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Judgment
Paritosh Kumar Mukherjee, J.—This writ petition was moved on behalf of Andaman & Nicobar Islands Forest Corporation Workers'' Union, represented by its General Secretary, challenging an Award dated June 25, 1992, passed by the Presiding Officer, Industrial Tribunal, Andaman and Nicobar Islands, Port Blair, in I.D. (IT) Case No. 3 of 1990.
Earlier, the appropriate Government referred the following dispute to the said Tribunal:
"Whether the charters of demands as shown in Annexure of the workmen employed in Andaman & Nicobar Islands Forest and Plantation Development Corporation, are fair and justified? And if so, to what reliefs are the concerned workmen entitled?"
The list of charter of demands which has annexed along with the reference is set out below:
"List of charter of demands required to be referred to the Industrial Tribunal for adjudication.
(1) Grant of arrears of variable Dearness Allowance from October, 1986 to the workers of the Forest and Plantation Development Corpn.
The representative of Van Vikas Karmachari Sangh and Forest Corporation Employees Union demanded that the workers of Forest Corporation should be paid the quantum of variable Dearness Allowance accrued to them from October, 1986. They stated that as per the earlier settlement there are two things involved i.e, rate of wages and variable Dearness Allowance. The workers of the Forest Corporation have not been paid variable Dearness Allowance from October, 1986, on the increased rate of minimum wages. The Union representatives stated that it is the legal claim of the workmen and it should be paid to them as arrears of variable Dearness Allowance.
(2) Grant of scale of pay with weightage of length of service.
The two unions representatives stated that all the officers and staff of the Forest Corporation other than the workers are borne on regular establishment and different scales of pay are applicable to them. The Unions demand that one and the same pattern should be followed in dealing with conditions of services of all the employees of the Corporation. During the course of conciliation discussion the Union has agreed to the increase in wages on the basis of the length of service. Even this proposal was not accepted by the Unions. Unions therefore demanded once again that either the scale of pay or the increase in wages by giving weightage for length of service should be considered by the Management.
(3) Enhancement of earned leave and sick leave with full wages.
The two unions stated that the officer and staff of the Corporation other than workers are enjoying the benefit of leave under the Central Civil Service Leave Rules. Unions, therefore, demanded that one and the same rule should be applied to all employees of the Corporation and the facilities of earned leave and sick leave should also be granted to workers under Central Civil Service Leave Rules.
(4) Free Sea passage and Joining Time.
The Unions representatives stated that at present the workers are given only one day joining time to proceed to Port Blair from Hut Bay and free sea passage from Port Blair to mainland. The Unions demanded that full joining time for sea journey from Hut Bay to Port Blair and from Port Blair to mainland port including free sea passage should be given to all workers and their family members.
(5) Grant of House Rent Allowance.
It was demanded that all the workers of the Corporation be given appropriate residential accommodation and till such time it is accomplished the workers who have not been provided with residential accommodation be granted House Rent Allowance @ their counterparts in the Government Departments are getting.
Demand of A & N Islands Forest Corporation Workers'' Union.
Grant of Scale of pay.
The Union representative stated that all the staff of the Corporation i.e. from the Managing Director to the lowest category except mazdoors are on scale of pay. They are enjoying the scale of pay and other allowances as per their service conditions, whereas the workers are getting their wages as per the daily rate fixed. The workers have put in many years of service but still they are called casual and they have not been given regular scale of pay. The Union, therefore, demanded that these workers should be given regular scale of pay as per the Fourth Pay Commission''s recommendation or in the alternative, the scale of pay as prescribed by other Government undertakings with effect from January 1, 1986.
This writ petition was admitted by Shamsuddin Ahmed, J. by an order dated November 16, 1992 presiding over the Circuit Bench at Port Blair, and has been heard before the successive Circuit Bench presided over by Shyamal Kumar Sen, J. on February 16, 1993, February 19, 1993, February 23, 1993 and February 24, 1993 and on the last date, Mr. Vinod Kumar Gupta appearing for the petitioner submitted that the Secretary of the petitioner Union was not available, and as such, the matter was adjourned till the next Circuit Bench.
This writ petition was heard by me on March 24, 1993, March 26, 1993, March 30, 1993 and April 2, 1993, in the presence of Mr. Vinod Kumar Gupta for the petitioner, Mr. N.K. Mehta and Mr. D.R. Parekh for the respondent No. 2, and Mr. S.K. Mondal for the respondent Nos. 1, 3 & 4.
Mr. Vinod Kumar Gupta learned Advocate appearing in support of the writ petition, has challenged the aforesaid Award on the following grounds.
He first submitted that the learned Tribunal has erred in law in not applying the principle ''equal pay for equal work.''
He next submitted that a serious error has been committed by the learned Tribunal in totally overlooking/excluding from consideration Exhibit 22/1, being orders issued by the Central Government to the Public Sector Undertakings, including the respondent Corporation.
He further added that the learned Tribunal while holding that the doctrine of equal pay for equal work is not applicable on the ground that majority of the workers are getting lower pay, committed serious infirmity, and its approach was wrong, totally perverse and negative, and the same tantamount to suggest that where injustice is being done to the majority of the subject, it should not be removed merely because the sufferers happen to constitute bulk of the group.
In support of his contention, Mr. Gupta has relied on the judgment of the Supreme Court in the case of Gujarat Steel Tubes Ltd. and Others Vs. Gujarat Steel Tubes Mazdoor Sabha and Others, wherein V.R. Krishna Iyer, J. Speaking for the Court observed as follows (p. 158):
"The amended Article 226 would enable the High Court to interfere with an Award of the Industrial Adjudicator/arbitrator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to the conclusion to which the arbitrator has arrived. The writ power is larger, given illegality and injustice, even if its use is severely discretionary."
Mr. N.K. Mehta, learned Advocate appearing for the employer, Andaman & Nicobar Islands Forest and Plantation Development Corporation Limited, the respondent No. 2 herein (hereinafter referred to as the said management) submitted that in the instant case, the petitioner Union has challenged the legality of the Award passed by the Industrial Tribunal, Andaman and Nicobar Islands, Port Blair. Andaman Administration referred the issue regarding charter of demands for industrial adjudication without any classification of the said charter of demands. In the said industrial dispute, besides the petitioner Union, two other Unions were also parties. All the 3 Unions filed their written statements before the Tribunal, and also tendered oral and documentary evidence. The Management, being the respondent No. 2 herein, filed its written statement and adduced oral and documentary evidence. All the 3 Unions demanded grant of scale of pay. The petitioner Union in 1989, demanded grant of regular scale of pay as per 4th Pay Commission''s recommendations, or alternative scale of pay as recommended by the Government for Public Sector Enterprises with effect from January 1, 1986.
He further submitted that the respondent No. 2 is a Central Public Sector Undertaking and has three Projects:-
(i) Harvesting Timber and its marketing and scientific management of Forest which is inclusive of Natural Regeneration and Social Forestry.
(ii) Raising Red Oil Palm plantation and marketing of its products; and
(iii) Raising Rubber Plantation and marketing of raw rubber.
In the aforesaid Projects, as per the exigencies of the requirements, the Company is engaging workmen and such workmen are paid on ''daily rate basis''. The jobs rendered by the daily rated workmen are mostly of unskilled nature. Some workmen perform skilled, semiskilled and highly skilled works also. The workmen have been classified as ''unskilled'', ''semi-skilled, and "highly skilled'' etc., and they are paid consolidated wages at the rate substantially higher than the minimum wages prescribed for such category by Andaman and Nicobar Administration.
A chart on the wages paid to the daily rated workmen in the projects in different categories has been annexed to the affidavit-in-opposition filed by the respondent No. 2, which has been marked as Annexure ''A'' to the said affidavit.
It appears that such daily rated workmen also get the benefit of Dearness Allowance linked with the cost of living index and such revision takes place every six months depending upon the price index. The wages of such daily rated workmen are satisfactory and are substantially higher than the minimum wage rates fixed for such category.
Mr. Mehta further submitted that the petitioner Union has, inter alia, challenged that there are about 800 workmen working in Little Andaman, and such daily rated workmen should be granted regular scale of pay as prescribed by the Government for each post, i.e, non-executive, supervisory and executive. The allegation of the petitioner Union is that the ''daily rated workmen'' who are engaged at Little Andaman Island, should be granted scale of pay as prescribed by the Central Government for sanctioned post in different designations as referred to above. The said claim of the Union is based on the principle of ''equal pay for equal work''. The Union further alleged that the said workmen do the same work as discharged by the employees who enjoy the pay scales.
Mr. Mehta submitted that the petitioner Union has not placed any material evidence before the Tribunal to justify the claim of the workmen that at Little Andaman workmen are doing the same work as is being done by other employees of the Corporation, who have already been designated in different posts and have been allowed the pay scales.
On behalf of the Union, the General Secretary, a Painter and a Feller, 3 witnesses were examined before the Tribunal. According to Mr. Mehta, the Union could not substantiate as to which particular workman at Little Andaman is doing what work and how circumstances the workmen should be designated.
According to Mr. Mehta, it was incumbent upon the Union and/or to give conclusive evidence to support their claim that daily rated workmen are in fact doing the ''same and similar duties'' which is being entrusted to the sanctioned posts, i.e. non-executive, supervisory and executive. According to Mr. Mehta, the Union witnesses have miserably failed to substantiate their claim. On the contrary, out of 1600 workmen working in three projects only 3 workmen came forward to give evidence and they have also not been able to substantiate their claim, or has been able to establish as to in which designation in the prescribed pay scales they should have been fitted.
According to Mr. Mehta, the demand of the petitioner Union is entirely misconceived on the plea of ''equal pay for equal work'' and the same cannot be applied in the facts of the present case.
Mr. Mehta submitted that the Presiding Officer of the Tribunal weighed the evidence adduced by the parties and in paragraphs 36 and 37 came to the finding that the additional financial liability which would be imposed on the company will be Rs. 3,35,58,730/- towards arrears and Rs. 1,85,00,000/- per year. According to the learned Tribunal the said liability towards arrears as on December 31, 1992, would be Rs. 9,86,37,291.60 and the annual liability would be Rs. 2,06,82,996.50. Mr. Mehta further submitted that the learned Tribunal also, in paragraph 37 of the Award has considered the said fact in details.
Mr. Mehta further submitted that in paragraphs 36 and 37 of the Award, the Tribunal has assessed the evidence at length and came to the conclusion that the additional financial liability that the Company would have to bear in case the daily rated workmen are to be fitted with the pay scale, are substantial, and the respondent corporation would not be able to bear the same and if such a liability is imposed, the same would have adverse effect on the financial position of the Corporation and the Corporation will lead to self extinction.
22-23. Mr. Mehta further submitted that the finding of the Tribunal as contained in paragraphs 36 and 37 are based on evidence on record, and the conclusion of the Tribunal regarding additional liability to be borne by the Corporation in the event, the daily rated workmen being fitted in the pay scales, is fully sustainable, and the writ petition is not maintainable, as there is no legal infirmity in the Award.
Regarding exercise of power under Article 226 of the Constitution, Mr. Mehta has referred to the following judgment of the Supreme Court in the case of Sadhu Ram Vs. Delhi Transport Corporation, wherein the Supreme Court observed as follows (p. 384-385):
"The jurisdiction under Article 226 of the Constitution is truly wide, but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over Tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to re-adjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management --------"
On this point, he has also referred to the case of Harbans Lal Vs. Jagmohan Saran, , wherein the Supreme Court, inter alia, held as follows:
"A writ in the nature of certiorari may be issued only if the order of the inferior tribunal or subordinate court suffers from error or jurisdiction or from a breach of the principles of natural justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling the High Court to reappraise the evidence without sufficient reason in law and reach findings of fact contrary to those rendered by an inferior court or subordinate court. When a High Court proceeds to do so, it acts plainly in excess of its powers."
Regarding fixation of financial liability, Mr. Mehta referred to the following 5-Judges decision of the Supreme Court in the case of Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, wherein the Supreme Court enunciated the following proposition (p. 367):
"(1) that in the fixation of rates of wages which include within its compass the fixation of scale of wages also, the capacity of the industry to pay is one of the essential circumstances to be taken into consideration except in cases of bare subsistence or minimum wage where the employer is bound to pay the same irrespective of such capacity;
(2) that the capacity of the industry to pay is to be considered on an industry-cum-region basis after taking a fair cross-section of the industry; and
(3) that the proper measure for gauging the capacity of the industry to pay should take into account the elasticity of demand for the product, the possibility of tightening up the organisation so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest paid workers resulting in increase in production considered in conjunction with the elasticity of demand for the product no doubt against the ultimate background that the burden of the increased rate should not be such as to drive the employer out of business."
On this point, he has also referred to the case of decision of the Supreme Court in the case of Novex Dry Clearners v. Its Workmen, reported in (1962 I LLJ 271) the relevant portion of which is as follows (p. 273):
"It is well settled that in fixing the wage structure on a fair basis, an attempt is generally made in assessing the additional liability imposed upon the employer by the new wage structure and trying to anticipate whether the employer would be able to meet it for a reasonably long period in future. Since the tribunal has not considered these aspects of the matter at all, we cannot uphold its award whereby it has merely adopted the wage scale fixed by the two awards in respect of the Snow white and the Band Box."
On this point, he has also referred to another judgment of the Supreme Court in the case of Ahmedabad Millowners'' Association etc. v. The Textile Labour Association, reported in (1966 I LLJ 1) wherein the Supreme Court observed as follows (pp. 28- 29):
"On the other hand, in trying to recognise and give effect to the demand for a fair wage including the payment of clearness allowance to provide for adequate neutralisation against the ever- increasing rise in the cost of living, industrial adjudication must always take into account the problem of the additional burden which such wage structure would impose upon the employer and ask itself whether the employer can reasonably be called upon to bear such burden. The problem of constructing a wage structure must be tackled on the basis that such wage structure should not be changed from time to time. It is a long-range plan; and so, in dealing with this problem the financial position of the employer must be carefully examined. What has been the progress of the industry in question; what are the prospects of the industry in future; has the industry been making profits and if yes, what is the extent of profits; what is the nature of demand which the industry expects to secure; what would be the extent of burden and its gradual increase which the employer may have to face? These and similar other considerations have to be carefully weighed before a proper wage structure can be reasonably constructed by industrial adjudication, vide Express Newspapers (Pvt) Ltd. v. Union of India (1961 LLJ 339). Unusual profit made by the industry for a single year as a result of adventitious circumstances, or unusual loss incurred by it for similar reasons should not be allowed to play a major role in the calculations which industrial adjudication would make in regard to the construction of wage structure. A broad and overall view of the financial position of the employer must be taken into account and attempt should always be made to reconcile the natural and just claims of the employees for a fair and higher wage with the capacity of the employer to pay it And in determining such capacity, allowance must be made for a legitimate desire of the employer to make a reasonable profit. In this connection, it may also be permissible to take into account the extent of the rise in price structure which may result from the fixation of wage structure, and the reasonableness of the additional burden which may thereby be imposed upon the consumer. That is one aspect of the matter which is relevant.
The other aspect of the matter which cannot be ignored is that if a fair wage structure is constructed by industrial adjudication, and in course of time, experience shows that the employer cannot bear the burden of such wage structure, industrial adjudication can, and in a proper case should, revise the wage structure, though such revision may result in the reduction of the wages paid to the employees. It is true that normally once a wage structure is fixed, employees are reluctant to face a reduction in the content of their wage packet; but like all major problems associated with industrial adjudication, the decision of this problem must also be based on the major consideration that the conflicting claims of labour and capital must be harmonised on a reasonable basis; and so, if it appears that the employer cannot really bear the burden of the increasing wage bill, industrial adjudication, on principle, cannot refuse to examine the employer''s case and should not hesitate to give him relief if it is satisfied that if such relief is not given, the employer may have to close down his business. It is unlikely that such situation would frequently arise but, on principle, if such situation arises, a claim by the employer for the reduction of the wage structure cannot be rejected summarily."
Mr. Mehta further submitted that in the case of Sangam Press Limited Vs. The Workmen, the Supreme Court observed as follows: (p.126):
"Para 3: We are dealing with a case of company whose employees are in receipt of some kind of a fair wage not bare minimum wage at subsistence level. It is well settled that while the question of capacity to pay is irrelevant in the case of minimum wage, the matter of a fair wage stands on a different footing. In case of a fair wage, besides the principle of industry-cum-region, the company''s capacity to bear the financial burden must receive due consideration. The past performances of the company and the future prospects with a totality of the picture must be present in the mind of the adjudicator in dealing a dispute of this nature."
On the basis of the aforesaid pronouncement of the Supreme Court, Mr. Mehta submitted that this Court sitting in the jurisdiction under Article 226 of the Constitution, is not expected to sit over judgment and the pronouncement made by the Tribunal in paragraphs 36 and 37 of the Award, where the Tribunal has taken into consideration the relevant factors, only after going through the aforesaid pronouncement of the Supreme Court regarding capability of the Corporation and the financial burden involved.
He further submitted that the Supreme Court in the case of Hindustan Antibiotics Ltd. Vs. The Workmen and Others, has held that the principle regarding construction of the wage structure and the capacity of the company to bear the additional burden in respect of Private Sector Industries is also applicable to a Public Sector Corporation. Accordingly, the Supreme Court came to the conclusion that the same principles evolved by the industrial adjudication in regard to Private Sector undertakings will govern those in the Public Sector undertakings having a distinct corporate existence.
Mr. Mehta further added that equal pay for equal work is not a fundamental right, but it has been enshrined under the Directive Principles of the State Policy, but before applying the aforesaid principle, the Tribunal and/or the authority should arrive at the necessary conclusion that the nature of the work is equal.
The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before, a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scales has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived at mala fide either in law or in fact.
Before concluding, Mr. Mehta submitted that the charter of demand, which has been referred by the appropriate Government, the appropriate Government went beyond the jurisdiction. But in my view, the said point at this stage, is not available to the respondent Corporation, after participating before the Tribunal.
On the basis of the aforesaid submission, I am of the view that in view of the principles laid down in the case of Sadhuram (supra) and Harbans Lal (supra) referred to hereinabove, this Court, sitting in the jurisdiction under Article 226 of the Constitution, is not entitled to interfere with the factual finding of the Tribunal.
In the next place, this Court is of the view that in exercise of power under Article 226 of the Constitution, this Court has a limited power, and the ruling referred to in Gujarat Steel Tubes Ltd. (supra), cannot be applied in the facts of the present case, as the Tribunal in paragraphs 36 and 37 of the Award, relied on material evidence adduced by the three witnesses on behalf of the Union, referred to hereinabove.
Before parting this Court is of the view that the appropriate Government could not have referred the charter of demands itself without proper application of mind, and it is none of the functions of the Tribunal to apportion the nature of dispute, which has not been indicated by the appropriate Government, in the terms of reference.
This Court is further of the view that it would have been proper on the part of the respondent-Corporation to challenge the reference at the appropriate stage, which has not been challenged by the Corporation, but the Corporation submitted to the jurisdiction of the Tribunal, and as such, at this stage, this Court is not called upon to pronounce any opinion on the merit of the reference.
In view of the detailed discussions, and the reasons given hereinabove, I am not inclined to interfere with the ''reasoned Award'', passed by the Tribunal in the case, being I.D. (IT) Case No. 3 of 1990.
The writ petition is accordingly dismissed.
There will be no order as to costs.
Let plain copy of this order countersigned by the Assistant Registrar (Court) be given to the learned Advocates of the parties, on usual undertaking.