Industrial Finance Corporation ... vs The Industrial Finance ...
1992 Latest Caselaw 525 Del

JUDGMENT

J.K. Mehra, J.

(1) This is a petition which arises out of the management's action of the intended withdrawal of the facility of Day Care Centre provided to a section of the women working with the Respondent residing in Paschim Vihar Colony of Delhi. The management's stand is that they had entered into a comprehensive settlement dated 5.9.90 which was to be treated as final settlement of financial matters applicable to the employees. Clause (ii) of Section A of the settlement, inter-alia, provided as under:- "EXCEPT as otherwise mutually decided and/or under special circumstances, this is a final settlement of the economic and financial matters raised in the charter of the demands of the Association."

G. Other Amenities (i) Welfare Schemes: it is agreed that the Welfare Schemes of the Corporation shall be re-modeled to bring them at par with the schemes prevalent in Idbi and the revised Schemes shall be made operative by the 1st January 1991 and during the interregnum, the existing schemes in this regard shall continue to operate." The facility of providing creche (Day Care Centre) for the children of the said working women was provided under an earlier settlement dated 24.2.83 as under:- "2.Staff Welfare matters: (a) The Association requested for opening a 'Day Care Centre' at the colony. This was agreed to by the Management."

(2) It is contended by the management that the subsequent settlement of 1990 was a package deal and the intention was that the settlement of 1990 or been superseded by it and that all welfare schemes were to be so provided as to coincide or be at par with welfare schemes prevalent or available to the staff of the Idbi and since there is no facility of a creche (Day Care Centre), such a facility which is provided only for a small section of the staff of the respondent is sought to be withdrawn so that all the benefits and facilities available to the staff of the respondent could be placed at par with those available to the staff of IDBI. It is further contended that the position being taken up by the petitioners relating to the earlier settlement was never set up by them either in the petition or in the rejoinder and is by way of an afterthought.

(3) On behalf of the petitiioner, it is contended that such welfare schemes should have been changed/remodeled in consultation with the staff and there should be no abrupt withdrawal of any existing facility. Without prejudice to this contention, it is further contended that the settlement of 1983 was for the specific facility covered by the said settlement and that the said settlement has neither been terminated so far nor in terms superseded by the settlement of 1990.I find that under the said settlement of 1983, the provision for Day Care Centre was made under Clause 2 (a) under the sub-heading "Staff Welfare Matters".

(4) Originally, the reliance was placed by the petitioner only on the Office Memorandum No,120l5/21/88-GKK issued by the Government of India, Department of Personnel & Training containing recommendations of 4th Pay Commission regarding reasonableness of the suggestion of the department of Women and Child Development which had recommended that creche facilities should be provided for women employees wherever there are more than 20 women employees in the organisation or more than one organisation located in the same premises. This recommendation, to my mind, has no relevance in the present context because the creche in question is not located in the premises where the office of the management is and is in fact provided in the residential colony where a number of staff members are staying. Apparently, the creche in question has been provided only consequent upon the settlement of 1983 mentioned above.

(5) Therefore the question that remains to considered is that of the interpretation of the two settlements. That is whether the effect of this settlement dated 5.9.1990 supersedes the earlier settlement dated 4.2.83 and whether the subsequent settlement, which according to the management, was intended to be a package deal had saved the provisions of earlier settlement and was intended to be quite independent of and without prejudice to the earlier settlement.The management has contended with considerable force that no such expression has been used in the subsequent settlement and for that reason it could not be construed that the parties intended the subsequent settlement to be without prejudice to or independent of the earlier settlement. The management has further to contended that whenever a package deal, like the one contained in 1990 settlement, is offered and it is specifically provided that it was meant to be a final settlement, it would embrace all the existing facilities including welfare facility. It is argued that the 1983 Settlement was very limited in its nature and was mainly confined to welfare schemes whereas the 1990 Settlement covered a much wider field including the welfare schemes.

(6) I have no doubt in my mind that the present case is one wherein the difficulties or doubts have arisen out of interpretation of the provisions of the said Settlements and these should have been brought to the notice of the appropriate Government who had the power to refer such questions to the Labour Court or Tribunal, as it may think fit and on such reference being made the said Tribunal or Labour Court could proceed to decide such questions after hearing the parties as contemplated in Section 36A of the Industrial Disputes Act, which reads as under:- "36A.Power to remove difficulties-(l)lf, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court. Tribunal as it may think fit. (2) The Labour Court, Tribunal to which such question is referred shall, after giving the parties an oportunity of being heard, decide such question and its decision shall be final and be finding on all such parties."

(7) In view of the above discussion, I am of the view that a specific alternate remedy has been provided under the Industrial Disputes Act which could be and can still be availed of by the petitioner. As such I am not inclined to exercise the extra ordinary jurisdiction under Article 226 of the Constitution of India in a case of present nature. In the circumstances, the writ petition is dismissed without prejudice to the petitioner's right to avail of the alternate remedly, if so advised. There will be no order as to costs.

(8) At this stage, counsel for the petitioner states that some time may be allowed to the employees concerned to make alternate arrangements for the respective children to avoid extraordinary hardship that may result because of sudden closure of this facility. I think, the request is reasonable and accordingly, I direct that this facility shall not be withdrawn until 30th September 1992.