Delhi High Court
Food Corporation Of India Shramik ... vs Food Corporation Of India on 12 July, 2022
$~50 & 52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10440/2022 & CM APPL.30182/2022 (stay)
FOOD CORPORATION OF INDIA SHRAMIK UNION... Petitioner
Through: Mr. R.M. Sinha with Mr. P.M. Sinha,
Mr. Chandan Kumar and Ms. Nandini
Hans, Advocates.
versus
FOOD CORPORATION OF INDIA ..... Respondent
Through: Mr. Om Prakash with Ms. Shivangini
Sharma, Advocates.
+ W.P.(C) 10450/2022 & CM APPL.30202/2022 (stay)
FOOD CORPORATION OF INDIA WORKERS ASSOCIATION
CITU ..... Petitioner
Through: Mr. R.M. Sinha with Mr. P.M. Sinha,
Mr. Chandan Kumar and Ms. Nandini
Hans, Advocates.
versus
FOOD CORPORATION OF INDIA ..... Respondent
Through: Mr. Om Prakash with Ms. Shivangini
Sharma, Advocates.
% Date of Decision: 12th July, 2022
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
JUDGMENT
DINESH KUMAR SHARMA, J. (Oral)
1. Present writ petitions have been filed with the following prayers:-
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Digitally Signed
By:PALLAVI VERMA
Signing Date:18.07.2022
13:59:42
i Notice / Order dated 20.06.2022 under Section 9-A of
the Industrial Dispute Act, 1947 (21 days' notice) for
the UNILITERAL change in service condition
applicable to the workman in respect of matters
referred in 4th Schedule of the Act i.e. withdrawing the
inclusion of incentive in wages for computation of CPF
and gratuity qua Departmental Workers.
ii Notice / Order dated 20.06.2022 under Section 9-A of
the Industrial Dispute Act, 1947 (21 days' notice) for
the UNILITERAL change in service condition
applicable to the workman in respect of matters
referred in 4th Schedule of the Act i.e., treating the
`Mandal' as handling labour qua Departmental
Workers.
iii Notice / Order dated 20.06.2022 under Section 19(2) of
the Industrial Dispute Act, 1947 (2 months' notice) for
UNILITERAL modification /termination of the
settlement dated 13.03.1999 i.e. exclusion of HRA
component from the wages for the computation /
calculation of incentives and Over Time Allowance
(OTA) qua Departmental Workers.
iv Notice / Order dated 20.06.2022 under Section 19(2) of
the Industrial Dispute Act, 1947 (2 months' notice) for
UNILITERAL modification / termination of the
settlement dated 03.08.2012 i.e. withdrawing, the
payment of A area rates (uniform rate) to all DPS
Workers across the country irrespective of place of
their posting.
2. Learned counsel for the petitioners submits that W.P.(C) 10440/2022
and W.P.(C) 10450/2022 are identical in nature and these two writ petitions
have been filed on behalf of two different associations. Thus, this Court is
inclined to dispose of both the writ petitions by a common order.
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:18.07.2022
13:59:42
3. Learned counsel for the petitioners submits that notice dated
20.06.2022 under Section 9-A of the Industrial Disputes Act, 1947 is not in
accordance with law. Attention has been invited to Form E as provided
under the Industrial Disputes (Central) Rules, 1947. Learned counsel for the
petitioners submits that notice(s) under Section 9(A) and Section 19(2) of
the Industrial Disputes Act, 1947 are required to be served in the form
prescribed under Form E, as provided under the Industrial Disputes (Central)
Rules, 1947 and since notice(s) have not been issued in accordance with the
proforma, the same are liable to be quashed. Learned counsel for the
petitioners further submits that in fact even as per Annexure annexed with
the notice dated 20.06.2022, the respondents have stated that the practice of
including incentives in the basic wages for computation of CPF contribution
and gratuity payment from time to time shall stand modified in terms of
Section 9A of the Industrial Disputes (Central) Rules, 1947 and the other
relevant legal provisions. Learned counsel for the petitioners submits that
this act of the Food Corporation of India is totally contrary to the principles
of Industrial Disputes Act, 1947and is liable to be quashed.
4. Learned counsel for Food Corporation of India submits that the
present writ petitions are not maintainable as there lies an equally
efficacious remedy of raising an industrial dispute in accordance with the
Industrial Disputes Act, 1947 before the appropriate forum. Learned counsel
for Food Corporation of India submits that in fact some of the Unions have
already raised the industrial disputes before the appropriate forum and Food
Corporation of India has received the notices from the Office of the Deputy
Chief Labour Commissioner (Central), Kolkata and the Office of the
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:18.07.2022
13:59:42
Regional Labour Commissioner (Central), New Delhi. Learned counsel for
Food Corporation of India submits that the notice dated 20.06.2022 is now
subject matter of adjudication before the appropriate forum and the
Conciliation Officer has already initiated the proceedings. Learned counsel
for Food Corporation of India has further invited the attention of this Court
to the orders passed by both the authorities regarding the obligations
imposed by Section 22(1)(d) for workmen and Section 22(2)(d) and Section
33 of the Industrial Disputes Act, 1947 for employer. Learned counsel for
Food Corporation of India has submitted that Food Corporation of India is
bound by the law and directions given by the appropriate forum.
5. Section 9A of the Industrial Disputes Act, 1947 provides that if an
employer proposes to effect any change in the conditions of service
applicable to any workman in respect of any matter specified in the Fourth
Schedule, a notice is liable to be served in the prescribed manner
containing the nature of the change proposed and such notice has to be of 21
days.
6. Form E of the Industrial Disputes (Central) Rules, 1957 is reproduced
herein below:-
"The Industrial Disputes (Central) Rules
FORM E
(See Rule 34)
Notice of change of service conditions proposed by an employer
Name of employer_____________________________________________
Address______________________________________________________
Dated the ________________________________day of__________19____
In accordance with Section 9-A, of the Industrial Disputes Act, 1947, I/We
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Digitally Signed
By:PALLAVI VERMA
Signing Date:18.07.2022
13:59:42
hereby give notice to all concerned that it is my/our intention to effect the
change/changes specified in the annexure, with effect from _____________
in the conditions of the service applicable to workmen in respect of the
matters specified in the Fourth Schedule of the said Act.
Signature
Designation
ANNEXURE
(Here specify the change/changes intended to be effected)
Copy forwarded to:-
1. The secretary of registered trade union, if any.
2. The Assistant Labour Commissioner (Central) __________________
(here enter the office address of the Assistant Labour Commissioner
(Central) in the local area concerned)
3. The Regional Labour Commissioner (Central)
4. The Chief Labour Commissioner (Central), New Delhi"
7. The main grievance of the petitioner is that in fact, only a notice was
required to be served specifically saying that Food Corporation of India had
an intention to effect the changes, whereas in the present case, the Food
Corporation of India has given a direction that upon expiry of 21 days, the
changes shall stand implemented.
8. Industrial Disputes Act, 1947 is a piece of social welfare legislation.
Therefore, interpretation of the Act is to be done in the manner that it
protects the interests of the workmen. The procedure prescribed under
Industrial Disputes Act, 1947 is that after service of notice under Section 9A
as per Form E, if a workman is not satisfied, an industrial dispute may be
raised before the appropriate forum and then the same is adjudicated and
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Digitally Signed
By:PALLAVI VERMA
Signing Date:18.07.2022
13:59:42
decided. In the present case, it seems that the notice served slightly deviated
from the proforma E. However, it has come on record as pointed out by
learned counsel for the petitioner that these notices have already been the
subject matter of the industrial disputes raised before the appropriate forum
and a direction has been passed that there would be no change in the service
conditions as provided under Section 33 of the Industrial Disputes Act,
1947. It is now an admitted position that these notices are the subject matter
of the industrial disputes being raised by FCI Handling Workers Union and
Food Corporation of India Workers Union, 58/1, Diamond Harbour Road,
West Bengal, Kolkata -700023 and the Conciliation Officer is seized of the
matter. The Conciliation Officer in orders dated 04.07.2022 and 06.07.2022,
has specifically invited the attention to the obligations imposed by Section
22(1)(d) for workmen Union and Section 22(2)(d) for employer and Section
33 of Industrial Disputes Act, 1947. Section 33 of the Industrial Disputes
Act, 1947 specifically provides that during the pendency of the
reconciliation proceedings before the Conciliation Officer, the conditions of
service shall remain unchanged.
9. Learned counsel for the respondent has stated that Food Corporation
of India is bound by the orders passed by the Conciliation Officer.
10. Thus in view of the above discussions, it is axiomatic that the notice
dated 20.06.2022 shall not be given effect till the proceedings are concluded
by the Conciliation Officer.
11. With these observations, the writ petitions along with all pending
applications stand disposed of. However, this Court has not gone into the
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:18.07.2022
13:59:42
merits of the case. Both the parties are at liberty to raise their respective
contentions before the appropriate authority.
DINESH KUMAR SHARMA, J
JULY 12, 2022
St
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:18.07.2022
13:59:42
