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IN THE HIGH COURT OF BOMBAY
D.V. VYAS, D.G. TAMBE, JJ.
Naik N.M. – Appellant
Versus
Colaba Land Mills – Respondent
Special Civil Application No. 1064 of 1958
Decided On : 05-08-1958
INDUSTRIAL DISPUTE - CHANGE OF DESIGNATION - AGREEMENT BETWEEN UNION AND EMPLOYER - VALIDITY - JURISDICTION OF LABOUR COURT - INTERPRETATION OF SECTIONS 27A, 32, 33, 78(1)A(C), 79(1), 114 AND 115A OF THE BOMBAY INDUSTRIAL RELATIONS ACT, 1946.
Fact of the Case:
The petitioners, working as foremen in the Colaba Land Mills, claimed to be entitled to a pay-scale of Rs. 215-15-260-20-340 as per an award made by the industrial court on 26 May, 1956. They alleged that the change in their designation to 'electricians' and the payment of Rs. 78 per month was illegal and against the terms of the award. The petitioners approached the labour court under Section 78(1)A(c) of the Act, complaining against the illegal change. The Rashtriya Mill Mazdoor Sangh (the union) appeared in the case as a representative union under Section 27A of the Act and submitted an application to dispose of the case in terms of a prior agreement dated 16 January, 1957, between the union and the millowners. The labour court passed an order under Section 115A of the Act in terms of the agreement, which was upheld by the industrial court on appeal. The petitioners challenged the orders of both courts.
Finding of the Court:
1. The agreement relied upon by the union and the millowners was not an agreement arrived at during the pendency of the dispute, as required under Section 115A of the Act. Therefore, the labour court erred in disposing of the case in terms of the agreement under Section 115A. 2. The petitioners had a right to initiate proceedings under Section 78(1)A(c) of the Act as employees directly affected by the alleged illegal change, even though there was a representative union. The provisions of Section 27A, read with Sections 32 and 33, do not bar an individual employee from initiating proceedings where the representative union does not choose to appear on their behalf. 3. The representative union, when appearing in a case initiated by an individual employee, must fight the battle for the employee and press the contentions put forward by the employee in the application. The union cannot appear in a manner contrary to or subversive of the employee's interest.
Issues: 1. Whether the agreement between the union and the millowners, which resulted in the change of designation of the petitioners from foremen to electricians, was a valid and enforceable agreement under Section 115A of the Act. 2. Whether the petitioners, as individual employees, had the right to initiate proceedings under Section 78(1)A(c) of the Act, despite the existence of a representative union. 3. Whether the representative union, when appearing in a case initiated by an individual employee, could act in a manner contrary to or subversive of the employee's interest.
Ratio Decidendi: 1. Section 115A of the Act applies only to agreements arrived at between the parties during the pendency of an industrial dispute. An agreement that precedes the dispute cannot be enforced under Section 115A. 2. Section 27A of the Act, read with Sections 32 and 33, does not bar an individual employee from initiating proceedings under Section 78(1)A(c) of the Act, where the representative union does not choose to appear on their behalf. 3. The representative union, when appearing in a case initiated by an individual employee, must act in the best interest of the employee and press the contentions put forward by the employee in the application.
Final Decision: The orders of the labour court and the industrial court were quashed, and the case was remanded back to the labour court for a fresh decision with advertence to the observations made by the High Court.
JUDGMENT :
D.G. TAMBE, J.
1. This is an application under Art. 227 of the Constitution of India wherein the petitioners pray for quashing the orders made on 6 February, 1958, by the industrial court, Bombay (opponent 3 herein), dismissing the petitioners' appeal, as well as for setting aside the order made by the labour court on 11 December, 1957.
2. The facts and circumstances giving rise to this petition, in brief, are: The petitioners claim to be working as foremen in the Colaba Land Mills, opponent 1 hereto (hereinafter referred to as "the mills"). They say that there was an award made by the industrial court on 26 May, 1956, in the matter of payscales for the technical and supervisory staff in the cotton textile mills in Bombay. The parties to this award were Rashtriya Mill Mazdoor Sangh reprinting the employees in the textile mills of Bombay (hereinafter referred to as "the sangh") and the Millowners' Association, Bombay, representing the millowners. According to the petitioners, this award is binding on opponent 1 mills. They further claim that according to this award they are entitled to a pay-scale per month of Rs. 215-15-260- 20-340 as and from 1 May, 1955. They further say that Clause 1 of the award specifically provided that the existing technical and supervisory staff, including Assistant Engineering, shall be classified in the categories of:
(b) department assistants.
(c) departmental assistants who are technical and engineering graduates.
(d) foremen and assistant foremen.
(e) apprentices.
3. They further say that this award, in terms, provides that it would not be open to the management to create a new category or a new cadre or a scale not envisaged by the agreement. According to the workmen, they were working as foremen in opponent 1 mills since 1948 and that it was not open to opponent 1 mills to designate them as electricians. It was also, on account of the terms of the award, not open to the sangh, the representative union of opponent 1 mills, or opponent 1 mills, to change their designation and create a new cadre or a new grade not envisaged in the award. They, therefore, submit that the action taken by opponent 1 mills and the sangh in changing their designation to "electricians" is mala fide and against the terms of the award. Therefore, opponent 1 mills were not justified in designating them as "electricians" and paying them at the rate of Rs. 78 per month. The petitioners, therefore, made an approach under S. 42 of the Bombay Industrial Relations Act, 1946, on 6 February, 1957, claiming that they should be paid the difference from 1 May, 1955 to the date of the notice. A reply thereto was sent by opponent 1 mills on 18 February, 1957, denying their liability to pay the same. Another approach was made by the petitioners under S. 42 of the said Act on 13 May, 1957. But as opponent 1 mills did not agree to the claim made by the petitioners, the petitioners ultimately, on 2 August, 1957, made an application under S. 78(1)A(c) of the Act, complaing against the illegal change effected by opponent 1 mills in not paying them the aforesaid pay-scale of a foreman awarded to them by the aforesaid award. In this application under S. 78(1)A(c) the petitioners prayed that they be designated as foremen and it be declared that they are entitled to the foremen's grade and pay-scale prescribed by the aforesaid award. They further prayed that opponent 1 mills be directed to pay them the difference.
4. It appears that during the pendency of this application opponent 1 mills made an application to the labour court that the sangh, which was the representative union of that particular mil, be joined as a party to the application. It further appears that, in pursuance of the notice issued by the labour court, the sangh appeared before the labour court, on 27 November, 1957, and made an application to the labour court that it had no desire to join as a party to the above application, but it showed its willingness
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