Full Judgment Text
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CASE NO.:
Appeal (civil) 3006 of 2003
PETITIONER:
Hindustan Steel Works Construction Ltd. and Anr.
RESPONDENT:
Hindustan Steel Works Construction Ltd. Employees Union
DATE OF JUDGMENT: 11/08/2005
BENCH:
ARIJIT PASAYAT & H.K. SEMA
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Hindustan Steel Works Construction Limited (hereinafter
referred to as the ’employer’) calls in question legality of
the judgment rendered by Division Bench of the Andhra
Pradesh High Court affirming the order passed by the learned
Single Judge holding that withdrawal of construction
allowance which was being earlier allowed to the employees
working at the Vishakhapatnam was in violation of Section
9-A of the Industrial Disputes Act, 1947 (in short the
’Act’). According to the employees as urged in the writ
petition it was done without following the mandatory
provisions of Section 9-A and was in violation of principles
of natural justice.
Factual aspects need to be noted in brief are as
follows:
Employer started construction work of Vizag Steel Plant
in 1979 and employees stationed there were paid
Project/construction allowance. The employer discontinued
payment of construction allowance and had paid City
Compensatory allowance. The withdrawal continued w.e.f.
7.4.1992. On 22.8.1974 a circular was issued by the employer
notifying revision of pay scales w.e.f. 1.1.1974. On
17.1.1975 the Ministry of Finance, Government of India
issued Office Memorandum with regard to construction
projects and grant of project allowance. It was indicated
therein that the allowance was intended primarily to
compensate the staff for lack of amenities such as housing,
schools, markets, dispensaries etc. Since November 1979 the
employees were paid project/construction allowance. In 1986
a High Power Committee was appointed by this Court to go
into the questions relating to the implementation of the
recommendations of the Fourth Pay Commission. The final
report was submitted on 2.11.1988. The issue relating to
project/construction allowance was set out in Chapter 12 of
the report. By order dated 3.5.1990 this Court directed
implementation of the recommendations of the High Power
Committee. According to the appellants there was no
restriction on withdrawal of the allowance under the changed
circumstances. The allowance was specific and particular in
the sense that it was payable under certain circumstances.
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Questioning legality of the withdrawal writ petition
was filed before the Andhra Pradesh High Court, which was
allowed by the learned Single Judge. The primary challenge
was that there was clear violation of the mandatory
requirements of Section 9-A and, therefore, order was not
sustainable. The employer questioned maintainability of the
writ petition contending that efficacious alternative and
statutory remedy is available under the Act and writ
petition was not maintainable, particularly, when factual
controversy is involved. The question whether there was
violation of the requirements of Section 9-A is essentially
one of facts.
The High Court was of the prima facie view that
withdrawal of the construction allowance amounted to
variation of the terms and conditions of service and,
therefore, there was violation of the requirements of
Section 9-A of the Act. It was observed that since no
factual controversy has been adjudicated, the writ petition
was maintainable. Questioning correctness of the view
expressed by learned Single Judge writ appeal was filed
before the Division Bench which dismissed the appeal holding
that the learned Single Judge was correct in his view.
In support of the appeal, learned counsel for the
appellants submitted that both the learned Single Judge and
the Division Bench did not consider the specific plea that
statutory remedy is available to the employees and for that
matter the union could not have questioned the legality of
the order of withdrawal of construction allowance by filing
writ petition. It was further submitted that whether
Section 9-A had any application to the facts of the case
essentially involves questions of fact and reasoning of
learned Single Judge and the Division Bench are not
supportable.
In response, learned counsel for the respondent-union
submitted that both the learned Single Judge and the
Division Bench have noted that on the facts of the case that
Section 9-A had clear application and, therefore, there is
no infirmity in the judgments to warrant interference.
In a catena of decisions it has been held that writ
petition under Article 226 of the Constitution of India,
1950 (in short ’the Constitution’) should not be entertained
when the statutory remedy is available under the Act, unless
exceptional circumstances are made out.
In U.P. State Bridge Corporation Ltd. and Ors. v. U.P.
Rajya Setu Nigam S. Karamchari Sangh (2004 (4) SCC 268), it
was held that when the dispute relates to enforcement of a
right or obligation under the statute and specific remedy
is, therefore, provided under the statute, the High Court
should not deviate from the general view and interfere under
Article 226 except when a very strong case is made out for
making a departure. The person who insists upon such remedy
can avail of the process as provided under the statute. To
same effect are the decisions in Premier Automobiles Ltd. v.
Kamlekar Shantarum Wadke (1976 (1) SCC 496), Rajasthan SRTC
v. Krishna Kant (1995 (5) SCC 75), Chandrakant Tukaram Nikam
v. Muncipal Corporation of Ahmedabad and Anr. (2002) (2) SCC
542) and in Scooters India and Ors. v. Vijai V. Eldred (1998
(6) SCC 549).
In Premier Automobiles Ltd. case (Supra) it was
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observed as follows:
"A speedy, inexpensive and effective forum
for resolution of disputes arising between
workmen and their employers. The idea has
been to ensure that the workmen do not get
caught in the labyrinth of civil courts with
their layers upon layers of appeals and
revisions and the elaborate procedural laws,
which the workmen can ill afford. The
procedure followed by civil courts, it was
thought, would not facilitate a prompt and
effective disposal of these disputes. As
against this, the courts and tribunals
created by the Industrial Disputes Act are
not shackled by these procedural laws nor is
their award subject to any appeals or
revisions. Because of their informality, the
workmen and their representatives can
themselves prosecute or defend their cases.
These forums are empowered to grant such
relief as they think just and appropriate.
They can even substitute the punishment in
many cases. They can make and re-make the
contracts, settlement, wage structures and
what not. Their awards are no doubt amenable
to jurisdiction of the High Court under
Article 226 as also to the jurisdiction of
this Court under Article 32, but they are
extraordinary remedies subject to several
self-imposed constraints. It is, therefore,
always in the interest of the workmen that
disputes concerning them are adjudicated in
the forums created by the Act and not in a
civil court. That is the entire policy
underlying the vast array of enactments
concerning workmen. This legislative policy
and intendment should necessarily weigh with
the courts in interpreting these enactments
and the disputes arising under them".
Section 9-A of the Act reads as follows:
"9-A Notice of Change - No employer, who
proposes to effect any change in the
conditions of service applicable to any
workman in respect of any matter specified in
the Fourth Schedule, shall effect such
change, -
(a) without giving to the workman likely to
be affected by such change a notice in the
prescribed manner of the nature of the change
proposed to be effected; or
(b) within twenty-one days of giving such
notice :
Provided that no notice shall be required for
effecting any such change -
(a) where the change is effected in pursuance
of any (settlement or award); or
(b) where the workman likely to be affected
by the change are persons to whom the
Fundamental and Supplementary Rules, Civil
Services (Classification, Control and Appeal)
Rules, Civil Service (Temporary Service)
Rules, Revised Leave Rules, Civil Services
Regulations, Civilians in Defence Services
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(Classification, Control and Appeal) Rules or
the Indian Railway Establishment Code or any
other rules or regulations that may be
notified in this behalf by the appropriate
Government in the Official Gazette, apply."
In Hindustan Lever Ltd. v. Ram Mohan Ray and Ors. (1973
(4) SCC 141), it was observed, inter alia, as follows:-
"It is hardly necessary to refer to the
various decisions which were cited before us
as to what would constitute conditions of
service the change of which would require
notice under Section 9-A of the Act. In
Dharangadhara Chemical Works Ltd. v. Kanju
Kalu and Others ((1955) 1 LLJ 316 (LAT.)),
the Labour Appellate Tribunal of India held
that the increase in the weight of bags to be
carried from 1 cwt. to 1 1/2 cwt. was a
change in the workload and the company was
bound to pay wages as the workmen were
willing to work but did not work on account
of the unreasonable attitude adopted by the
management. In Chandramalai Estate v. Its
Workmen ((1960) 2 LLJ 243), the payment of
Cumbly allowance was held to have become a
condition of service. In Graham Trading Co.
(India) Ltd. v. Its Workmen ((1960) 1 SCR
107) it was held that the workmen were not
entitled to Puja bonus as an implied term of
employment. In Workmen of Hindustan Shipyard
Ltd. v. I.L.T. ((1961) 2 LLJ 526), in the
matter of withdrawal of concession of coming
late by half an hour (than the usual hour),
it was held that the finding of the
Industrial Tribunal that Section 9-A did not
apply to the case did not call for
interference. But the decision proceeded on
the basis that the court will not interfere
in its jurisdiction unless there was any
manifest injustice. In Mcleod & Co. v. Its
Workmen (1965) 5 SCR 568),the provision for
tiffin was held to be an amenity to which the
employees were entitled, and the provision of
cash allowance in lieu of free tiffin
directed to be made by the industrial
tribunal could not be considered to be
erroneous in law. In Indian Overseas Bank v.
Their Workmen ((1967-68) 33 FJR 457), "key
allowance" was treated as a term and
condition of service. In Indian Oxygen
Limited v. Udaynath Singh ((1970) 2 LLJ 413 :
(1970) 2 FLR 350), withdrawal by the
management of the supply of one empty drum at
a time at reasonable intervals was held not
to contravene Sections 9-A and 33. In Oil &
Natural Gas Commission v. Their Workmen
((1972) 42 FJR 551), where there was nothing
to show that it was a condition of service
that a workman should work for 6 1/2 hours
only, no notice of change was held to be
required under Section 9-A for fixing the
hours of work at eight. In Tata Iron & Steel
Co. v. Workmen ((1972) 2 SCC 383), change in
weekly days of rest from Sunday to some other
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day was held to require notice. A close
scrutiny of the various decisions would show
that whether any particular practice or
allowance or concession had become a
condition of service would always depend upon
the facts and circumstances of each case and
no rule applicable to all cases could be
culled out from these decisions."
(Underlined for emphasis)
In Basant Kumar Sarkar and Ors. v. Eagle Rolling Mills
Ltd. and Ors. (1964 (6) SCR 913) the Constitution Bench of
this Court observed as follows:
"It is true that the powers conferred on the
High Courts under Art. 226 are very wide, but
it is not suggested by Mr. Chatterjee that
even these powers can take in within their
sweep industrial disputes of the kind which
this contention seeks to raise. Therefore,
without expressing any opinion on the merits
of the contention, we would confirm the
finding of the High Court that the proper
remedy which is available to the appellants
to ventilate their grievances in respect of
the said notices and circulars is to take
recourse to s. 10 of the Industrial Disputes
Act, or seek relief, if possible, under
sections 74 and 75 of the Act."
We find that the learned Single Judge observed that he
was not entering into the factual controversy, overlooking
the fact that the question relating to applicability of
Section 9-A is essentially question of fact. The Division
Bench did not discuss the basic issues about the
applicability of Section 9-A and whether on the facts of the
case Section 9-A has really any application. It was
disposed of with the following observations:
"The employees concerned are workmen within
the meaning of that term as defined under
Section 2(s) of the Act and withdrawal of
construction allowance from them tantamounts
to a change in the conditions of service. In
that view of the matter, the management of
the appellant company ought not to have
withdrawn the construction allowance
presently paid to the employees without
issuing notice envisaged under Section 9-A of
the Act."
The inevitable conclusion, therefore, is that both
learned Single Judge and the Division Bench have failed to
consider the basic issues. In the normal course we would
have left it to the respondent to avail appropriate remedy
under the Act.
However, because of the long passage of time (the writ
petition was filed in 1997), the attendant circumstances of
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the case in the background noted above and in view of the
agreement that this is a matter which requires to be
referred to the Tribunal, we direct that the appropriate
Government shall refer the following question for
adjudication by the appropriate Tribunal:
(1) Whether there was violation of Section 9-A of the
Industrial Disputes Act, 1947 as claimed by the
employees?
(2) Whether the withdrawal of the construction allowance
amounted to the change in the conditions of service?
The parties shall jointly move the appropriate
Government with a copy of our judgment.
Normally, it is for the State Government to take a
decision in the matter of reference when a dispute is
raised, the direction as noted above has been given in the
circumstances indicated above.
In some cases, this Court after noticing that refusal
by appropriate Government to refer the matter for
adjudication was prima facie not proper, directed reference
instead of directing reconsideration. (See Nirmal Singh v.
State of Punjab AIR 1984 SC 1619, Sankari Cement Alai
Thozhilalar Munnetra Sangam v. Management of India Cement
Ltd. (1983) 1 Lab.L.J. 460, V. Veerarajan and others v.
Government of Tamil Nadu and Ors. (AIR 1987 SC 695), Sharad
Kumar v. Govt. of N.C.T. of Delhi (AIR 2002 SC 1724).
The parties shall be permitted to place materials in
support of their respective stands. We make it clear that we
have not expressed any opinion on the merits of the case.
The appeal is allowed to the aforesaid extent with no
order as to costs.