M/s Bhartiya Cuttler Hammer Ltd v. Presiding Officer, Labour Court-II, Faridabad & Ors.

To be referred to the Reporters or not? Whether the judgment should be reported in the digest? Yes M.M. KUMAR, J The instant appeal filed under Clause X of the Letters Patent is directed against judgment dated 30.6.2010 passed by the learned Single Judge. Various arguments raised on behalf of the appellant did not find

favour with the learned Single Judge. The first argument raised was that the application for claim was signed only by nine workers and, therefore, the claim of more than nine workers could not have been allowed by the Labour Court. The second argument based on delay and consequential moulding of relief with regard to levy of interest was also rejected by the learned Single Judge. The third argument that the production had gone down and the workers had not achieved the productivity level which would entitle them to raise claim under settlement executed under Section 12 (3) of the Industrial Disputes Act, 1947 (for brevity, 'the Act') on 18.12.1995. L.P.A. No. 948 of 2010 (O&M) -2-

2. Mr. Chetan Mittal, learned counsel for the appellant- Management has repeated all the aforesaid three arguments. With regard to the first argument, Mr. Mittal has referred to the list of workers, Annexure P-1, with the original application filed before the Labour Court and made an attempt to argue that in the absence of signatures by the other workers, the claim could not have been allowed except in respect of nine workers only. However, we find that the Labour Court has discussed the aforesaid issue in detail in para No. 28 of its order when the objection was raised by the appellant- Management. The categorical finding of the Labour Court is that on perusal of the application filed by the workers-respondents, it was discovered that it was signed by nine applicants with a further mention on the application that the signatures of the remaining applicants were on the list attached with the application. The application has been signed by some of the workman because there was no space available for signatures of 325 workers, therefore, the signatures along with their names were on a separate list attached with the application. The argument that the aforesaid list was once produced before the Deputy Labour Commissioner during the proceedings of settlement cannot be sustained because if one list has been used in a separate proceedings, there is no bar to use the same list for another proceedings as long as the claim is based on the aforesaid list. Even the learned Single Judge has noted this argument and rejected the same by observing that the list of the applicants attached with the application contained the names of the applicants, their total number as also their signatures. Accordingly, we are not impressed with the arguments raised by Mr. Mittal, particularly when it is a clear finding of fact recorded by the Labour Court as affirmed by the learned Single Judge. L.P.A. No. 948 of 2010 (O&M) -3-

The second argument that the application filed by the workmen- respondents was belated has also not found favour with the learned Single Judge, on the basis of the settled principle of law that there was no limitation provided under the Act for preferring the application under Section 33-C(2) of the Act. In support of the aforesaid view, learned Single Judge has placed reliance on various judgments namely East India Coal Co. Ltd. v. Rameshwar, AIR 1968 SC 218, Town Municipal Council v. Presiding Officer, Labour Court, Hubli, AIR 1969 SC 1335 and Management of State Bank of Hyderabad v. Vasudev Anand Bhinde, AIR 1970 SC 196. However, learned counsel for the appellant- Management has argued that the application under Section 33-C(2) of the Act was filed in the year 2002 and the claim has been accepted with effect from the date it was due along with interest @ 8% per annum. Again, we do not find any substance in the aforesaid argument. The basic reason for awarding the amount of interest from the date it was due is that the appellant- Management has taken a frivolous stand before the Labour Court that the production has gone down and there was nothing to substantiate the aforesaid argument. No record was produced. Even otherwise, the Labour Court appears to have moulded the relief by awarding meager interest of 8% per annum which otherwise could have been much more. Learned Single Judge has also rejected the aforesaid argument.

Having heard learned counsel on the aforesaid issue, we are of the considered view that the discretion exercised by the Labour Court as well as by the learned Single Judge, does not deserves to be interfered with who have awarded the amount from the date it has accrued to the workmen.

The other argument raised by Mr. Mittal is that there could not L.P.A. No. 948 of 2010 (O&M) -4- have been determination of amount under Section 33-C(2) of the Act because in the settlement dated 18.12.1995 reached under Section 12 (3) of the Act, there was no determinable amount and under Section 33-C(2) of the Act no such claim could have been determined by the Labour Court. We do not feel persuaded even to accept the last argument raised by the learned counsel. When we asked Mr. Mittal why no such plea was raised before the Labour Court, he hastened to answer that this is a pure question of law and could be raised even in a letters patent appeal. However, we fail to see any logic in the aforesaid reply of the learned counsel because no plausible explanation has been tendered for not raising the issue before the Labour Court or before the learned Single Judge. It is not possible to accept that it is a pure question of law because there is no principle of law which may prohibits that an amount of money due from an employer in pursuance of a settlement reached during conciliation proceedings under Section 12(3) of the Act cannot be recovered by filing an application under Section 33C (2) of the Act. The key to open the lock of Section 33C(3) is the underlying principle that benefit is ‘capable of being computed in terms of money’. It follows that recording of a finding of fact on the basis of pleadings and evidence by the Labour Court would be necessary to the effect that money due from an employer can be recovered and is capable of being computed. In the absence of any such finding it is not possible to accept the contention raised by the learned counsel. There is another aspect of the aforesaid question. If we look at the terms and conditions of settlement dated

18.12.1995 (P-1), it stipulates as under:-

3. Terms of settlement (i) That the achieving of production from a base level ANSP L.P.A. No. 948 of 2010 (O&M) -5- as on 1.10.95 of Rs. 475 lacs p.m. to Rs. 600 lacs (i.e. increase of 26% per month in Ist year of agreement. Rs. 640 lacs per month (i.e. increase 35%) in the second year of agreement and Rs. 710 lacs (i.e. increase of 49%) in the third year of agreement or more depending on market requirements (excluding production carried on outside on job work basis) is the integral part and intent of the settlement. (ii) That it is the right of the management to enforce discipline and demand the productivity based on engineering standards norms, to shift and deploy workmen from one line to another lines (flexibility) and the workmen will assist and co-operate in a constructive way in maintaining level of production and discipline.

The workmen-respondents have claimed that the production level has been achieved in the aforesaid terms of settlement but no evidence was produced by the management-appellant before the Labour Court to assert and controvert the aforesaid issue. Likewise, under clause 5 direct financial benefits have been stipulated, which have been agreed by the management and the same reads as under:- “5. Direct Financial Benefits – Basic Pay Dearness Allowance, Other Allowance and Productivity Gain Sharing Benefits. Management agrees to give under-mentioned increase in the basic wages, dearness allowance & other allowances and further agrees to share in the productivity gain to the L.P.A. No. 948 of 2010 (O&M) -6- extent mentioned below. Education allowance in replacement of existing children education allowance has also been agreed. Effective Dates Basic Salary i) ii) Dearness Allowance iii) Education Allowance iv) Other Allowances v) vi) Productivity gain sharing benefit Sub total (refer para 6 below) Total direct financial package

1.10.95 Rs. (pm) 300 75 150 130 655 555

1.10.96 Rs. (pm) 100 25 - 45 170 180

1.10.95 Rs. (pm) 200 50 - 75 325 315 1210 350 640” It is, thus, evident from the aforesaid settlement that it was capable of being computed in terms of money and the application most likely would have been held to be maintainable. Therefore, the contention raised in that respect is superfluous and it cannot be maintained at this stage. Accordingly the same is rejected.

As a sequel to the above discussion, the instant appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (A.N. JINDAL) JUDGE August 11, 2010 deepak/Pkapoor )