AI Structured Summary
Not yet generated for this judgment
Judgment
Z.A. Haq, J—Heard Shri Shantanu Khedkar, learned Advocate for the petitioner, Shri V.R. Thakur, learned Advocate for the respondent No. 1 and Shri D.M. Kale, learned Assistant Government Pleader for the respondent No. 2.
The petition is filed by the Union representing the employees of the respondent No. 1, challenging the order passed by the Industrial Court, rejecting the claim of the petitioner-union for directions to the respondent No. 1 to pay to the employees, wages in accordance with Clause (3) of the settlement dated 09-10-2000, in addition to the minimum wages as revised with effect from 20-07-2004.
The undisputed facts are :
The petitioner-union is a registered trade union representing the employees of the respondent No. 1. The respondent No. 1-industry is a scheduled employment under the provisions of the Minimum Wages Act, 1948 and the service conditions of the employees of the respondent No. 1 are governed by the provisions of the Model Standing Orders under the provisions of the Bombay Industrial Employment (Standing Orders) Rules, 1959. The petitioner-union and the respondent No. 1 executed the settlement on 09-10-2000 for the period of five years from 01-10-2000 till 30-09-2005. On 02-01-2006 the petitioner-union had issued the notice under Section 19(2) of the Industrial Disputes Act, 1947, terminating the settlement dated 09-10-2000.
The employees of the respondent No. 1 were being paid the minimum wages fixed by the Government of Maharashtra by the notification dated 07-07-1993. These minimum wages consisted of;
(i) basic rate of wages as set out in column No. 3 of the first schedule to the notification, and
(ii) special allowance at the rate being adjusted as provided in Clause (2) of the notification.
The revision in the statutory minimum wages was not effected after five years. The petitioner-union had submitted charter of demands to the respondent No. 1 in 1998 and the settlement dated 09-10-2000 was executed between the petitioner-union and the respondent No. 1. This settlement dated 09-10-2000 was executed pursuant to conciliation proceedings under the Industrial Disputes Act, 1947. As per Clause 03(6) of the settlement dated 09-10-2000, the employees were entitled for the basic wages and special allowances as applicable, in addition to the items referred in the settlement.
On 20-07-2004 the Government of Maharashtra issued notification revising the statutory minimum wages. This notification dated 20-07-2004 restructured the minimum wages and the employer was required to pay the minimum wages which consisted of basic rate, cost of living allowance, cash value of concession, if any. The notification dated 20-07-2004 was challenged before this Court. This Court had granted stay to the effect and operation of the notification by an interim order, however by the judgment dated 25-10-2005 in the case of Vibha Synthetics Pvt. Ltd. and Others Vs. State of Maharashtra and Others, (2006) 1 LLJ 895 : (2005) 4 MhLj 1111 , the writ petitions challenging the notification were dismissed. Special Leave Petitions were filed before the Hon''ble Supreme Court challenging the judgment passed by this Court. The Special Leave Petitions were also dismissed.
The claim of the petitioner is :
The respondent No. 1 had not started paying the minimum wages as per the notification dated 20-07-2004 and therefore, the communication dated 26-07-2004 was sent to the Deputy Commissioner of Labour and pursuant to the steps taken by the Assistant Commissioner of Labour in the matter, the respondent No. 1 had undertaken to pay the wages as per the notification dated 20-07-2004. However, the respondent No. 1 did not pay the wages as per the revised rates under the excuse that the employees were receiving their monetary emoluments as per the settlement dated 09-10-2000, which were more than the minimum wages prescribed by the notification dated 20-07-2004. The petitioner-union contended that this amounted to unfair labour practice contemplated by Item 9 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Maharashtra Act No. 1 of 1972"). The petitioner-union filed the complaint under Section 28 read with Item 9 of Schedule IV of the Maharashtra Act No. 1 of 1972 praying for declaration that the respondent No. 1 indulged in unfair labour practice. The petitioner-union prayed that the respondent No. 1 be directed to pay wages to its employees, according to Clause 03 of the settlement dated 09-10-2000 alongwith the revised rates of minimum wages as per the notification dated 20-07-2004 and to pay the arrears with interest at the penal rate.
The case of the respondent No. 1 is :
The respondent No. 1 was paying wages to its employees as per the minimum wages prescribed by the notification dated 07-07-1993 and in addition as per the settlement dated 09-10-2000 and the monetary emoluments paid by the respondent No. 1 to its employees were more than the minimum wages under the notification dated 20-07-2004 and therefore, it cannot be said that the respondent No. 1 indulged in unfair labour practice as contemplated by Item 9 of Schedule IV of the Maharashtra Act No. 1 of 1972. The petitioner-union had issued the notice under Section 19(2) of the Industrial Disputes Act, 1947 on 02-01-2006 terminating the settlement dated 09-10-2000 and the settlement dated 09-10-2000 stood terminated after two months of the issuance of the notice, from March 2006. During the pendency of the complaint filed by the petitioner-union before the Industrial Court, the petitioner-union submitted charter containing 26 demands and one of the demand was for revision of the wages with effect from 01-10-2005. On 05-10-2010 conciliation proceedings were initiated under the Industrial Disputes Act, 1947 in relation to the charter of demands given by the petitioner-union. The conciliation failed and therefore, the State Government made an order of reference under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947, to the Industrial Tribunal, for adjudication. This reference is decided by the Industrial Tribunal on 20-12-2014 and is answered in the negative.
On 19-06-2015 the petitioner-union and the respondent No. 1 have executed a settlement in conciliation proceedings under the provisions of the Industrial Disputes Act, providing for the entitlement of the employees of the respondent No. 1 for the emoluments for the period from 01-07-2015 till 30-06-2020. That as per Clause (11) of the settlement dated 19-06-2015, the petitioner-union cannot pursue the claim which is the subject matter of this petition.
Shri Shantanu Khedkar, learned Advocate for the petitioner-union has submitted that as per Clause 03(6) of the settlement dated 09-10-2000, the employees are entitled for the emoluments as per the settlement dated 09-10-2000 in addition to the minimum wages and special allowances as prescribed by the Government of Maharashtra from time to time. It is submitted that the respondent No. 1 indulged in unfair labour practice by not paying the minimum wages as prescribed by the notification dated 20-07-2004 plus the monetary emoluments as per the settlement dated 09-10-2000. It is submitted that the respondent No. 1 was under an obligation to pay the minimum wages as per the notification dated 20-07-2004 and in addition to pay the monetary emoluments as per the settlement dated 09-10-2000 and the respondent No. 1 was under an obligation to continue to pay the monetary emoluments as per the settlement dated 09-10-2000 after 30-09-2005 also, until the settlement is replaced by new settlement. It is submitted that the settlement dated 09-10-2000 does not come to an end by efflux of time and it continues to govern the relations between the employees and the respondent No. 1 until new agreement by way of settlement or statutory contract by the force of the award takes it place. It is submitted that the effect of the notice dated 02-01-2006 issued by the petitioner-union under Section 19(2) of the Industrial Disputes Act, 1947 is not that the respondent No. 1 is absolved of its liability to continue to pay as per the terms of the settlement dated 09-10-2000, but it only enables the petitioner-union to make a claim for its demands and to raise an industrial dispute in the matter. In support of the submission, Shri Shantanu Khedkar, learned Advocate for the petitioner-union has relied on the judgment given by the Hon''ble Supreme Court in the case of Life Insurance Corporation of India Vs. D.J. Bahadur and Others, AIR 1980 SC 2181 : (1980) LabIC 1218 : (1981) 1 LLJ 1 : (1981) 1 SCC 315 : (1981) 1 SCR 1083 .
It is submitted that Reference (IT) No. 1/2011 is dismissed for want of prosecution by the Industrial Tribunal and therefore, the dismissal of this reference does not have effect on the claim made by the petitioner-union.
The learned Advocate for the petitioner-union has made submissions on the point of concept of wage structure, minimum wages, fare wages and living wages. It is submitted that the employer is under statutory obligation to pay the wages at the minimum rate and there is no escape for the employer from this liability. It is submitted that, however, the employer is not prevented from paying the fare and living wages as per the contract. It is submitted that the defence raised by the respondent No. 1 that as it was paying monetary emoluments more than the minimum wages prescribed by the notification dated 20-07-2004, it is not liable to pay as per the notification dated 20-07-2004 and in addition as per the terms of the settlement dated 09-10-2000. In support of the submission, the learned Advocate has relied on the following judgments :
(i) Judgment given by the Hon''ble Supreme Court in the case of Standard Vacuum Refining Co. of India Vs. Its Workmen and Another, AIR 1961 SC 895 : (1960) 1 FLR 98 : (1961) 1 LLJ 227 : (1961) 3 SCR 536 ,
(ii) Judgment given by the Hon''ble Supreme Court in the case of The Workmen represented by Secretary Vs. The Management of Reptakos Brett and Co. Ltd. and another, AIR 1992 SC 504 : (1991) 63 FLR 928 : (1991) 4 JT 243 : (1992) LabIC 289 : (1992) 1 LLJ 340 : (1991) 2 SCALE 940 : (1992) 1 SCC 290 : (1991) 2 SCR 129 Supp : (1992) 1 SLJ 34 : (1992) 1 UJ 308 .
(iii) Judgment given by the Hon''ble Supreme Court in the case of Airfreight Ltd. Vs. State of Karnataka and Others, AIR 1999 SC 2459 : (1999) 5 JT 320 : (1999) 2 LLJ 705 : (1999) 4 SCALE 451 : (1999) 6 SCC 567 : (1999) SCC(L&S) 1185 : (1999) 1 SCR 22 Supp : (2000) 1 SLJ 273 .
(iv) Judgment given by this Court in the case of Gujarat Agricultural University Vs. All Gujarat Kamdar Karmachari Union, AIR 2010 SC 2507 : (2009) 123 FLR 377 : (2009) 10 JT 449 : (2009) 15 SCC 335 : (2010) 1 SCC(L&S) 580 : (2009) 11 SCR 875 : (2010) 1 SLR 621 .
Shri Shantanu Khedkar, learned Advocate has submitted that the respondent No. 1 was under an obligation to pay the minimum wages as per the notification dated 20-07-2004 and in addition to pay the emoluments as per the settlement dated 09-10-2000, however, it has not made the payment accordingly which amounted to withdrawing the benefits unilaterally and this was not permissible and the respondent No. 1 could not have changed the service conditions of the employees unilaterally without issuing notice as required by Section 9A of the Industrial Disputes Act, 1947. In support of this submission, reliance is placed on the following judgments :
(i) Judgment given by the Hon''ble Supreme Court in the case of The Management of Indian Oil Corporation Ltd. Vs. Its Workmen, AIR 1975 SC 1856 : (1975) 31 FLR 178 : (1975) LabIC 1429 : (1975) 2 LLJ 319 : (1976) 1 SCC 63 : (1976) 1 SCR 110 .
(ii) Judgment given by this Court in the case of Union of India (UOI) and The General Manager, India Security Press Vs. Shri Arun Vithal Bonde and Others, (2010) 125 FLR 542 : (2010) 3 LLJ 535 : (2010) 3 MhLj 447 .
Relying on the judgment given in the case of Life Insurance Corporation of India vs. D.J. Bahadur and others, Shri Shantanu Khedkar, learned Advocate has submitted that the settlement dated 09-10-2000 continues to bind the petitioner and the respondent No. 1 until the terms are modified by fresh settlement or award.
It is submitted that the impugned order passed by the Industrial Court does not take into consideration all the relevant aspects and it is unsustainable and this Court can interfere with it in the extra-ordinary writ jurisdiction. In support of this submission, the judgment given by the Hon''ble Supreme Court in the case of Mohd. Shafi Vs. Additional District and Sessions Judge (VII), Allahabad and Others, AIR 1977 SC 836 : (1977) 2 SCC 226 : (1977) 2 SCR 464 : (1977) 9 UJ 91 is relied upon.
It is prayed that the petition be allowed, the impugned order be set aside and the petitioner be granted relief in terms of the prayers made in the complaint filed before the Industrial Court.
Shri V.R. Thakur, learned Advocate for the respondent No. 1 has submitted that the settlement dated 09-10-2000 will have to be considered in the background of the circumstances under which it came to be executed. It is submitted that the intention of the parties at the time of execution of the settlement will have to be considered and the settlement cannot be interpreted to give undue advantage to one party and putting the other party to a disadvantageous position. In support of this submission, reliance is placed on the judgment given by the Hon''ble Supreme Court in the case of DLF Universal Ltd. and Another Vs. Director, T. and C. Planning Haryana and Others, AIR 2011 SC 1463 . It is submitted that the employees were paid the wages as per the notification dated 07-07-1993 and as there was no revision of wages in 1998, to avoid discontent amongst the employees an arrangement was arrived at by the settlement dated 09-10-2000. It is submitted that the respondent No. 1, acted as a fair and honest employer and paid as per the settlement dated 09-10-2000. It is submitted that the notification dated 20-07-2004 drastically restructured the minimum wages and it not only restructured the benefits regarding basic rate of wages and the specific allowances as were prescribed in the notification dated 07-07-1993, but widened the entitlement of the employees in the form of minimum wages by including in its purview the cost of living allowance, cash value of concessions, if any. It is submitted that the monetary emoluments which were paid by the respondent No. 1 to the employees in view of the settlement dated 09-10-2000, were more than the minimum wages prescribed by the notification dated 20-07-2004 and therefore, the employees were not paid any additional amount and it cannot be said that the respondent No. 1 indulged in unfair labour practice.
Shri V.R. Thakur, learned Advocate has submitted that the petitioner-union terminated the settlement dated 09-10-2000 by giving the notice under Section 19(2) of the Industrial Disputes Act, 1947 on 02-03-2006 and then filed the complaint before the Industrial Court, which came to be dismissed on 24-11-2006. The order passed by the Industrial Court is challenged in the present petition. It is submitted that during the pendency of the writ petition, the petitioner-union submitted charter containing 26 demands which included revision in wages from 01-10-2005 i.e. after the expiration of settlement dated 30-9-2005. It is submitted that conciliation proceedings were initiated in the matter, which failed and Reference (IT) No. 1/2011 was made by the State Government which has not been attended to properly by the petitioner. The learned Advocate has submitted that Shri Moreshwar Maroti Halmare, Secretary of the petitioner-union was examined before the Industrial Tribunal, however, he had not made himself available for cross-examination by the respondent No. 1 and the Industrial Tribunal after considering the material placed on the record by the parties, answered the reference against the petitioner-union concluding that the respondent No. 1 had not indulged in unfair labour practice by not implementing the notification dated 20-07-2004. It is submitted that in view of the award passed by the Industrial Tribunal, the petitioner cannot now claim that the respondent No. 1 is under an obligation to pay the monetary emoluments on the basis of the notification dated 20-07-2004 in addition to the emoluments as per the settlement dated 09-10-2000.
The learned Advocate for the respondent No. 1 has submitted that a fresh settlement has been executed pursuant to the conciliation proceedings under the Industrial Disputes Act, on 19-06-2015 and as per Clause (11) of the settlement, the respondent No. 1 is not required to pay any wage or allowance for the earlier period. It is submitted that the settlement dated 19-06-2015 has been executed consciously by the petitioner-union and the respondent No. 1 considering the claim and the liabilities of the respective parties and the petitioner-union now cannot turn around and make the claim for the earlier period overlooking Clause (11) of the settlement dated 19-06-2015.
Shri V.R. Thakur, learned Advocate has submitted that the complaint filed by the petitioner-union is not maintainable as the essential elements which constitute unfair labour practice under Item 9 of Schedule IV of the Maharashtra Act No. 1 of 1972 does not exist. It is submitted that the petitioner-union is making the grievance which is based on misreading of Clause 3(6) of the settlement dated 09-10-2000 and interpretation of Clause 3(6) of the settlement dated 09-10-2000 by the Industrial Court will not be permissible while examining the complaint under Item 9 of Schedule IV of the Maharashtra Act No. 1 of 1972. In support of the submission, reliance is placed on the judgment given by this Court in the case of Siemens Ltd. and Another Vs. Siemens Employees Union and Another, AIR 2012 SC 175 : (2011) 131 FLR 1100 : (2011) 12 JT 151 : (2012) LLR 79 : (2011) 11 SCALE 502 : (2013) 1 SLJ 135 .
Shri V.R. Thakur, learned Advocate has submitted that the judgment given by the Hon''ble Supreme Court in the case of Life Insurance Corporation of India vs. D.J. Bahadur and others, cannot be relied upon to consider the claim of the petitioner-union as in the present case the petitioner-union had given the notice under Section 19(2) of the Industrial Disputes Act on 02-01-2006 and therefore, the settlement dated 09-10-2000 cannot continue after the expiry of the notice period. It is submitted that Clause (3) of the settlement dated 09-10-2000 does not form part of the terms and conditions of service and therefore, it cannot continue to be effective after the notice period given under Section 19(2) of the Industrial Disputes Act, 1947. To support this submission, reliance is placed on the judgment given by this Court in the case of Mumbai Mazdoor Sabha and Another Vs. S.A. Patil and Others, (1993) 3 BomCR 265 : (1994) 68 FLR 171 : (1994) 2 LLJ 891 .
It is submitted that when the notification dated 20-07-2004 was issued revising the minimum wages, Clause 3(6) of the settlement dated 09-10-2000 became inoperative and the employees were entitled only to the benefits as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000 and they were not entitled for this amount in addition to the revised statutory minimum wages as per the notification dated 20-07-2004. It is submitted that the entitlement of the employees for the statutory minimum wages as per the notification dated 20-07-2004 was required to be worked out according to the principles laid down by the Hon''ble Supreme Court. For this submission, reliance is placed on the following judgments :
(i) Judgment given by the Hon''ble Supreme Court in the case of Airfreight Ltd. Vs. State of Karnataka and Others, AIR 1999 SC 2459 : (1999) 5 JT 320 : (1999) 2 LLJ 705 : (1999) 4 SCALE 451 : (1999) 6 SCC 567 : (1999) SCC(L&S) 1185 : (1999) 1 SCR 22 Supp : (2000) 1 SLJ 273 .
(ii) Judgment given by the Hon''ble Supreme Court in the case of Harilal Jechand Doshi Ghatkopar Hindu Sabha Hospital Vs. Maharashtra General Kamgar Union and another, (1999) 3 ALLMR 742 : (2000) 1 BomCR 620 : (2000) 1 LLJ 419 : (2000) 2 MhLj 123
The learned Advocate for the respondent No. 1 has submitted that the Industrial Court has properly appreciated the material on the record and has recorded the findings of fact that there is no violation of Clause 3(6) of the settlement dated 09-10-2000 and there is no violation of the notification dated 20-07-2004 and the respondent No. 1 has not indulged in unfair labour practice as contemplated by Item 9 of Schedule IV of the Maharashtra Act No. 1 of 1972. It is submitted that in view of this, it would not be proper for this Court to interfere with the impugned order, under Article 227 of the Constitution of India and this Court cannot substitute its decision for the decision of the Industrial Court. To support this submission, the learned Advocate has relied on the following judgments :
(i) Judgment given by the Hon''ble Supreme Court in the case of Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers'' Union and Another, AIR 2000 SC 1508 : (2000) 2 CTC 506 : (2000) 85 FLR 672 : (2000) 4 JT 503 : (2000) 1 LLJ 1618 : (2000) 3 SCALE 255 : (2000) 4 SCC 245 : (2000) SCC(L&S) 471 : (2000) 2 SCR 1212 : (2000) AIRSCW 1475 : (2000) 3 Supreme 344
(ii) Judgment given by the Hon''ble Supreme Court in the case of Ms. Celina Coelho Pereira and Others Vs. Ulhas Mahabaleshwar Kholkar and Others, AIR 2010 SC 603 : (2009) 13 JT 602 : (2009) 13 SCALE 487 : (2010) 1 SCC 217 : (2009) 15 SCR 558 .
(iii) Judgment given by this Court in the case of Chhotabhai Jethabhai Patel and Company, Gondia vs. Vithoba Raghuji Shende and others reported in 2015 II CLR 316.
It is submitted that the petition be dismissed, maintaining the order passed by the Industrial Court.
Shri D.M. Kale, learned Assistant Government Pleader appearing for the respondent No. 2-Industrial Court has submitted that the lis is between the petitioner and the respondent No. 1 and the respondent No. 2 being a quasi-judicial authority has nothing to submit in the matter.
Though elaborate submissions are made by the learned Advocates for the petitioner and respondent No. 1, in my view, the point which requires consideration is only as to whether the respondent No. 1 is under an obligation to make available to its employees the emoluments by calculating the minimum wages as per the notification dated 20-07-2004 and in addition to pay the emoluments as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000 and if the respondent No. 1 is liable to pay the amount as above, till what period.
Considering the submissions made on behalf of the respondent No. 1, it is clear that the respondent No. 1 has also accepted its liability to make available to its employees the emoluments as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000, in addition to the wages prescribed by the Government of Maharashtra. The contention of the respondent No. 1 is that its liability to pay the emoluments to its employees as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000 was in addition to the payment of minimum wages as prescribed by the notification dated 07-07-1993 which provided the payment of minimum wages consisting of basic rate of wages as stated in Column 3 of the First Schedule to the notification and the special allowance at the rate being adjusted as provided in Clause 2 of the notification. The respondent No. 1 is denying its liability to pay the emoluments to its employees the emoluments as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000, in addition to the minimum wages prescribed by the notification dated 20-07-2004. For this denial, the stand taken by the respondent No. 1 is two fold:
(i) That the amount of emoluments received by its employees by calculating the minimum wages as per the notification dated 07-07-1993 and in addition the emoluments as per clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000, was more than the minimum wages prescribed by the notification dated 20-07-2004.
(ii) The minimum wages prescribed by the notification dated 20-07-2004 drastically revised the minimum wages by taking within its compass basic rate, cost of living allowance, cash value of concessions, if any.
In my view, the defence raised by the respondent No. 1 cannot be accepted. The respondent No. 1 is liable to pay the statutory minimum wages as per the notification dated 20-07-2004. In addition, the respondent No. 1 is under an obligation to make available to its employees the monetary emoluments as per clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000. It is the established law that the employer is under the statutory obligation to pay the minimum wages prescribed by the Government in exercise of the powers conferred by Clause (b) of sub-section(1) of Section 3 read with sub-section (2) of Section 5 of the Minimum Wages Act, 1948. Simultaneously, the respondent No. 1 has to fulfill its obligation under the settlement arrived at between the parties in conciliation proceedings under the provisions of the Industrial Disputes Act, 1947. It is undisputed that the settlement dated 09-10-2000 is executed by the petitioner and the respondent No. 1 in conciliation proceedings under the Industrial Disputes Act, 1947. Therefore, the petitioner has to pay the emoluments to its employees by calculating the minimum wages as per the notification dated 20-07-2004. In addition, the respondent No. 1 has to pay the emoluments as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000. The respondent No. 1 is liable to make available the monetary emoluments to its employees as above, from 20-07-2004.
Now the point which arises for consideration is, till what date the respondent No. 1 has to pay the monetary emoluments on the above basis.
According to the petitioners, they are entitled for the emoluments as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000 till the settlement dated 19-06-2015 has been executed. The petitioners claim that they are entitled for the statutory minimum wages as per the notification dated 20-07-2004 and in addition for the amount as per the settlement dated 09-10-2000, till the statutory minimum wages are again revised by the notification dated 28-09-2010 from which date they claim the statutory minimum wages as per the notification dated 28-09-2010, in addition to the emoluments as per the settlement dated 09-10-2000. This claim is based on the judgment given by the Hon''ble Supreme Court in the case of Life Insurance Corporation of India vs. D.J. Bahadur and others.
However, considering the facts of the present case, the claim of the petitioner-union is not proper. The petitioner-union and the respondent No. 1 have executed the settlement dated 19-06-2015 and Clause (11) of the settlement states that the earlier settlement between the parties are superseded and the respondent No. 1 is not liable to pay any past or future wages and allowances to its employees, except those covered by the settlement dated 19-06-2015.
The settlement dated 09-10-2000 was effective for five years till 30-09-2005. The petitioner-union terminated the settlement dated 09-10-2000 by issuing the notice under Section 19(2) of the Industrial Disputes Act, on 02-01-2006. The settlement dated 09-10-2000 stood terminated after the period of two months from the date of issuance of the notice on 02-01-2006. In view of Clause (11) of the settlement dated 19-06-2015, the petitioner-union cannot make claim on the basis of the settlement dated 09-10-2000, from March 2006.
During the pendency of this writ petition, the petitioner-union submitted a charter containing 26 demands on 26-01-2008. One of the demand was regarding revision of the wages from 01-10-2005. The conciliation proceedings were initiated in respect of the charter of demands submitted by the petitioner-union which failed and the State Government made an order of reference under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947, to the Industrial Tribunal. This was registered as Reference (IT) No. 1/2011. The Industrial Tribunal had framed the issues out of which the relevant issue No. 3 was as follows :
"3. Whether the party No. 2 proves that party No. 1 has engaged in unfair labour practice by not implementing the notification dated 20-07-2004 ?"
In Reference (IT) No. 1/2011 an award is passed on 20-12-2014. The Industrial Tribunal has recorded that the petitioner- union has failed to prove that the demands made as per the charter of demands are reasonable. The reference is answered in the negative. Though the respondent No. 1 has relied on this award to contend that the petitioner-union cannot make the claim as made in this petition in view of the award passed by the Industrial Tribunal in Reference (IT) No. 1/2011, I find that the reference is answered in the negative against the union as the union failed to prosecute its claim and Shri Moreshwar Maroti Halmare, Secretary of the union, who had filed the affidavit in lieu of evidence on the record, did not present himself for cross-examination and he remained absent in the proceedings. Moreover, the Industrial Tribunal has recorded that the petitioner-union was making the claim on the basis of the notification dated 20-07-2004 and after lapse of about 6 years, there was possibility about re-settlement between the petitioner-union and the respondent No. 1. In view of this, the Industrial Tribunal declined to grant relief to the petitioner-union. In these facts, the award passed in Reference (IT) No. 1/2011 does not take away the right of the petitioner-union to prosecute the claim in this petition. The entitlement of the employees has to be examined independently on the basis of the material placed on the record of this writ petition.
The judgment given in the case of Life Insurance Corporation of India vs. D.J. Bahadur and others does not assist the petitioner-union in the facts of the present case. In the present case, considering the fact that the petitioner-union terminated the settlement dated 09-10-2000 by the notice dated 02-01-2006 and considering Clause (11) of the settlement dated 19-06-2015, it has to be held that the employees will not be entitled for the emoluments as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000, from March 2006.
In view of the above, the respondent No. 1 is liable to pay the monetary emoluments to its employees on the basis of the notification dated 20-07-2004 and in addition the emoluments as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000. The respondent No. 1 is liable to pay the emoluments calculated as above till the end of February 2006.
15 Hence, the following order :
(i) The impugned order is set aside.
(ii) The respondent No. 1 is directed to make available to its employees, who were in employment during the relevant period i.e. when the notification dated 20-07-2004 became effective till the end of February 2006, the monetary emoluments on the basis of the notification dated 20-07-2004 and in addition the emoluments as per Clause 3(1) to Clause 3(5) of the settlement dated 09-10-2000. The arrears calculated as above shall be paid to the employees for the period till the end of February 2006.
(iii) The amount shall be paid within three months. In default to make the payment as directed above within the stipulated time, the respondent No. 1 shall be liable to pay interest at the rate of 9% per annum on the amount receivable by the employees, the interest shall be chargeable from the date of filing of the complaint till the payment is made to the employees.
The petition is allowed in the above terms. In the circumstances, the parties to bear their own costs.