Ranjana Desai, J.@mdashThe petitioner is a Public Sector Undertaking of the Central Government engaged in the activity of manufacture and marketing of chemicals and fertilizers. The 1st respondent is the Chairman of the Grocery Markets and Shops Board constituted u/s 6 of the Maharashtra Mathadi, Hamal and other Manual Workers (Regulation of Employment and Welfare) Act, 1969 ("the Mathadi Act" for short). The 2nd respondent is the Grocery Markets and Shops Board ("the Board" for short). The 3rd respondent is the Commissioner of Labour and the 4th respondent is the State of Maharashtra. The 5th respondent is the Maharashtra Rajya Mathadi, Transport and General Kamgar Union and the 6th respondent is the Transport & Dock Workers'' Union.
2. The case of the petitioner needs to be shortly stated.
a) The petitioner is a manufacturer and distributor of fertilizers and industrial chemicals. There are about 5000 regular workers employed with the petitioner. The petitioner has two plants in Maharashtra, one at Thal in Raigad District and one at Trombay. In addition to the said 5000 regular workers, the petitioner also engaged the services of about 700 Mathadi workers at its factory at Thal and about 915 Mathadi workers at its Trombay unit. The petitioner is registered with the Board at its Thal unit. The Mathadi workers at Thal are engaged through the Board. The Board has a statutory duty to regulate and revise the terms and conditions of service of Mathadi workers registered with it.
b) Though the petitioner was paying wages and levy in excess of Rs. 11000/- per month per worker, the Mathadi workers were demanding higher wages from the petitioner by submitting charter of demands to the petitioner for the year 1997-98. Though the negotiations were on in respect of the said charter of demands, the Mathadi workers gave strike notices to the petitioner in or about July, 2000. The petitioner called upon the Board to act against the erring Mathadi workers and pointed out that no increase in wages was warranted as the petitioner was already paying higher wages to Mathadi workers than any other employers in the State and the same was affecting the cost of the petitioner''s products. However, instead of taking action against erring workers the 1st respondent by an order dated 18/7/2000 declared an interim increase in wages of Mathadi workers by 10%.
c) The petitioner, therefore, filed Writ Petition No. 1840 of 2000 in this Court challenging the said increase. This Court by order dated 4/5/01 quashed and set aside the said order and remitted the issue of determination of wages of the Mathadi workers to the Board. The Board was directed to give a hearing to the petitioner and the union and pass a reasoned order within 8 weeks. As an interim measure the petitioner was directed to pay 10% increase in wages effective from 1/1/01 only and not retrospectively. This was without prejudice to the petitioner''s contention that no increase was warranted. This Court clarified in the order that this payment would be adjusted against further payments, if the Board concluded after hearing parties that no increase was warranted.
d) According to the petitioner, thereafter the petitioner made several written and oral submissions before the Board that wages should not be increased any further. Thereafter as a measure of goodwill the petitioner agreed to give rise of 10% in the wages for the period 1/7/97 to 1/1/01 and a further 8% rise from 1/1/2001 to 30/6/04. The petitioner agreed to this on the condition that the number of Mathadi workers would be reduced.
e) Instead of declaring the increased wages as agreed by the petitioner the Board was proposing to declare two wage revisions in total disregard of what was agreed to by the parties. The petitioner, therefore, addressed letter dated 2/3/02 to the Board and letter dated 28/2/02 to the Principal Secretary Industries Energy and Labour Department of the Government of Maharashtra strongly protesting against any such increase being declared by the Board. The petitioner clarified that only as a matter of goodwill the petitioner had agreed to give the wage increase.
f) Despite the representation sent by the petitioner the Board by its order dated 14/5/02 declared two simultaneous wage increases. The first wage revision was a 10% increase for the period 1/7/97 till 1/1/01 and the second wage revision was 18% increase on wages existing on 31/12/2000 for the period 1/1/01 till 30/6/04. In addition to the wage increase, the petitioner was also required to pay the increased Dearness Allowance ("DA" for convenience") as announced over the years.
g) Being aggrieved by the said order dated 14/5/02 the petitioner filed Writ Petition No. 1683 of 02 in this Court. Though the petition was pending, the petitioner at the request of the respondents agreed to negotiate wage revision with them. Finally a settlement was arrived at on 28/6/02 between the petitioner, the Board and the two unions representing the Mathadi workers i.e. respondents 5 and 6. This settlement took place in the presence of the Joint Commissioner of Labour. As per the terms of the said settlement, the petitioner agreed to pay 10% increase in wages for the period 1/7/97 to 31/12/2000 and to a further 18% increase in wages for the period 1/1/01 to 31/12/04. The petitioner agreed to the said steep increase in wages on the condition that no further monetary demand would be imposed on the petitioner in respect of the said Mathadi workers till 31/12/04 and on the condition that these increases included the DA increase being declared by the Board from time to time.
h) The petitioner received letter dated 23/8/02 from the Board informing the petitioner that the terms of the said settlement were put before the Board for deliberation and approval. Whilst agreeing on the other terms and conditions of the agreement the Board had included a condition that the petitioner would pay the increases in DA announced by the Board each year for the entire period of the wage settlement i.e. from 1/7/97 to 31/12/04 and even thereafter. The petitioner by its letter dated 1/10/02 pointed out that there was no provision for payment of DA in the Settlement dated 28/6/02 and that on the contrary the petitioner had only agreed to the steep increase in wage rates because that would include increases in DA and no further demand would be made on the petitioner till 31/12/04.
i) Instead of withdrawing the illegal demand unilaterally sought to be imposed on the petitioner in contravention of the terms of the Settlement dated 28/6/02, the Board by its letter dated 1/11/02 informed the petitioner that an increase in DA was declared at 5.44% of the total wage bill and that the said increased amount would have to be paid for the period 1/11/02 to 31/10/03. Thereafter by letter dated 11/12/02 the Board informed the petitioner that the amount of 5.82% DA declared by the Board in November 2001 for the period November 2001 till October, 2002 was payable by the petitioner. The total amount payable after including the levy and 18% interest only for the year 2001/2002 was calculated at Rs. 35,55,027/-. This did not include the DA calculated for the year 2002-2003 demanded by the earlier letter dated 11/12/02. Being aggrieved by the alleged illegal demands of the Board seeking to impose increase in DA and levy on the petitioner vide letters dated 23/8/02, 1/1/02 and 11/12/02 in alleged violation of Settlement dated 28/6/02, the petitioner has filed the present petition.
3. We have heard Mr. Cama, learned senior counsel appearing for the petitioner, Mr. Naik, learned Counsel appearing for respondents 1 and 2 and Mr. Grover, learned Counsel appearing for respondent 6. On behalf of the petitioner and on behalf of the 6th respondent written submissions have been filed, which, we have carefully perused.
4. Mr. Cama, learned senior counsel appearing for the petitioner submitted that the petitioner has made out a case for quashing the impugned letters. We must give the gist of arguments of Mr. Cama.
a) Language of Settlement dated 23/8/02 is unambiguous. It is clear from a bare reading of the settlement that the 18% increase in wages was all inclusive and no increase in DA, was payable to the workers.
b) Clause 8 of the Board''s order dated 14/5/02 deciding the service conditions of the Mathadi workers made DA applicable for the relevant 7 years and for further period also. Thereafter Settlement dated 28/6/02 was arrived at. It refers to the same basic wages.
There is no mention of DA. Therefore, the intention of the parties was to exclude DA.
c) Demand for payment of DA over and above the 18% increase in wages agreed to by the petitioner is illegal being contrary to the provisions of Settlement dated 23/8/02. The settlement is binding upon both parties and the respondents are estopped at law from resiling from it. Since the Board has excluded DA from the settlement and persuaded the petitioner to accept a much higher rate of wage revision and persuaded it to alter its position to its detriment, it is estopped at law from subsequently claiming DA. (
d) The Board being a statutory authority has a statutory right to fix any part of wages including allowances, leave etc. at its discretion. The fixation can be done by the Board by a settlement with the employer concerned. In almost all cases, the Board had agreed to fixation of wages including DA at different rates for different periods by bilateral settlement between the Board and the employer. Therefore, wages and DA need not be fixed unilaterally. In any case once they are fixed by the Board by settlement with the employer, they cannot be unilaterally fixed by the Board. The Board, therefore, cannot be heard to say that DA is a unilateral statutory mandate and, therefore, it cannot be bound by its own settlements waiving the DA.
e) Judgment of this Court in RCF Pvt. Ltd. v. Chairman Railway Goods Clearing and Forwarding Establishments Labour Board 2005 (1) MLJ 1053 does not help the respondents but helps the petitioner. In that case this Court referred to several settlements between the parties. This Court noted that the settlement provided that the petitioner would grant every year an increase in DA linked with Consumer Price Index from time to time. This Court upheld the unilateral wage rise by the Board because the petitioner company had refused to cooperate with the Board''s directions and because this Court was satisfied that the Board had complied with the relevant clauses of the Grocery Markets or Shops Unprotected Workers (Regulation of Employment and Welfare) Scheme, 1970 ("the Scheme"). The point to note is that the settlement provided for payment of DA. If as contended by the respondents DA is a statutory and inflexible payment there is no need to have a clause in the agreement providing for DA.
f) Roha Dyechem Ltd. v. State of Maharashtra and Ors. 2007 (1) CLR 818 can be distinguished on facts. In that case the settlement was between the union and the company. The Board was not a party to it. One of the questions raised before the court was whether, if the wages are paid on piece rate basis, the workers are entitled to DA. A clause in the settlement stated that the company will discuss the issue whether DA is a statutory payment for piece rate agreements. Since the Board was not a party to the settlement, the power of the Board to independently fix any emoluments including DA over and above wages was affirmed by this Court. However, since the settlement was not with the Board the issue as to whether the Board had the right under the statutory scheme to superimpose DA on a settlement between management and labour was kept open.
g) In the Mathadi Act and under the scheme there is no statutory fixed D A. The expression "Statutory DA" actually means DA fixed in exercise of statutory power under Clause 33 of the Scheme. Since the power to fix basic wages flows from the same original power relating to fixing of DA, if according to the respondents DA is statutory and cannot be fixed, varied and waived then wages must also be statutory wages and cannot be fixed, varied or waived by settlement. If wages can be fixed, varied or waived DA can also be fixed, waived or varied.
h) The Board unilaterally waived the settlement which it cannot do. The State even in the realm of contract is required to act reasonably (ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. 2004(3) SCC 53.).
i) Judgments cited by the respondents are not applicable to the present case. Every judgment must be read as applicable to its peculiar facts. A case is only an authority for what it decides. (Uttaranchal Road Transport Corp. and Ors. v. Mansaram Nainwal 2006 III CLR 585 (SC).
j) The 10% prospective wage rise under this Court''s order dated 4/5/2001 for the period 1/1/01 to 31/12/04, though interim and without prejudice, was confirmed by the Board as a permanent liability. The Board then added a further 8% to the same. Thus from the date of the order i.e. from 14/5/02, there was 10% retrospective and 18% prospective (10% + 18% = 28%) wage rise which the petitioner accepted. In addition to the above, the Board is seeking to impose DA at the rate of 5.82% from November, 2001 and still further increase of 5.44% over the above from November, 2002 both of which are calculated on the said 18% rise on consolidated wages. There is thus, in fact an increase from 18% to 23.82% in the year 2001 and a further increase from 23.82% to 29.26% in the year 2002. Adding to this the 10% retrospective, the above figures become 33.82% wage rise in 2001 and 39.26% wage rise in the next year. The petitioner cannot afford this. The petitioner is a Public Sector Undertaking which operates under Government guidelines. The petitioner''s products are of national importance used inter alia in the field of agriculture. The impugned order will have a drastic impact on the economic viability of the petitioner. Financial capacity of the employer, his claim to a reasonable profit, interest of the shareholders and the consumers will have to be taken into account while fixing emoluments of the workers. (C.V.K.U. v. G.S. Barot 1979 LIC 1379).
k) If the Board could impose an additional DA then it could only be done in the manner prescribed in Clause 33 of the Scheme which is not done here. (
5. Mr. Naik, learned Counsel for the petitioner drew our attention to the affidavit of Shri Pol, Secretary of the Board. He submitted that the payment of statutory DA is not the subject matter of the petition. Power of the Board to fix statutory DA is not under challenge. The petition speaks of revision in wages and not in DA. He pointed out that the workers had raised a demand for increase in wages. The settlement only seeks to revise wages. Because of the settlement for four years wage revision is arrested. He submitted that the words ''this rate'' used in the sentence "This rate includes DA rise, declared by the Board from 1997 to 2000" means basic wages as on 31/12/2000 including DA for that year. This does not mean that 18% rise for the period 1/1/2001 to 31/12/2004 includes DA. He submitted that DA is independent of basic wages. It is statutory. Mr. Naik submitted that the present case is clearly covered by the judgment of this Court in Roha Dychem and R C F Ltd. Learned Counsel urged that even if it is assumed that the settlement included DA and imposition of DA will be contrary to it, in view of Section 25 of the Mathadi Act, the settlement so far as it prevents imposition of DA is void and will have no effect. Learned Counsel urged that in the circumstances, the petition may be dismissed.
6. Mr. Grover, learned Counsel for the 6th respondent submitted that DA is linked to Consumer Price Index. The petitioner has been entering into settlements with the Board and the unions regarding wage revision and DA from time to time. This pattern is a settled practice and has been followed in the past. When Settlement dated 28/6/02 was arrived at between the petitioner and the respondents it was clearly understood that DA has to be declared on the basis of the increased wages in accordance with and linked to the Consumer Price Index as per the consistent practice. Mr. Grover submitted that attempt on the part of the petitioner to avoid payment of DA is in breach of the settled practice and clear understanding between the parties. Mr. Grover submitted that the petition deserves to be dismissed.
7. In this case the starting point of the controversy is the Mathadi workers'' demand for increased wages. The fixation of DA was not an issue either with the Mathadi workers, or with the Board or with the petitioner. Mathadi workers raised a charter of demands for increased wages and gave strike notice in July, 2000. The petitioner pointed out to the Board that increase was not warranted and asked the Board to take action. Instead of taking action the Board declared 2 wage revisions and also declared that DA will be paid on that. The petitioner challenged the said increase by filing writ petition. This Court by its order dated 4/5/01 directed the Board to give a hearing to the parties and directed to pay 10% increase in wages effective from 1/1/01 only and not retrospectively as an interim arrangement subject to adjustment after final order of the Board. The petitioner as a measure of goodwill agreed to give 10% rise in wages for the period 1/7/97 to 1/1/01 and a further 8% increase from 1/1/01 to 30/6/04 subject to reduction of Mathadi workers. The Board was not inclined to accept this. The petitioner, therefore, filed a writ petition. During the pendency of the writ petition Settlement dated 28/6/02 was entered into. The petitioner has not disputed that DA is fixed by the Board in exercise of statutory power under Clause 33 of the Scheme. In his affidavit Shri Pol, Secretary of the Board has stated that as per the system prevailing with the Board regarding fixing of DA in the month of November, the members of the Board consisting of representatives of the registered employers, concerned Mathadi workers and/or their Unions and the representatives of Government hold an annual meeting. In the said meeting the members of the Board consider increase in cost of living and Consumer Price Index for the relevant period and accordingly decide the percentage of increase in DA for the year. It is further stated by Shri Pol that the percentage wise increase in DA is charged on the basic rate which includes DA for the last year. Mr. Pol has further gone on to say that this practice is acceptable to all the registered employers including the petitioner and is in vogue for last several years and every year the Board has been sending circulars to all the registered employers communicating to them the increase in DA and accordingly DA is recovered from the concerned employers. A statement showing the various rates and percentage-wise increase in DA in respect of Mathadi workers of the petitioner is annexed to the affidavit. This is not disputed by the petitioner.
8. It is now necessary to go to Settlement dated 28/6/02. In the first paragraph of the settlement it is stated that the meeting was convened by the Principal Secretary (Labour) Government of Maharashtra regarding the wage rise issue of Mathadi workers. The settlement clearly states that the meeting was attended by the representatives of the petitioner, respondents 5 and 6 i.e. the unions and the representatives of the Board. The meeting was held in the presence of the Joint Commissioner of Labour. The terms of settlement are preceded by a clear statement that the issue regarding wage revision of Mathadi workers working at Thal Unit is settled amicably and unanimously. Thus the settlement was a wage revision settlement. The terms of settlement read as under:
1) The 10% lumsum amount on the total payment made by the RCF to the Grocery Board against the wages and levy during the period 1.7.97 to 31-12-2000 shall be paid by the RCF as arrears without cumulative effect including levy.
2) 18% rise shall be given by the RCF on the rates existing on 31-12-2000 w.e.f. 1.1.2001. This rates include D.A. rise declared by the Board from 1197 to 2000. This 18% rise will be given for a period of 4 years w.e.f. 1.1.2001 to 31-12-2004.
3) The 10% rise declared by the Hon''ble High Court, Mumbai w.e.f. 1.1.2001 shall be adjusted.
4) The other service conditions which are in existence shall remain uncharged.
9. There is no dispute about the 1st term. It is also admitted that the petitioner has paid DA upto 31/12/2001. The dispute is about the 2nd term. It is contended by counsel for the petitioner that the words ''this rates include'' refer to the 18% rise in wages and that includes DA. Therefore, further DA cannot be imposed on the 18% wage rise. Thus from 1/1/2001 to 31/12/2004 there will be 18% rise in wages on the rates existing on 31/12/2000. That rise is all inclusive. There can be no DA on that.
10. In our opinion, this view will be contrary to the settled practice. DA is offered to workers to give them relief against rising prices. It is declared every year in the month of November by the Board keeping in view the rising prices and cost of living. It is linked to Consumer Price Index. As stated by Shri Pol, the Secretary of the Board it is charged on the basic rate of wages which includes DA for the last year. The 2nd term of the settlement will have to be read against the background of the above facts. Thus for computation of rate of wages as on 31/12/2000 DA declared by the Board from time to time was taken into consideration. Thus the words "This rate" in the sentence "This rates include DA rise declared by the Board from 1997 to 2000" mean ''rate of wages as on 31/12/2000 which included DA declared by the Board from time to time. The preceding sentence "18% rise shall be given by the RCF on the rates existing on 31//12/2000 w.e.f. 1/1/2001" obviously, therefore, means 18% rise on the rates existing as on 31/12/2000 computed by the Board after taking into consideration DA declared by the Board from time to time in previous years. This cannot be interpreted to mean that there would be no DA over the wages computed after giving 18% rise on the rates existing on 31/12/2000. It is pertinent to note that there is no positive assertion that no DA would be charged over the wages calculated after giving 18% rise. Assuming DA can be waived, for such a waiver which would deprive the workers of a large amount of money, if the intention was to really waive DA there would have been a positive assertion to that effect. Such assertion is not there. It is not possible to read into the settlement a clause which is adverse to the workers. The settlement has imposed a ceiling on the rates of wages i.e. 18% rise in wages for a period of 4 years from 1/1/2001 to 31/12/2004. To impose a further condition on the workers that there will be no DA on the wages calculated after giving 18% rise on the rates existing on 31/1/2/2000 would work injustice on the workers.
11. The matter can be looked at from another angle. The Mathadi Act is an Act inter alia for regulating the employment of unprotected manual workers and to make better provision for the terms and conditions of service of such workers. Section 3 thereof states that the State Government may provide for a scheme inter alia for better provision for the terms and conditions of employment of such workers. Section 3(2)(d) states that the Scheme may provide for regulating the employment of (registered unprotected workers) and the terms and conditions of such employment, including rates of wages, hours of work, maternity benefit, overtime benefit, leave with wages, provision for gratuity and conditions as to weekly and other holidays and pay in respect thereof. Section 6 provides for constitution of Boards. Section 6(3) states that the Board shall consist of members nominated from time to time by the State Government representing the employers, the unprotected workers and the State Government. Section 7 delineates the powers and duties of the Board. It inter alia states that the Board shall be responsible for administering a scheme and shall exercise such powers and perform such functions as may be conferred on it by the scheme and the Board may take such measures as it may deem fit for administering the scheme.
12. It is now necessary to turn to the Scheme, more particularly Clause 36 thereof. Clause 36 pertains to wages, allowances and other conditions of service of registered workers. Sub Clauses (2) to (6) provide the procedure for fixing rates of wages, allowances etc. Clause 33(1) is important. It reads thus;
33. Wages, allowances and other conditions of service of registered workers.
(1) Without prejudice to the provisions of any award, it shall be, unless otherwise specifically provided for in this scheme, an applied condition of the contract between a registered worker (whether in the pool or on the monthly register) and registered employer that the rates, allowances and overtime, hours of work, rest intervals, leave with wages and other conditions of service (shall subject to the provisions of Sub-clauses (2), (3), (4), (5) and (6), be such) as may be fixed by the Board for each category of registered workers.
Thus fixing of allowances and other conditions of service of registered workers is an implied condition of the contract between a registered worker and registered employer and the Board has primacy in fixing wages and conditions of service.
13. It is now necessary to go back to the Mathadi Act and read Section 25 thereof. It reads thus;
Section 25. Contracting out - Any contract or agreement, whether made before or after the commencement of this Act, whereby (a registered unprotected worker) relinquishes any right conferred by, or any privilege or concession accruing to him, under this Act or any scheme, shall be void and of no effect in so far as it purports to deprive him of such right or privilege or concession.
Section 25 reflects the purpose of the Mathadi Act. It seeks to protect the Mathadi workers from their possible exploitation by providing that any contract or agreement whereby a registered unprotected worker relinquishes any right conferred by or any privilege or concession accruing to him under the Mathadi Act or any scheme shall be void and of no effect in so far as it purports to deprive him of such right or concession. Therefore, assuming the 2nd term of Settlement dated 28/6/02 provides that no DA can be imposed on wages calculated after giving 18% rise on the rates existing on 31/12/2000, it will attract Section 25 of the Mathadi Act and will have to be treated as void because thereby the workers relinquish the right/privilege or concession which accrues to them under the Scheme framed under the Mathadi Act. It would be advantageous at this stage to refer to Roha Dychem Ltd.
14. In Roha Dyechem Ltd. the petitioner company had challenged demand of recovery of dues of Mathadi workers made by the Board. There were several settlements between the petitioner company and the Union representing Mathadi workers. As per the settlement the Mathadi workers were entitled to wages based on piece rate. One of the questions which this Court had to deal with was whether once a piece rate is fixed the question of payment of DA would arise. This Court considered relevant provisions of the Mathadi Act, particularly Section 25 thereof which pertains to contracting out and the relevant Regulations and held that DA is statutory in character payable by the registered employer to the workmen registered under the scheme and any settlement which has the effect of depriving the workmen a right or benefit, would be to that extent illegal, null and void. The payment of DA is statutory in character. The relevant paragraph needs to be quoted:
The issue whether wage is payable based on piece rate or otherwise in our opinion is besides the point. Wages can be on hourly basis, on monthly time scale, on piece rate basis or any other method prevailing in the industry or based on a settlement entered into between the employer and the workmen. The nature of the basic wage will make no difference. Dearness Allowance is payable so as to protect the workmen, from the erosion of his purchasing power consequent on rise in cost of living. It is to offset the increased burden that the workmen has to pay to sustain himself and his family. Dearness Allowance, therefore, is distinct and different from the basic wage whether piece rate or otherwise. The Dearness Allowance, therefore, fixed by the Board being statutory in character is payable by all registered employers whatever be the method by which the basic wage is fixed.
15. In our opinion, the ratio of this case is clearly attracted to the present case. Settlement dated 28/6/02 assuming it states that no DA is payable to the Mathadi workers is bad in law and void in view of Section 25 of the Mathadi Act. Roha Dyechem Ltd.''s case cannot be distinguished from the present case on the ground that in that case the Board was not a party to the settlement and therefore, Board''s authority to fix emoluments including DA over and above wages was affirmed by this Court and that whether the Board had the right under the statutory scheme to superimpose DA on a settlement between management and labour was kept open. In our opinion, the petitioner is merely indulging in hairsplitting. In that case this Court has considered the scope of the Board''s power, the concept, nature and importance of DA and the effect of any contract or agreement which deprives the Mathadi workers of the rights privileges or concession accruing to them and held that such contract or agreement would be void u/s 25 of the Mathadi Act. This Court has held that basic wage has not to be confused with DA. DA is statutory in character and must be paid to the workers. The attempt to distinguish this judgment must fail.
16. In Rashtriya Chemicals and Fertilizers Ltd., this Court was dealing with the petitioner''s establishment and with similar facts. A settlement was arrived at on 21/7/88 for the period commencing from 1/1/88 to 30/9/92. The settlement inter alia provided that the increase granted to daily rated and piece rated workers would be after adding an 11% rise in the DA, declared by the Board on the wage rate prevailing on 31/12/87. After the expiry of that settlement dated 21/7/88, a settlement was entered into covering the period from 1/12/92 to 30/12/96. This settlement provided that the petitioner would grant every year an increase in the DA, linked with Consumer Price Index Number at the rate declared by the Board from time to time. This settlement expired on 30/11/96. The Union placed its demand for increase in rates of wages. It is not necessary to give details of intervening facts. Suffice it to say that on a statement made by the counsel for the Board in this Court that the Board would pass a reasoned order after considering the issue of increase in wages, the petition was disposed of. It must be noted that after the expiry of the last settlement when the Union raised demand for increased wages there were meetings between the two sides and as an interim measure the Board granted an increase of wages by 10%. That interim increase was continued by this Court as an interim increase subject to final adjustment till the Board takes a final decision. By the final order the Board directed that all the registered workmen would be given wage rise @ 18%. (10% Interim rise after adjustment 10% + 8% = 18%) on their existing wage rate on 1/1/2001. The Board directed that 6% increase in DA, declared for the year 2003 should be given. The Board further directed that 18% increase in wages with declared rise in DA, should be deposited with the Board regularly from January, 2004 onwards and difference of 8% wage rise for the period of 1/1/2001 to 31/12/2003 and difference of D.A., for the period of 1/1/2003 to 31/12/2003 should be deposited within two weeks from the date of the receipt of the order. This Court upheld the Board''s order. The following observations of this Court are material;
In a matter such as the present, the Court cannot be unmindful of the fact that the Mathadi Workers are manual workers engaged for loading and unloading operation. They are veritably at the lowest end of the spectrum of industrial workers. Hour after hour, day after day, month after month until the inevitable consequences of labour in such difficult conditions takes its toll on these frail human frames, the Mathadis work ceaselessly in arduous conditions. The object of the Act is to grant them security of service conditions. The Board has furnished cogent reasons in its order. This Court in its jurisdiction under Article 226 of the Constitution, would not be justified in reappreciating those reasons in the manner of an appellate authority. The Board has applied well settled principles and has arrived at a reasoned decision. The order passed by the Board cannot be faulted.
17. It is important to note that in this case identical issue with regard to the wage increase and DA of the Mathadi workers of the Railway Goods Cleaning and Forwarding Establishments Labour Board was involved. The petitioner had raised similar point. This Court dismissed the petition. This judgment would be clearly attracted to the present case. The petitioner is trying to distinguish the present case from this case on the ground that because the petitioner refused to cooperate with the Board''s directions and the Board had complied with the relevant clauses of the scheme that this Court upheld the Board''s order directing that increase in wages with declared rise in DA should be paid. The distinction sought to be made is untenable and deserves to be rejected. Whether settlement refers to payment of DA or not is immaterial. DA which is linked to Consumer Price Index has to be paid when declared as per the settled practice. It is statutory in character. DA is in addition to periodical wage revision. This is what in effect Rashtriya Chemicals and Fertilizers Ltd., lays down when it affirms the Board''s order.
18. DA is fixed in exercise of statutory power under Clause 33 of the Scheme which is framed under the Mathadi Act. DA is, therefore, statutory as held by this Court in Roha Dyechem Ltd.''s case. It is urged that wages are also fixed by the Board under Clause 33 of the Scheme and if they can be revised and waived so can the DA be revised and waived. The controversy revolves round DA. We do not want to travel beyond it. But the nature of wages and DA differ. The concept of DA is different from the concept of wages. DA is a relief against price rise which has come to stay. We cannot contemplate a situation where DA is waived or varied to the detriment of workers. Section 25 of the Mathadi Act would come to the aid of Mathadi workers in such a situation. This argument must, therefore, be rejected.
19. It is urged that the Board could impose an additional DA only in the manner prescribed in Clause 33 of the Scheme which is not done here. It is urged that the Board should have considered industry-cum-region formula, capacity of the employer to pay, cost of living, conditions of service in comparable concerns etc. This exercise is not conducted. We find that there is no specific challenge raised in this regard in the petition. There is no specific challenge to the basis of declaration of DA. The petitioner''s main contention is that demand for payment of DA is contrary to the provisions of Settlement dated 28/6/02. In the circumstances the petitioner cannot be allowed to urge this point.
20. We have already held that Settlement dated 28/6/02 does not exclude DA. Therefore, there is no question of the Board persuading the petitioner to alter its position to its detriment. Reliance placed on judgments of the Supreme Court in Haryana State Coop. Land Development Board, Sunil Pannnalal Banthia and ABL International Ltd., is, therefore, totally misplaced.
21. It is argued that the impugned demands place heavy financial burden on the petitioner which is likely to have adverse effect on its business. The petitioner which is a Public Sector Undertaking may suffer loss and close down. This is disputed by the respondents. The respondents contend that the petitioner''s financial condition is sound. We are not inclined to go into this disputed aspect. The legal position as regards DA is clear. Settlement dated 28/6/02 is unambiguous. In any case there can be no settlement which will deprive the Mathadi workers'' DA which is statutory in character. Section 25 of the Mathadi Act would come to the rescue of the workers.
22. In view of the above, in our opinion, there is no substance in the petition. The petition is, therefore, dismissed.
At this stage Mr. Cama, learned Senior Counsel appearing for the petitioner states that the petitioner wants to challenge this order in the Supreme Court. He states that protection granted by the interim order of this Court may be continued for a period of six weeks. Learned Counsel for the respondents opposes this request. In the circumstances of the case, the interim order granting protection to the petitioner shall continue to operate for a period of six weeks from today.
