SHRI MOHAMMAD NASIR v. M/S RICHA & COMPANY

Mr.Ashok Agarwal with Dr.Aurobindo Ghose Agarwal, Advocates. and Sh.Anuj M/S RICHA & COMPANY Through: Ms. Raavi Birbal, Advocate. Respondent

2. LPA NO.632/2008 SHRI RAMAN lEEJHA Through: versus Appellant • Mi-.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. M/S RICHA & COMPANY Through: Ms. Raavi Birbal, Advocate. Respondent

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

4. LPANO.635/2008 SHRI PRABHU NATH RAJAK Appellant Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus LPA No.631/2008 with connected matters Page 1 of11 M/S RICHA & COMPANY Through: lyls. Raavi Birbal, Advocate. Respondent

5. LPA N0436/2008 SHRI PARMATMA TIWARI ..... Appellant "Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose Agarwal, Advocates. and Sh.Anuj versus , M/S RICHA & COMPANY Through: x Respondent Ms. Raavi Birbal, Advocate.

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

7. LPA NO.638/2008 SHRI SURESH CHAND Appellant • Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Through: Ms. Raavi Birbal, Advocate. Respondent

8. LPA NO.639/2008 SHRI BHAGWAN .SINGH Through: ..... Appellant Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. LPA N0.63i/2oo8 ivith connected matters Page 2 ofii versus M/S RICHA & COMPANY Respondent Through:- Ms. Raavi Birbal, Advocate.

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

10. LPAN0.64172008 SHRI SUML KUMAR Through: versus' Appellant Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. M/S RICHA & COMPANY Through: Ms. Raavi Birbal, Advocate. Respondent 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 passed in the applications filed by the worlanen under Section 33A of the Industrial Disputes Act, 1948 (for brevity 'the Act') whereby the Industrial Tribunal-II,Delhi (for short 'the tribunal') has directed the managementto 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.pendencyof a disputeraised by the workers union regarding annual increment, transport allowance, summer and winter uniform and enhancement in tea allowance, the respondent-management changed the working 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, the appellants - workmen filed separate complaints seeking similar relief contending that during the pendency of the reference, the terms 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 connected 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 connected matters Page 4 of11 directed the management to maintain the working hours 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 worlanen of the union and the management, and there was basically no alteration of service condition. It was also contended that the Factories Act permitted the management to take work from a worlanan, 8 hours a day and 48 hours a week and, hence, there is no statutory violation of the working hours. The learned Single Judge after referring to various decisions came to hold as follows: allowance, "20. Therefore, it is apparent that the disputes pending increment, before the Tribunal pertaining to amiual summer and winter uniforms and transport enhancement of tea allowance etc. was not connected to dispute about increase of the working hours. From the 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 is also apparent there is no violation of 21. Section 33(l)(b) of the Industrial Disputes Act as the. same relates to discharge or punishment and none of the respondents in the petitions have been either discharged 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 working 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 LPANo.631/2008 with connected matters Page 5 of11 © applicable to a workman concerned in such dispute (or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the worlanan) after, in regard to any matter not cormected with the dispute, to that worlanan conditions immediately proceeding. commencement applicable service 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 workman can be made to work up to 48 hours in a week. The respondents in their counter affidavits have not denied or disputed that they are bound to work 8 It is not disputed that hours a day and 48 hours a week. the respondents are paid emoluments according to the The only objection of the work done by them. respondents in various writ petitions is that the petitioner could not change the working hours without obtaining permission from the concerned authority / Tribunal as. earlier the respondents were made to work for 7 hours 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 working for 8 hours for which the salaries are paid to them."

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.CWl/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 D Act permits the employer to alter the conditions of LPA No.631/2008 with connected matters Page 6 of11 express or approval of such authority. implied without service applicable to a worlaiian 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 worlanan concerned in such dispute and in the absence of the in accordance with the terms of the standing orders, contract whether The permission management therefore was required to show that they 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 worlanan. 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 timings have been altered by the management nor they could show any contract whether express or implied whereby they have changed the service conditions of the workman applicable to him immediately before the commencement of ID No.22/98 pending in this court. In fact worlanan 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 seryice which were applicable to the worlanan 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,learnedcounselfor the appellants and Ms. Raavi Birbal, learned counselfor the respondent.

6. Learned counsel for the appellants submitted that the order passed by the tribunal should not have been interferedwith by the learned SingleJudge by opining that there has been no change of service conditions, as by the LPA No.631/2008with connectedmatters Page 7 of11 order of appointment, a concession was given and there was no stipulation that the management could enhance the wbrking 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 further 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 306, Workmen v. Calcutta Electric Supply & Ors., (1974) 3 sbc 193, Life InsuranceCorporation& Ors. v. D.J. Bahadur, (1981) 1 see 315 and Hindustan Level Ltd. v. Ram Mohan Roy, (1973) 4 SCC

8.. Ms. Raavi Birbal, learned counsel for the respondent, per-contra, submitted that the order of the learned Single Judge is absolutely justified in holding, inter alia, that the dispute pending before the tribunal was not concerned about the increase of working hours and, hence, there was no violation of Section 33(l)(a) of the Act as the matter involved related to worldng 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 LPANo.631/2008 with connectedmatters Page Hof11 Union & Ors. v UOI, 1990 LAB I.C. 1146, L.K Textile Mills v. Its Workman, AIR 1961 SC 860 and Management of May and Baker (India) Ltd. V. Their Workmen^ 'MR 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 rep;-oduce 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 th'e workman - order, (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement'of iproceeding; or .for any misconduct not connected with the dispute, (b) 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." LPANo.631/2008with connectedmatters ^ Page 9 of11

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 standiiig 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 worlanen, 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 carl 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 that there could be change. It is also lier 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 thinlc 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 LPANo.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.'

11. In the result, the appeals are allowed to the extent indicated hereinabove. There shall be no order as to costs. CHIEF JUSTICE MARCH 23,2011 LPA No.631/2008 with connected matters Page 11 of11