ATIC INDUSTRIES LTD. ETC. ETC v. WORKMEN ETC. ETC

In Civil Appeal No. 809 of 1968 Mr. M. C. Seta!vad, learned counsel for the appellant, apart from conte, ting the grant 0f trans port allowance to the emnloyees on the ground that it is not the function of an employer to provide transnort facilities or to pay allowance for the same, has raised an objection to the jurisdiction of the Tribunal to give ·any such direction. G H We have already referred to demand No. 6, which is the sub ject ef consideration in this apneal. According to Mr. Se'alvad, the demand is to the effect that the Com,,any should provide free trans'10rt facilities to its workmen and till such facility is provid ed the wor1<men should be paid an allowance of. Rs. 15 /- per this case the mon•h. The counsel further poin•ed out that in. Tribunal has rejected the d 0 mand of the workmen for provision for free transnort. Once this claim wa, reiected on the ground that •he emoloyee are no• entitled to be nrovided free tran<nori. no the Tripunal. further question arose for consideration before 776 SUPREME COURT REPORTS [1972] 3 S.C.R. According to Mr. Setalvad the claim for payment of an allowance of Rs. 15 /- per month is only for the interim period th3t will neces sarily be ta\cen by the Com!:Jany to make arrangements for provid ing free transport, if the claim in that regard of the workmen had been acc~ted. The latter part of the demand beipg only for an interim period, had to be straightaway rejected when ··once main demand providing free transport made by the workmen was rejected. Therefore, it is the contention of Mr. Setalvad that the Tribunal's direction regarding payment of allowance under demand No. 6 is without jurisdiction. The above contention of Mr. Setalvad has been controverted by Mr. Phadnis, learned counsel for the Union. According to the learned counsel, the demand is really in the alternative, name ly, that the Company should be made to provide free transport If this is not feasible, the Company should pay an facility. allowance of Rs. 15/- per month. The counsel has also drawn our attmtion to the reasons given by the Tribunal in the case of Cynamid India Ltd. for rejecting the claim for orovision of free transport. The Tribunal has itself referred to those reasons in the present Award in resoect of both the Com-ianies. Therefore, even though the claim for provision for free transoort was rejected, the Tribunal had to deal with the alternative claim for payment of Rs. 15/- per month. We are not inclined to accept the contention of Mr. Setalvad that the Tribunal had no jurisdiction to consider the quantum of trans'lort allowance to be oaid to the workmen when once it has rejected.the claim of •:he Union for provision of free transpcirt. The cbim was a very t~U one, namely, that the Company should provide free transport facilities to all its workmen. The latter part of the demand should really be understood as an alternative claim if free transport is not provided by the Company. If the Company was wiiling to provide free transnort there will be no question of any transport aliowance being paid to the workmen and the second par: of the deman:I may not arise for consideration. But it does not follow that when the claim for fre, transport facilities is rejected, the cl~im for transoort allow In our opinion, the proper way of look ance no longer survives. ing at the demand is to treat the claim as one for provision of free trans~ort facility and in the alternative for payment of an allow ance of Rs. 15/-·per month. The claim for payment of allowance is not, as contended by Mr. Setalvad for an interim sta~e cover ing the period taken by the Company to make arrarigement' for providing transport facilities, when once it has been directed to the so by the Tribunal. facilities, A B c D E F G H ATIC INDUSTRIES v. WORKMEN (Vaidialingam, J.) 777 A The contention of Mr. Setalvad that the Tribunal had no jurisdiction to give direction for paying transport aliowance after rejecting the claim of the Union for the Company making provi sion for free transport, will have considerable force, if the Tribunal had rejected the claim for free transport on the ground that employer is not under any circumstance liable to make any such B arrangement or bear transport expenses incurred by the workmen either in whole or in part. As we will show presently the ground on which the Tribunal rejected the claim of the Union that the employer should provide free transport was not on the ground that the employer is under no circumstance liable to provide the same, but because of the fact that a sound transport system existed c on the route and as such was conveniently available. to the work men. D It will be pertinent to note the reasons given by the Tribunal in Cynamid India Ltd. for rejecting the claim of the workmen in that concern for making provision for free transport facilities. We are . referring to this aspect because the Tribunal in the case of Atul Products Ltd. has rejected the claim for free transport on the same ground as given by it in Cynamid India Ltd. The reason given by the Tribunal is that there whould be justification for a Company being made to provide free transport only if a sound public transport sytem did not exjst or was not conveniently avail able. The Tribunal has held that for going to village Atul from E Bulsar, public transport is available. It is on this ground that the Tribunal held that it will not be justified in conceding the demand It may be mentioned that Cynamid India Ltd. for free transport. was admittedly providing free transport for its supervisory staff and for that purpose it was maintaining a fleet of vehicles. But, nevertheless, the Tribunal rejected the claim of . the workmen therein for provision being made for free transoort. It was repre sented by Mr. Phadnis, learned counsel for the union, that Atul Products Ltd. and Atic Industries Ltd. give a special conveyance allowanee to their sunervisory staff. But so far as this is concern ed, the counsel also frankly admitted that no material in this regard has been placed in the record of these appeals. Hence we leave that aspect out of consideration. F G Now coming to the attack on behalf of the two Comoanies regarding the grant of transnort allowance, Mr. A. K. Sen and Mr. V. B. Patel, who followed him, urged, that the workmen when thev took uo em11loyment in the factories at village Atul knew full H well that they have to incur expenses for going to their place of work. It wa, also noin•ed out that the de~rne's allowance had been revis•d by the Tribunal by its award Part I and that is suffi transport charges that cient to enable the workmen to meet the 718 SUPREME COURT IU!PORTS [1972] l S.C.R. they will have to incur for going to their place of work. In any even~, it was urged, it is not the obligation of the employer to provide transport taciiites or to bear either in whole or in part the transport expenses of an employee incurred by him for going his place of work. On the other hand, Mr. Phadnis, learned counsel for the Union pointed out that ihe Tribunal has QOt accepted the entire clam; made by the Union, nor has it gran.~ transport allowance at the same rate given by it in the case of Cynamid India Ltd., The counsel pointed out that Atul Products Ltd. and Atic Industries Ltd. and Cynamid India Ltd. are all situated in village Atul. Atic Industries Ltd. and Atul Products Ltd. are no doubt doing business in manufacturing dyes, whereas Cynamid India Ltd. is a pharmaceutical industry. The employees working in the same region should have the same facilities and it is on this principle that the Tribunal has awarded transport a!lowan~e and that to a lesser degree than that prevailing in Cynamid India Ltd. The Tribunal itself has held that the workmen must share a part of the expenses and it is on that ground that though a workmen has to incur 80 paise per day, he has been granted only 15 paise per day. Accordin~ to the learned counsel, the circumstances of the case also justify the said grant. We are of the opinion that the grant of 15 paise per day as transport allowance to those employees staying live miles and beyond is justified in the circumstances of this case. The Tribunal itself has held that the Company must be satisfied that the work men come from a place like Bulsar or places equally distant und is on no allowance need be paid on days when the workman earned leave or any type of leave authorised or otherwise. On behalf of the Companies it was stated that in calculating the cost of living index, bus fare also is taken into account. No doubt in Ahmedabad Mill Owners' Association Etc. v. The Textile Labour Association,(1) it is stated that In the preparaiiail of the wst of livincr inucx, various items including lius fare ure acco~nt. But it is to be noted that the observation in the said decision is that ucually the items mcnioned :hcr.::in inc!u<ling •he bus for·e urc tal;c:i· in•o a:couqt. But Mr. Phac:!nis, roimeJ out by reference to the book "Cost of Living Incle' Numbe.r; Ind'a'' a Mon~g;aph, published by the Lnbour Buronu, Mn!rsr;y of Lab-:iur, Gov::rnin-:nt of India that so far as /-\hn1cdab:.tJ co; icerned, bus .far~ is r.ct ta!~en into account in th•~ pre~"!ora.;.ion of cost of Jiving i:1d ~x. In contrast, he referr~<l us to the R<tnr:hi area w1'ere trave]ii'g cxc.•'lse is taken into a:cou·1t in 'he p· epa ra·ion of cost of living index. No material has been b~fore us on behalf of the Companies concerned to show that in (1) [1966] I S.C.R. 382. A B c D E F c n A B c D E G Atl<: ~DUSTR!ES \I. WORKMEN (Vaidialingam, !.) 779 the preparation of the cost of living index m the area concerned trans,,on expense IS ta..cn mto account. the uovernmem. l'ne dec.s10ns m 1'he Patna Electric Supply Co., Ltd. Pama v. 1'ne t'Wflu c..OClrtC ;:,upp1y workers' Umon\ 1) and Moham mea a/Id .JOflS v. l'netr Workmen(•) we.e rererreJ to us oy Mr. P •tel wn.:rern n has been he1d that proviu,115 or noushlg accommodauon is qot tile dmy o! an e1npioyer amt u1at tne rcs pons.oJ,.y ror the same is tnat of ln our opm.on, a c.atlll wr providing housing accommodauon is totaJy dilferent from a 1:1aim maoe ror tran.port allowance, 1n fact m th~ presenc awaros, th~ Tnbunal has rejected the claim or the wor.:H\e,, 10r nousrng tacmues being provided- by both the Com panies. Similarly, the decision in l<em.ng1on Rand of India Lid. v. workmen ( •) of this Court regarding lunch allowance does not also assist the Companies before us. It was held in tM said decision that normally when the wage structure iS fair· and dear ness ailowance is paid to the workmen lm.:ed with the index of . cost of living, they must take care of the rise in the cost of living from time to time and therewre a company cannot be compelled to pay lunch allowance to all workmen. wt!J be noted, that the lunch allowance was b~ing paid by the company _concerned .to workmen who had to go to distant places and could not remm to the office during lunch oeriod. But the rate of allowance to such employees was raised by this Co<lft no douDt by consent of the Company. But the extension of allowance to other employees who had to work only factory or office premises was rejected. In this connection was observed that the financial ability of an employer to ~ar the , dditfonal burden is not criterion. The principle that in a proper case the Industrial Tribunal can impose 1.ew obligation on the employer in the interest of social justice and can aiso. involve tht parties in a new contract has b;:en recognised by this Court in The Patna Electric Supply Co., Ltd. f'.atna v. The Pa;na Electric Supply. Workers' Union('), and The New Maneck Chowk Spinning and Weaving Co. Ltd. Ahmedabad and others v. T~e Textile Labour Associatio~. Ahmda?ad('). No doubt the said jurisdiction of the Tribunal is condi•ioned by l.aws . and In fois cc~nec1ion the lullowm3 oo>er judicial pronouncements. vation of Ludwig Teller in "Lab:im Disnutcs & L.:ollecuve Bar gaining" (Volume I, page 536) is r.pposite : In that decision, l"e "Industrial arbitration may involn the extension of an existin~ a~reement or the m~•'--in.~ o~ a new on'., or, in general, the creation of new ob1Ig1t1ons o'. m~d1- lica•ion of old ones while commercial arb; trat10n H (i)[1959] Suool. 2 S.C.R. 761. (') [1969] (19) F.L.R. 46. (') [19681 TL.L.J. 536. (') 119611 l S.C.R. I. I • • 780 SUPRl!ME COURT REPORTS (1972] 3 S.C.R. generally concerns itself with interpretation of existing to existihg agree- obligations and disputes relating menJ.s." A . The ab~:>Ve observations have been quoted with approval by this Court m some of its earlier decisions. Therefore, there can be no doubt that an Industrial Tribunal has jurisdiction to make a proper ~nd ~easonable order in any, industrial dispute. It should be borne m mmd that the foundation of the principle of industry cum-region is that as far as possible there should be uniformity of conditions of service in comparable concerns in ihe industry in the region so that there is no imbalance in the conditions of a service between workmen in one establishment and those in the rest. The danger otherwise would be migration of labour to the c one where there are more favourable conditions from those where conditions are less favourable. B. to extend It is pertinent to note that though this Court in °1{emington Rand of India Ltd. v. Workmen(') declined benefit of lunch allowanee to employees who had no occasion to go for out door work, nevertheless it recognised in a limited measure the obligation of an employer to provide medical faci lities for its workmen. The demand for provision for medical facilities made by the workmen was contested by the Company therein on the ground that making provision for medical facilities is the responsibility of the Government and not of the employer. Even on the basis that it is the obligation of the employer, it \\as further contended that medical expenses which a workman would ordinarily have to incur are looked after aµd taken into account when fair wages are settled. This Court accepted as correct the contention that the primary responsibility for providing medical facilities for citizens is that of the State. This Court also accept- ed the contention that while fixing fair wages, medical expenses which may have to. be ordinarily incurred by a workman will be taken into consideration. But on the basis that the expenses for medical facilities would have been taken into account in the fixa- tion of wages only to a. l~n_tlted extent artd as the ~t~te can!lot discharge its full respons1b1hty in t~e mattei: of pro".1d1!1g.rn.ec1ic:U facilities, this Court held that a Tnbunal will have 1unsd1cuon m a proper case to .call u~n an emoloy~r to shoulde~ a part of the.burden regardmg medical expenses mcurred by his v;orktnan in the in•erest of industrial harmony and good co-onerat1".e rela tions. We are emohasisin~.the said decision which reco.gmsed an emolover being maae to s)toulder a o.art of the burd~n •.n respe~t of medical exoenses, as more or l~s the same prmcmle will apply in the matter of an emoloyer bein~ asked to reimburse the workman at least to· a limited exten~ regard!ng expenses incurred by the latter for gomg to htS place of work. D E F G transoort H (') [1969] (19) F.L.R. 46. ATIC INDUSTRIES v. WORKMEN (Vaidialingam, J.) 781 o 8 allowance. It should also be remembered We have already pointed out that in Atul village apart from the !WO C.ompani~. there is another ~On~ern also.. Though Cy namtd India Ltd. 1s m the pharmaceutical mdustry, m our opinion the Tribunal was justified in having regard to the practice obtain'. ing in that region on the principle of region-cum-industry when considering the claim of the workmen for payment of transport It is no doubt true that in the case of Cynamid India Ltd. that Company was already paying 15 paise per day to every one of its workmen as transport allowance and that amount has been raised by the Tribunal to 37 paise per day. It has also granted even to workmen living beyond three miles but less than five miles a sum of 12 paise per day. ·But the very C Cynamid India Ltd. was paying even originally 15 paise per day was a relevant factor to be taken into account as the said industry was also in the same region and most of its employees were also coming from distant places like the workmen in the case of the two Companies before us. the Tribunal, in the awards in question, was not considering an isolated claim for payment of transport allowance. That demand was only one of the demands, which was being dealt with by the Tribunal along with various other demands such as revision of wage scales, dearness allowance etc. The Tribunal can certainly be expected to be aware of the fact, when it was fixing the wage scales and dearness allowance that it has also to adjudicate ori a E claim for transport allowance. Having due regard to this c'!aim, it must have fixed the wage scales and dearness allowance. We have gone through the scale of dearness allowance fixed under the two awards and it is to be seen that complete neutralisation has not been awarded. The Tribunal has also proceeded on the basis that the workmen must bear, from and out of the wages earned by them, a part of transport expenses. It is only when the Tribunal found that the expense incurred by the workmen for transport was rather, very high and excessive that it has afforded If the entire body of workmen come from dist?nt some relief. places and they all have to incur heavy expenses for using tran~­ port, the question may pertinently arise whether it is not a case for revision of wage scales or dearness allowance in such a man- G ner as to include also this item of expense. The Companies have provided some accommodation in the village itself for about 25 % of its workmen on a nominal rent. Some other are living near about the village itself and they have no necessity to spend In resnect of these two categories of any amount for transport. work111en, there cannot be a general rise in the wages ·paid to them. On the other hand, the case of workmen who come from ~ di.fferent It is not oossible for them to cover the entire distance footing, walking and they have necessarily to use H distant places, due to no fault of theirs, stands on transport F 4-L!06!Sup Cl/72 782 SUPREME COURT REPORTS (1972] 3 S.C.R. coming to their place of work. Quite naturally, one can expect the workmen to choose only that type of transport which will cost them the minimum. Even if they choose the train service, which will be compartively cheaper, they will have to incur additional expense for coming to their place of work and return home. , It must be noted that though the claim was for payment of 80 paise per day per worker to cover the entire cost of transport to and fro, the Tribunal has awarded only a moderate sum of 15 paise which was the amount that was being paid by .Cynanud In_ the case of Atul Products Ltd. as India Ltd. originally. against the claim made for an allowance of Rs. 15 /- per month, for every workman, the Tribunal has allowed only 15 paise per day and that too op the days when the workman comes for duty. Similarly, in the cace of Atic Industries Ltd. the demands were : (a) Rs. 20/· per month to be paid to every workman using State Transport Bus Service; (b) Rs. 15/- per month to be paid to every workman coming by cycle from places where State Trans port Bus Service was not available; and ( c) The workmen who come by train should be paid Rs. 10/- per month as allowance. As against these varying demands, the Tribunal has only allowed 15 paise per day and that too on the days wijen the workman comes for work. Thus it will be seen that even on the basis that a workman staying at a distance of five miles or more comes for work for 30 days in a month, the allowance he ge~ is only a sum of Rs. 4.50 p under the Award. In the circumstances mentioned above, it cannot be stated that the award of the sum of 15 paise per day is in any manner unreasonable or arbitrary. The payment has also been hedged in by the condition that the employer has to be satisfied that the workman is staying at a place five miles and over from Atul village and that it need not be paid on days when the workman is either on earned leave or any type of leave authorised or other wise. Therefore, We are satisfied that the direction given by the Tribunal under demand No. 4 in Civil Appeal No. 742 of 1968 and demand No. 6 in Civil Appeal No. 809 of 1968 is justified. The Union in Civil Appeal No. 2086 of 1968 has asked for enhanced rate of transport allowance being given to the Cmployee in Atic Industries Ltd. Its claim is that 80 paise has to be paid to every workman per day or in the alternative the allowance .must be, as directed by the Tribunal in Cynamid In<tia Ltd. All these aspects have been discussed by the Tribunal when it fixed quantum in the case of Atic Industries Ltd. Though the Tribunal cannot impose any new obligation on an employer merely on the ground that the financial capacity of the employer is sound, never theless the Tribunal when imposing the new obligation has also B c D E F G H ATIC INDUSTRIES v. WORKMEN (Vaidialingam, J.) 783 In to consider the capacity of the employer to bear the burden. the case of Atic Industries Ltd. the Tribunal has held that it does not want to cast additional financial burden and that is why has fixed the allowance at a very reduced scale. We see no error in this reasoning of the Tribunal and as such Civil Appeal No. 208 6 will have to be dismissed. In the result, the Awards of the Industrial Tribunal in respect of demand No. 4 in Civil Appeal No. 7 42 of 1968 and demand No. 6 in Civil Appeal No. 809 of 1968 are confirmed and both the appeals are dismissed. Civil Appeal No. 2086 of 1968 also dismissed. Parties will bear their own costs ,appeals. .all G.C. Appeal dismissed:. A B C