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TMI Blog1962 (12) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... iplinary action. At the time of the hearing before us however the learned Attorney General, appearing for the workmen, did not press their claim for modification of the award as regards, night shift allowance, leave rules and procedure for taking disciplinary action and working hours. 2. It appears that when the dispute was before the Conciliation Officer, Delhi, for settlement an interim agreement was arrived at between the parties on December 20, 1957 by which the management agreed to give certain interim reliefs, ranging between ₹ 6/- to ₹ 10/- per month from the month of November 1957. One of the terms of the agreement was that this payment "will be adjusted against the final outcome of the demands by constitutional means". The Tribunal has in its award given a direction that this interim relief shall remain unaffected. Taking this to be a direction that the adjustment as agreed upon of payments under the interim arrangement shall not be made, the employer has in its appeal challenged the correctness of this direction also. 3. The most important of the matters in dispute are the questions of the wage scale, the dearness allowance and the adjustment of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change is not much. The employer's contention before us is that there was no case for any revision whatsoever and the Tribunal acted wrongly in making any change in the old wage scale. The workmen's contention on the contrary is that the changes do not go far enough. 5. The fixation of wage structure is among the most difficult tasks that industrial adjudication has to tackle. On the one hand not only the demands of social justice but also the claims of national economy require that attempts should be made to secure to workmen a fair share of the national income which they help to produce, on the other hand, care has to be taken that the attempt at a fair distribution does not tend to dry up the source of the national income itself. On the one hand, better living conditions for workmen that can only be possible by giving them a "living wage" will tend to increase the nation's wealth and income on the other hand, unreasonable inroads on the profits of the capitalists might have a tendency to drive capital away from fruitful employment and even to affect prejudicially capital formation itself. The rise in prices that often results from the rise of the workmen&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an in the highest state of industrial efficiency, which will enable him to provide his family with all the material things which are needed for their health and physical well-being, enough to enable him to qualify to discharge his duties as a citizen." (Cited with approval by Mr. Justice Gajendragadkar in Standard Vaccum Company's Case (1961)ILLJ227SC , from "The living Wage" by Philip Snowden). 7. While industrial adjudication will be happy to fix a wage structure which would give the workmen generally a living wage economic considerations make that only a dream for the future. That is why the industrial tribunals in this country generally confine their horizon to the target of fixing a fair wage. But there again, the economic factors have to be carefully considered. For these reasons, this Court has repeatedly emphasised the need of considering the problem on an industry-cum-region basis, and of giving careful consideration the ability of the industry to pay. (Vide Crown Aluminium's Case (1958)ILLJ1SC ; the Express Newspapers Ltd., Case (1961)ILLJ339SC and the Lipton's Case [1959] Supp. 2 S.C.R. 150. 8. On an examination of the Tribunal's award as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision becomes irresistible when one takes into consideration the further fact that the cost of living rose steeply during this period. On the basis of 1939 cost as 100, the index for 1946 was 282. By 1958 it had risen to 389. It may be mentioned that since then there has been a further rise. Nor can it be seriously suggested that this concern cannot bear the burden of an increased wage scale. The Tribunal was, in our opinion, right in its conclusion that the material on record shows that the Company has been prospering and has financial stability. We have for ourselves examined the balance-sheets and the other materials on the record and have no hesitation in agreeing with that conclusion. Mr. Pathak's uphill task in the face of these balance-sheets already on the record to show that the Company would not be able to bear the burden of an increased wage scale has been made more difficult by the discovery that even after the implementation of the award the Company has made large profits during the years 1959-60, 1960-61 and 1961-62. 9. It appears that when the Company was given special leave to appeal to this Court the operation of the Tribunal's award was stayed only in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are much smaller units of the newspaper industry than the Hindustan Times. These Companies are mere adjuncts to the Times of India, Bombay and the Statesman, Calcutta, respectively. Therefore, even if for some categories the wage scale under the award is higher than that in the Times of India, Delhi and the Statesman, Delhi, that would be no ground for modifying the award in favour of the Company. We have therefore come to the conclusion that there is no ground whatsoever for modifying the wage scale fixed by the award in favour of the Company. 11. On behalf of the workmen it was strenuously contended that the increase given by the award over the previous wage scale falls far short of justice. It is pointed out that even the Times of India, Delhi and the Statesman, Delhi, which are much smaller concerns and of lesser financial stability and strength, pay to some categories of its workmen higher wages than what has been fixed by the award. Thus our attention has been drawn to the fact that for Assistants, the Times of India, Delhi, rate is ₹ 241-402, and in the Statesmen, Delhi, it is ₹ 190-297 for some and ₹ 264-463 for others while under the award the scale is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st paid worker will start not less than ₹ 75/-. I direct accordingly." 14. Mr. Pathak points out that the lowest paid worker for whom wage scales have been fixed will be getting under the award a minimum of ₹ 60/- so that with the dearness allowance of ₹ 25/- "the lowest paid worker" will start at ₹ 85/- and not ₹ 75/-. Mr. Pathak suggests that the Tribunal has made a mistake in its calculations and that having decided that the lowest paid worker will start at not less than ₹ 75/-, it should have fixed ₹ 15/- and not ₹ 25/- as the dearness allowance. This argument however overlooks the fact that the reference as regards the dearness allowance was in respect of all categories of workmen, though the reference as regards scales of pay did not cover some categories, viz., mazdoors and canteen boys. They therefore continue to remain on their old scale of ₹ 50-3-85. When the Tribunal in considering the question of dearness allowance was thinking of the starting pay of the lowest paid worker it had obviously these categories in mind. Having concluded that the lowest paid worker should start at ₹ 75/- as the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be no cut and he will be stepped up to the nearest increase with the increments given above. 4. After the salaries are adjusted, no employee should be staggered and he will continue to get future increments. 5. If an employee be already drawing a salary which is higher than the maximum prescribed by the award, he will be subjected to no cut in his salary." 17. This was followed by a direction as regards the date by which the adjustment was to be made. The Labour Appellate Tribunal modified these directions by introducing two provisions : (1) that the maximum of the grade should not be exceeded and (2) that the basic wage that was being paid to an employee at the date of the award of the Tribunal is not to be affected to the employees' prejudice. The employer's objection is to the provision that a special increment at the rate of one increment in the new scale for every three completed years of service should be given. It is argued that such a provision may well be appropriate in a case where wage scale is being fixed for the first time or where even if there was already a wage scale in force the rate of increment in the new scale is much higher than that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reached the ceiling of his grade, even then he would be entitled for the above benefit. (ii) This payment will be adjusted against the final out-come of the present demands by constitutional means." 20. "The final out-come of the present demands by constitutional means" is the Tribunal's award. Under the agreement therefore what has been received by the workmen as advance payment at ₹ 6/- or ₹ 7/- or ₹ 8/- or ₹ 10/- per month as interim relief has to be adjusted against what is due to be paid to them under the award. In other words, the Company is entitled under the agreement to deduct the payments made as interim relief from what is payable to these very employees under the award. The Tribunal's direction that the interim relief shall remain unaffected is in effect an order that term (ii) of the agreement need not be complied with. We can find no justification for such an order. While it is true that industrial adjudication can and often has to modify existing contracts between an employer and its workmen, there can be no justification for modification of an agreement of this nature pending final settlement of a dispute. Such a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be noticed does not provide for any leave to the workmen on the ground of sickness. It provides in s. 46(1)(a) for periodical treatment of any insured person in case of his sickness if certified by a duly appointed medical practitioner. It is unnecessary to mention here the several provisions in the Act; viz., Sections 47, 48 and 49 which deal with the eligibility of workmen for sickness benefit and the extent of the benefit that may be granted. Section 56 of the Act provides for medical benefits to the insured workman or in certain cases to the members of his family. It appears to us clear however that in providing for periodical payments to an insured worker in case of sickness (sickness benefit) or for medical treatment or attendance to him or the members of his family, the legislature did not intend to substitute any of these benefits for the workmen's right to get leave on full pay on the ground of sickness. 23. It is next contended that the Tribunal's direction as regards sickness leave offend the provisions of Delhi Shops and Establishments Act, 1954. Admittedly, a large number of workmen covered by the reference are governed by the provisions as regards leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby set aside. 25. On the question of gratuity, the only argument seriously pressed by Mr. Pathak was that the scheme as framed by the Tribunal would put undue strain on the Company's sources. We have already expressed our agreement with the Tribunal's conclusion that the Company's financial resources are strong and stable and that not only has the Company been prospering in recent years but that its future prospects are also bright. Therefore, we do not think that the scheme of gratuity as framed by the Tribunal is unduly favourable to the workmen or that it places any undue strain on the Company's financial resources. 26. One provision in the gratuity scheme which ought to be mentioned is that under it an employee who is dismissed for misconduct shall not be entitled to any gratuity. It has been pointed out by this Court in more than one case that having regard to the nature of gratuity it will not be proper to deprive an employee of the gratuity earned by him because of his dismissal for misconduct and the proper provision to make in this connection is that where an employee is dismissed for misconduct which has resulted in financial loss to the employer the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix any age of superannuation. It was held in that case that it was unfair to fix the age of superannuation of previous employees by a subsequent standing order. The Labour Appellate Tribunal had held that it would be unreasonable and unfair to introduce a condition of retirement at the age of 55 in regard to the prior employees having regard to the fact that when they entered service there was no such limitation. This Court felt that it would not be justified in reversing this decision of the Labour Appellate Tribunal. Dealing next with the question whether it followed that there should be no rule of superannuation in regard to these previous employees the Court said : "In our opinion it is necessary to fix the age of superannuation even with regard to the prior employees, and we feel no difficulty in holding that it would not be unfair or unreasonable to direct that these employees should retire on attaining the age of 60. An option to continue in service even thereafter which the respondent claimed is wholly unreasonable and is entirely inconsistent with the notion of fixing the age of superannuation itself. Once the age of superannuation is fixed it may be open to the emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 1956 and what directions are necessary in this respect ?" 30. The Tribunal rejected the workmen's claim for giving effect to its award from April 1956. Wherever however the Tribunal has given relief the Tribunal has directed that the award should come into effect from the date of reference, i.e., January 23, 1958. On behalf of the Company Mr. Pathak contends that there is no reason why the award should be given effect to from any date prior to the date of its pronouncement. We are not impressed by this argument. No general formula can be laid down as to the date from which a Tribunal should make its award effective. That question has to be decided by the Tribunal on a consideration of circumstances of each case. There have been cases where this Court has made an award effective from the date when the demand was first made. There are other cases where the orders of the Tribunal directing the award to be made effective from the date of the award has not been interfered with. It is true that in some cases this Court has modified the Tribunal's award in such a case. But it does not appear however that any general principles have been laid down. Indeed, it is difficult ..... X X X X Extracts X X X X X X X X Extracts X X X X
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