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TMI Blog1966 (10) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the bonus table for the accounting year ending 30-6-1965 the allocations separately made by the Delhi Cloth General Mills Co., Ltd. towards the Capital and Reserves of the Delhi Cloth Mills and Swatantra Bharat Mills, the two units of the Company is fair and reasonable ? If not, what directions are necessary in this regard ? 2. Whether the workmen of these Mills are entitled to bonus at a rate higher than 6 per cent of the wages for the accounting year ending 30-6-1965 ? If so, what directions are necessary in this regard ? 3. Whether the strike at the Delhi Cloth Mills and the lock-out declared by the management on the 24-2-1966 are justified and legal and whether the workmen are entitled to wages for the period of the lock-out ? 4. Whether the 'sit-down' strike at the Swatantra Bharat Mills from 23-2-1966 is justified and legal and whether the workmen are entitled to wages during the period of the strike ? 2. The report of the Conciliation Officer shows that trouble had arisen over the claim of bonus of the Delhi Cloth and General Mills and Swatantra Bharat Mills, two units of the same company. The report also shows that at a meeting convened at 2-30 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called upon to lead their evidence. As regards issues 3 and 4, the contention of the management was that the fundamental basis of these two matters was that there was a strike at the Delhi Cloth Mills and a sit-down strike at the Swatantra Bharat Mills and the only question referred to the Tribunal for decision related to the legality and justification of the said strikes. All the four Unions contended before the Tribunal that there was no strike at the Delhi Cloth Mills. Two of the Union's case was that the strike at Swatantra Bharat Mills was in sympathy with the workmen of the Delhi Cloth Mills; while the other two Unions' case was that there was a lock-out in the Swatantra Bharat Mills. As regard the first issue, the case of the Management was that there was a settlement on December 13, 1965 relating to the computation of bonus for the year 1963-64 between the Company and the two major Unions. It was stated further that the settlement referred to the computation of bonus in accordance with the provisions of the Payment of Bonus Act, 1965 and in arriving at the settlement, all the available and relevant financial statements had been shown to the Unions which accepted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the High Court dated July 13, 1966 and the third also from the order of the High Court dated August 12, 1966. By an order made on September 12, 1966 special leave was granted in all these three petitions. All these have now come up for hearing before us. 10. Proceeding in the order in which the arguments were addressed, we propose to deal with issues 3 and 4 first. Under s. 10(1)(d) of the Act, it is open to the appropriate Government when it is of opinion that any industrial dispute exists to make an order in writing referring the dispute or any matter appearing to be connected with, or relevant to, the dispute,..... to a Tribunal for adjudication. Under s. 10(4) where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto. 11. From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments raised and see whether it was competent to the Tribunal to go into the question as to whether there was a strike at all at the Delhi Cloth Mills or a sit-down strike at the Swatantra Bharat Mills or a lock-out declared by the Management on 24-2-1966. 14. The decisions on the point to which our attention was drawn are as follows. In Burma-Shell Oil Storage Distributing Co., of India Ltd. Ors. v. Their Workmen Others [1961] 2 L.L.J. 124 one of the disputes referred to the fifth industrial tribunal by one Government of West Bengal under s. 10 of the Industrial Disputes Act was a claim for bonus for 1955 payable in 1956 for the Calcutta Industrial area. The Industrial Tribunal heard both the parties and awarded 4 1/2 months basic salary as bonus for the year 1955 to the clerical staff and the operatives of the companies. This Court referred to the recital in the order of the Government of West Bengal and observed that the reference was between the four appellants and their workmen represented by the named Workers' union on the other. According to this Court, it appeared from the record that the said union represented only the workmen in the categories of labour, serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al only with the second part of the two questions framed by the impugned reference. There was some modification in the order by a Division Bench of the Madras High Court. The matter then came up to this Court. It was held by this Court that the High Court could entertain the appellant's petition ever at the initial stage of the proceedings being the industrial tribunal and observed : If the action taken by the appellant is not a lock-out but is a closure, bona fide and genuine, the dispute which the respondents may raise in respect of such a closure is not an industrial dispute at all. On the other hand, if, in fact and in substance, it is a lock-out, but the said action has adopted the disguise of a closure and a dispute is raised in respect of such an action, it would be an industrial dispute which industrial adjudication is competent to deal with.... There is no doubt that in law the appellant is entitled to move the High Court even at the initial stage and seek to satisfy it that the dispute is not an industrial dispute and so the industrial tribunal has no jurisdiction to embark upon the proposed enquiry. 18. It was further observed : If the industrial tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reference not too technically or in a pedantic manner, but fairly and reasonably. Thus construed, even the inelegant phraseology in framing the issue cannot conceal the fact that in dealing with the issue, the main point which the tribunal will have to consider is whether the strike of the respondents on 27th April 1959 was justified and whether the action of the appellant which followed the said strike is a lock-out or amounts to a closure... Thus, having regard to the content of the dispute covered by issue 2, it would not be right to suggest that the reference precludes the tribunal from entertaining the appellant's plea that what it did on 29th April is in fact not a lock-out but a closure. The fact that the relevant action of the appellant is called a lock-out does not mean that the tribunal must hold it to be a lock-out. 20. This decision has been referred to by the Tribunal as giving it jurisdiction to examine the question as to whether there was a strike at all. Both sides have referred to this decision in support of their respective contentions. According to the respondents, the fact that the Tribunal could go into the question as to whether there was a lock-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that C rank officers were workmen. On the question whether the imposition of the condition that workmen would only be promoted as C rank officers if they accepted the condition that they would be governed by the rules of the bank, it found against the appellant. Before this Court it was argued on behalf of the appellant that there was no reference on the question of the status of C rank officers and the tribunal went beyond the terms of reference when it decided that C rank officers were workmen. It was held by this Court : that the first term of reference had implicit in it the question whether C rank officers were workmen or not. If that were not so, there would be no sense in the reference, for if C rank officers were assumed to be non-workmen, the bank would be justified in prescribing conditions of service with respect to its officers and there would be no reference under the Act with respect to conditions imposed by the bank on its officers who were not workmen. 24. In the last mentioned case, the question whether C rank officers were workmen had to be examined by the tribunal, for, if they were not, there could be no reference under the Industrial Disputes Act. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in order of reference was non-existent and that the true dispute was something else. Under s. 10(4) of the Act it is not competent to the Tribunal to entertain such a question. 27. In our opinion, therefore, the Tribunal had to examine issues 3 and 4 on the basis that there was a strike at the D. C.M. unit and a sit-down strike at Swatantra Bharat Mills and that there was a lock-out declared with regard to the former as stated in the third term of reference. It was for the Tribunal to examine the evidence only on the question as to whether the strikes were justified and legal. It then had to come to its decision as to whether the workmen were entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its mentioned in sub-paragraph (e) above are different from the units with which we have to deal in this case. Consequently, any agreement between the Management and the workers with respect to these two units cannot be binding so far as the dispute in this case is concerned. We then have to consider the nature of the settlement mentioned in sub-para (d). The first document in this connection is dated October 27, 1964 executed on behalf of the Delhi Cloth Mills and Swatantra Bharat Mills on the one hand and Kapra Mazdoor Ekta Union and Textile Mazdoor Sangh, Delhi, two of the respondents before us, on the other. The relevant portion of the first clause of the terms of settlement reads : According to the Bonus Commission's Formula as accepted and modified by the Government vide Resolution No..... dated 2-9-1964 the rate of bonus payable to the workmen of the two textile units of the Company viz., Delhi Cloth Mills and Swatantra Bharat Mills works out to 7.33% of the total earnings viz., basic wage plus Dearness Allowance, including High Cost Allowance. 31. According to the second clause : The company has however agreed to pay bonus for the year ending 30-6-1964 at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kapra Mazdoor Ekta Union and the Textile Mazdoor Sangh representing an overwhelming majority of the workmen of Delhi Cloth Mills and Swatantra Bharat Mills had moved the Conciliation Officer for settlement of this demand for additional bonus. After mutual negotiations with the help and assistance of the Conciliation Officer, the parties had agreed to settle the matter on the following terms and conditions. Then follow the terms of settlement. The first is to the effect that the workers reiterate and re-affirm the agreement dated 27-10-1964. The second clause is to the effect that the parties agree to calculate the quantum of bonus payable for the year ending 30-6-1964 on the basis of the Formula laid down under sections 6 and 7 of the Payment of Bonus Act, 1965, taking together the pooled profits of Delhi Cloth Mills and Swatantra Bharat Mills calculated on that basis. According to this, the total amount of bonus payable worked out of Rs. 30.25 lacs and the rate of bonus payable worked out to 10.43% of the total earnings which was not based on any base year. According to clause 3, the company agreed to pay the additional balance amount of bonus due to the workmen at the rate of 3. ..... 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