Delhi High Court
Shri Mohar Singh vs M/S Richa & Company on 23 March, 2011
Author: Dipak Misra,Chief Justice
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ 1. LPA NO.631/2008
SHRI MOHAR SINGH ..... Appellant
Through: Mr.Ashok Agarwal with
Dr.Aurobindo Ghose and Sh.Anuj
Agarwal, Advocates.
versus
M/S RICHA & COMPANY ..... Respondent
Through: Ms. Raavi Birbal, Advocate.
2. LPA NO.632/2008
SHRI RAMAN JEE JHA ..... Appellant
Through: Mr.Ashok Agarwal with
Dr.Aurobindo Ghose and Sh.Anuj
Agarwal, Advocates.
versus
M/S RICHA & COMPANY ..... Respondent
Through: Ms. Raavi Birbal, Advocate.
3. LPA NO.634/2008
SHRI MOHAMMAD NASIR ..... Appellant
Through: Mr.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 PRABHU NATH RAJAK ..... Appellant
Through: Mr.Ashok Agarwal with
Dr.Aurobindo Ghose and Sh.Anuj
Agarwal, Advocates.
versus
LPA No.631/2008 with connected matters Page 1 of 11
M/S RICHA & COMPANY ..... Respondent
Through: Ms. Raavi Birbal, Advocate.
5. LPA NO.636/2008
SHRI PARMATMA TIWARI ..... Appellant
Through: Mr.Ashok Agarwal with
Dr.Aurobindo Ghose and Sh.Anuj
Agarwal, Advocates.
versus
M/S RICHA & COMPANY ..... Respondent
Through: Ms. Raavi Birbal, Advocate.
6. LPA NO.637/2008
SHRI VISHWANATH JHA ..... Appellant
Through: Mr.Ashok Agarwal with
Dr.Aurobindo Ghose and Sh.Anuj
Agarwal, Advocates.
versus
M/S RICHA & COMPANY ..... Respondent
Through: Ms. Raavi Birbal, Advocate.
7. LPA NO.638/2008
SHRI SURESH CHAND ..... Appellant
Through: Mr.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
Through: Mr.Ashok Agarwal with
Dr.Aurobindo Ghose and Sh.Anuj
Agarwal, Advocates.
LPA No.631/2008 with connected matters Page 2 of 11
versus
M/S RICHA & COMPANY ..... Respondent
Through: Ms. Raavi Birbal, Advocate.
9. LPA NO.640/2008
SHRI UPENDAR PRASAD ..... Appellant
Through: Mr.Ashok Agarwal with
Dr.Aurobindo Ghose and Sh.Anuj
Agarwal, Advocates.
versus
M/S RICHA & COMPANY ..... Respondent
Through: Ms. Raavi Birbal, Advocate.
10. LPA NO.641/2008
SHRI SUNIL KUMAR ..... Appellant
Through: Mr.Ashok Agarwal with
Dr.Aurobindo Ghose and Sh.Anuj
Agarwal, Advocates.
versus
M/S RICHA & COMPANY ..... Respondent
Through: Ms. Raavi Birbal, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'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 connected matters
whereby the learned Single Judge has dislodged the award dated 22.12.2005
passed in the applications filed by the workmen under Section 33A of the
Industrial Disputes Act, 1948 (for brevity „the Act‟) whereby the Industrial
Tribunal-II, Delhi (for short „the tribunal‟) has directed the management to
fix the duty hours of the workmen 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 workmen, 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 - workmen 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 connected 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
directed the management to maintain the working 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. Before the writ court, it was contended that
there was no nexus between the subject matters of the reference that was
pending between the workmen of the union and the management, and there
was basically no alteration of service condition. It was also contended that
the Factories Act permitted the management to take work from a workman,
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 annual increment,
transport allowance, summer and winter uniforms and
enhancement of tea allowance etc. was not connected to
dispute about increase of the working hours. From the
aforesaid it is clear that there is no violation of Section
33(1)(a) of the Industrial Disputes Act as the subject
matter involved regarding the timings of the workmen is
different from the subject matter of reference.
21. It is also apparent that there is no violation of
Section 33(1)(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
applicable to a workman concerned in such dispute (or,
where there are no such standing orders, in accordance
with the terms of the contract, whether express or
implied, between him and the workman) after, in regard
to any matter not connected with the dispute, the
conditions or service applicable to that workman
immediately before the commencement of such
proceeding.
22. The petitioner, therefore, has changed the timing
of working of the respondents from 9.30 AM to 6.15 PM
in accordance with the Factories Act according to which
a workman 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
hours a day and 48 hours a week. It is not disputed that
the respondents are paid emoluments according to the
work done by them. The only objection of the
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."
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 referred to an appointment letter
Ex.CW1/1 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 service 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
service applicable to a workman 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 with such dispute in accordance
with the standing orders applicable to a workman
concerned in such dispute and in the absence of the
standing orders, in accordance with the terms of the
contract whether express or implied without any
permission or approval of such authority. The
management therefore was required to show that they
have altered the conditions of service applicable to the
workman 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
accordance with the terms of the contract whether
express or implied between them and the workman. 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 management nor they
could show any contract whether express or implied
whereby they have changed the service conditions of the
workman applicable to him immediately before the
commencement of ID No.22/98 pending in this court. In
fact workman has been able to 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, the
management has altered the conditions of service which
were applicable to the workman immediately before the
commencement of the ID No.22/98 and as such they
have violated the provision of section 33 of ID Act."
5. We have heard Mr. Ashok Agarwal, learned counsel for the appellants
and Ms. Raavi Birbal, learned counsel for the respondent.
6. Learned counsel for the appellants submitted that the order passed by
the tribunal should not have been interfered with by the learned Single Judge
by opining that there has been no change of service conditions, as by the
order of appointment, a concession was given and there 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, the
service conditions could not have been changed and, therefore, there could
not be any alteration of the working hours. Learned counsel would further
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
SCC 193, Life Insurance Corporation & Ors. v. D.J. Bahadur, (1981) 1
SCC 315 and Hindustan Level Ltd. v. Ram Mohan Roy, (1973) 4 SCC
141.
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, that the dispute pending before the tribunal was not
concerned about the increase of working hours and, hence, there was no
violation of Section 33(1)(a) of the Act as the matter involved related to
working hours of the workmen, 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
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
Union & Ors. v UOI, 1990 LAB I.C. 1146, L.K. Textile Mills v. Its
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
convenience, 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 workman
concerned in such dispute or, where there are no such
standing order, in accordance with the terms of the
contract, whether express or implied, between him and
the workman -
(a) alter, in regard to any matter not connected with
the dispute, the conditions of service applicable to that
workman immediately before the commencement of such
proceeding; or
(b) for any misconduct not connected 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."
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 workmen. 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 workmen. 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 appropriate to 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
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
SANJIV KHANNA, J
MARCH 23, 2011
dk
