Pendse, J.@mdashBy this petition filed under Article 226 of the Constitution of India, the petitioner Company is challenging the legality of the order dated Dec.27, 1982 passed by the Presiding Officer, 1st Labour Court at Bombay in group of applications filed u/s 33-C(2) of the Industrial Disputes Act, The Labour Court came to the conclusion that the applicant workers are entitled to claim four days earned wages and proportionate increase in dearness allowance per month. The Labour Court also held that the permanent employees of the petitioner Mills from Watch & Ward department are entitled to claim four days wages per year as difference of leave wages. The Labour Court directed the petitioner Mills to file statement showing the amounts due to each of the applicant and thereafter pay the same within a certain stipulated period and failure to do so would make the petitioner Mills liable to pay the amount with interest at the rate of 6% per annum. The facts giving rise to passing of this order are required to be briefly stated to appreciate the grievance of the Petitioner Mills.
2. The petitioners are an incorporated Company and own and run a textile mill at Bombay. The textile mill is covered by provisions of the Bombay Industrial Relations Act, 1946, and the Rashtriya Mill Mazdoor Sangh is a representative and approved union under the provisions of that Act for the textile industry for the local area of Greater Bombay. The petitioners are members of the employers'' association, known as Mill Owners Association, Bombay, and the said Association is also recognised by the Government under the provisions of Section 27 of the Bombay Industrial Relations Act. The Sangh gave a notice of change dated July 26, 1971 u/s 42 of the B.I.R. Act to the Association. By the said notice the Sangh made demands pertaining to revision of wages and others service conditions of the members of the Ward & Watch staff and office peons employed by the petitioners and other members of the Association. The Conciliation Officer appointed under the provisions of the B.I.R. Act admitted the dispute arising out of the change notice in conciliation and at the end of the proceedings issued a certificate certifying that the conciliation proceedings have ended without any settlement. Thereafter the Sangh referred the dispute to the Industrial Court for arbitration u/s 73-A of the B.I.R. Act. The Association resisted the proceedings claiming that the demand in respect of revision of wages was not maintainable due to a subsisting settlement and that objection was upheld by the Industrial Court and direction was given for consideration of the remaining demands. The Sangh preferred a writ petition in this Court challenging the preliminary findings recorded by the Industrial Court in respect of demand for revision of pay. During the pendency of that petition the parties arrived at settlement of all the disputes and the settlement dated April 26, 1974 was filed before the Industrial Court and an award dated May 23, 1974 was passed in pursuance of the agreement. The Mills Association thereafter sent a circular to its members communicating the passing of the award and the mode of its implementation. The circular, inter alia, recites that the same was issued with concurrence of the Sangh.
3. In the month of November 1975; the members of the Watch and Ward staff of the petitioners filed an application in the Industrial Court, inter alia, complaining about the improper implementation of the agreement and the consent award passed in pursuance thereof. The grievances of the workers were that though the members of Watch and Ward Staff were treated as monthly rated employees under the consent award they were paid wages only for 26 days in a month instead of 30 days as per the calender month. The application was withdrawn after the Association raised objection to the maintainability of the same. Thereafter the workers filed an application u/s 33-C(2) of the Industrial Disputes Act and in that application it was inter alia claimed that the members of the Watch and Ward Staff were treated as monthly rated employees with effect from January 1, 1974 in pursuance of the consent terms and the award are entitled to wages for 31 days but are paid only for 26 days. The applicants complained that they have been paid less wages for four days in every month and therefore the petitioners are liable to pay the said sum. The workers also claimed that they should get four days leave wages per month which they were getting less by calculating their wages for one month on the basis of 26 days instead of 30. The workers also demanded double wages for paid festival holidays which were deprived of The petitioners resisted the proceedings claiming that the benefit sought by the workers is not an existing benefit and is not provided by the settlement and the consent award passed in pursuance thereof. The petitioners also claim that the calculation of monthly wages are correct and the claim that wages were fixed for 26 days in a month only is not correct. The petitioners denied their liability to pay four days wages per month as claimed by the workers. The other claims made by the workers were also denied.
4. The Labour Court framed the requisite issues and after recording evidence, both oral and documentary led by the parties, came to the conclusion that the workers are entitled to four days wages per month towards their earned wages, that the workers are entitled to four days wages per year towards the privilege leave wages, but are not entitled to the benefit in respect of four days festival paid holidays. The Labour Court on the strength of this finding, gave direction to the petitioners to make calculations of the amounts due to the workers and pay for the same within a stipulated period. The order passed by the Labour Court is proceedings u/s 33-C(2) of the Industrial Disputes Act is under challenge in this petition.
5. Shri Damania, learned counsel appearing on behalf of the petitioners, submitted that the Labour Court was clearly in error in entertaining application u/s 33-C(2) of the Act where the claim made by the workers was not for an existing benefit under the consent award. The learned counsel urged that the proceedings u/s 33-C(2) are in the nature of execution proceedings and it is not open for the Labour Court to ascertain whether the workers have got a right under the consent award and the interpretation of the award must be left for determination of the Industrial Court. The learned counsel also argued that the applications filed by the workers were not maintainable as the Mills are covered by the provisions of the B.I.R. Act and as there is a recognised union under the provisions of that Act it is the union and union alone which could have instituted proceedings seeking interpretation of the consent award. Shri Damania further contended that even assuming that the proceedings u/s 33-C(2) are maintainable, still on plain reading of the consent award it is clear that the demand made by the workers for four days of wages per month towards their earned wages is clearly unsustainable. Shri Phadnis, learned counsel appearing on behalf of the workers, on the other hand submitted that the grievance of the petitioners about the maintainability of the proceedings is not accurate. The learned counsel urged that the Labour Court was perfectly justified in entertaining the proceedings as the right of workers to get benefits under the consent award hardly requires any interpretation. The learned counsel further urged that it is well settled by the judgment of this Court that merely because under the B.I.R. Act there is a recognised union the right of an individual worker to file proceedings u/s 33-C(2) of the Act is not extinguished or withdrawn. Shri Phadnis submitted that on the interpretation of the consent terms it is clear that the workers are entitled to four days wages per month towards their earned wages and four days per year towards their privilege leave wages.
6. In my judgment, it is not really necessary to examine the contention about the maintainability of the proceedings because I have heard both the learned counsel on the exact scope of the consent terms reached between the parties and it would not be appropriate to deprive the relief to the workers after passage of considerable time. Even if the objection of Shri Damania to the maintainability of the proceedings before the Labour Court is accepted, that would not defeat the right of the workers but merely drag them to a fresh line of litigation in another forum. As regards the submission of Shri Damania that the workers cannot institute proceedings u/s 33-C(2) of the Act when there is a recognised union under the B.I.R. Act, the submission is without merit, because it is well settled by the decisions of this Court that such applications are maintainable and the right of the individual workman to file proceedings is not disturbed by a recognised union being in existence in the industry. The principal question argued by the learned counsel is about the exact ambit of the consent terms and I propose to deal with the same.
7. The relevant portion of the consent I terms reads as under:
"And whereas as a result of protracted negotiations, the following agreement has been arrived at between the Association and the Sangh by way of full and final settlement of all the demands in the said notice of change:-
1. WATCH AND WARD STAFF:
(1) The watch and ward personnel in member mills of the Association in Greater Bombay may be categorised as "watch and ward staff" and treated as monthly rated employees.
(2) Members of the watch and ward staff referred to in Clause (1) above will be given a lump sum addition of Rs. 15/- per month in dearness allowance,
(3) Members of the watch and ward 3 staff will be given privilege leave at the rate of one month for 11 months of active service, with full wages and dearness allowance........
(4) Members of the watch and ward staff will be deemed to be covered by the Agreement dated 28th December 1973 between the Association and the Sangh and they will, therefore, be entitled to get the benefits flowing from the said Agreement.
V. IMPLEMENTATION/INTERPRETATION OF THE AGREEMENT:
(17) If a dispute or difference of opinion arises in regard to implementation/interpretation of this Agreement, it will be settled by negotiations between the Association and the Sangh failing which the matter will be referred to the Joint Machinery u/s 66 of the Bombay Industrial Relations Act, 1946, the unanimous decision of which will be binding on both the parties".
8. Before examining the claim of the workmen under these consent terms, leading to the consent award, a reference must be made to the submission of Shri Damania that the dispute or difference arising as regards implementation of the consent terms should be referred to the Joint Machinery u/s 66 of the B.I.R. Act. The submission of Shri Damania about reference to the Joint Machinery is not binding on an individual worker. It is only an enabling provision and does not create bar to the institution of the proceedings by the individual workman u/s 33-C(2) of the Industrial Disputes Act.
The first clause of the consent terms provides that the watch and ward personnel will be categorised as "watch and ward staff and treated as monthly rated employees. The entire argument centres round on the exact connotation of the expression "monthly rated employees". It is not in dispute that prior to me date of these consent terms, the watch and ward personnel were treated as daily rated employees. Shri Phadnis contended that the workers were drawing 26 days wages in a month in their capacity as daily rated employees and the intention of the parties in entering into consent terms was to confer benefit of four days wages on the watch and ward personnel and therefore they were treated as monthly rated employees. Shri Damania on the other hand contended that the monthly rated employee is merely a designation and that by no stretch of imagination can lead to the conclusion that the employer had agreed to pay additional four days wages to the workers. Shri Damania submitted that there is hardly any distinction between daily rated employees and monthly rated employees in view of the several labour legislations and in view of the dictum laid down by the Supreme 5 Court and by the Division Bench of this Court. Prima facie the submission made by Shri Damania appears to be correct, but Shri Phadnis countered the submission by pointing out that the workers in the capacity 1 as daily rated employees were drawing wages for more than 26 days in a month consisting of 30 or 31 days by actually working for 27 or 28 days. Shri Phadnis submitted that by now treating their 26 days I wages as wages for 30 days they are deprived even of the existing benefit as they would not be paid for the work done for more than 26 days. The submission of Shri Phadnis is correct. The workers may actually work for more than 26 days in a month, consisting of 30 or 31 days, and still the wages which would be paid on the basis of monthly rated employees would be wages of 26 days. Surely that could not be the intention of 2 the parties while arriving at a settlement. The settlement was reached as a result of the demands made by the workers for revision of their wages and by no stretch of imagination the workers would have agreed 3 to reduce their existing benefits. Faced with this situation, Shri Damania with his usual fairness stated that the workers would certainly be paid and must be paid in case they work for more than 26 days in a calendar month. I inquired from the learned counsel as to how many more days the workers would be working in the calendar month and taking into consideration the days in the calendar month of the year, it could not be, in my judgment, less than 12 days. In these circumstances, in my judgment, the proper interpretation of the consent terms would be that the parties had agreed to treat the watch and ward personnel as monthly rated employees ana thereby had assured to pay them daily wages for 27 days in every month. This interpretation of the consent terms would not cause or would minimise the hardship which may be caused by holding that the workers are not entitled to more than 26 days inspite of being treated as monthly rated employees. In view of this interpretation of the consent terms, the order passed by the Labour Court will be required to be modified.
9. Accordingly, petition partially succeeds and the order passed by the Labour Court is set aside and the following order is substituted:
"The applicants are entitled to claim 27 days earned wages and dearness allowance per month. All calculations for leave wages etc. would be made on this basis. The petitioners are directed to prepare a statement showing the amounts due to each of the workman and the statement should be filed before the Labour Court within a period of 12 weeks from to-day. After the Labour Court approves the statement, the payment should be made by the petitioners to the workers within a period of four weeks thereafter. While making this payment, the petitioners would be entitled to adjust the amounts which have already been paid over to the workmen under the order of the Labour Court. The claim of the workmen in respect of paid holidays stands rejected".
10. In case any more applications are pending before the Labour Court in respect of subsequent period, then these applications should also be disposed of on the basis of this interpretation of the consent terms.
11. In the circumstances of the case, there will be no order as to costs.
