SHRIPARMATMA TIWARI v. M/S RICHA & COMPANY

IN THE HIGH COURT OF DELHI AT NEW DELHI + 1. LPAN0.631/2008 Sma-MOHAR SINGH Through: versus Appellant Mr.Ashok Agarwal with Dr.Aurobmdo Ghose and Sh.Anuj Agarwal, Advocates. M/S RICHA & COMPANY Respondent Tln'ough: Ms. Raavi Birbal, Advocate.

2. LPA NO.632/2008 SIIRI RAMAN JEE JHA 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 MOPIAMMAD NASIR Appellant Thi'ough: Mi\Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

4. LPA NO.635/2008 . SHRI PRABHUNATH RAJAK Appellant Through: Mi\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 Respondent Thi"ough: Ms. Raavi Birbal, Advocate.

5. . ' SHRI PARMATMA TIWARI 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

6. LPA NO.637/2008 SHRI VISHWANATHIHA Appellant Thi-ough: Mi'.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

7. SHRI SUHESH CHAND Appellant Through: Mi'.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 Thi-ough: Mi-'.AshokAgarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. LPANo.631/2008 with connected matters Page 2 of11, versus M/S RiCHA & COMPANY Tbrough: Ms. Raavi Birbal, Advocate. Respondent

9. LPA NO.640/2008 SHRI UPENDAR PI^^SAD Tlii'ough: 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 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. CORAM: HON'BLE THE CHIEF JUSTICE HOl^'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 cormected matters whereby the learned Single Judge has dislodged the award dated 22.12.2005 'LPANo.631/2008with connectedmatters 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 hidustriai Tribunal-II, Delhi (for short 'the tribunal') has directed the management fix the duty hours of the woiianen 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 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 woiianen, 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 - woiianen 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 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 connected matters Page 4 of11 directed the management to maintam the workmg 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. Beforethe writ court, it was contendedthat there was no nexus between the subject matters of the reference that was pendingbetweenthe worlonenof the union and the management,and there was basically no alteration of service condition. It was also contended that the Factories Act peraiitted the managementto 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: "20. Therefore, it is apparent that the disputes pending before the Tribunal pertaining to armual increment, transport allowance, summer and winter uniforms and enliancement of tea allowance etc. was not comiected 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. . Consequently, there is no violation of Section 33(2)(a) of the Industrial Disputes Act which clearly states that "the employer may in accordance with the standing orders LPA No.621/2.008 with connected matters Page 5 of11 applicable to a worlanan concerned in such dispute (or, where there are no such standing orders, in accordance express or with the terms of the contract, whether iiiiiplied, between him and the worlanan) after, in regard to .any matter not comiected with the dispute, to that worlaiian sei-vice applicable conditions 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 worlaiian 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 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." The only objection of

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 refeiTed 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 sfervice of the employees. Thereafter, the tribunal has opined thus: "14. Clause (a) of sub Section (2) of Section 33 of the ID Act permits the employer to alter the conditions of LPA No.631/2008 with connectedmatters 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 v^ith 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 permission The 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 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 managementnor they could show any contract whether express or implied whereby they have changed the sei-vice conditions of the worlanan 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 service 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." terms of the

5. We have heard Mr. Ashok Agarwal,learnedcounsel for the appellants and Ms. Raavi Birbal,learned counselfor the respondent.

6. Learned'counselfor the appellantssubmittedthat the order passed by the tribunalshouldnot have been interferedwith by the learnedSingle Judge by opining that there has been no change of service conditions, as by the LPA No.631/2008 with connected matters Page 7 of11 order of appointment, a concession was given and tliere 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 farther 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 see 193, Life Insurance Corporation & Ors. v, D.J. Bahadur, (1981) 1 see 315 and Hindustan Level Ltd, v. Ram Mohan Roy, (1973) 4 SCe

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, 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 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 i 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 connected matters Page 8 of11 I 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 xonvenience, 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:' "33(2) During the pendency of any such proceeding 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 worlanan - order, (a) alter, in regard to any matter not comiected with the conditions of service applicable to that the dispute, workiTian 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

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 worlaiien. 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 that 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 appropriateto 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 SANJIVICHANNA, If ^—. J MARCH 23, 2011 LPA No.631/2008with connectedmatters Page11 of11 (cid:127)