(1.) THIS is an application under Articles 226 and 227 of the Constitution of India by the Hindusthan Steel Ltd. , Rourkela (hereinafter referred to as the Employer)challenging the validity of the award dated the 5th June 1963 given by the industrial Tribunal, Orissa, in an Industrial dispute between the Employer and certain classes of its workmen. The workmen raised disputes mainly as regards increase in the wages of certain classes of (sic) and six such disputes were referred to the Tribunal for adjudication. The first dispute dealt with the grade of pay to be fixed for Tearing Out Gangmen of the Refractories Department, but as this dispute was amicably settled by the representatives of the Employer and its workmen, it need not be considered. The remaining five disputes referred to the tribunal for adjudication are as follows :-
(i) Whether the Khalasis of the Refractories Department of Hindusthan steel Ltd. should be designated as 'semi-skilled workmen' and, if so, whether they should be given the grade of Rs. 50/-with effect from the same date as in the case of workmen In the Steel Melting Shop. (ii) Whether the disparity in the grade of female mazdoors in the refractories Department of Hindusthan Limited and those of similar female workmen on the same floor area in the Steel Melting Shop, should be removed and if so whether they should be paid the grade of rs. 40/-with retrospective effect. (iii) Whether the masons of the Refractories Department should be given the same grades as are being given in the Hindusthan Steel Ltd. , Bhilai and whether the disparity which now exists should be removed, and, if so, whether their grades would be Rs. 150 and Rs. 200/ -. (iv) Whether the grade of the Carpenters of the Refractories Department should be Rs. 100/- (v) Whether the Refractories Mate Masons and Mate Mason Mistries of the Hindusthan St
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el Ltd. Rourkela, should be given the designation of supervisor and whether the grade of Rs. 200/-as given to all Supervisors in other departments of Hindusthan Steel Ltd. , Rourkela should be paid. "(2.) BEFORE dealing with each of the aforesaid disputes I should refer to certain general observations made by the Tribunal. The reference was made to the tribunal on 7-4-1962 but it appears that the Employer and the Workmen came to some sort of understanding as regards wages payable to all classes of workers with effect from 1-7-1962. Hence, the Union which represented the workers pressed the dispute before the Tribunal only for the period prior to 1-7-1962 and for wages in the higher grade thereafter, in case the claim of the workmen was accepted by the Tribunal. The Tribunal then considered the larger question as to whether the employer was in a position to bear the financial strain. Though it was admitted that the Rourkela branch of the Hindusthan Steel Ltd. suffered a loss of about 27 lakhs of rupees during the year 1962-63, the Hindusthan Steel as a whole (which has branches at Bhilai and Durgapur) made an overall profit of Rs. 9. 58 crores during that period even after making allowance for the aforesaid loss sustained by the Rourkela Branch. The Tribunal further pointed out that the employer also in its written statement, dated 15-9-1962, did not urge that the claim of the workmen should be rejected on the ground that the Rourkela branch suffered loss. It further observed :"hence it was not seriously urged before me that reclassification, if any of the workers in the Refractories may adversely affect the financial position of the employer. Accordingly if the claim of the Union is otherwise justified and acceptable, then it should not be rejected on mere financial consideration".(3.) I shall now deal with the findings of the aforesaid five issues : dispute No. " (i)--The finding of the Tribunal was that the Khalasis of the refractories Department should be treated as semi-skilled workers after the expiry of one year from the date of their Joining the Department. All the existing khalasis of the Department even those who have completed one years service and who have not yet been promoted as helpers should also be deemed to be semi-skilled workers. As regards their grade of pay, the Tribunal decided that those Khalasis who have completed one year of service by 1960 should be fixed in the grade of Rs. 50-60 per month with effect from 23-8-1960 to 30-6-1962. Thereafter they should be fitted in the revised grade introduced by the management in agreement with labour from 1-7-62. The same benefits should also be extended to other Khalasis who joined the Refractories department after 23-8-1960 but who completed one year of service before 1-7-1962. Those khalasis who completed one year of service after 1-7-1962 should be fitted in the corresponding revised grade of Rs. 50 60. Dispute No. (ii).- The finding of the Tribunal was that the disparity in the grades between female workers In the Refractories Department and the female workers in the Stool Melting Shop should be removed and that both of them should get the same scale of pay of Rs. 40-60 with effect from the date of their appointment namely 25-7-1962 till the end of June 1962 and thereafter at the agreed scale of pay. Dispute No. (iii) :- The tribunal held that there was no dispute in the grade of pay of masons of the Refractories Department at Rourkela and those of corresponding masons in the Bhilai plant which are both under the same employer. Hence it did not recommend any revision of their pay, but observed that as the Employer has already agreed to revision of the scale of pay to Rs. 150-200/- in respect of these workmen, with effect from 1-7-1962, the Employer in consultation with the Union may, fit selected masons into that scale. Dispute No. (iv) : The Tribunal observed that the scales of pay of carpenters are divided into three grades, viz. Rs. 120-200, Rs. 80-120 and Rs. 60-90, whereas other members of the Technical staff in class III who correspond to carpenters are given scales of pay In 4 grades, Viz. Rs. 60-90, Rs. 80-120, Rs. 100-160 and Rs. 120-200. He therefore recommended another grade viz. Rs. 100-120 to be created amongst carpenters of the Refractories Department and suggested that selected carpenters should be fitted into that grade at the discretion of the management. Dispute No. (v) : The Tribunal answered this dispute in favour of the employer, with the qualification that such of the mate masons as have been regularly employed in supervisory work should be given the grade of Rs. 150-200 with effect from 7-4-1962 till the end of June 1962, and thereafter they should be given the agreed scale. It further added "such of them as were engaged in the post or would be engaged hereafter occasionally to the supervisory work, like a charge-hand, should be paid wages for such period of actual employment in the grade of Rs. 150-250. "(4.) MR. Misra challenged the award on the following grounds :(i) The Rourkela branch of the Hindusthan Steel Ltd. was not in a position to bear the extra financial liability and the Tribunal should not have taken into consideration the profits made by t he Employer in other branches at Bhilai and Durgapur, in coming to a finding that the financial position of the Employer was sound. (ii) The Tribunal exceeded its jurisdiction in fixing scales of pay though, by its terms of reference it was asked only to fix grades of pay such as rs. 40, Rs. 50, Rs. 100 etc. (iii) Having answered the main dispute with regard to mate masons and mason mistries in favour of the Employer the Tribunal should not have qualified Its finding by making recommendations for special grades of pay for masons who may be employed for supervisory work (see paragraph 23 of the Tribunal's award). (iv) The Tribunal should not have cited its views and given gratitous advice regarding the benefits to be given to helpers of the Refractories department who worked during the period 23-2-1960 to 1-7-62, though this was not included in the terms of reference; (see para 10 of the award) as this was likely to cause embarrassment to the Employer and create troubles in future.(5.) AS regards the first ground, I should point out that in the well known judgment of the Supreme Court in Express Newspaper (Private) Ltd v. Union of India, AIR 1958 SC 578 while discussing the question of fixation of wages, their Lordships held that the capacity of an industry to pay-- (see paragraph 63 at page 604)should be based on an industry-cum-region basis after taking a fair cross section of the industry. Here the Employer, the Hindusthan Steel Limited, is admittedly one concern owned entirely by the Union Government, as stated in paragraph 1 of the petition itself. It is true that it has got different branches--one at Rourkela, one at Bhilai and one at Durgapur,, and for accounting purposes each unit is separately dealt with and the profits of such units are also calculated separately. But from the order of the Tribunal it Is clear that the profits of the Employer as a whole have been shown for the year 1962-63 even after meeting the losses incurred by the Rourkela Unit. In the body of the award also the Tribunal pointed out"it further appears from the document that the profits and losses of the three plants are usually pooled together. Generally stated there is unity of ownership, unity of finance and unity of management; The management also in their written statement dated 15-9-1963 did not urge the rejection of the workers' demand on the ground of financial difficulty. "Hence, in my opinion, the Tribunal was justified in considering the financial position of the Employer as a whole during the relevant period of 1961-1962 when admittedly profits amounting to Rs. 9. 58 crores were made and in not attaching undue importance to the fact that the Rourkela branch suffered some losses during the period. If the industry-cum-region basis be taken as the criterion, it must be held that the Steel Industry had the capacity to pay the increased wages during that period.(6.) MR. Misra, however, relied on Jaswant Sugar Mills Ltd. Meerut v. Lakshmi chand, AIR 1963 SC 677 where it was held that before recommending an increase in wages the adjudicator must be satisfied that the financial condition of the employer is such as to enable it to bear the additional financial, burden imposed. In my opinion, the principle laid down by their Lordships of the Supreme. Court in that decision has been followed in the instant case. Moreover, in that decision it was pointed out that though a particular branch of the Employer may be suffering a loss (in that case the London branch) nevertheless the Employers' profits as a whole should be considered after recouping the losses sustained by the particular branch . This decision will therefore go against the contention of Mr. Misra and will fully support the finding of the Tribunal that even though the Rourkela Unit sustained losses, the profits earned by the Employer, as a whole, in all the three branches should be the guiding factor.(7.) IT is true that in the disputes referred to the Tribunal it was not asked to recommend any scale of pay for a particular class of workmen. The question formulated for consideration referred only to fixation of grades of pay such as Rs. 40, 50, 150, 200, etc. But the tribunal as already stated recommended scales of pay for certain classes of workmen. The question arises therefore as to whether when the Tribunal was only asked to decide whether a particular grade of pay should be fixed for a particular class of workmen, it had jurisdiction to fix a regular scale of pay. Sub-section (4) of Section 10 of the Industrial Disputes Act authorises the Tribunal to confine its adjudication to the points specified in the order of reference made by Government and matters incidental thereto. Could it be said that the fixation of a scale of pay is a matter incidental to the fixation of grade of pay? I find however that the Employer himself has been using the expressions "scale of pay" and "grade of pay" almost indiscriminately. Thus, in the rejoinder filed by the Employer on 26-12-1962 before the Tribunal, while discussing issue No. 2 it is mentioned that the "grade" of a Khalast is Rs. 30-1-55, the grade of Helpers is Rs. 40-2-60 and the 'grade' of carpenters is Rs. 120-200. There is thus no doubt that the Employer himself understood 'grade of pay' as not only referring to a 'fixed pay' but also as including a scale of pay. It should be further noted that the various points referred to the Tribunal first related to the question as to whether certain classes of workmen namely Khalasis, female mazdoors, mate masons, mason mistries etc. should be given the same pay as is given to semi skilled workers and female mazdoors in the Rourkela Steel Melting shop and masons in the Bhilai Steel plant respectively, and the tribunal was asked to recommend whether a particular grade of pay should be given to them. Once the Tribunal held that there should be no disparity between those classes of workmen, it necessarily follows that it has jurisdiction to recommend scales of pay available to similar classes of employees. In my opinion too much importance need not be attached to the mention of grade of pay in the terms of reference made to the Tribunal. The fixation of scale of pay must be held to be 'incidental' to the fixation of a grade of pay. I may, in this connection refer to the decision of the supreme Court in AIR 1958 SC 578 where their Lordships pointed out at page 603 that the expression "rate of wages" would include scales of wages that there Is no antithesis between these two expressions and that even without specifically mentioning scales of wages it will be open to fix them in any enquiry directed towards fixation of wages. This decision was later followed in Workmen of Indian turpentine and Rosin Co. Ltd. , Bareilly v. Indian Turpentine and Rosin Co. Ltd. Bareilly, AIR 1961 SC 1365 where it was further held that even if the terms of reference were of a general nature relating to revision of wages of workmen, the tribunal had jurisdiction to fix a time scale especially when that time scale of pay was in vogue for other classes of workmen. Here, the employer himself has referred to the time scale of pay as grade of pay and the dispute also is, in essence one with regard to fixation of pay of various classes of workmen,(8.) THE third ground of attack is equally untenable. It is true that the Tribunal held that mate masons and mason mistries should not be designated as Supervisors, taut while considering whether they should get the same scale of pay as supervisors, the Tribunal further pointed out that some of the mate masons were being utilised for supervisory work and there was no reason why they should not be paid like the Chargemen. In this connection I may quote the following passages from the award of the Tribunal in paragraph 21;-"indeed the learned Pleader for the Management conceded that such of the mate masons who are entrusted with supervisory work should be given the pay of a Charge-man. " hence in paragraph 23 it recommended a special scale of pay for such mate masons. In my opinion this recommendation is within the scope of the reference.(9.) AS regards the fourth ground of attack, the Tribunal pointed in paragraph 10 of its award that as the grade of pay of Helpers was not one of the points of reference made to him for adjudication, it could not give an award in respect of the same. Hence It was observed : "in view of these circumstances it is perfectly equitable to extend the same benefit to persons working as Helpers in the Refractories during the period between 23-8-1960 and 1-7-1962. That would remove the apprehended discrimination and anomaly. It is expected that the management would give effect to such consequential changes even though, strictly speaking, no award can be passed in respect of Helpers of the Refractories within the scope of this reference. " admittedly these observations are in the nature of obiter dicta and they have no binding effect. They are merely in the nature of a pious advice to the Employer.(10.) MR. Misra also urged that the Tribunal had no jurisdiction to give retrospective effect to the award prior to the date of reference. It is true that the reference was made to the Tribunal only on 7-4-1962. But as regards dispute No. (ii)Government expressly asked the Tribunal to report whether the grade of pay should be given retrospective effect. The Tribunal had therefore full jurisdiction to recommend the higher grade of pay with retrospective effect for female mazdoors. Similarly as regards dispute No. (1) relating to the khalasis of the Refractories department the order of reference itself says that the Tribunal should consider whether those persons should be given the grade of Rs. 50/- with effect from the same date as in the case of the workmen in the Steel Melting Shop at Rourkela. It is not denied that the workmen of the Steel Melting Shop were given the said grade of pay with effect from 23-8-60, Hence according to the terms of the reference the Tribunal had jurisdiction to give retrospective effect to that grade to the Khalasis also from that date. The controversy is really as regards dispute No. (v) dealing with mate masons and mason mistries. The Tribunal recommended a scale of Rs. 150-200 for these workmen with effect from 7-4-1962 the date of reference, and not from any prior date. Mr. Misra had no objection to this portion of the award, but he objected to the last sentence in paragraph 23 where there was a general direction to the effect that such masons> "as were engaged in the past or would be engaged hereafter occasionally to do supervisory work like chargehands should be paid for such period of actual employment in the grade of Rs. 150-250. " the language of this portion of award is undoubtedly somewhat wide, but as the tribunal has stated in the previous sentence itself that the grade of Rs. 150-200 should be given to those masons who are regularly employed in supervisory work with effect from the date of reference, It may be held as a matter of construction, that even those who were occasionally employed In supervisory work should be put on the grade of Rs. 150-250 only from the date of reference, namely 7-4-1962 though this was not expressly so stated in the award, presumably due to oversight.(11.) FOR these reasons, I see no ground to quash any portion of the award given by the Tribunal. The petition is accordingly dismissed, but as there is no appearance for the other side there will be no order for costs. Misra, J.(12.) I agree.
"1965 AIR (Ori) 131" == "1965 (1) LLJ 253" == "1965 (10) FLR 54"