GAJANAND MAHADEV Vs. DAVID MILLS LTD

JUDGEMENT

(1.) THE petitioners are the employees of the respondent mills and they are employed in the watch and ward department. They filed an application before the labour court that they were being the dearness allowance on a certain basis from the 1942 to 1951, that in 1951 the mills suddenly reduced the dearness allowance paid to them without following the procedure laid down in S. 42 (1) of the Bombay Industrial Relations Act and, therefore, they were guilty of an illegal change, and the relief they sought was that the mills should be compelled to set aside this change and to pay the dearness allowance as before. The labour court and industrial court accepted by the contention of the petitioners and granted them the relief which they sought. The Labour Appellate Tribunal has reversed the decision of the two lower tribunals and the petitioners have come before us under Art. 227 of the Constitution.

(2.) NOW, what is urged by Mr. Vyas is that the only way in which a change could be made by the employer with the regard to matters referred to in Suh. II of the Bombay Industrial Relations Act was by giving a notice of change as required by the S. 42 (1) and following the procedure laid down in the Act consequent upon giving such notice. Mr. Vyas says that the admittedly the employer has not followed this procedure and therefore, the change made by him is an illegal change. An award was given with regard to the dispute between the Bombay Textiles mills and their employees and this award was given in 1947 and it is admitted by the Mr. Vyas that the petitioner before us were affected by the award and their wages were fixed as standardization wages. The industrial tribunal left the question of dearness allowance open, but by a supplementary award they fixed the dearness allowance on a particular basis, and it is also admitted by Mr. Vyas that the dearness allowance paid by the mills after this award was given was more than what had been fixed by the award. The Labour Appellate Tribunal, in coming to the conclusion that it did, follows a decision of the Court in Daru v. Ahmedabad Spinning and Manufacturing Company Ltd. In that case it was decided that if wages have been standardized by an award of an industrial court, it is not open to the employer to pay more than the standardized wages. In that case a contention was urged on behalf of the workers that it was open to an employer to pay contractual wages which may be higher than the wages fixed under the award, and if he wanted to reduce the contractual wages, he could only to do so provided that followed the procedure laid down in S. 42 (1 ). We rejected that the contention and we pointed out that payment of wages higher than those fixed change in the part of the employer and it would subject him to a penalty under S. 106 (1 ). Mr. Vyas says that even though the payment of the higher dearness allowance might subject the employer to a penalty, even so looking to the language of S. 42 (1) it is incumbent upon the employer in every case of a change to give notice as required by that sub-section. We may point out that the result of following the procedure laid down in S. 42 (1) is that the employer cannot put into effect of the change unless the whole procedure laid down in the act has been implied with. If the notice is not accepted by the employees, there has got to be conciliation proceedings and other proceedings laid down in the act, and till these proceedings come to an end, the employer is not permitted by law to give effect to the change. In other words, Mr. Vyas's contention comes to this that, although what the employer was doing was illegal, although he was liable to penalty. Still he must go on and doing something which was illegal and comply with the procedure which laid down in the S. 42 (1 ). We are unable to accept that contention. We must cannot possibly take the view that any party is entitled to compel the other party to do something which is illegal. If in making the change the employer stopped doing something which was illegal and started doing something which alone he could do under the law, then no notice was required to be given by him under S. 42 (1 ). Notice under S. 42 (1), need not only be given when what the employer is doing is in accordance with the law and he wishes to bring about a change. Then this continuing to do what laid down in the Act is satisfied will not lead to any serious consequences as far as the employer is concerned. But to construe S. 42 (1) as requiring the employer to continued to do something which is illegal till the procedure is complied with, is to put an impossible construction on the rights of the labour and the responsibility of the employer.

(3.) IT is then urged by Mr. Vyas that what the employer was praying to the employee was not wages but a customary concessions or privilege or something arising out of the usage, Mr. Vyas says that the additional dearness allowance that was paid to the petitioners was in the nature of the privilege, and as it had been paid for a long period of time, it had acquired the characteristics of usage. He draws attention to Sch. II of the Act which makes a distinction between the customary concessions, privileges or change in usage and wages including the period and mode of payment. "wages" has been defied by the S. 3 (39) and the definition is :