TRANSPORT CORPORATION OF INDIA LIMITED Vs. MAHARASHTRA RAJYA MATHADI TRANSPORT AND GENERAL KAMGAR UNION

JUDGEMENT

(1.) THESE petitions are directed against the Award of the Industrial Tribunal granting a wage rise to the workmen employed with the petitioners who are road transporters. The Union representing the workmen employed with employers who had business in road transportation raised a dispute for change in their service conditions. The All India Transport Employees Association raised the dispute relating to general demands including wage scales, dearness allowance and transfer of employees employed with transporters which have establishments all over India. This dispute was referred for adjudication by the Appropriate Government on 12th August, 1981 under section 10 (1) (d) of the Industrial Disputes Act, 1947. Reference was made in respect of Prakash Roadlines Private Limited and 258 other employers. By a corrigendum issued on 25th February, 1982, the Government included 116 more employers in the reference. An Award was made by the Industrial Tribunal on 12th November, 1986. This Award was challenged by 28 transporters as well as the Union representing the workmen. The writ petitions were disposed of by this Court by a common judgment dated 11th November, 1992. The reference was remanded to the Industrial Tribunal as the Tribunal instead of fixing fair wages had fixed minimum wages as the wages payable to the workmen employed with the transporters. On remand, all the 28 transporters did not appear before the Industrial Tribunal. These transporters and the workmen who now came to be represented by the 1st and the 2nd respondent Unions appeared before the Industrial Tribunal. While remanding the matter, this Court directed the Tribunal to consider only the three demands, namely, basic pay, dearness allowance and whether transfers should be effected of the employees with consultation of the Union. Evidence, both oral and documentary, was lead before the Tribunal and an Award was made by the Tribunal on 29th August, 1997. The Tribunal allowed the reference in respect of demand No. 1 regarding basic pay scales and also in respect of demand No. 4 regarding dearness allowance. However, the demand regarding transfer of employees with consultation of the Union was rejected. The transporters have in a fresh round of litigation in this Court impugned this Award.

(2.) THE main thrust of the argument raised by the learned Counsel on behalf of the petitioners is that most of the transporters had entered into agreements with their respective workmen during the pendency of the reference and which were filed on record before the Tribunal. The Tribunal had endorsed these settlements as "allowed" and, therefore, the Award should have been made in terms of these settlements in respect of all the petitioners. He urged that the workmen have not discharged their burden by the proving that they were entitled to increase in wage scales and dearness allowance. In support of this argument that the workmen had not proved their case, the learned Counsel relied on the judgment in the case of (Narang Latex and Dispersions Pvt. Ltd. v. S. V. Suvarna Mrs. and another), reported in 1994 (II) C. L. R. 51. Placing reliance on the case of (Pottery Mazdoor Panchayat v. The Perfect Pottery Company Limited and another), 1983 (I) L. L. J. 232 and on (New Standard Engg. Co. Ltd. v. M. L. Abhyankar and others), 1978 (I) L. L. J. 487, it is also submitted that the Tribunal, while adjudicating the demands has awarded pay scales far in excess of what was demanded by the workers in 1981. Further, it was submitted that the Tribunal had not cared to calculate the burden which would be imposed on the employers while granting the demands of the workmen. He submits that the Tribunal has not kept in mind the observations of the Apex Court made in (M/s. Killick Nixon Ltd. v. Killick and Allied Companies Employees Union), A. I. R. 1975 S. C. 1778, regarding depreciation. As these observations have not been considered by the Tribunal, the burden cast on the transporters, according to the learned Counsel is huge and excessive as well as unbearable which would lead to closing down of the business. Further, it was argued that the material produced on record before the Tribunal was not considered by it and, therefore, the Award must be set aside.

(3.) DR. R. S. Kulkarni and Mr. N. M. Ganguli appearing for respondent Nos. 2 and 1 respectively, submitted that the settlements entered into by the transporters with individual workman could not defeat the reference as these settlements were not fair and just. According to the learned Counsel, what was payable under the settlements were the minimum wages and, therefore, this was not inconsonance with the judgment of this Court while remanding the matter to the Tribunal as the Tribunal had been directed to consider the fair wages which would be payable to the workmen. The learned Counsel further submitted that the burden of proof that the employer had no capacity to bear the additional financial burden which would be imposed on account of the demands being granted, is on the employer and if no pleadings or evidence with respect to the burden is placed before the Tribunal, the Tribunal would be entitled to draw adverse inference against the employer. They placed reliance on the judgment of the Apex Court in (M/s. Karamchand Thapar and Brothers (P.) Ltd. v. Their Workmen), 1973 (II) L. L. J. 115. The learned Counsel rebutted the contention of Mr. Cama for the transporters that the Tribunal had awarded more than what was demanded by submitting that the total wage packet has to be considered while making an assessment as to whether the Tribunal awarded something more than what was demanded by the workmen and not merely the basic wage as was sought to be urged on behalf of the employers. Learned Counsel further argued that the Consumer Price Index had increased monstrously from 12th August, 1981 when the reference was made till the date on which the Award was made. This factor itself, according to the learned Counsel, was a sufficient change in circumstances to warrant a change in the service conditions of the workmen. The learned Counsel relied on the judgments of the Apex Court in the cases of (Express Newspapers (Private) Ltd. v. Union of India and others), 1961 (I) L. L. J. 339, (Kamani Metals and Alloys Ltd. v. Their Workmen), 1967 (2) S. C. R. 463 : Vol. XXXII, F. J. R. 64, and (Workmen represented by Secretary v. The Management of Raptakos Brett. and Co. Ltd. and another), 1991 (II) C. L. R. 863, in support of their submissions that what was awarded by the Tribunal were fair wages and was in consonance with the orders of this Court while remanding the reference. As regards the submission of the learned Counsel for the employers that the workmen ought to have led oral evidence before the Tribunal, it was submitted on behalf of the Unions, that this was not necessary as there was sufficient evidence on record to indicate that an upward revision was warranted. Moreover, according to the learned Counsel, there was documentary evidence in the nature of balance-sheet and profit and loss accounts which was produced by the transporters, to indicate that the transport business was prospering and the workers were therefore entitled to an upward revision in the pay scales and dearness allowance. Further, it was submitted that the settlements which were filed before the Tribunal were not in conformity with section 2 (p) of the Industrial Disputes Act, 1947 read with Rule 62 of the Industrial Disputes (Bombay) Rules, 1957 and, therefore, they could not be considered as legal and binding on the workmen, more so, when they were neither fair nor just.