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Judgment
S.S. Shinde, J. (Oral) - Being aggrieved and dis-satisfied by the order dated 4th September, 2013 passed below Exh.No.U-2 in Complaint (ULP) No.85 Of 2013, by the Member, Industrial Court, Aurangabad, Petitioner - employer (Ori. Respondent) has filed present Writ Petition.
Heard learned counsel for the Petitioner and learned counsel for Respondent - Kamgar Sanghatna, at length.
The learned counsel for the Petitioner submits that, on 1st March, 2012 "Memorandum of Undertaking" (In short, MOU) was GAG executed between the petitioner - Employer and all confirmed workmen at the company''s establishment represented by the Respondent - Kamgar Sanghatna. He invited my attention to the clauses incorporated in said MOU. He further invited my attention to Exhibit No.2 at page No.15 of the compilation of the Writ Petition i.e. Memorandum of Settlement dated 22nd March, 2012 (In short, the MOS). According to the learned counsel for the petitioner, on careful reading of Clause/s 5.11 & 5.15 of the MOS, in the said MOS, mistake had been occurred on the part of the petitioner. It is his submission that, it was agreed between the parties that under the MOS, the prevailing Productivity Allowance @ Rs.400/- per month will be merged in all permanent workmen''s present House Rent Allowance w.e.f. 1st March, 2012. It is his submission that, in fact, as per the agreement between the parties, the settlement was to pay Rs.400/- for prevailing Productivity Allowance however, while preparing the MOS, in clause No.5.11 of the MOS, by mistake, it is mentioned that, the prevailing Productivity Allowances Rs.400/- per month will be merged in all permanent workmen''s present House Rent Allowance w.e.f. 01.03.2012.
In short, submission of the learned counsel for the petitioner is that, an amount of Rs.400/- towards Productivity Allowances was to be paid however, by mistake, in view of clause/s No.5.11 and 5.15, the petitioner has to pay Rs.400/- towards Productivity Allowances separately and also HRA. It is submitted that, the petitioner wrote a letter to the respondent and called upon the respondent - Kamgar Sanghtna for discussion however, the Respondent Kamgar Sanghatna did not respond, therefore, the petitioner was constrained to approach the appropriate government. It is further submitted that, in view of the provisions of Section 17A of the Industrial Dispute Act, 1947 ( In short, ID Act, 1947) once the Award is published under Sub Section (1) of Section 17A of the ID Act, 1947 shall be final and GAG shall not be called in question by any Court in any manner whatsoever thus, after publication of Award, the Industrial Court became functus officio, therefore, it has no jurisdiction to correct the terms of the Award.
The learned counsel appearing for the petitioner invited by attention to the provisions of Sections. 17 & 17A of the ID Act, 1947 and also Rule 31 of the Industrial Disputes (Bombay) Rules, 1957 [In short, ID (Bombay) Rules, 1957].
According to the learned counsel for the petitioner, upon reading the provisions of Section 17A of the ID Act, 1947 and Rule 31 of the ID (Bombay)Rules, 1957, only remedy available to the petitioner is to approach the appropriate government and, accordingly, the petitioner has already approached the appropriate government. It is submitted that, the respondent did not remain present before the appropriate government in the said proceedings. However filed a complaint before Industrial Court under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ( In short, the MRTU & PULP Act, 1971.) According to the learned counsel for the petitioner, said complaint is not maintainable and the Industrial Court has no jurisdiction to entertain the said complaint. The learned counsel further invited my attention to the impugned judgment and order and in particular observation made in paragraph No.15 and submits that the Industrial Court misinterpreted the provision of Rule 31 of the ID (Bombay) Rules, 1957. It is submitted that, Industrial Court in paragraph No.21 of the impugned judgment has no cause or reason to make comments / remark against the employer i.e. present petitioner.
The learned counsel for the petitioner invited my attention to the observations made by the Full Bench of Punjab & Haryana High Court in the case of Budh Ram & Ors., v. State of Haryana & Ors., reported in 2009(122) FLR, 1053 in which, it is held that, in case excess payment is made to the employee, how such situation should be dealt with has been explained.
He invited my attention to the Paragraph No.14 of the said judgment, wherein, it has been observed that, "in case the employees, who are recipient of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions have not in any way contributed to such erroneous interpretation nor have they committed any fraud, misrepresentation, deception to obtain the grant of such benefit, the benefit so extended may be stopped for the future, but the amount already paid to the employees cannot be recovered from them". Therefore, he prays that, petition may be allowed.
Per contra, the learned counsel for the respondent invited my attention to the reasons recorded by the Industrial Court in the order dated 04/09/2013 and submits that, members of the Respondent - Kamgar Sanghtna are receiving the allowances as stated in the MOS. It is submitted that, there is nothing erroneous misinterpretation of clauses mentioned in the MOS. It is submitted that, on plain reading of clause/s 5.11 and 5.15 of the MOS, it appear that, the members of the Respondent - Kamgar Sanghtna are entitled to the said benefits. It is submitted that, it is the case of the petitioner that, it is their mistake and not that of the Respondent Sanathana; thus, respondent - Kamgar Sanghtna is not responsible, in any manner, for such mistake. Thus, according to him, it cannot be said that any benefit received or obtained by an employees by reason of fraud, misrepresentation or any other act of deception which dis-entitle them to retain the benefit.
The learned counsel for the respondent - Kamgar Sanghtna invited my attention to Rule 31 of the ID Act, 1947 and submits that, GAG petitioner has wrongly approached the appropriate government. According to him, once the Award is passed and when the Industrial Tribunal was the party to the Award and when there was tri party settlement; in such a case, only course open to the petitioner is to approach the Industrial Tribunal and not to the appropriate government. It is submitted that the Industrial Court has adverted to the contents of the Award and found that, the petitioner is unnecessarily stopping the payment and, therefore, the Industrial Court was correct in passing the impugned order thereby directed to refund the amount deducted from the wages of the workmen.
In reply, the learned counsel for the petitioner submits that, already the respondent had approached to the office of Deputy Commissioner of Labour for calling the meeting and, therefore, the respondent could not have filed the complaint and the Industrial Court had no jurisdiction to entertain the said complaint.
Learned counsel for the respondent invited my attention to Section 59 of the I.D. Act, 1947 and submits that, if any proceeding in respect of any matter falling within the purview of the said Act is instituted under this Act, then no proceeding shall at any time be entertained by any authority in respect of that matter under the Central Act or, as the case may be, the Bombay Act; and if any proceeding in respect of any matter within the purview of this Act is instituted under the Central Act, or as the case may be, the Bombay Act, then no proceedings shall at any time be entertained by the Industrial or Labour Court under this Act.
12 The learned counsel for the respondent pressed into service Judgment in case of All India Labour Union v. M/s. Jeewanlal (1929) & Anr., reported in 1986 II CLR 296 and submits that, even though the party entered into conciliation proceedings, it is not conciliation and, therefore, there is no bar U/Section 59 of Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 ( In short, the MRTU & PULP Act, 1971.) for filing complaint U/Section 28 of the MRTU & PULP Act, 1971.
It is submitted that, since the petitioner in view of Rule 31 of the ID (Bombay) Rules, 1957 approached to the appropriate government, the Industrial Court was called upon to comment upon Rule 31 of ID (Bombay) Rules,1957. In Paragraph No.15 of the impugned judgment, Industrial Court has observed that, "said rule is in respect of any clerical mistake or error arising from the accidental slip or omission in any Award. The mistake which the respondent is pleading is not occurred in the Award. Moreover, such mistake is not of clerical error or accidental slip or omission." Relying upon the reasons recorded by the Industrial Court, the learned counsel for the respondent submits that, Writ Petition is devoid of any merit and same may be rejected.
I have heard learned counsel for both the parties at length. With their able assistance, I have gone through the grounds taken in the Petition, annexures thereto, impugned judgment and order passed by the Industrial Court, relevant provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, the Industrial Dispute Act, 1947 and Industrial Dispute (Bombay) Rules, 1957and judgments, cited / referred by the learned counsel.
Coming to the first contention of the learned counsel for the petitioner that the Industrial Court has no jurisdiction to entertain the complaint filed by the respondent is concerned, as rightly pointed out by the learned counsel for the respondent that, even though the parties entered into conciliation, there is no bar U/Section 59 of the MRTU & PULP Act, 1971 for filing a compliant U/Section 28 of the said Act, as held by this court in case of All India Labour Union, cited supra.
I have carefully perused the MOS, dated 22nd March, 2012. Clause Nos.5.11 & 5.15 reads thus :-
Clause No.5.11
It is agreed that prevailing productivity allowances Rs.400/- (Rupees Four Hundred only) per month will be merged in all permanent workmen''s present House Rent Allowance w.e.f. 01.03.2012. The revised HRA payable has been stated in the Annexure VI of the MOS.
Clause No.5.15
It is agreed by and between the parties that under this settlement out of total emoluments, Rs.400/- will be paid as Productivity Allowance (towards productivity agreed in Annexure I) w.e.f. 01.03.2012 subject to achievement of productivity as per Annexure.
Therefore, there is no doubt that, both these clauses are there in the MOS. It is case of the petitioner itself that, clause No.5.11 in the MOS is mentioned by mistake. Therefore, the Industrial Court upon considering the case in its entirety observed that, no any fraud or misrepresentation can be attributed to the respondent Sangathana. According to the petitioner, it is their mistake to mention clause No.5.11 in the MOS thus, for that respondent - Sangathana cannot be blamed.
The contention of the learned counsel for the petitioner is that the Industrial Court has mis-interpreted Rule 31 of the I.D.(Bombay) Rules, 1957 and observed that, it is not clerical mistake or error arising from an accidental slip or omission and the mistake which the respondent (i.e. present petitioner) is blaming is not occurred in the Award. The Industrial Court further observed that, "it was not proper on the part of the respondent to unilaterally interpret and alter the terms of the settlement and mistake if any prima facie cannot be termed as clerical mistake". It is submitted that the Industrial Court was not competent to give such observations, in view of the fact that the petitioner has already approached to the appropriate government.
In that respect, it is clarified that observation made by the learned Industrial Court in paragraph No.15 of the impugned Judgment will not come in the way of the petitioner in prosecuting the application before the appropriate government. However, it is clarified that observations made herein-above shall not be construed as an expression of any opinion on the merits or demerits of the case and at the time of hearing of such application, appropriate decision may be taken, uninfluenced by these observations in respect of maintainability of the application.
The petitioner is also aggrieved by the observation made in paragraph No.21 of the impugned judgment which reads thus :-
"It is also necessary to note that management of the respondent appears to be in habit of interpreting such settlements suitable to their interest and thereby compelling the applicant union for initiating proceedings in this Court. During the last about three years, I have decided many such disputes between the same parties. It appears to be a very sorry state of affairs."
However, it is clarified that, any observations made either in paragraph No.15 or paragraph No.21 of the impugned judgment will not come in the way of the petitioner in prosecuting application before the appropriate government.
The learned counsel for the petitioner relied upon the observations made in the case of Budh Ram, cited supra, to contend that, employer can stop the benefits which are granted by mistake. However, considering the facts and circumstances of the case in hand and on bare perusal of paragraph No.14 of said Judgment, it appears that, the employees, who are recipient of the benefits extended to them on an erroneous interpretation or application of any rules, regulations, circular and instructions have not in any way contributed to such erroneous interpretation nor have they committed any fraud, misrepresentation, deception to obtain the grant of such benefit, the benefit so extended may be stopped for the future but the amount already paid to the employees cannot be recovered from them.
No doubt, employer can stop the benefits extended to the employees, who are recipients of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions however, considering the facts and circumstances of the case in hand, it does not appears to be any erroneous interpretation of the terms of the clause/s 5.11 or 5.15 of the MOS by the Industrial Court. On plain reading of these clauses, it appears that benefits should go to the members of respondent - Kamgar Sanghtna.
As already observed in foregoing paras, it is own case of the petitioner that, clause 5.11 is mentioned in the MOS by mistake, therefore, it cannot be said that, members of the respondent Sangathna are recipients of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions or they committed any fraud, misrepresentation, deception to obtain the grant of such benefits. In the peculiar facts and circumstances of the case, observations made in case of Budh Ram, cited supra, have no application.
So far as contention of the learned counsel for the petitioner that the relief of final nature has been granted by the impugned judgment and order is concerned, it is admitted position that already the members of respondent - Kamgar Sanghtna were receiving the benefits however, said benefits are stopped by the petitioner unilaterally, therefore, there is no question of granting any final relief, at the interim stage by way of impugned judgment and order. By the impugned judgment, petitioner employer is directed to refund the amount deducted from the wages of the workmen and to pay full wages to 90 permanent workmen named in annexure - A as per the settlement and Award in Reference IT No.19/10 till the disposal of the complaint. In that view of the matter, and in the light of discussion herein-above, view taken by the Industrial Court appears to be plausible, reasonable and in consonance with the material placed on record, therefore, no case is made out to interfere into the impugned judgment. Writ Petition stands rejected with no order as to costs.
Needless to mention that, observations made in paragraph No.19 of the impugned judgment shall remain unaffected by rejection of present Writ Petition.