Sunil Kumar v. Richa & Co

ORDER

23.03.2011 For orders see LPA No.631/2008. MARCH 23,2011 dk CHIEF JUSTICE -•// - SANJIV KHANNA, J Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. * IN THE HIGH COURT OF DELHI AT NEW DELHI + L 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 Bhbal, Advocate.

¶2LPANO.632/2008 StlRI RAMAN JEE JHA Appellant Through: Mi'.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Thi-Qugh: Ms. Raavi Birbal, Advocate.

¶3LPANO.634/2008 SHRI MOIiAMMAD NASIR Appellant I • Thi-ough: Mr.AshokAgarwalwith Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

¶4LPA NO.635/2008 SHRIPRABHUNATHRAJAK Appellant Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus LPANo.631/2008 with connectedmatters Page 1 of11 M/S RICHA & COMPANY Respondent Through: Ms. Raavi Bh-bal, Advocate.

¶5LPA NO.636/2008 SHRIPARMATMA 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.

¶6LPA 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.

¶7LPA 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.

¶8LPA NO.639/2008 SHRI BHAGWAN SINGH ..... Appellant Through: Mr.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. LPANo.631/2008 with connected matters Page 2 of11 ^ versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

¶9LPANO.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. •;

¶10LPA 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 , Tln'ough: 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 'LPANo.631/2008 with connected matters . Page 3 of11 Hp) passed in the appHcations 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 worlonen from 9.30 am to 6.00 pm which was prevalent prior to 1.7.2002.

¶2Sans 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 confiplaint 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 complamts seeking similar relief contending that during the pendency of the reference, the terms and conditions of sei-vice 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 XPA No.631/2008 with connected matters Page 4 of11 directed. the management to maintain the worlcing hours which were prevalent before the disputes arose. i

¶3Being 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 t-the Factories Act permitted the management to take work from a worlanan, 8 hours a day and 48 hours a week and, hence, there is no statutory violation of the worldng 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 comiected to dispute about increase of the working hours. From the aforesaid it is clear that there is no violation of Section 33(l)(a) of the Industrial Disputes Act as the subject matter involved regarding the timings of the worlamen is different from the subject matter of reference.

¶21It is also apparent that there is no violation of Section 33(l)(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 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 LPANo.631/2008 with connected matters Page 5 of11 applicable to a worlanan 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 comiected with the dispute, the conditions or service applicable to that worlanan immediately before the commencement of such proceeding.

¶22The 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 d6ne 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."

¶4Being 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 refeiTed to an appointment letter Ex.CWl/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 LPANo.631/2008 with connected matters Page 6 of11 service applicable to a worlanan 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 comiected with such dispute in accordance with the standing orders applicable to a worlanan 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 worlanan 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 altei-tdby the managementnor they couM show any contract whether express or implied whereby they have changed the sei-viceconditions of the • workman applicable to him immediately before the commencement of ID No.22/98 pending in this court. In fact worlanan 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 worlanan 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 heardMr. AshokAgarwal,learnedcounselfor the appellants and Ms. RaaviBirbal,learnedcounselforthe respondent.

¶6Learned counsel for the appellantssubmittedthat the order passed by "the tribunalshouldnot havebeeninterferedwith by the learnedSingleJudge by opiningthat there has been no change of service conditions,as by the LPANo.631/2008withconnectedmatters Page7of11 order of appointment, a concession was given and there was no stipulation that the management could enliance the worldng 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.

¶7To 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 see 193, Life Insurance Corporation & Ors. v. D.J. Bahadur, (1981) 1 see 315 and Hindustan Level Ltd. v. Ram Mohan Roy, (1973) 4 See

¶8Ms. Raavi Birbal, learned counsel for the respondent, per-contra, submittedthat the order of the learned SingleJudge is absolutelyjustified 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(l)(a) of the Act as the matter involved related to workinghours of the workmen,which was different from the subjectmatter 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 forqe. Learned counsel has coimnended us to the decisions in Orissa Oil India Mazdoor LPANo.631/2008withconnectedmatters Page 8 of11 Union & Ors. v UOI, 1990 LAB I.C. 1146, L.IL Textile Mills v. Its. Workman, AIR 1961 SC 860' and Management ofMay and Baker (India) Ltd. V. Their Workmen^ AIR 1967 SC 678.

¶9To 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 worlanan 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 worlanan -

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that worlanan immediately before the commencement of such proceeding; or

(b) for any misconductnot connected with the dispute, discharge or punish, whether by dismissal or otherwise, that worlanan: 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." LPANo.631/2008withconnectedmatters • Page 9 of11

¶10On 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 conti-act, whether express or implied, between the management and the worlanen. To elaborate, if there is a settlement between the management and the worlanen, it has the sta:tus of a binding contract and relying on the same the conditions of service can be altered, which are not comiected 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 worlanen. It is evidentfrom the languageemployedin the Act under Section33(2)(a)that the change can only talce 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 ord.er. 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 thinlc 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 LPANo.631/2008 with connectedmatters Page 10 of11 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.

¶11In 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 LPANo.631/2008 with connected matters Page 11 of11

r IN THE HIGH COURT OF DELHI AT NEW DELHI + LPANO.641/2008 SHRI SUNIL KUMAR Through: Appellant 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