The Management of the Kanyakumari District Co-operative Spinning Mills Ltd. v. The Presiding Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDated :27.08.2008Coram :The Honourable Mr.Justice D.MURUGESANandThe Honourable Mr.Justice S. PALANIVELUW.A.No.3246 of 2004 The Management of the Kanyakumari District Co-operativeSpinning Mills Ltd.,Aralvoymozhi-629301.. Appellant / Petitioner Vs1. The Presiding Officer, Industrial Tribunal, City Civil Court Buildings, Madras 600104.

The Secretary, Kanyaspin Thozhilalar Sangam, Aralvoymozhi-620301. Kanyakumari District.

The Secretary, Kanyakumari District Cooperative Spinning Mills Workers Progressive Union, Aralvoymozhi-629301 Kanyakumari District. .. Respondents / Respondents Writ Appeal under clause 15 of the letters patent against the Order passed in W.P.No.2287 of 1997 dated 13.02.2004. Writ Petitionfiled under Article 226 of constitution of India, to issue a Writ of Certiorari, calling for the records on the file of the firstrespondent and quash and set aside the impugned award dated 24.07.96in I.D.No.42/82. For Appellant : Mr. S. Jayaraman For Respondents : Mr. K.M.Ramesh [for R-3] For R-2 No appearance. https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTS. PALANIVELU,J.The brief facts depicting factual matrix of the matter are asunder:1. (i) The appellant Management is a Co-operative Societyregistered under the Tamil Nadu Co-operative Societies Act. It ishaving a spinning mills at Aramboly. It has a spindle capacity of25,000 spindles.

There is no debate as to the clauses found in the twosettlements entered into between the Management and the workers uniondated 18.11.1973 and 15.07.1977. It is advantageous to have a lookat the matter in the back ground of the concerned stipulations foundin those settlements. Even though the subject earmarked was for wageincrease to Sri Lankan Repatriate workers, it was not specificallyagreed to in the settlement dated 15.07.1977. The Management agreedto pay occupational wages to one R. Nataraja Panicker with effect https://hcservices.ecourts.gov.in/hcservices/ from 1.7.1977. However, in the earlier settlement dated 08.11.1973,while conceding to the demand of payment of occupational wages to theworkmen, it has been agreed as under: "4. It is agreed that such of these employees whoare employed in the Mills and who are not in receipt ofoccupational wages will be paid occupational wages witheffect from 1.07.1973. It is further agreed as agesture of goodwill in lieu of the claim for arrearsfor the period from 1.7.73, the Management will pay alumpsum of Rs.250/- to each worker in full satisfactionof the claims of the workmen for arrears. "

It transpires from records that at the time of entering intothe settlement, Srilankan Repatriates were not in the employment ofthe Management. Hence there was no specific mentioning in the saidsettlement about their service conditions in the establishment. While discussing this point, the Industrial Tribunal has followed thedecision of the Apex Court and reached conclusion that the agreeddemands will also govern the successors, assigns or heirs of theemployer. In 1975 I LLJ P 163 [Jhagrakhan Collieries (P) Ltd. vs.G.C. Agarwal] the Supreme Court has held as follows: "Section 17 makes it clear that a settlementarrived at in the course of conciliation proceedingis binding not only on the actual parties to theindustrial dispute but also on the heirs, successorsor assigns of the employer on the one hand, and allworkmen in the establishment, present of future, onthe other. "

In view of the ruling of the Apex Court it has to be observedthat if settlement is reached with regard to a particular demand, itshall bind not only the parties to the industrial dispute but also onthe heirs successors or assigns of the employer on the one hand andall the workmen in the establishment, present of future, on theother. It is made clear in the award of the Industrial Tribunal thaton the date of this settlement, Sri Lanka repatriates were notworkmen in the establishment. However, the said settlement shallgovern the workmen who would get employment in the Management infuture as per law of the land.

It is the foremost and backbone contention of the Managementthat the Sri Lankan Repatriate workmen have been provided withconcession to their livelihood by means of the proceedings of the Director of Rehabilitation, enabling them to draw ration of rice, wheat at subsidised rates, subsistence allowance depending on thesize of the family, hutting grant, and housing loan etc., which arenot available to the other workmen and hence they could not betreated on par with other workmen who are not made eligible to the https://hcservices.ecourts.gov.in/hcservices/ above said concessions and hence payment of occupational wages to therepatriate workers would not arise.

We have to see whether provisionally such allowances woulddeprive them of claiming the right to get occupational wages on parwith other workers. The answer would be, emphatic 'No'. The reasonis, merely because a class of persons are provided with somefacilities in given circumstance which are not available to otherclass of persons, denying the statutory rights conferred upon thepersons who are eligible for certain facilities could not bejustified as per the judicial pronouncements of the Supreme Court. We are of the considered view that applying analogy of the decisionof the Supreme Court is appropriate to the facts of the case. In1983 (1) LIJ 220 [Sanjit roy vs. State of Rajasthan], the SupremeCourt has laid down the ratio as follows: "The presumption therefore, must be that the workundertaken by the State by way of famine relief isuseful to the society and productive in terms ofcreation of some asset or wealth and when the extractsLabour or service from the affected persons forcarrying out such work, for example, a bridge or arod, which has utility for the society and which isgoing to augment the wealth of the State, there can beno justification for the State not to pay the minimumwage to the affected persons. "

In view of the cordinal legal principles pronounced by the Supreme Court, the Management could not deny payment of occupationalwages merely because the repatriate workmen have been provided withthe above said facilities. The Governments formulated schemes andthought fit to provide those allowances to the repatriates so as toenable them to lead their life in a country alien to them, onhumanitarian consideration and when they render equal work as that ofregular workmen, they are competent to receive the benefits as gainedby the other workers who are benefited monetarily or otherwise.

With reference to the concept of "Equal pay for equal work",the constitution declares that it is a fundamental right when a classof persons executes equal work of the identical nature as done bylike section of people, they are entitled for equal pay. Whiledealing with this position, the Honourable Supreme Court in 1982 ILLJ 344 [ Randhir Singh vs. Union of India & other] has observed asfollows: "It is true that the principle of "equal pay forequal work" is not expressly declared by ourconstitution to be a fundamental right. But itcertainly is a constitutional goal. Article 39(d) ofthe Constitution proclaims "equal pay for equal work" https://hcservices.ecourts.gov.in/hcservices/ for both men and women as a Directive Principle of State Policy. "Equal pay for equal work for both menand women" means equal pay for equal work for every oneas between the equals. "

There shall be no quarrel with regard to the aspect that therepatriate workers are performing the same kind of work as done bythe other workers. Of course, in the affidavit filed in W.P.No.2287of 2007 the Management has taken a plea that they were only inductedas apprentices not employed with any experience and their efficiencyto turn out the work could not be equal to the work done by the otherworkers. We do not accede to this contention, for the reason thatthis stand was taken by the Management only in the writ proceedingsand not before the Industrial Tribunal. Even if the repatriateworkers served as apprentices they should have rendered the same kindof service to the Management since they are unskilled workers. It isthe contention of the Management that it is absolutely difficultwithout any previous experience to perform same duties and give sameproduction as accomplished by the long experienced permanent workersand hence the theory of equal pay for equal work would not work out. As adverted to supra, the nature of work undertaken by the repatriateworkers is unskilled one and so by no stretch of imagination it couldbe stated that they could not carry out the work as performed byother workmen.

Mr.S. Jayaraman, learned counsel for the appellant wouldsubmit that the advantage provided to a class of persons could not beautomatically made available to the other and in this case since therepatriate workmen have been getting the allowances as per the Government scheme and hence they are not entitled to get occupationalwages on par with other workmen. In support of his contention heplaced reliance on the decision of the Honourable Supreme Courtreported in 2008 (3) L.L.N.135 [New Delhi Municipal council vs. PanSingh and others], wherein Their Lordships have held as follows: "12. The direction in terms of the award wasconfined only to those who were in employment at thetime when the said benefit was given to the said 17meter readers.

They, thus, formed a class by themselves. Acut-off date having been fixed by the Tribunal, thosewho were thus not similarly situated, were to betreated to have formed a different class. They couldnot be treated alike with with the others. The HighCourt, unfortunately, has not considered this aspect ofthe matter. " https://hcservices.ecourts.gov.in/hcservices/

13. In the case before the Honourable Supreme Court, 17individuals were posted as Shift-in-charge (220-400), however, forcertain reasons they opted to become Meter Readers (185-300) which isa lower category of service. They were drawing the pay of Shift-in-Charge. The Management viz., New Delhi Municipal Council permittedthem to act as such. It was decided by the administrator that thematter be examined whether higher pay scale of Rs.220-400 could begiven to the 17 such senior Meter Readers purely as on adhoc measurewhich would be personal to them and orders were passed positively. After about 17 years the individuals who belong to the post of MeterReaders preferred a writ petition stating that the above said orderswould not stand and they shall also be granted the same pay scale asthat of other Meter Readers who were benefited by the Order impugned. After considering the matter in issue, the Supreme Court found thatit was only an adhoc measure and they were given higher scale whichwere personal to them and it was not by way of a revision of scaleof pay as understood in the ordinary sense of the term. In otherwords, it was decided that the impugned order enabling the 17individuals who held the post of Shift-in-Charge to act as MeterReaders was only an adhoc measure, which order was passed only forthose persons and it could not be expected to be extended to othercategory of persons. The present appellant could not take recourseto the above said decision for the reason that there is no concept ofadhoc measure provided to the regular workmen in its management.

Mr.K.M. Ramesh, learned counsel appearing for the thirdrespondent would contend that inasmuch as the provision has been madein the settlement entered into between the parties, it isuncharitable on the part of the management to turn around and saythat they would not extend the benefit on the pretext of otherallowances being provided to repatriate workmen. The appellant couldnot be allowed to deny the right that would accrue subsequently torepatriate workmen which would be against law. When a class ofpersons derive a right in an establishment by virtue of settlementeven before their employment, they could not be refused the benefitssubsequently. In view of such matter, we find no merit in theappeal. To reiterate, having consciously included the cluse withregard to the payment of occupational wages to the workmen concerned, now the appellant is not supposed to deny extension of the benefitsto the repatriate workmen who are subsequently inducted into service.

In the light of what has been discussed above, we hold thatthe repatriate workmen are entitled for the occupational wages fromtheir date of joining in the mills till 30.11.1982, since it is inthe counter statement that the Management has provided wages, allowances, privileges and concessions to repatriate workmen on parwith other permanent workmen of the company including occupationalwages with effect from 01.12.1982. The appeal suffers dismissal. https://hcservices.ecourts.gov.in/hcservices/