The Management of Arasu Rubber Corporation Ltd. v. The Presiding Officer Industrial Tribunal Madras & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9..6..2008CORAMTHE HONOURABLE MR. JUSTICE K. CHANDRUW.P. Nos. 15227 and 15228 of 1996The Management of Arasu Rubber Corporation Ltd.VadaseriNagercoilKanyakumar Districtrep. By its Managing Director.. petitioner in both W.Ps. vs.1.The Presiding OfficerIndustrial TribunalMadras2.The workmenRep. by the SecretaryKanyakumari District Estate SupervisorsStaffs and Employees UnionKulasekaramKanyakumari District.. R2 in W.P. No. 15227 of 19963.The workmenRep. by the SecretaryTamil Nadu Arasu Rubber Corporation Watchers Union 76 Water Tank Road NagercoilKanyakumari District.. R2 in W.P. No. 15228 of 1996 Petitions filed under Article 226 of the Constitution of Indiapraying for issuance of a writ of certiorari calling for therecords of the first respondent pertaining to the Awards dated19.02.1996 made in I.D. Nos. 79 of 1991 and 73 of 1992 respectivelyand quash the same.For Petitioner : Mr. N. Kannadasan, AAG for M/s T.S. Gopalan & Co.For Respondent 2: Mr. Somayaji, SC Assisted by Mr. Venkataraman for M/s Aiyer and Dolia https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERHeard the arguments of Mr. N. Kannadasan, learned AdditionalAdvocate General appearing for M/s T.S. Gopalan & Co., for thepetitioner Management and Mr. Somayaji, learned Senior Counselappearing for M/s Aiyer and Dolia, for the second respondentworkmen and perused the records.2. The petitioner is the Management of Arasu RubberCorporation which is a State owned Government Company. In W.P.No. 15227 of 1996, the challenge is to the Award dated 19.02.1996passed by the first respondent Industrial Tribunal in I.D. No. 73of 1992. By the said Award, the Tribunal held the withdrawal ofthe paid weekly holiday proposed by the petitioner Company asillegal and that the workmen's demand for continued payment forweekly holidays was justified.3.In W.P. No. 15228 of 1996, the challenge is to the Awarddated 19.02.1996 passed by the Industrial Tribunal in I.D. No. 79of 1991 wherein and by which, the Tribunal declared that thewatchers are entitled to get wages for the rest day and the denialof the same by the petitioner Corporation was illegal. 4.This Court though admitted the writ petitions, however,dismissed the stay application by a considered order dated24.01.1997. In W.P. No. 15227 of 1996, interim stay granted on18.10.1996, was made absolute on 08.9.2003. As against therefusal to grant stay, a writ appeal was filed by the petitioner inW.A. No. 329 of 1997 and the same was dismissed with a direction toexpedite the hearing of the writ petition.5.In view of the interconnectivity between the two writpetitions, they were heard together and a common order is beingpassed. 6.Before the formation of the Government Company, theactivities of the petitioner Corporation were taken care of by theGovernment of Tamil Nadu and controlled by the Forest and FisheriesDepartment. For the Government Rubber Plantation, CertifiedStanding Orders dated 23.9.1970 were provided. The extent of landowned by the Company is approximately 2800 Acres and there areabout 2400 employees engaged by them. There were three categoriesof workers employed by them and they are (a) Field workers (b)General workers (Factory) and (c) staff. In order to protectthe company's properties, at the relevant time, there were 114sweepers, scavengers and field workers. When the control of theRubber Plantation was in the hands of the Government, the field https://hcservices.ecourts.gov.in/hcservices/ workers, sweepers and scavengers were given weekly holidays withwages. It was stated that each time, the Rubber Plantationauthorities used to apply to the Government and got sanction forpayment of wages for the weekly rest period. The wages of theworkmen were determined by settlements between the Trade Unions andthe Management. Those settlements did not speak about wages forthe rest day. 7.On 29.3.1985, the Commissioner and Secretary toGovernment wrote a letter to the Chief Conservator of Forests andalso the copy was marked to the Conservator of Forests, KanyakumariDistrict. The letter reads as follows:-"Sub:Forests G.R.P. K.K. Dist., Employmentof Scavengers, Sweepers and Watchersgrant to weekly holiday with wagespermitted.Ref:1.Government letter No. 12240/FR.VIII/82 Forests andFisheries Department dt.7.4.1982.2.Your letter No. 59894 /F.R.VIII/82.3.Forests and FisheriesDepartment dt. 22.2.1983.4.Your letter No. H2. 28289 /83-1, dt. 19.3.1983.5.From the C.F. East Rubber Circle Letter Ref. No. W.3907/83, dt. 23.4.1983.- - -I am directed to invite your attention to thereferences cited at to State Government have decidedthat the sweepers in Government R.P., K.K. Dist., begiven holiday as rest for one day with wages afterevery six working days. I am to request you totake action accordingly.This order shall take effect from the date ofissue of this letter."8.On 10.8.1984, the petitioner Corporation was incorporatedunder the Companies Act and w.e.f. 01.10.1984, the plantations weretaken over and administered by the petitioner Company. Even afterthe formation of the petitioner Corporation, the payment of wagesfor the rest day for the field workers including sweepers and https://hcservices.ecourts.gov.in/hcservices/ scavengers was continued. Since only a small number of workerswere receiving rest day wages, the other workers brought pressureon the Management to withdraw the benefit given to those workmen.Due to pressure exerted by some of the Unions, the petitionerManagement issued a notice dated 15.4.1991 purporting to be underSection 9-A of the Industrial Disputes Act [for short, 'I.D. Act']proposing to change the service conditions after expiry of thenotice. The intended change was mentioned in the Annexure to thenotice, which is as follows:-"The Scavengers, Sweepers and Field workers whoare engaged for protection purposes will be paidwages for the days of works actually performed bythem like other field workers. The aforesaidworkers will not be paid wages for the rest days.The said workers are entitled to get wages likeother field workers."9.Though some of the Unions did not object to the change ofservice conditions, the Kanyakumar Estate Workers' Union objectedto the same. The Government Rubber Corporation Watchers' Unionraised a dispute by their letter dated 14.5.1991. Even during thependency of the conciliation proceedings, the petitioner Managementdiscontinued the rest day wages w.e.f. 15.5.1991. According tothe Management, during April 1991, there were 114 workmen who werereceiving rest day wages and at present, there are only 55 workmencovered by the said category. The dispute raised by the watcherswas referred for adjudication by G.O. No. 1140 Labour Departmentdated 19.11.1991 and the dispute raised by the sweepers wasreferred for adjudication by G.O. No. 647 Labour Department dated14.7.1992. The dispute raised by the watchers was taken on fileas I.D. No. 79 of 1991 and the dispute by the sweepers was taken onfile as I.D. No. 73 of 1992.10. The Labour Court in I.D. No. 79 of 1991 allowed theworkmen to mark documents Exs. W.1 to W.28 and the petitionerManagement marked documents as Exs. M.1 to M.13. While theSecretary of the Union by name, J. James was examined as W.W.1, onthe side of the petitioner, one Veeramani (M.W.1) and K.Ranganathan (M.W.2) were examined. The Tribunal, on considerationof the materials placed before it, held that since the benefit wasgiven by the Government, the Management should have obtainedapproval from the Government. It also rejected the contention ofthe Management that the withdrawal was made necessary due to thepressure of the other workers demanding similar benefit. It alsoheld that the watchers are separate category and the Governmentgave the benefit considering the arduous nature of the duty of thatcategory. It also held that the workmen are working for all the https://hcservices.ecourts.gov.in/hcservices/ 24 hours in all the seven days of a week and their work involverisk because of attack by wild animals. It also held that eventhough neither in the Minimum Wages Act nor under the PlantationsLabour Act provision is made for holiday with wages, it is theGovernment which thought that these categories should be paidwages for the rest day also. Therefore, the withdrawal of thesaid benefit was illegal and, by its Award, it directed thecontinuation of the benefits. 11.Similarly, in the case of sweepers in I.D. No. 73 of1992, 14 documents were filed on the side of workmen and they weremarked as Exs. W.1 to W.14 and on the side of the petitionerManagement, 16 documents were filed and they were marked as Exs.M.1 to M.16. While the Secretary of the second respondent Union,by name, M. Annadurai was examined as W.W.1, on the side of theManagement, one K. Ranganathan was examined as M.W.1. In thiscase, the Tribunal found that notice under Section 9-A of the I.D.Act was not served on the second respondent and it was also not putup in the language known to the workmen thereby contravened Rule 57of the Tamil Nadu Industrial Disputes Rules, 1958. In that viewof the matter, the Labour Court held that since the mandatoryconditions provided under Section 9-A read with Rule 57 and Form Nwere not followed, the action of the petitioner was illegal. Itis against these two Awards, the present writ petitions have beenfiled.12.Mr. N. Kannadasan, learned Additional Advocate Generalappearing for M/s T.S. Gopalan & Co., representing the petitionerCorporation made the following submissions in assailing the twoAwards:-(a)The rest day wages paid to the filed workers includingwatchers, sweepers and scavengers was not a servicecondition between the Management and the workmen and itwas a concession given erroneously by the Government.(b)There cannot be two different service conditions inrespect of the plantation workers i.e., one receiving therest day wage and the other not receiving the rest daywage.(c)Neither in the Plantations Labour Act nor in the MinimumWages Act, rest day wage has been provided by theGovernment and therefore, the workmen cannot claim it asa matter of right. (d)Since the benefit of rest day wages is available only to114 workmen out of a total of 2400 workers and it createsan unrest among the other sections. https://hcservices.ecourts.gov.in/hcservices/ (e) Because of the continuance of the rest day wages, thereis a clamour for other categories of workers to getposted as watchers.(f)Since there is a substantial compliance by giving noticeunder Section 9-A of the I.D. Act, the Award in I.D. No.73 of 1992 taking a contrary view was not valid.(g)The private estates in Kanyakumari District do not grantsuch benefits to their workmen.13.Per contra, Mr. A.L. Somayaji, learned Senior Counsel,assisted by Mr. G. Venkataraman, appearing for the secondrespondent, submitted that the non-compliance of the conditionprescribed under Section 9A of the I.D. Act cannot be condoned andthe Tribunal was correct in holding that there was an infraction ofnotice under Section 9A of the I.D. Act. Once it is held thatthe notice under Section 9A of the I.D. Act was not proper, theTribunal need not go into the merits of the dispute raised betweenthe parties. 14.The learned Senior Counsel placed reliance upon thejudgment of the Supreme Court in Indian Oil Corpn. Ltd. v. Workmen[(1976) 1 SCC 63] and referred to the following passage found inparagraph 12:-Para 12:"It was next contended that even if Section 9-A ofthe Act applied, the Tribunal should have gone intothe question on merits instead of giving the awardon the basis of non-compliance with the provisionsof Section 9A. This argument also appears to us tobe equally untenable. On the facts and circumstancesof the present case the only point that fell fordetermination was whether there was any change inthe conditions of service of the workmen and, if so,whether the provisions of Section 9-A of the Actwere duly complied with. We cannot conceive of anyother point that could have fallen for determinationon merits, after the Tribunal held that Section 9-Aof the Act applied and had not been complied with bythe appellant."15.He also submitted that the workmen covered by the twoAwards are entitled to get wages for the rest day. As per theorders of the Government, even before the formation of thepetitioner Corporation and after the present Management took over,they had continued to grant the said benefit and hence, it hadbecome part of the service conditions of the workmen. In fact, https://hcservices.ecourts.gov.in/hcservices/ the other workers are aggrieved by the grant of rest day wagecannot be a ground to deny wages for these workmen. On thecontrary, such benefits should be extended to all workers if thepetitioner wants to be a model employer. The comparison with theother private estates has no relevance as the petitioner is aGovernment Company and is a State within the meaning of Article 12of the Constitution and they are expected to implement thedirective principles of State Policy. 16.It is an admitted case that the petitioner Management isa wholly owned Government enterprise and is a State within themeaning of Article 12 of the Constitution. By virtue of Article37 of the Constitution, the directive principles laid down in partIV of the Constitution are fundamental in the governance of thecountry and it shall be the duty of the principles in making laws.Article 43 of the Constitution reads as follows:"43. Living wage, etc., for workers.—The State shallendeavour to secure, by suitable legislation oreconomic organisation or in any other way, to allworkers, agricultural, industrial or otherwise,work, a living wage, conditions of work ensuring adecent standard of life and full enjoyment ofleisure and social and cultural opportunities and,in particular, the State shall endeavour to promotecottage industries on an individual or co-operativebasis in rural areas."17.The Supreme Court, while interpreting the provisions ofthe Plantations Labour Act, had laid the basis of the judgment bybringing it within the purview of Article 42 of the Constitution inits judgment relating to B. Shah v. Presiding Officer, LabourCourt, Coimbatore [(1977) 4 SCC 384] and the following passagefound in paragraph 18 may be usefully reproduced:-Para 18:".... It has also to be borne in mind in thisconnection that in interpreting provisions ofbeneficial pieces of legislation like the one inhand which is intended to achieve the object ofdoing social justice to women workers employed inthe plantations and which squarely fall within thepurview of Article 42 of the Constitution, thebeneficent rule of construction which would enablethe woman worker not only to subsist but also tomake up her dissipated energy, nurse her child,preserve her efficiency as a worker and maintain thelevel of her previous efficiency and output has tobe adopted by the Court." https://hcservices.ecourts.gov.in/hcservices/

18.In the light of the observations made by the SupremeCourt and in order to make a full enjoyment of leisure as enshrinedunder Article 43 of the Constitution, every workman must be paidwages for the rest day as otherwise, there cannot be any enjoymentof leisure by workman. The fact that neither the Notificationunder the Minimum Wages Act nor any provision of the PlantationsLabour Act provides for rest day wages is immaterial in the presentcontext. The Government which was manning the plantations beforethe petitioner Corporation, by taking note of the work done by thethree category of workmen, has consciously provided rest day wagesfor them. Unless there are any change of circumstances, thequestion of withdrawal of the said benefit does not arise. 19.In fact, the oral evidence of J.James, W.W.1 in I.D. No.79 of 1991 and also the oral evidence of M. Annadurai, W.W. 1 inI.D. No. 73 of 1992 clearly spoke about the conditions ofemployment of these categories of workmen and in the cross-examination, the petitioner was not able to impeach thosedepositions. If it is not a condition of service, the question ofthe petitioner issuing notice under Section 9-A of the I.D. Actmight not have arisen. With regard to the contention that nonotice was given in respect of the second respondent Union in I.D.No. 73 of 1992 and that the notice was not published in terms ofRule 57, there is no answer on the side of the Management. Thetheory of substantial compliance advanced by the learned AdditionalAdvocate General does not hold water in the light of the judgmentof the Supreme Court in the Indian Oil Corporation Ltd. Case (Citedsupra). The Management had not let in any credible evidencebefore the Tribunal to prove that the nature of work performed bythe watchers, sweepers and scavengers are not in any way different.On the contrary, they were only pressurized by the other workmen towithdraw the benefit. In the counter statement filed in I.D. No.79 of 1991, the following passage is found in paragraph 4:-".... To put it differently, while all the fieldworkmen, tappers and factory workmen are being paidwages only for the working days and were not paidfor the weekly holidays, a small section of thefield workers who were deployed as watchers,scavengers and sweepers were getting wages for theweekly holidays. This has created disaffectionamong the workmen and workmen in other categoriesalso started demanding wages for the weeklyholidays."20.It is strange for the Management to plead on behalf ofthe other workers who are aggrieved by the payment of rest daywages for a section of the workers, who were employed by the https://hcservices.ecourts.gov.in/hcservices/ Government and whose services were taken over after the formationof the petitioner Corporation. Under Section 25FFA of the I.D.Act, a workman, whose services were transferred to a new employer,is entitled to have the service conditions continued with the newemployer. Further, the number of employees at the time of noticeof change was given, was admittedly 114 workers and it is statedthat now there are only 55 belonging to this category. Consciousof this fact, the learned counsel for the petitioner Corporationmade alternative plea before the Tribunal which is found reflectedin paragraph 7 of the reply affidavit dated 16.01.1997 filed inW.P. No. 15228 of 1996. The said averment may be usefullyextracted below:-"I was present at the time of hearing of the disputebefore the first respondent. I state that counselfor the petitioner corporation argued that thechange proposed in the 9A notice was fully justifiedand as an alternative submission it was urged thatif for any reason the first respondent felt thatthese watchers, sweepers and scavengers have enjoyedthis benefit for a certain period and whether theyshould be deprived of the same, the court mayconsider payment of some adhoc amount to theexisting watchers, sweepers and scavengers...."21.Since the category of these workmen is only a vanishingtribe, the petitioner Management need not have ventured intowithdrawal of the said privilege of rest day wages at the behest ofthe other workmen. There is a clear distinction between the twocategories of workmen and the objection now raised must have beentaken note of by the Government, which is the real owner of theplantation at the time of granting such direction. The comparisonwith the private estates in and around Kanyakumari District has norelevance and in law, only the comparables can alone be compared.Further, the reference to Plantations Labour Act and theNotification under the Minimum Wages Act has no relevance indeciding the issue whether the workman should get wages for therest day or not. What has been fixed in those enactments is onlythe statutory minimum and it does not forbid the workmen gettinghigher than what was fixed therein. 22.In the light of the above, both the writ petitions aremisconceived and devoid of merits. Accordingly, they aredismissed with cost of Rs.5000/- to be paid to each of the secondrespondent. The petitioner Management is directed to implement https://hcservices.ecourts.gov.in/hcservices/ the Award within a period of eight weeks from the date of receiptof a copy of this order. gri Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar ToThe Presiding OfficerIndustrial TribunalMadras2 ccs to M/s.T.S.Gopalan & Co., Advocate, SR.27587, 27588 (in bothWps.)1 cc to M/s.Aiyar & Dolia, Advocate, SR.27581ssn (co)dv./17.6.W.P. Nos. 15227 & 15228 of 1996