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Workmen of Hindustan Teleprinters Vs. Hindustan Teleprinters Ltd. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberW.A. No. 303 to 305 of 1977
Judge
Reported in(1983)ILLJ429Mad
ActsIndustrial Disputes Act, 1947 - Sections 9, 9A, 12(3) and 33
AppellantWorkmen of Hindustan Teleprinters
RespondentHindustan Teleprinters Ltd.
Excerpt:
.....disputes act, 1947 - appeal against order of single judge that employees not entitled to claim conveyance allowance - grant of conveyance allowance is only at discretion of management - it cannot be called condition of service - there is no alteration in conditions of service pending industrial dispute - there was no infringement of section 33 - no valid reason to interfere with order passed by single judge - appeal liable to be dismissed. - - since the tribunal has not given any specific finding as to whether it is a fringe benefit coming within the scope of clause 4 of the settlement, which affects the jurisdiction of the tribunal, the tribunal has to go into that question as well. 33 as complained by the appellant. in our view, the conclusion reached by the tribunal as well..........400 and above as basic pay provided they owned two wheeled power driven vehicles, for those whose basic salary exceeded rs. 750 per month, the management paid a conveyance allowance of rs. 150 per month provided they owned a car. the management, however did not pay any conveyance allowance to those of its employees drawing a basic salary of less than rs. 400. the workmen of the hindustan teleprinters limited made a demand on the management demanding a similar conveyance allowance for the employees receiving basic salary of less than rs. 400. as the management did not accede to their demand, they raised an industrial dispute. that dispute along with the other disputes was referred to the industrial tribunal, and the reference was number as industrial dispute no. 28 of 1973. the relevant.....
Judgment:

Ramanujam, J.

1. W.A. No. 303 [1977 : This appeal is directed against the order of Mohan, J. in Writ Petition No. 1796 of 1976 allowing the same and directing the Industrial. Tribunal, Madras, to dispose of the matter before it afresh.

2. The management of Hindustan Teleprinters Limited was paying a conveyance allowance of Rs. 60 per month to those employees who drew Rs. 400 and above as basic pay provided they owned two wheeled power driven vehicles, For those whose basic salary exceeded Rs. 750 per month, the Management paid a conveyance allowance of Rs. 150 per month provided they owned a car. The Management, however did not pay any conveyance allowance to those of its employees drawing a basic salary of less than Rs. 400. The workmen of the Hindustan Teleprinters Limited made a demand on the Management demanding a similar conveyance allowance for the employees receiving basic salary of less than Rs. 400. As the Management did not accede to their demand, they raised an industrial dispute. That dispute along with the other disputes was referred to the Industrial Tribunal, and the reference was number as industrial dispute No. 28 of 1973. The relevant issue that was referred is al follows :

'Whether the demand of the workmen concerned in Industrial Dispute No. 28 of 1973 for payment of conveyance allowance those who are drawing less than Rs. 400 per mensem is justified ?'

3. In the claim petition filed before the Industrial Tribunal, the workmen contended that while the Management was paying a conveyance allowance of Rs. 60 per month to those drawing a basic salary of Rs. 400, and a sum of Rs. 150 per month as conveyance allowance for those who received a basic salary of more than Rs. 750 they are not paying any conveyance allowance for those getting a basic salary of less than Rs. 400 that is an unfair labour practice, and, therefore a similar conveyance allowance should also be granted in favour of the employees drawing less than Rs. 400 with effect form July 1, 1971.

4. The Management filed a counter-statement contending (1) that in view of the settlement date August 5, 1970, arrived under S. 12(3), the reference itself was incompetent, and (2) that even on merits, the persons drawing a basic salary of Rs. 400 and more are not entitled to conveyance allowance as of right, that the grant of conveyance allowance to others was at the discretion of Management, that therefore, the persons drawing a basic of less than Rs. 400 had no right to claim the allowance as of right.

5. The Tribunal came to the conclusion that since the settlement date August 5, 1970, did not cover this benefit, the reference is competent and that the Management cannot refuse to sanction conveyance allowance to those employees who are drawing less than Rs. 400 as basic salary per month at the rate of Rs. 60 if they own and maintain a motorcycle or a scooter. The view taken by the Tribunal was that when the Management is willing to grant a conveyance allowance to certain categories of workmen drawing a particular basic salary and maintaining certain vehicles, there is no reason why such a conveyance allowance should be denied to those who are drawing less than Rs. 400 per month.

6. Aggrieved against the order of the Tribunal, the Management has filed the above writ petition for quashing the said order of the Tribunal. Before the learned Judge, the Management contended that in the face of the settlement, M-1, dated August 5, 1970 the employees are not entitled to claim conveyance allowance, and, therefore, the reference is incompetent so far as the demand for conveyance allowance is concerned, Clause 4 of the settlement date. August 5, 1970, provided for payment of certain fringe benefits by the Management to the workmen. The same clause also provided that the workmen will not be eligible for any grant of fresh frige benefits during the currency of the settlement. According to the Management, the said settlement was in force at the time of reference and so the employees are not entitled to get any fringe benefit including conveyance allowance. The learned Judge felt that if the conveyance allowance is a fringe benefit, then the settlement will be a bar for the claim of the workmen for conveyance allowance. But as the Tribunal has not gone into the question whether it will amount to a fringe benefit, the Tribunal was directed to consider the question and give a finding whether the conveyance allowance is a fringe benefit. On merits also, the learned Judge did not agree with the view taken by Tribunal. Under the Conveyance Allowance Rules, which has been exhibited as W-14, conveyance allowance is paid at different rates to employees who are getting a basic pay of Rs. 400 and above, But such a payment cannot be claimed by the workmen as of right as it is within the discretion of the Management to pay conveyance allowance or not. While so, the grant of conveyance allowance by the Industrial Tribunal which the workmen can claim as of right creates an anomalous situation, in that, in respect of an employee having a basic salary of more than Rs. 400, the grant of conveyance allowance will be in the discretion of the Management, whereas in the case of an employee receiving a basic salary of less than Rs. 400, the receipt of conveyance allowance will be as a matter of right, and this will, admittedly, lead to a disharmony in the industry, In this view of the matter, the writ petition was allowed, and the order of the Tribunal was quashed with a direction to dispose of the matter afresh after considering the two questions in view of the observations made by him. That order of Mohan, J. has been questioned in this appeal. According to Mr. N. G. R Prasad, learned counsel for the workmen, who are the appellants, the conveyance allowance cannot by any stretch of imagination be considered as a fringe benefit, that, even if it is a fringe benefit, the cause of action for such a claim has risen after the settlement dated August 5, 1970, was arrived at an after the Management has chosen to pay the conveyance allowance to the other set of employees who obtained a salary of more than Rs. 400 per month, and that, therefore the existence of the settlement will not stand in the way of the concerned workmen making a demand for conveyance allowance.

7. As regards the merits of the claim his submission is that all persons drawing a basic salary of Rs. 400 would as a matter of right be granted the conveyance allowance, and it is open to the Industrial Tribunal to grant the same notwithstanding the rules contained in exhibit W-14 making the payment of conveyance allowance discretionary. On a due consideration of the matter, we are inclined to agree with the view taken by the learned Judge, Admittedly, exhibit W-14 specifically states that the grant of conveyance allowance even for those employees receiving a salary of Rs. 400 and above is at the discretion of the Management and subject to the availability of funds and the same cannot be claimed as a matter of right. But the award made by the Tribunal enables the concerned workmen, i.e., persons drawing a basic salary of less than Rs. 400, to claim conveyance allowance as a matter or right. That means, one set of employees will be getting conveyance allowance as of right without reference to the availability of funds and the other set of employees will be getting conveyance allowance at the discretion of the Management, subject to the availability of funds. This will definitely create a disharmony among the employees of the company, This aspect of the matter has not been considered by the Tribunal. Similarly, the Tribunal has considered the question as to whether the conveyance allowance claimed by the workmen is a fringe benefit as contemplated by clause 4 of exhibit M-1, and if it is held to be a fringe benefit, then clause 4 of exhibit M-1 will be a bar for the present demand by the workmen. Since the Tribunal has not given any specific finding as to whether it is a fringe benefit coming within the scope of clause 4 of the settlement, which affects the jurisdiction of the Tribunal, the Tribunal has to go into that question as well. Thus, the learned Judge appears to be justified in quashing the order of the Tribunal and directing the Tribunal to dispose of the matter afresh in the light of the observations made by him. The writ appeal is, therefore, dismissed. There will, however be no order as to costs.

8. W.A. No. 304 of 1977 - This appeal arises out of the order passed by Mohan, J., in Writ Petition No. 3289 of 1976, filed by the appellant herein questioning the order of the Tribunal dismissing complaint No. 4 of 2975. The complaint of the appellant before the Tribunal was that pending the reference on the question as to whether the persons receiving a salary of Rs. 350 and below are entitled to claim conveyance allowance, the management altered the condition by saying that they will be eligible for advance only if they get a salary of Rs. 400 per month. Such a change being in the alteration of conditions of service, there is a contravention of S. 33 of the Industrial Disputes Act. The management opposed the said complaint and contended that the alteration of qualification for persons to apply for conveyance allowance which is payable at the discretion of the management cannot be treated as an alteration of the service conditions, that a discretionary payment can never be treated as a condition of service by the management, and, therefore there is no contravention of S. 33 as complained by the appellant. The Tribunal, after referring to rule 2(a), held that no workmen can claim the conveyance allowance as a matter of right, that the payment of the same is at the discretion of the management and subject to the availability of funds, and therefore, the alteration of the eligibility condition for such conveyance allowance cannot be said to be an alteration in the terms of conditions of service, and, therefore, there is no contravention of S. 33. The view taken by the Tribunal was challenged in the writ petition before Mohan, J. The learned Judge, however agreed with the view of the Tribunal and held that since the grant of conveyance allowance is only at the discretion of the management, it cannot be called a condition of service, and, therefore, as there is no alteration in the conditions of service pending the industrial dispute, there was no infringement of S. 33. The concurrent view taken by the Industrial Tribunal and Mohan, J., has been challenged in this writ appeal.

9. The learned counsel for the appellant contends before us that the provision for payment of conveyance allowance should be taken to be part of the service conditions, and therefore, the alteration of the rules with regard to the eligibility for the grant of conveyance allowance has to treated as an alteration in the condition of service and that as that alteration has been made without following the procedure under S. 9A, S. 33 should be deemed to have been infringed. We do not see how a discretionary payment of conveyance allowance by the the management subject to the availability of funds will entitle the workmen to claim conveyance allowance as of right and how that will become a condition of service. Normally, conditions of service will be clear and specific as to the rights of the workmen and the liability of the management. When the payment of conveyance allowance is at the discretion of the management and subject to the availability of funds, the workmen cannot treat it is a functional allowance as of right. It is also not in dispute that the settlement dated 5th August, 1970, arrived at by the workmen and the management does not specifically provide for such payment. If the settlement had provided for any such payment, it may be possible to say that it is a condition of service. Where the settlement between the parties does not make any provision for payment of the conveyance allowance, nor the Conveyance Allowance Rules framed by the management entitles the workmen to claim the conveyance allowance as of right, an alteration in such rules regarding the eligibility to apply for conveyance allowance cannot be said to be an alteration in the terms of conditions of service.

10. It is submitted by the learned counsel for the appellant that the appellant actually applied for a conveyance allowance of Rs. 3,000 for the purchase of a motorcycle on 17th May, 1974, when the rules provided that persons receiving a basic salary of more than Rs. 350 can apply. While that application was pending, the management altered the basic eligibility condition as basic salary of Rs. 400 and above, and because of this alteration, he has lost his chance of getting the conveyance allowance. Even assuming that the alteration of the eligibility condition was made after the appellant has made an application, still in so far as the payment of conveyance allowance is only at the discretion of the management and subject to the availability of the funds, it cannot be said that there is alteration, in the condition of service merely because the eligibility condition is changed. In this view of the matter, it is unnecessary to go into the various decisions cited by the learned counsel for the appellant which deal with a different set of facts. In our view, the conclusion reached by the Tribunal as well as Mohan, J., is right and does not all for interference. The appeal is, therefore, dismissed. There will, however, be no order as to costs.

11. W.A. No. 305 of 1977 - This appeal is directed against the order of Mohan, J., in Writ Petition No. 3288 of 1977, sustaining the dismissal of complaint No. 3 of 1975, filed by the appellant before the Tribunal in I.D. No. 28 of 1973. His complaint before the Industrial Tribunal was that, pending a dispute on the question as to whether the employees drawing less than Rs. 400 as basic pay are entitled to conveyance allowance before the Tribunal in I.D. No. 28 of 1973, the management raised the eligibility condition from Rs. 350 to Rs. 400. Such a change in the eligibility condition brought about by the management without following the procedure contemplated under S. 9 amount to a violation of S. 33 of the Industrial Disputes Act. The Tribunal held that the payment of conveyance allowance was only discretionary and subject to the availability of funds, and, therefore, it cannot be treated as a condition of service. And, therefore, the alteration of the eligibility condition by the management of the basic salary from Rs. 350 to Rs. 400 cannot be said to be an alteration in the condition of service, and therefore, it cannot be said that there is violation of S. 33. Mohan, J., who disposed of the writ petition agree with the view of the Tribunal that there is no change in the condition of service pending the industrial disputes, and, therefore, there is no contravention of S. 33. For the reasons given by us in Writ Appeal No. 304 of 1977, where we have held that there is no alteration in the terms of conditions of service, and, therefore, the complaint made by the appellant is not sustainable, this appeal also has to be dismissed. But there will, however, be no order as to costs.

12. Having regard to the time that has elapsed since the filing of the writ petition, the Tribunal is directed to dispose of the matter within three months from the date of receipt of a copy of this order.


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