The petitioner-employees’ Union is before this Court assailing the award dated 28.09.2004 passed by the Additional Labour Court, Bangalore in Ref No.10/1996. By the said award the Labour Court has rejected the reference. It is in that view the petitioner claiming to be aggrieved is before this Court in this petition.

2. This Court at the first instance had dismissed this petition through the order dated 09.09.2009, which in effect was an ex parte decision since the learned counsel for the petitioner had not been heard. The petitioner accordingly filed an appeal in W.A. No. 3948/2009. The Hon'ble Division Bench on noticing this aspect has set aside the order without adverting to the merits of the rival contentions and has restored this petition for reconsideration on merits after hearing both the parties.

3. In the above background, I have heard Sri. Shreyas Jayasimha, learned counsel for the petitioner and Sri. K.Kasturi, learned senior counsel for the respondent. Perused the petition papers including the records received from the Labour Court.

4. Though initially the reference made to the Labour Court was a composite one, which included the dispute relating to laying off of the workmen and the suspension of operation, the said dispute does not remain open for adjudication at this point in time. This is due to the fact that issue relating to the closure also fell into focus and has concluded in W.A.No.1924/1998 disposed of on 19.04.2006, subsequent to the impugned award dated 28.09.2004. Hence the consideration remains confined to the dispute No.2 which had been referred to the Labour Court for adjudication. The said referred dispute reads as hereunder;

“Are the workmen of M/s. J.L. Morrison (I) Ltd., represented by Pharmaceutical Chemicals and Allied Employees’ Union, justified in demanding (a) Customary Bonus @ 16.66% for the years 1993-94 & 1994-95. (b) Restoration of VDA. (c) Negotiation of the Charter of Demands ? If so, to what quantum of relief are the workmen entitled to ?”

5. In that view of the matter, while adverting to take note as to whether the Labour Court has taken into consideration the material on record to arrive at its conclusion, what requires attention is only to the portion of the award in which the issue No.2 has been considered. On the aspect relating to the claim for restoration of the Variable Dearness Allowance ('VDA' for short), the Labour Court has taken into consideration the oral evidence tendered by Sri. T. Narasimha Murthy, General Secretary of the petitioner Union (WW-1) and the evidence tendered by Sri. K. Ayappan, the authorised representative of the respondent management (MW-1) and the relevant document. In fact the relevant portion of their evidence has been extracted by the Labour Court in the award. As such it is not necessary to duplicate the same. However it is seen that WW-1 seeks to justify the claim while MW-1 explains the circumstance under which the VDA was frozen and the financial position due to which de-freezing was not permissible.

6. In that circumstance, it is appropriate to notice the Memorandum of Settlement dated 19.11.1992 (Ex-W6) wherein under clause 3 this aspect has been agreed and the restoration was to be discussed and settled after 15 months of the recommencement of operations. The subsequent Memorandum of settlement dated 17.08.1994 (Ex-M14 also a copy as Ex-M15) though entered the same does not indicate the agreement regarding restoration, nor is there any other document. On the other hand there is no material relating to restoration of production and the subsequent position is also that there was closure. If that be the position, the decision in the case of Christine Hoden (I) Pvt. Ltd. vs. State of Goa and others, 2001 (91) FLR 1233 relied upon by the learned counsel for the petitioner will not be of assistance in the light of the above consideration relating to the settlement entered into between the parties herein. In that view, when the Labour Court has ap