Parmatma Tiwari v. Richa & Co

ORDER %

23.03.2011 For orders see LPA No.631/2008. CHIEF JUSTICE SANJIV KHANNA, J MARCH 23, 2011 dk 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 + 1. LPAN0.631/2008 Sma-MOHAR SINGH Appellant Through: Mr.Ashok Agarwal with Dr.Aurobmdo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Tln'ough: Ms. Raavi Birbal, Advocate.

¶2LPA NO.632/2008 SIIRI RAMAN JEE JHA Appellant Through: Mi-.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

¶3LPA NO.634/2008 SHRI MOPIAMMAD NASIR Appellant Thi'ough: Mi\Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA& COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

¶4LPA NO.635/2008 . SHRI PRABHUNATHRAJAK Appellant Through: Mi\Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. ' versus LPANo.631/2008 with connectedmatters Page 1 of11

¶5. M/S RICHA & COMPANY Respondent Thi"ough: Ms. Raavi Birbal, Advocate. ' 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.

¶6LPA NO.637/2008 SHRI VISHWANATHIHA Appellant Thi-ough: Mi'.Ashok Agarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. versus M/S RICHA & COMPANY Respondent Through: Ms. Raavi Birbal, Advocate.

¶7SHRI SUHESH CHAND Appellant Through: Mi'.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 Thi-ough: Mi-'.AshokAgarwal with Dr.Aurobindo Ghose and Sh.Anuj Agarwal, Advocates. LPANo.631/2008with connectedmatters Page 2 of11, versus M/S RiCHA & COMPANY Tbrough: Respondent Ms. Raavi Birbal, Advocate.

¶9LPA NO.640/2008 SHRI UPENDAR PI^^SAD Tlii'ough: Appellant 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 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 HOl^'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 cormected matters whereby the learned Single Judge has dislodged the award dated 22.12.2005 'LPANo.631/2008with connectedmatters Page 3 of11 passed in the applications filed by the worlanen under Section 33A of the Industrial Disputes Act, 1948 (for brevity 'the Act') whereby the hidustriai Tribunal-II, Delhi (for short 'the tribunal') has directed the management to fix the duty hours of the woiianen 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 complaint was filed by the union of the woiianen, 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 - woiianen filed separate complaints seeking similar relief contendingthat 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 comiected 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 LPANo.631/2008 with connected matters Page 4 of11 "20. Therefore, it is apparent that the disputes pending before the Tribunal pertaining to armual increment, transport allowance, summer and winter uniforms and enliancement 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 worlanen 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.621/2.008 with connected matters Page 5 of11 directed the management to maintam the workmg hours which were prevalent before the disputes arose.

¶3Being aggrievedby the aforesaidaward, a number of writ petitions' were filed by the management. Beforethe writ court, it was contendedthat there was no nexus between the subject matters of the reference that was pendingbetweenthe worlonenof the union and the management,and there was basically no alteration of service condition. It was also contended that the Factories Act peraiitted the managementto take work from a worlanan, 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: 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 iiiiiplied,between him and the worlanan) after, in regard to .any matter not comiected with the dispute, the conditions or sei-vice applicable to that worlaiian 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 worlaiian 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."

¶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 appointmentletter Ex.CWl/1 issued by the managementon 1.10.1993 conveying the duty timing by 9.30 am to 6 pm and opinedthat there was a material change in the conditions of sfervice 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 connectedmatters Page 6 of11 service applicable to a worlaiian 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 v^ith 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 worlanan. 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 managementnor they could show any contract whether express or implied whereby they have changed the sei-vice conditions of the worlanan 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."

¶5Wehave heardMr. AshokAgarwal,learnedcounselfor the appellants and Ms. RaaviBirbal,learnedcounselforthe respondent.

¶6Learned'counselfor the appellantssubmittedthat the order passed by thetribunalshouldnot have beeninterferedwith bythe learnedSingleJudge by opining that there has been no change of service conditions, as by the LPANo.631/2008 with connected matters Page 7 of11 order of appointment, a concession was given and tliere 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 farther 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 SCe

¶8Ms. 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(l)(a) of the Act as the matter involved related to working hours of the worlanen, which was different from the subject matter of reference. It is also urged by her that earlier there was no tea break but to i 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 I LPANo.631/2008 with connected matters Page 8 of11 Union & Ors. v UOI, 1990 LAB I.C. 1146, L.K Textile Mills v. 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 xonvenience, 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 comiected with the dispute, the conditions of service applicable to that workiTian immediately before the commencement of such proceeding; or

(b) for any misconduct not comiected 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." LPANo.631/2008 with connected matters 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 contract, whether express or implied, between the management and the worlaiien. 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 worlanen. 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 appropriateto 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 connected matters " 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 If ^—. SANJIVICHANNA, J MARCH 23, 2011 dk LPANo.631/2008with connectedmatters Page11 of11

f? * IN THE HIGH COURT OF DELHI AT NEW DELHI V_> + LPA 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. < CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA / I