1991 Supreme(Bom) 93

IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
Bombay Mothers Children’s Society.... Petitioner.
Versus
General Labour Union (Red Flag) another .... Respondents.
Writ Petition No. 245 of 1986, decided on 14-2-1991.
Advocates appeared :
S.K. Talsania with Arun Mehta i/by Haresh Mehta Co., for petitioner.
Narayan B. Shetye with Ms. Nishita Mhatre and P.M. Patel, for respondent 1.

Headnote:Section 9-A-Absence of notice under-Sudden change made in emoluments of staff of hospital run by society-No notice as required under Section 9-A preceded sudden change-Tribunal allowing demand about wages and allowances prevailing in hospitals controlled by State Government-Challenged-No reference to Section 9-A either in charter of demands or in reference made by Government-Held-Strict rules of pleadings do not govern pleadings in disputes before Labour and Industrial Courts-Tribunal justified in considering effect of non-compliance of Section 9-A-Society liable to pay its employees emoluments at rates paid to employees of comparable State Government hospitals and establishment as was being done prior to sudden change.

       High Court surprise at the view taken by the Tribunal vis-a-vis the financial position of the petitioner. In the view of the Tribunal, the petitioner had been remiss in two ways. First, petitioner should have increased charges payable by those coming to its hospitals and possibly the Montessori. It has come on record that the hospitals were in a bad shape and that on one occasion when an inspection Team had visited one of the hospitals, the said Team found only three out of forty beds occupied. The hospital was shrouded in an aerie silence, very unusual for a hospital which should have been bustling with activity. Thus if this was the position on the day of an official visit by an Inspection Team, one can well imagine the condition of the hospitals run by the petitioner on normal days. The inevitable inference is that the services provided by the hospitals were so inadequate or so inferior that patients through it better to take their custom elsewhere. If added to this poor in take of patients, the Society bad enhanced .the charges payable, the fall in the number of patients, and consequently the income, would have been far more drastic. Next, the Tribunal comments on the inadequate efforts made by the office bearers of the petitioners Trust to improve their financial position. This was a different way of saying that the office bearers should have been more effective in the act of begging. The office bearers were performing a public service by running institutions which did not yield any or at least, adequate income. To suggest that they were remiss in not getting a better response from the public was to demand that they tae to the begging bowl and go round the city making a great clamour. This cannot be expected from any set of Trustees, and more so ones, like those running the petitioner institutions. The petitioner is engaged in activities which can be broadly described as meant for the benefit of the women and children. People who run such institutions are not to be reduced to the level of beggars and the suggestion made by the Tribunal was perverse. The Tribunal has also remarked about the need of the employees. But this need had to be assessed in the back ground of the financial position of the petitioner. Society shows that right from 1975-76 till 1983-84 the total. expenditure was far in excess of income. Year after year the losses were ounting and with a view to foot the bill the petitioner had been required to liquidate its capital assets A reference was made by the Tribunal to Ex. U. 26. This exhibit gives nothing more than the income plus the assets of the city section of the institution run by the trust. But the assets are only in national term for they represent no more than the value of fixed assets and dead stock owned by the petitioner Society. They did not represent money available with the petitioner Society to conduct its activities. In the matter of fixation of a wage-scale it should never be forgotten that the financial position of the employer is a factor of importance.

       In Association v. The Textile Labour Association, AIR 1966 SC 497. it was observed :-

       "The problem of constructing a wage structure must be tackled on the basis that it should not be changed from time to time. It is a long-range plan, and so, in dealing with this problem the financial position of the employer has to be carefully examined. It is unlikely that such situation would frequently arise, but, on principle, if such situation arises. a claim by the employer for the reduction of the wage structure cannot be rejected summarily."

       Considered in this background there is no gainsaying the fact that the petitioner just did not have the financial capability to pay the wages and allowances at the scale demanded by respondent No. 1 considerations which would be more relevant in the mailer of fixation of minimum wage seem to have influenced the Tribunal to some extent. This Court deduce from the observations made by it that the employees of petitioner were human beings having human needs which required to be satisfied as those of any other human being Good as this argument may be in the mailer of fixation of minimum wages, it was not relevant for a determination of the question the Tribunal had to decide.

       Section 9.D-Notice of change thereunder-Held, mandatory.

       But the Tribunal was on good ground in relying upon Section 9-A of the ID Act. The position emerging from the record is that since 1970 and upto May 1971 employees of the petitioner Trust were being paid wages at rates at which employees of the State Government hospitals had been paid. This was in pursuance of a resolution adopted by the Trust. A change was effected. But no notice of change as required by section 9-A of the ID Act was given. The change brought about by the petitioner was in respect of the wages and allowances payable it is employees. No notice as required by Section 9-A of the ID Act was given. Counsel for the petitioner submits that reliance placed upon Section 9-A by the Tribunal was totally unwarranted. No reference had been made to this section either in the charter of demands or the reference made by the Government to the Tribuna1. Consequently it was not open to the Tribunal to take Section 9-A into consideration in ruling upon the demands referred to it is not possible to accept this submission. The strict rules of pleadings which govern proceedings before a Civil Court, do not govern pleadings in relation to disputes before Labour and Industrial Courts. Broadly speaking the first respondent was asking for a direction to the petitioner that it pay its employees at rate which employees of comparate institutions being run by the BMC were being paid. The material brought on record showed that till May 1977 petitioner employees were getting wages and allowances paid to those similarly situated and working for the State Government hospitals. Therefore, the legality and validity of the change effected by the petitioner was in question irrespective of whether or not Section 9-A was pleaded by either party, the Tribunal had to consider the said provision. The mere fact that the parties were obvious of Section 9-A did not confer upon the Tribunal the power to ignore a vital provisions which had a bearing on the subject before it. Consul contends that if Section 9-A had been specifically pleaded by respondent No.1 or if the Tribunal had drawn his clients attention to Section 9-A, it i.e. petitioner, may have taken remedial measures like giving a notice of change in time. The section was not brought to the notice of the petitioner with the result that something in the nature of a surprise has been sprung upon it and to its great financial disadvantage. Great hardship will be caused to the petitioner because of having to pay wages and allowances for beyond it means but the law is what it is and cannot be sent to serve hard cases. The only slight change that can be made in the award, is that the petitioner shall pay its employees wages and allowances at rates paid to employees of comparable institutions being run by the State Government, and this, from 1-6-1978. At the interim stage it was decided that petitioners would pay the arrears with such interest as may be fixed by the Court.

       Section 10 (1) and Section 11 (5)-Fixation of wage scale-Employers financial position A real ominent factor to be considered.