C. A. OOMEN v. MANAGEMENT OF HAL. — 1972 DIGILAW 120 (KAR)

CHANDRASHEKHAR, J. ( 1 ) THIS is a petition under Art. 226 and 227 of the Constitution for quashing an order of the Industrial Tribunal (hereinafter referred to as the 'tribunal'), on an application made before it under S. 33a of the Industrial. Disputes Act, 1947 (hereinafter referred to as the "act ). Most of the material facts are not in dispute. An industrial dispute between the management of the Hindustan Aeronautics Ltd. , Bangalore (hereinafter referred to as the 'management'), and its workmen had been referred by the Government to the Tribunal under S. 10 of the Act. That dispute related to bonus payable by the Management to its workmen for the years ending with 31-3-1963; 31-3-1964 and 31-3-1965. The petitioner is a workman in the Hindustan Aeronautics. In the ordinary course he was to get increments in the time scale of pay of 1-3-1965 and on the first day of March of the following years. But the Management withheld those increments on the ground that his work, conduct and behaviour were unsatisfactory. The petitioner filed a complaint purporting to be under s. 33a of the Act, before the Tribunal complaining that such increments had been illegally withheld and that the action of the Management in so doing during the pendency of the industrial dispute between the Management and its workmen, was in contravention of the provisions of S. 33 of the Act. He prayed the Tribunal to adjudicate upon his complaint and to grant him appropriate reliefs. ( 2 ) TO that complaint the defence of the Management was that the petitioner was not entitled to such increments as of right, that as his work, conduct and behaviour, were unsatisfactory, such increments were withheld, that it was within the exclusive jurisdiction of the Management to grant or withhold the same and that under standing order No. 5 (b) of its certified Standing Orders, the Management was entitled to withhold increments in the time scale of pay of a workmen whose ability, production and conduct during the relevant period did not justify an increase in his pay. The Management denied that increments were withheld without any justifiable reason. ( 3 ) THE Tribunal framed seven issues. The first of them relates to the question of the jurisdiction of the Tribunal to entertain the complaint. The Management denied that increments were withheld without any justifiable reason. ( 3 ) THE Tribunal framed seven issues. The first of them relates to the question of the jurisdiction of the Tribunal to entertain the complaint. The second issue relates to the question as to whether there was contravention of the provisions of S. 33 of the Act. The fourth issue relates to the question whether the petitioner was entitled to progressive increments having regard to the provisions of Standing Order No. 5 (b) of the Standing orders. ( 4 ) BEFORE the Tribunal the parties agreed that issues Nos. 1, 2 and 6 should be tried as preliminary issues. Neither party adduced any oral evidence, but the petitioner-complainant produced certain documents which were numbered by him. However, they were not formally marked as exhibits. ( 5 ) THE Tribunal dismissed that complaint holding that such withholding of increments did not amount to any change in the conditions of service in regard to the petitioner, that there was no contravention of the provisions of S. 33 of the Act as the periods to which the increments withheld related, were different from the periods in respect of which the dispute between the Management and its workmen as to bonus, was pending, in this petition, Mr. K. Subba Rao, learned Counsel for the petitioner, contended that the Tribunal committed a manifest error in holding that the periods to which the increments withheld related were different from the periods to which the main dispute before the Tribunal related. Mr. Subba Rao invited our attention to the letter dt. 19 29-5-1965 addressed by the Management to the petitioner in which it is stated that the increment due to him effective from 1-3-1964 would be granted and that annual increments due to him from March 1965, would be communicated to him separately. This letter which is found in the records of the tribunal had been numbered as 8'. ( 6 ) SRI K. N. Chandrasekhar, learned Counsel for the Management, contended that mere filing of documents before the Tribunal did not amount to production of documents in evidence and that unless documents produced by the petitioner before the Tribunal, had been proved and marked as exhibits, the Tribunal could not have taken notice of them nor relied on them. ( 7 ) THE notes made by the Presiding Officer of the Tribunal while hearing the arguments of parties, are found in the records of the Tribunal. In those notes the following portion is relevant for the present purpose: "si. No. 8 of the document produced by the Complainant. A part of the period is covered by 1-3-1965 to 31-3-1965. " from the aforesaid portion of the notes made by the Tribunal, it is clear that the attention of the Tribunal was drawn to the letter numbered as 8'. It does not appear that any objection was taken on behalf of the management as to its genuineness or as to its admissibility. The Tribunal was clearly in error in saying that there was no evidence about the connection between the period to which the main dispute related and the period to which such withholding of the increment related. The following observations of the Supreme Court in Sindhu Resettlement corporation Ltd. , v. Industrial Tribunal. Gujarat, (1968) 1 LLJ. 834 , 836 are a complete answer to the contention of Mr. Chandrasekhar that the said letter was not proved and could not be relied upon :". . . . . . . The High Court did not attach any value to the order of appointment dt. 5th September 1953 issued by Sindhu Hotchief on the ground there was no proof of service of this order on the respondent. The High Court clearly fell into an error because in this case all the parties contented themselves with filling documentary evidence and no oral evidence was given by any party. At no stage was it challenged that the document could not be relied on for want of regular proof. . . In proceedings before the Tribunal strict proof of documents in accordance with the provisions of the Evidence Act is not required. " ( 8 ) FROM the aforesaid letter, it is clear that the period to which the increments withheld related and the period to which the dispute regarding bonus, related, are overlapping to the extent of one month, i. e. between 1-3-1965 and 31-3-1965. ( 9 ) EVEN so, the question is whether such withholding of increments amounted to contravention of the provisions of S. 33 of the Act. Mr. ( 9 ) EVEN so, the question is whether such withholding of increments amounted to contravention of the provisions of S. 33 of the Act. Mr. Subba rao contended that such withholding of increments amounted to alteration of the conditions of service applicable to the petitioner, that such conditions of service were connected with the dispute relating to bonus which was pending before the Tribunal and that hence withholding of increments amounted to contravention of the provisions of Clause (a) of sub-sec. (1) of S. 33 of the Act. Elaborating this contention Mr. Subba Rao argued that withholding of increments which would adversely affect the wages or pay of a workman, would thereby adversely affect the quantum of bonus payable to him. ( 10 ) THE Tribunal took the view that under standing order No. 5 (b) of the standing Orders of the Hindustan Aeronautics Ltd. , grant of increments was, dependent on the work and conduct of a workman being satisfactory, that a workman could not claim increments as of right and that hence withholding of increments could not be regarded as alteration of conditions of service for the purpose of clause (a) of sub-sec. (1) or (2) of S. 33 of the Act. ( 11 ) MR. Subba Rao contended that the above view of the Tribunal was manifestly erroneous and that withholding of increments would amount to alteration of conditions of service. On the other hand Mr. Chandrasekhar supported the view taken by the Tribunal. It is not necessary for the purpose of this petition to decide which of the above views is correct. We shall assume for the sake of argument that withholding of increments an the time scale of pay or wages, amounts to alteration of conditions of service and we shall proceed to consider whether such withholding amounted to contravention of the provisions of S. 33 in the present case. No doubt, the quantum of bonus each workman gets, is related to amount of his pay or wages and that if increments are withheld in his case that would affect the size of his pay or wages which in turn would correspondingly affect the quantum of bonus he would get. No doubt, the quantum of bonus each workman gets, is related to amount of his pay or wages and that if increments are withheld in his case that would affect the size of his pay or wages which in turn would correspondingly affect the quantum of bonus he would get. But the main dispute before the Tribunal was not as to the amount of bonus each individual workman should be paid but as to the rate at which bonus should be paid to workmen in general, that is, what percentage of their pay or wages should be paid as bonus. Thus, between withholding of increments in the case of an individual workman and the main point of dispute before the Trbunal, the nexus was too remote to hold that one was connected with the other. Hence withholding of increments in the case of the petitioner cannot be regarded as altering the conditions of service connected with the main dispute so as to contravene the provisions of S. 33 (1) (a) of the Act. ( 12 ) CLAUSE (a) of sub-sec. (2) of S. 33 of the Act makes it clear that there is no impediment to the employer altering the conditions of service applicable to a workman even during the pendency of a dispute before the Tribunal or Labour Court if the following two conditions are satisfied: (1) Such alteration of condition of service is in regard to a matter not connected with such dispute; and (ii) such alteration is in accordance with the standing orders applicable to the workman concerned or where there are no such standing orders, in accordance with the terms of the contract with him. As seen earlier, the first of the above two conditions was satisfied in the present case. The second condition was also satisfied because Standing order No. 5 (b) of the Standing Orders of the Hindustan Aeronautics Ltd. , empowered the Management to withhold increments in regard to a workman if his work and / or conduct were not satisfactory. As both the above conditions were satisfied the action of the Management an withholding increments cannot be said to be in contravention of the provisions of section 33. ( 13 ) HOWEVER, Mr. As both the above conditions were satisfied the action of the Management an withholding increments cannot be said to be in contravention of the provisions of section 33. ( 13 ) HOWEVER, Mr. Subba Rao argued that as the petitioner had alleged that the action of the Management i,n withholding such increments, was not bonafide but unreasonable, the Tribunal should have enquired into the propriety of such action of the Management. Mr. Subba Rao sought to derive support for this contention from certain observations of the Supreme court in Murugan Mills Ld. v. Indusrial Tribunal, Madras, (1965) 1 LLJ. 422 , there, during the pendency of an industrial dispute the employer discharged a workman in purported exercise of his power under the Standing orders. That workman made an application before the Tribunal under s. 33a. The Tribunal went into the propriety of such discharge of the workman and held that such termination was for his misconduct. As the employer had not taken the approval of the Tribunal for such discharge the Tribunal directed the employer to re-instate that workman and to pay his back wages. While up-holding the order of the Tribunal the Supreme court observed that the termination of the services of the workman purporting to be under the Standing Order, was'not conclusive and that the tribunal was justified in enquiring into the reasons fer such termination. The above observations of the Supreme Court have no application to the present case There is a material distinction between a mere alteration of conditions of service applicable to a workman and discharging or dismissing him, during the pendency of an industrial dispute oven where such alteration or discharge or dismissal is unconnected with such dispute. In the case of such discharge or dismissal, under the proviso to S. 33 (2), (a) the employer has to seek the approval of the Tribunal before such discharge cr dismissal. But in the case of such alteration of conditions of service the employer is not required to seek the approval of the Tribunal. Lastly it was contended by Mr Subba Rao that when the petitioner complained in his application under S 33a that the action of the employer in withholding increments, was not justifiable the Tribunal should have examined whether such action was proper and justifiable. ( 14 ) IN our opinion there is no merits in the above contention. Lastly it was contended by Mr Subba Rao that when the petitioner complained in his application under S 33a that the action of the employer in withholding increments, was not justifiable the Tribunal should have examined whether such action was proper and justifiable. ( 14 ) IN our opinion there is no merits in the above contention. Under S. 33a what the Tribunal has to examine is whether there was any contravention of the provision of S. 33. If an alteration of conditions of service applicable to a workman was in accordance with the Standing Orders, such alteration cannot be said to be in contravention of the provisions of S. 33 even if such alteration is unreasonable or unjustified. In our opinion it is not within the scope of the adjudication under S 33a to get into fairness, reasonableness or propriety of an alteration of conditions of service so long as it is in accordance with the Standing Orders and is unconnected with the dispute pending before the Tribunal or Labour Court. The propriety or reasonableness of such alteration, can only be gone into on a reference under S. 10. ( 15 ) THUS the order of the Tribunal dismissing the petitioner's application under S. 33a, does not suffer from any error and much less any manifest error. In the result we dismiss this petition. In the circumstances of the petition we direct the parties to bear their own costs. We make it clear that the dismissal of this petition should not be understood as our expressing any opinion on the question whether workmen can raise an industrial dispute regarding withholding of such increments and move the Government to refer such dispute under Sec. 10 (1) of the Act. --- *** --- .