SHRI SURESH CHAND v. M/S RICHA & COMPANY

SHRI RAMAN lEE JHA Appellant Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal," Advocates. versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

3. LPA NO.634/2008 SHRI MOHAMMAD NASIR ..... Appellant Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Tlirough: Ms. Raavi Birbal, Advocate.

4. LPA NO.635/2008 SHRI PRABHU NATH RAJAK Appellant Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus LPA No.631/2008with connectedmatters Page1of11 M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

5. LPA NO.636/2008 SHRI PAHMATMA TIWARI Appellant Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus • M/S RICHA & COMPANY Through: ' Respondent Ms. Raavi Birbal, Advocate.

6. LFA NO.637/2008 SHRI VISHWANATHJHA ..... Appellant Through; Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

7. LPA SHRI SURESH CHAND Appellant Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

8. LPA NO.639/2008 SHRI BHAGWAN SINGH Appellant -Through: Mi-.AshokAgarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. LPA No.631/2008with connectedmatters Page 2 of11 versus M/S RICHA & COMPANY Through: Ms. Raavi Birbal, Advocate. ..... Respondent

9. LPA NO.640/2008 SHRI UPENDAR PRASAD Through: versus Appellant Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. M/S RICHA & COMPANY ' ..... Respondent Through: Ms. Raavi Birbal, Advocate.

10. LPA NO.641/2008 SHRI SUNIL KUMAR Appellant Tln'ough: Mi-.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA % ORDER'

23.03.2011 In this batch of intra-Court appeals, the assail is to the order dated

12.9.2008 passed by the learned Single Judge in M/s. Richa & Company v. Shri Suresh Chand [•W.P.(C) No. 10744/2006] and other connected matters whereby the learned Single Judge has dislodged the award dated 22.12.2005 LPA No.631/2008 with connected matters Page 3 of11 l\N passed in the apphcations filed by the woiionen under Section 33A of the hidustrial Disputes Act, 1948 (for brevity 'the Act') whereby the hidustrial Tribunal-II, Delhi (for short 'the tribunal') has directed the management fix the duty hours of the worlanen from 9.30 am to 6.00 pm which was prevalent prior to 1.7.2002.

2. Sans unnecessary details, the facts which are essential to be stated are that during the pendency of a dispute raised by the workers union regarding . annual increment, transport allowance, summer and winter uniform and enhancement in tea allowance, the respondent-management changed the worldng hours from 9.30 am to 6.15 pm instead of 9.30 am to' 6.00 pm which included a tea break from 4.00 pm to 4.15 pm. As the working hours were changed, a complaint was filed by the union of the worlanen, which was not entertained by the tribunal vide order dated 7.2.2004 holding that the application of the union under Section 33A of the Act was not maintainable. Thereafter, 1 appellants - workmen filed separate complaints seeking similar relief contending that during the pendency of the reference, the terais and conditions of service could not have been altered. The said applications were resisted by the management on the foundation that the change of working hours was not comiected with the reference in question and the provisions of Section 33A of the Act were not attracted. The tribunal by the award dated 22.12.2005 expressed the view that there was a change in the conditions of service of the employees and accordingly LPA No.631/2008 with connectedniatters Page 4 of11 directed tlie maiiagement to maintain the worlcing liours which were prevalent before the disputes arose.

3. . Being aggrieved by the aforesaid award, a number of Writ petitions were filed by the management. Before the writ court, it was contended that there was no nexus between the subject matters of the reference that was pending between the workinen of the union and the management, and there was basically no alteration of service condition. It was also contended that the Factories Act pennitted the management to take work from a worlanan, 8 hours a day and 48 hours a week and, hence, there is no statutoiy violation of the working hours. The learned Single Judge after referring to various decisions came to hold as follows: it is apparent the Tribunal pertaining to annual that the disputes pending "20. Therefore, increment, before transport allowance, summer and winter uniforms and enhancement of tea allowance etc. was -not comiected to increase of the working hours. From the dispute about aforesaid it is clear that there is no violation of Section 33(l)(a) of the Industrial Disputes Act as the subject matter involved regarding the timings of the worlanen is different from the subject matter of reference. . * It

21. is also apparent there is no violation of . Section 33(l)(b) of the Industrial Disputes Act as the •• same relates to discharge or punishment and none of the in the petitions have been either discharged respondents or punished. The increase of working hours from 9.30 AM to 6 PM to 9.30 AM to 6.15, AM is also in compliance with Section 51 of the Factories Act, 1948 which contemplates and mandates that worldng hours in a factory shall not be more than 48 hours in a week. there is no violation of Section 33(2)(a) of Consequently, the Industrial Disputes Act which clearly states that "the • employer may in accordance with the standing orders LPA No.631/2008 with connected matters Page 5 of11 applicable to a worlanan concerned in such dispute (or, in accordance where there are no such standing orders, with the terms of the contract, whether express or implied, between him and the workman) after, in regard to any matter not. connected with the dispute, to that worlanan sei-vice applicable conditions ' the immediately proceeding. commencement before The petitioner, therefore, has changed the timing 22. of working of the respondents from 9.30 AM to 6.15 PM in accordance with the Factories Act according to which a worlanan can be made to work up to 48 hours in a week. The respondents in their counter affidavits have they are bound to work 8 not denied or disputed that It is not disputed that hours a day and 48 hours a week. the respondents are paid emoluments according to the work done by them. respondents in various writ petitions is that the petitioner could not change the woiidng hours without obtaining permission from the concerned authority / Tribunal as the respondents were made to work for 7 hours earlier and 45 minutes as a day whereas the salary was paid to them for 8 hours and on revision of working time from 9.30 AM to 6 PM to 9.30 AM to 6.15 PM they are worlcing for 8 hours for which the salaries are paid to them." The only objection •4. Being of this view, the learned Single Judge set aside the award passed by the tribunal. At this juncture, we may note with profit what has been held by the tribunal. The tribunal referred to an appointment •letter Ex.GWl/1 issued by the management on 1.10.1993 conveying the duty timing by 9.30 am to 6 pm and opined that there was a material change in the conditions of service of the employees. Thereafter, the tribunal has opined thus; "14. Clause (a) of sub Section (2) of Section 33 of the to- alter the conditions of ID Act permits the employer LPANo.631/2008 with connected matters express approval authority. implied without therefore was required to show that service applicable to a workman immediately before the commencement of such proceeding, during the pendency of any proceeding before the Labour Court or Tribunal etc in respect of an industrial dispute in regard to any matter not connected with such dispute in accordance with the standing orders applicable to a workman concerned in such dispute and in the absence' of the in accordance with the terms of the standing orders, contract whether The permission management have altered the conditions of service applicable to the worlanan immediately before the commencement of ID No.22/98 in accordance with the standing orders and if there are no such standing orders the same was done in contract whether accordance with the terms of the express or implied, between them and the workman. The management has miserably failed to show the same. No standing orders have been relied upon / shown under which the conditions of service regarding the changed timirigs have been altered by the management nor they could show any contract whether express or implied whereby they have changed the sei-vice conditions of the workman applicable to him immediately before the commencement of ID No.22/98 pending in this court. In fact workman show from his appointment letter that his duty hours were from 9.30 AM to 6.00 PM. Thus by changing the duty hours from 9.30 AM to 6.00 PM to 9.30 AM to 6.15 PM, management has altered the conditions of service which were applicable to the workman immediately before the commencement of the ID No.22/98 and as such they have violated the provision of section 33 of ID Act." /

5. We have heard Mr. Ashok Agarwal, learned counsel for the appellants arid Ms. Raavi Birbal, learned counsel for the respondent.

6. Learned counsel for the appellants submitted that the order passed by the tribunal should not have been interfered with by the learned Single Judge by opining that there has been no change of service conditions, as by-the LPANo.631/2008 with connected matters Page 7 of11 (h. order of appointment, a concession was given and there was no stipulation that the management could'enhance the working hours. It is urged by him that when the dispute is pending with regard to service conditions, service conditions could not have been changed and, therefore, there could not be any alteration of the working hours. Learned counsel would flirther submit that the appellants were entitled to get overtime pay.

7. • To bolster his submissions, learned counsel for the appellant has relied on the decisions rendered in Indian Oxygen Ltd. v. Their Workman, AIR 1969 SC 3O65 Workmen v. Calcutta Electric Supply & Ors,, (1974) 3 see 193, Life Insurance Corporation (& Ors. v. D.J. Bahadur, (1981) 1 SGC 315 and Hindustan Level Ltd. v. Ram Mohan Roy, (1973) 4 SCC

8. Ms. Raavi Birbal, learned counsel for the respondent, per-contra, sulp.mittedthat the order of the learned Single Judge is absolutely justified in holding, inter alia, that the dispute pending before the tribunal was not coEcemed about the increase of working hours and, hence, there was no vitiation of Section 33(l)(a) of the Act as the matter involved related to working hours of the worlanen, which was different from the subject matter of reference. It is also urged by her that earlier there was no tea break but to allow the tea break, time was enhanced. It is urged by her that Section 33(2)(a) is attracted as there is a model standing order in force. Learned counsel has commended us to the decisions in Orissa Oil India Mazdoor LPA No.631/2008 with connected matters Page 8 of11 Union & Ors. v UOI, 1990 LAB I.C. 1146, L.K. Textile Mills v. Workman, AIR 1961 SC 860 and Management of May and Baker (India) Ltd. V. Their Workmen, AIR 1967 SC 678.

9. To appreciate the submissions raised at the Bar, we' have carefully perused the award passed by the tribunal and the order passed by the learned Single Judge in the writ petitions. In fact, for the sake of clarity and convenience, we have reproduced the relevant paragraphs in extenso. As the controversy gets projected, it is clearly vivid that the management has taken recourse to Section 33(2)(a) of the Act. Therefore, we reproduce Section 33(2) in entirety: During the pendency of any such proceeding "33(2) in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a worlanan concerned in such dispute or, where there are no such standing in accordance with the terms of the contract, whether express or implied, between him and the workman - order, alter, in regard to any matter not comiected with (a) the dispute, the conditions of service applicable to that worlonan immediately before the commencement of such proceeding; or (b) for any misconduct not comiected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." LPA No.631/2008 with connected matters Page 9 of11 /91

10. On a perusal of the said provision, it is quite clear that there can be an alteration of service conditions if it is in accord or consonance with the standing order, in regard to any matter not connected with the dispute, immediately before the commencement of such proceeding or in the absence of a standing order, in accordance with the terms of the contract, whether express or implied, between the management and the worlanen. To elaborate, if there is a settlement between the management and the workmen, it has the status of a binding contract and relying on the same the conditions of service can be altered, which are not connected with the dispute. In the present case, the tribunal has opined that no standing order was produced. The learned Single Judge, as is manifest from the order, has come to hold that the subject matter does not involve timings of the worlanen. It is evident from the language employed in the Act under Section 33(2)(a) that the change can only take place if there is a standing order in force or a contract express or implied. Ms.Raavi Birbal would submit there is a model standing order. Learned counsel also submits that there is stipulation in the letters of appointment there could be change. It is also her' further submission that even if the standing order of the company is not there, the model standing order would come to aid of the management. As these aspects have not been dealt with either by the tribunal or by the learned Single Judge, we think it appropriate to set aside the award as well as the order by the writ court which has reversed the award and remit the matter to the tribunal to deal with this lis, from these spectrums so that the controversy LPA No.631/2008 with connected matters Page 10 of11 '? can be put to rest. It be clarified that the parties are at liberty to adduce fresh evidence and advance all their contentions as available to them under law. H\, In the result, the appeals are allowed to the extent indicated 'hereinabove. There shall be no order as to costs. CHIEF JUSTICE SANJIV KHANNA, J MARCH 23, 2011 , • LPAN0.631/20P8 with connected matters Page 11 of11