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Judgment
These are a group of three Petitioner seeking to challenge the Award dated the 18th of December 1985 of Shri B. N. Dongre, Industrial Tribunal, Bombay. The Award has adjudicated upon the demands of the Management and the Workers of M/s. Hindustan Lever Limited, Bombay. It has conceded the demand of the Management for placing a ceiling on the dearness allowance on basic pay over Rs. 500/- It has granted certain demands of the workers such as revision of pay scales, grant of special allowance, Social Security Allowance and ad hoc allowance, demand for automatic promotion, etc. The first two petition are filed by workers and the third by the Management.
The first question that can be taken up for consideration is in regard to the demand of Management for creating a ceiling on the dearness allowance. The impugned Award has granted this demand and has placed a ceiling on the dearness allowance on basic pay over Rs. 500/-. Mr. Menon, the learned Counsel appearing on behalf of the workers, strenuously submitted that the learned Member of the Industrial Tribunal has erred in granting the said demand of Management. According to him, the worker were being paid dearness allowance on a sliding scale for over a decade. There was no compelling reasons to have parted with this benefit which the workers were enjoying. If the worker could not be paid fair wages and if the prices of essential commodities have consistently been on the increase, there was no justification to place a ceiling on the dearness allowance. Mr. Menon placed reliance in the case of The monthly rated workmen of Monthly Rated Workmen at the Wadala Factory of the Indian Hume Pipe Co. Ltd. Vs. Indian Hume Pipe Co. Ltd., Bombay, wherein it was observed at pp. 528-530 :
"There is a need for living wage to workmen instead of subsisting wage. It is indeed a matter of concern and mortification that even today the aspirations of a living wage for workmen remain a mirage and a distant dream. Nothing short of a living wage can be fair wage. It should be the combined effort of all concerned including the Courts to extend to the workmen a helping hand so that they get a living wage which would keep them to some extent at least free from want.
The question is often asked as to whether it would be advisable for Tribunals and Courts to revise the wage structure of workmen to their prejudice when a dispute arises. Normally the answer would be in the negative. Tribunals and Courts can take judicial notice of one fact; and that is that the wages of workmen, except in exceptionally rare cases, fall within the category of mere ''subsisting wages''. That being so, it would be inadvisable to tinker with wage structure of workmen except under compelling circumstances. Employers have seldom displayed a cooperative attitude where wage structures of workmen are devised. They have never showed a willingness for the involvement of the Labour with the capital so as to engender a participative labour-capital relationship. This is a reality that Tribunal and Courts have to reckon with. That being so, Courts and Tribunals have necessarily to keep their hands off from upsetting a wage structure that has satisfactorily worked for a long time. The sweat of the Labour is never reflected in any balance sheet, although the latent force behind every successful industry, is this sweat. With their present wage structure, the labour just exist. No one should try to deny them even this bare source of existence.
In the absence of compelling materials, a system that gives benefit to the workmen cannot lightly be interfered with to their detriment. The theory of ceiling on the quantum of Dearness Allowance cannot be accepted since under the prevailing conditioned there is no control over the prices of essential commodities and as such a ceiling would not give sufficient cushion when prices of essential commodities continuously rise."
Placing reliance on the aforesaid observations in the case of Indian Hume Pipe Company Ltd. (supra) Mr. Menon strenuously urged that the learned Member of the Tribunal has seriously erred in granting this demand of the Management. It was not the case of the Management that there was financial stringency which the Company could not bear. No good reasons or compelling grounds had been advance so as to justify the abolition of the slab of dearness allowance which had prevailed for over 25 years. He submitted that grants of this demand is illegal and liable to be quashed.
It may be convenient to first consider whether it is permissible to have a ceiling on the dearness allowance and thereafter to consider whether good and compelling grounds have been made out the Management to justify the grant of this demand. This question was considered by the Supreme Court in a number of decisions. I may refer only one, viz. the case of Shri Chalthan Vibhag Khand Udyog Sahakari Mandli Ltd. v. G. S. Barot, reported in (1979) 4 SCC. 623, which case had considered the earlier decisions on the point with approval. It has been held in this case :
"The purpose of grant of D.A. is to neutralise fully or partially the increase in cost of living. Full or cent per cent. neutralisation can be achieved if the increase in the cost of living is fully compensated so that the pay of the worker is not adversely affected. Though 100% neutralisation is not advisable as it will lead to inflation, full neutralisation may be permissible only in the case of the lowest class employees. But an award of more than 100% of an increase in the cost of living would be more than neutralization and would in effect give the worker an increased wage - a result which would not have been envisaged in making provision for grant of D.A."
In the aforesaid case the ceiling on dearness allowance was sought to be supported on ground inter alia that the grant of neutralisation of variable dearness allowance at 125% was far in excess of what is permissible under the industrial law. It was observed by the Supreme Court that the Tribunal had erred in allowing neutralisation of variable dearness allowance at 125% which is beyond the permissible limits of Industrial Law. Dearness Allowance was primarily intended as a protection of persons whose salaries are at the subsistence level to protect them against the adverse effects of the rise in prices. The Commission on Dearness Allowance in May, 1967, stated that historically D.A. was regarded as applicable to those employees whose salaries are at the subsistence level or at a little above in order to enable them to face the increase in dearness of essential commodities. The National Commission on Labour, 1969, observed that unless money wages rise as fast as consumer price it will result in an erosion of real wages. But the extent of its impact will depend on the margin of cushion available at different levels of income. The Commission recommended that 95% neutralisation should be granted against rise in cost of living to those drawing minimum wage in non-scheduled employments. Cent per cent. neutralisation cannot be allowed as it would lead to a vicious circle and add to inflationary spiral. There was no reason why the industrial worker should not make sacrifices like all other citizens. The Court approved the observations of the Supreme Court in the case of Clerks of Calcutta Tramways Vs. Calcutta Tramways Co. Ltd., wherein it was said at p. 453 :
"We can now take it as settled that in matters of the grant of dearness allowance except to the very lowest class of manual labourers whose income is just sufficient to keep body and soul together, it is impolitic and unwise to neutralise the entire rise in the cost of living by dearness allowance. More so in the case of the middle classes."
Reliance was also place on the case Hindustan Motors 1962 II LLJ 352 , The Hindustan Times Ltd., New Delhi Vs. Their Workmen, , Kamani Metals and Alloys Ltd. Vs. Their Workmen, , Bengal Chemical and Pharmaceutical Works Ltd. Vs. Its Workmen, . The Silk and Art Silk Mills'' Association Ltd. Vs. Mill Mazdoor Sabha, , Killick Nixon Limited Vs. Killick and Allied Companies Employees'' Union, and Shivraj Fine Arts Litho Works and Others Vs. The State Industrial Court, Nagpur and Others, , and it was held that the law is thus clear that dearness allowance is intended to neutralise a portion of the increase in the cost of living. Though 100% neutralisation is not available as it will lead to inflation, full neutralisation may be permissible only in the case of the lowest class of employees. The management is entitled to complain if the neutralisation is more than 100%.
The observations contained in the aforesaid decision made it clear that it is legally permissible to have a ceiling on the dearness allowance. This ceiling is on often justified as was done in the case of Killick Nixon Ltd. (supra) on the ground that the absence of ceiling on D.A. can result in curious anomalous situations wherein the pay packet of clerical staff would exceed the pay packet of junior executive staff. This is hardly conductive to discipline, efficiency and effective exercise of control. Thus the question may not be simply the financial capacity of the company alone. Ordinarily the capacity to bear the additional burden would certainly be a relevant factor. Even where the company is able to bear additional burden, imposing of the ceiling on dearness allowance can yet be justified. So far as the lowest paid employees at or just above the subsistence level are concerned, they are entitled to 100% or at any rate not less than 95% neutralisation of the rise in the cost of living and hence there should be no ceiling on dearness allowance payable to employees within the slab of first Rs. 100/-, unless it can be shown by the management that the rate of neutralisation in their case is more than 100%. The ceiling may be fixed either by prescribing a certain amount as the outside limit of the dearness allowance or by reference to the quantum of dearness allowance payable at a certain wage level.
Having held that it is legally permissible to have a ceiling on the dearness allowance, it may be convenient to proceed to consider whether a good and compelling reason has been made out by the Management to justify the imposition of a ceiling on the dearness allowance. During the course of the arguments, Mr. Desai, appearing on behalf of the Management has produced statements showing the increase in the wages of various workers after implementation of the impugned Award and the rate neutralisation. I may reproduce herebelow the statement in respect of Shri M. Metharu by way of specimen in order to understand the impact of the imposition of the ceiling on dearness allowance as directed under the impugned Award :
* STATEMENT SHOWING INCREASE IN WAGES AFTER IMPLEMENTATION OF (A) DONGRE AWARD AND (B) THE RATE OF NEUTRALISATION.
* See next page Mr. M. Metharu, MP 8421 GRADE T3 EMPL. ON 12-10-1953.
Shri Menon, the learned Counsel appearing on behalf of the workers, could not dispute the correctness of the various statement relied upon by Mr. Desai; but according to him, the said statement contain a faulty method of working out the percentage of neutralization. According to Mr. Menon, the statements. on the basis of the increase in the cost of living index. According to Mr. Menon if the basic wages are also taken into account by working out the percentage of the cost of living index, the percentage of neutralization would not be as high as one reflected in the statement relied upon by Mr. Desai.
In my judgment, the dearness allowance is expected to take care of the increase in the cost of living index. It would, therefore, not be permissible to include the basic wages for the purpose of determining the percentage of neutralization. Despite the ceiling being placed on dearness allowance, it is apparent that the percentage of neutralization is over 100% and this is not permissible as the same is bound to lead to inflation. All that the increase in the dearness allowance is expected to take care of is 100 per cent. of the increase in the cost of living index or less. The moment the neutralization is more than 100% one would be awarding more neutralization than the increase in the cost living index which is foreign to the concept of the dearness allowance. This would, in effect, amount to increase in the basic wages of the workers.
If one were to examine the position of the salaries earned by the workmen without the imposition of the ceiling on the dearness allowance, it would become clear that the salaries of the workmen would be far more than the salaries of the junior executive of the company. The posts of Junior executives are promotional posts over the post of T3 and T4 and C3 and C4 posts. Experience has shown that workers are unwilling to opt for promotions as that might entail reduction in their emoluments. As observed in the case of Killick Nixon (supra), this often may lead to indiscipline in the administration of the company. In any view of the matter, the imposition of ceiling or Dearness Allowance is legally permissible. The learned Member of the Tribunal has found good and sufficient reasons to impose such a ceiling. While passing the Award the learned Member has awarded a package deal to the workers and has awarded other benefits after taking into account the fact that he
-------------------------------------------------------------------------------- 01 02 03 04 05 Wages as of Wages pay as Wages pay on Wages pay Wages pay Oct. 85 at per Settl. dt. impl. of Award as per on impl. CLI 2886 20-11-1985 at Award Nov. 85 Award at of Award (with out CLI 2837 at CLI 2837 CLI 3765 w/o. revised (May 88) ceiling LTA/HRA DA at CLI ------------------------------------------------------------------------------- EARNINGS BASIC 540 580 700 720 720 D.A 3796 3937 3514 4746 6319 INT. RELIEF 25 25 0 0 0 HRA - 350 350 350 350 LTA 13 100 100 100 100 SP. ALLOWANCE - 0 110 110 110 AD HOC ALLOW. - 0 60 60 60 SOC. SEC. ALLOW. - 0 60 60 60 S.D. ALLOWANCE - 25 25 25 25 PERSONAL PAY - 0 423 0 0 ------------------------------------------------------------------------------- TOTAL 4374 5017 5342 6171 7744 ------------------------------------------------------------------------------- DIFFERENCE BETWEEN COLUMN 1 AND 3 = 968 DIFFERENCE BETWEEN COLUMN 1 AND 4 = 1797 DIFFERENCE BETWEEN COLUMN 3 AND 4 = 829 DIFFERENCE BETWEEN COLUMN 4 AND 5 = 1573 ------------------------------------------------------------------------------ 06 07 08 % age rise in % age rise in percentage CLI Ind. May 1988 DA over same Neutralisation September over Sept. 85 period (The neutrali- 88 3840 (May Index for sation is cal- July payt. & culated by the Sept. Index for method adopted Nov. Payt.) in a Judgment of Patna High Court reported in 1987 I LLJ page 275) ------------------------------------------------------------------------------ 132.17% 135.05% 101.76% 720 4825 ------------------------------------------------------------------------------ Rs. 6277 ------------------------------------------------------------------------------ had placed a ceiling on the dearness allowance. He has granted revision of pay scales, special allowance, social security allowance and ad hoc allowance. He had conceded the demands of classification from T2 to T3 category. He has granted extra wages for work on weekly or public holidays, meal allowances and dinner allowances, etc. The learned Member of the Industrial Tribunal has specifically mentioned that he haw awarded these additional benefits keeping in view the fact that he had put a ceiling on the increase in the dearness allowance. The view taken by the Tribunal is a possible view, and I do not consider that this is a fit case for interference with this finding in my jurisdiction under Article 226 of the Constitution of India.
In regard to the case of Indian Hume Pipe Company Ltd. reported in Monthly Rated Workmen at the Wadala Factory of the Indian Hume Pipe Co. Ltd. Vs. Indian Hume Pipe Co. Ltd., Bombay, , on which strong reliance was placed by Mr. Menon, I find that the observations contained in this said judgment are not intended to laying down any proposition of law but are observations restricted to the facts of that case. It has been observed in that case that if there is material to show that the dearness allowances system adopted by a Company had become ''improper'' and unscientific because the workmen were getting fantastic amount of dearness allowance, a departure from the existing slab system could be envisaged. It will further be pertinent to note that the Supreme Court in this case has approved the ratio laid down by it in this case of Killick Nixon Ltd. (supra). It further held that if the employer had made out a case of putting a ceiling on dearness allowance, it was for the Tribunal to decide as to on what particular amount there should be ceiling on dearness allowance. While making a reference to the case of Crown Aluminium Works Vs. Their Workmen, , it was observed that it would not be incorrect to say that in no conceivable circumstances can the wage structure be revised to the prejudice of workmen. Even theoretically no wage structure can or should be revised to the prejudice of workmen if the structure in questions falls in the category of the bare subsistence or the minimum wage. If the wages structure in question falls in a higher category, then it would be open to the employer to claim its revision even to the prejudice of the workmen provided a case for such revision is made out on the merits to the satisfaction of the tribunal.
A bare perusal of the wage structure of the workers of Hindustan Lever would show that the same is not a bare structure or a minimum wage. The wage structure falls in a much higher category. It was, therefore, open to the Tribunal to impose ceiling which the Tribunal has chosen to do. Hence no exception could be found with it. Similar would be the position of the case of Association of Engineering Workers'' Trade Union and Arr v. S. A. Patel and ors. 1987 (II) CLR 236, decided by this Court and on which heavy reliance was placed by Mr. Menon. In this case having regard to the facts of the said case it was observed :
"Skilled workmen by virtue of years of toil acquire a seniority which gets reflected in their earnings. These may be higher than the salary of Junior Engineers and Officers. The latter cannot in all fairness claim a salary higher than the gross pay of the senior workmen. If they have in academic record to flourish, workmen have the year of toil and acquired experience to their credit. Is a lesser income an impediment in the exercise of control and discipline over those better paid ? That the amour proper of officers disables them is one thing and quite different is it to infer that the higher paid worker cannot be disciplined by lower paid officers. Notions of class superiority etc. apart from being obnoxious to the society that the Constitution contemplates, are misplaced in industrial adjudication."
In our case the imposition of ceiling on dearness allowance has not been effected merely on the ground that the senior workers may be earning more than the junior officers. The entire wage package including the additional benefits given under the Award along with the fact that despite the imposition of the ceiling there is more than 100% neutralisation are all taken into account while imposing the ceiling.
Hence the finding of the Tribunal on this issue cannot be faulted.
Mr. Menon submitted that the basic wages of the workers of the Hindustan Lever are lower than those in TOMCO, which is a comparable industry. Consequently, the workers of TOMCO enjoy a higher salary than those of Hindustan Lever. In my view, it would not be permissible to view merely the basic salary and dearness allowance earned by the workers of comparable companies but one will have to compare the entire wage package as a whole. During the course of arguments Shri Menon had sought to submit that even the entire wage package of TOMCO was better off than the one in the Hindustan Lever. In order to see if better terms could be offered to the workers of Hindustan Lever so as to make them comparable with TOMCO, as originally claimed by Mr. Memon, I enquired with the learned Counsel appearing on behalf of the Management as to whether they would be prepared to offer to their workers the same wages package as enjoyed by the workers of TOMCO. After taking the necessary time to make its calculations, the Management did offer by way of negotiated settlement the entire wage package of TOMCO to its workers. For good reasons, Mr. Memon declined this offer. It is apparent from the above that though the basic salary and the dearness allowance which is paid to TOMCO workers may apparently appear to be more attractive than that paid to the workers of the Hindustan Lever, the workers of the Hindustan Lever undoubtedly earn a much higher wage package than workers of TOMCO. It would, therefore, not be open to Mr. Menon to pick out the individual benefits being offered by different companies which are more attractive than those individual items available in Hindustan Lever and claim the best of the both the worlds. One has ultimately to view the entire wage package. If that is done, in my view, imposition of the ceiling by the Tribunal on the dearness allowance cannot be held to be illegal or unjustified.
Mr. Menon further submitted that the demand of the Management itself envisaged a different pay scale to C Grade and T Grade employees. The basic wages earned by these two categories are different. Consequently, the dearness allowance earned by workers each of these categories is also different. By imposing a ceiling on the slab of Rs. 500/- of basic salary, the difference in the total salary earned by the workers earning more than Rs. 500/- in each of these two categories would attract a difference only in their basic salary with no consequential increase in the dearness allowance. Since there will be no dearness allowance payable on basic salary of over Rs. 500/-, the difference in the salary between C and T categories would be reduced and confined only to the increase in the basic salary with no corresponding increase in the dearness allowance. Mr. Menon further pointed out that the Management by its settlement dated 20th November 1985 had granted two additional increments to the basic wages. This was a short time prior to the impugned Award dated 18th of December 1985. Implicit in that settlement was the grant of the consequential increase in the D.A. This settlement did not contemplate placing of ceiling of dearness allowance. A benefit which was given by that settlement cannot be withdrawn by the impugned Award. This, according to Mr. Menon, was an error apparent on the face of the Award as the Award inter alia had brought about a disparity in the wage structure between the C and T grades inter se.
In my view, there is no merit in this contention. If by placing ceiling on the dearness allowance there arises a disparity in the wage differential between C and T grades inter se that would be a necessary consequence of the ceiling. One has to ensure the reasonable returns for the work put in by the worker. Merely because there may be difference in the basic wages of the different categories of workers, it does not follow that that difference should be maintained even in the higher slabs of wages. In regard to the settlement dated 20th November 1985, the same has given two additional increments to the basic wages along with certain other benefits. Merely because two additional increments to the basic wages were granted, the same did not mean that the Management had conceded the consequential increase in the dearness allowance according to the slab system which the Management had sought to remove their demands. In this view of the matter, it will have to be held that the impugned Award in so far as the same place a ceiling on the dearness allowance is justified.
Having answered the issue regarding the ceiling on the dearness allowance, it may be convenient to proceed to dllew on the other contention raised by the parties before me. The impugned Award has granted one automatic promotion without having regard to merit after a worker reaches the maximum slab of salary provided he has not already been promoted on merit. Mr. Desai, the learned Counsel appearing on behalf of the Management, submitted that such as an automatic promotion is unheard of in industrial adjudication. According to him, it may be that certain industries may have granted such a benefit through negotiated settlement. That, however, cannot justify the awarding of such a benefit in adjudication proceedings. He pointed out that system of automatic promotion which had been arrived at in the Company through a negotiable settlement had been done away with in the year 1961. The impugned Award had granted to the workers a revision of salary. According to Mr. Desai, the grant of this benefit of automatic promotion is bound to bring about frustration amongst the meritorious workers. The concept of promotion is based on merit-cum-seniority and not mere seniority. A worker, who is promoted on merit, is placed equally with one who is promoted only on seniority. The worker who has been promoted on the merit under the terms of the impugned Award is not entitled to a further promotion on the basis of seniority alone. This places unequal as equals. When a person is promoted not on merit but merely on seniority, he is placed in a grade where he cannot efficiently perform the duties expected of a worker in that grade. Merely because the number of workers who may avail of this facility of automatic promotion may be few, there was not justification for grant of this facility. In my judgment, there is considerable merit in this contention, and the same will have to be upheld. According to me, introduction of system of automatic promotion would have the tendency to make reservation for the unmeritorious. The unmeritorious workers cannot be equated with the backward class or the weaker section of the workers who have been give protection both of employment and promotion by the Constitution. Such a reservation is not contemplated for the unmeritorious workers. As pointed out by Mr. Desai, such automatic promotion has the effect of placing unequal as equal making same payment for unequals and denying adequate opportunity for the meritorious vis-a-vis the unmeritorious. This is bound to lead to frustration amongst the industrial workers, a result hardly desirable amongst the industrial workers. In this view of the matter, the benefit of automatic promotion conferred by the impugned Award will have to be set aside.
The next claim pertains to stagnation increments which has been refused by the impugned Award. The workers of the Head Office in their statement of claim had claimed that those employees who have reached the point of stagnation in their grades shall be eligible to draw their last drawn increment every alternate year of their service. This claim has been negatived by the learned Member of the Tribunal on the ground that he had granted the claim for automatic promotion. In my view, since I have set aside the benefit of automatic promotions and since the grant of stagnation increment does not suffer from the vice suffered by automatic promotions, the same can be conceded in favour of the workers. It is true that this claim had been made only by the workers of the Head Office and not by the factory workers. However, Mr. Rele, on taking instructions, has stated that as far as the proceedings before me are concerned, I may entertain such a demand even for the benefit of the factory workers even though such a demand has not been specifically made. He also stated that the benefit that may ensure for the factory workers on this count will not be challenged merely on the ground that such a claim was not made by them. He, however, and rightly, reserved his right to challenge this item in the event of the matter being carried in appeal on any other grounds that may be open to the contending parties. In view of this, I grant the claim of stagnation increment both to the Head Office as also the factory workers in terms of the claim set up by the workers of the Head Office.
The next claim pertains to the demand of gratuity. The impugned Award has awarded gratuity of half month''s wages as against the claim of 15 days for completed year of service. According to Mr. Menon, the grant of half month''s wages in place of the claims of 15 days salary granted gratuity in the sum of 13 day''s salary only putting a loss of two days'' salary for each worker. In my view, whether gratuity should be awarded at the rate of 15 days'' salary per year or 13 days'' salary per year is a matter of discretion. If while offering a complete pay package, the learned Tribunal thought fit to award half month''s wages in place of 15 days'' wages, no fault could be found with it while exercising jurisdiction under Article 226 of the Constitution of India. Similar is the position in regard to the claim in respect of the rate of contribution to provident fund. The impugned Award has refused to grant the claim for enhanced contribution from 8% to 10% by observing that Management has been paying at the maximum statutory rate provided under the Provident Fund Act. The Tribunal has also observed that it had while making the Award retrospective protected the benefit of the dearness allowance already earned by treating the same as personal pay. Since this burden had been placed upon the Management, it was not proper to impose the additional burden of contribution to provident fund at this stage. This items forms part of the package deal and no fault can be found with the same. Similar will be the position in regard to the claim set up by the workers of the Head Office for grant of housing loan. Merely because such loans are granted to the managerial staff or that this facility is enjoyed by the workers of TOMCO, this cannot by itself be a sufficient ground to grant the same to the workers of Hindustan Lever. This being a matter of discretion, the same cannot be interfered with merely on the ground that I may or may not, if I were to be sitting as a Member of the Tribunal in the original proceedings, be inclined to grant.
The further claim is in regard to the classification of chemists from T2 grade to T3 grade. The impugned Award had granted the said demand to only six named chemists in regard to whom specific evidence was led before the Tribunal. Mr. Memon justifiably submitted that there was no justification to restrict the benefit only to the six named chemists. The evidence regarding these chemists was illustrative in nature and there are other chemists doing the same job but had been left out from the purview of this benefit. Mr. Desai, appearing on behalf of the Management, disputed the assertion that there are other chemists performing similar job as performed by these six named chemists. It would be enough to observe that if there are other chemists who are performing similar job as performed by these six named chemists, the benefit accorded to these six named chemists will also extend to them. It may be observed at this stage that the challenge regarding classification of other workers has been specifically given up by Mr. Menon.
The next point is in regard to the shift allowance which has been granted to the monthly rated workmen at the rate 7% of their basic wages plus Rs. 2/-. The Management has challenged the aforesaid relief on the ground that the daily rated workmen were entitled to 12 1/2% of the basic wages plus Rs. 2/-. The grant of shift allowance at the rate of 7% of the basic wages plus dearness allowance to the monthly rated workmen had brought out a disparity between the daily rated and monthly rated workers which ought to have been abolished. In my view, there is considerable merit in this contention. Mr. Menon has fairly conceded that shift allowance may be granted at a uniform rate of 12 1/2% of the basic wages (plus Rs. 2/- per night shift) to the monthly rated workmen also so as to place them in parity with the daily rated workers. To this extent the Award in so far as it relates to the extent of the shift allowance will stand modified.
The last point that survives for consideration is the retrospectivity given to the impugned Award. The Award has been given retrospective effect with effect from 1st October 1979 which is the date of the order of reference in so far as it related to demand of the workers of the Head Office. According to Mr. Menon, the order of reference in regard to the demands made by the factory workers is dated 26th May 1977. Hence in so far as the Award relates to the factory workers was concerned, the same ought to have been made retrospective with effect from May 1977. In my view, there is no merit in the aforesaid contention. As observed in the case of All India Reserve Bank Employees Association Vs. Reserve Bank of India, , ordinarily an award comes into operation from the time stated in sub-section (1) of Section 17A of the Industrial Disputes Act, i.e. on the expiry of thirty days from the date of the publication u/s 17 of the Act. The tribunal, however, is given the power to order that its award shall be applicable from another date. This is a matter of discretion and it could not be said, in the circumstances of the instant case, that it was not exercised on judicial principles. Further it has to be kept in mind that by making the Award retrospective with effect from a particular date the dearness allowance already earned by the workers under the then existing slab of pay has not been directed to be paid or adjusted from the future wages but has been permitted to be retained as personal pay. The discretion exercised by the Tribunal in making the Award retrospective with effect from a particular date cannot be interfered with while exercising the jurisdiction under Article 226 of the Constitution of India.
The aforesaid discussion disposes of all three Petitions. It may be observed that in so far as Writ Petition No. 1224 of 1986 filed by the Management is concerned, it has raised a challenge on grounds contained in paragraphs 2(a) of 2(f). Mr. Desai, appearing on behalf of the Management, without giving up any of the aforesaid contentions, has pressed only points a 2(a) to 2(d) reserving liberty to agitate the rest of the contentions in the event of the matter being carried in appeal. In view of my findings arrived at hereinabove, the impugned Award is modified to the extent indicated hereinabove and the Rule in all the three Petitions is made partly absolute in the above terms. In the facts and circumstances of this case, the parties shall bear their respective costs.
Mr. Patel on behalf of the workers prays for stay of my order for a period of ten weeks. Mr. Rele on behalf of the Management strongly opposes.
My order to stand stayed for a period of six weeks from today.