal in paragraphs 2 and 3 of the award. So far as the Union is concerned the main position taken up is that the workers are to manufactureonly 6000 tins a day and that they are paid piece-rate and each workman gets his wage in proportion to the number of completed tins. That being the day's quota of work they are entitled to leave the premises as soon as they have finished the quota allotted to them.
The maximum number to be manufactured onany working day has been agreed upon by the company and the Union on previous occasions. The Union also referred to the practice followed in an adjoining company, namely, Burmah-Shell, of piece-rate workers being allowed to leave the company as soon as their quota of day's work is finished. In fact it was contended that this right of the workmen to leave the factory is a condition of service and also is in accordance with the practice in the management concerned and also similar industries.
12. The substantial contention raised on behalf of the management was that the working hours of the company, including the can factory workers were from 8 A.M. to 12 Noon and 1 P.M. to 5 P.M. on week days and 8 A.M. to l P.M. on Saturdays and the workers including the can factory workers are bound to be in factory during the working hours.
They challenged the statement of the Union that the quota allotted for manufacture per day is only 6000 tins. According to the management, the figure of 6000 tins is only a standard to determine the piece-rate payable. 6000 tins, according to the management, is only the minimum production necessary to enable the workers to earn the specified piece-rate and that is not the maximum.
They also took the stand that there was no agreement regarding the maximum number of tins that are to be produced on any day and there was also no practice of any workman leaving the installation earlier and all the workmen including the workmen in the can factory have to adhere to the timings fixed by the company.
13. The Tribunal considered the evidence placed before it and relied upon by the management on the one hand, and the Union on the other. On the question of custom set up by the Union of the right of can factory workers to leave the Terminal as soon as the day's quota of work is over, the Tribunal negatived that contention and came to the conclusion that the workmen are not entitled to leave the factory before 5 P.M.
It is not necessary for me to consider the evidence that has been relied upon for arriving at this finding because even Mr. Gangadhara Menon has not, been able to satisfy me that the findings of the facts are not based on the evidence in the case. The Tribunal noted the evidence of some of the workmen themselves to the effect that if the workers complete work before the stipulated time they have to ask for permission and then only they can go and that nobody would go without asking for and getting permission. After further considering this matter the conclusions of the Tribunal are recorded in the following words:
'The only inference possible is there was no such practice in the installation nor does it form part of the service condition. The service condition is just the contrary. The working hours for all workers including those in the can factory is from 8 A.M. to 5 P.M., with an interval of one hour on week days and from 8 A.M. to 1 P.M. on Saturdays.'
14. Regarding the other contention as to whether manufacture of 6000 tins is the maximum or the minimum, again the Tribunal recorded its finding as follows:
'The 6000 tins fixed is the minimum as contended by the company and not the maximum as claimed by the Union. If the maximum is 6000 as claimed by the Union there is no necessity for workmen to remain in the installation, after contributing the quota of work by each group of workers. The workers are eligible to get the highest piece-rates only if they produce a minimum of 6000 tins a day. If the number falls short of 6000, the wages will be proportionately low. The figure 6000 is only a target to fix the rate payable. The contention of the Union that the maximum that the workmen need produce is only 6000, is not correct.'
15. Having recorded all these findings against the Union on the only two points that were referred to the Tribunal, the question is whether the further directions of the Tribunal that the workers in the can factory doing piece-rate work need not adhere to the normal working hours can be said to be one passed with jurisdiction or based on the evidence adduced in the case. In my opinion as stated earlier, the Tribunal had no jurisdiction to go further into the matter at all.
Even if it is considered that a: general question about the practice prevailing in respect of can factory workers has been referred for decision to the Tribunal, the final order passed by the Tribunal cannot be supported as one based on the evidence already accepted by the Tribunal. It has already recorded a finding that there was no such practice in the installation and that it does not also form part of the service conditions. It has also recorded a clear finding that the working hours for workers including those in the can factory are as mentioned in the concluding portion of paragraph 6 of the award.
I cannot accept the contention of the learned Government Pleader or Mr. Gangadhara Menon that the question referred to, namely, as to whether the piece-rate workers of the can factory are free to leave the installation as soon as the work prescribed for the May is finished is so worded that the Tribunal has got jurisdiction to consider this point when deciding that question.
16. After having held on all points against the Union, the further direction given by the Tribunal that the workmen working in the can factory can be allowed to leave the terminal after the day's work is over and that they need not adhere to the normal working hours is one passed without jurisdiction; and in any event there is no evidence to support those conclusions.
17. All learned counsel are agreed in this case that the following observation in the award in quite unnecessary in the circumstances of this case:
'They can be made to do any work provided good words and adequate remuneration follow it. But if we show superiority and talk to them like bosses and big officers, then of course the result will be different.'
In my view, this observation also is unwarranted and not justified in the circumstances of this case. Then the question is as to the relief to be granted to the petitioner. Though Mr. Govindan Nair, learned counsel for the petitioner stated that he restricts his prayer to quashing only the final directions given in the award, on an examination of the legal position, I am satisfied that the award cannot be upheld in part and quashed in part.
18. From the reasoning given above, it follows that the general question as contended for by the learned counsel for the respondent has not been referred to the Tribunal at all. In this view the direction given by the Tribunal that the workmen doing piece-rate work in the can factory can be allowed to leave the terminal after the day's work is over and they need not adhere to the normal working hours is one given without jurisdiction.
19. Even considering the case from the alternative point of view that the first part of the question referred to the Tribunal clothes it with jurisdiction to consider the matter in view of the definite findings recorded earlier in the award and referred to by me more fully in this judgment, the final directions and conclusions recorded by the Tribunal about the workmen doing piece-rate work being allowed to leave the terminal after the day's work is over and not having to adhere to the normal working hours, cannot be said to be based upon the evidence in the case and in this view also the award cannot be sustained.
20. In the result, the award of the industrial Tribunal No. II, Ernakulam in Industrial Dispute No. 37 of 1956 dated 25-10-1957 and published in the Kerala Gazette dated 12-11-1957 willstand quashed. The parties will bear their own costsin the proceedings before me.