J STONE AND CO Vs. 5TH INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India the petitioner company is challenging an order passed by the 5th Industrial Tribunal (hereinafter referred to as the Tribunal) on the 16th August, 1972 in a reference made by the Government of West Bengal on the 6th May, 1971 (hereinafter referred to as the said reference) under Section 10 the Industrial Disputes Act 1947 (hereinafter referred to as the said Act).

(2.) The facts of this case are shortly as follows: The petitioner company has its registered office and a factory at 16, Taratolla Road, Calcutta. It carries on the business of manufacture and sale of train and other railway equipments. In the year 1948 an award was made which is known as First Omnibus Engineering Tribunal Award. The petitioner company and its workmen were party to the same. The issues referred to for adjudication on were, amongst others, "Minimum basic pay and scales of pay" "Dearness allowances" and "Holidays and leave". The said award was published under the of Govt. of West Bengal's order dated 30th June, 1948. The second Omnibus Engineering Tribunal award, arising out of order of reference dated 8th March, 1950, was made on the 31st August, 1950. The issues referred for adjudications were, among others. "Dearness allowance". "Holidays and leave". The petitioner company and its workmen were parties to the same. It is claimed that said Award still remains operative and binding on the parties including the petitioner and its workmen. The Third Omnibus Engineering Tribunal Award arising out of an order of reference dated 20th December, 1956 was made on 13th October, 1958. The issues referred for adjudication were, among others, "Wages, grades and scales of pay" and "Dearness allowance". The petitioner company and its workmen are parties to the same. It is claimed that the said Award is still in force and binding on the parties including the petitioner and its workmen. The respondent No. 3 is a Trade Union which was registered on 9th February 1964. It purports to represent the employees of the petitioner employees of the petitioner employed in its Register Office. According to the petitioner its employees employed in the Taratolla Road have their own trade union viz. J. Stone workmen's Union. On the 8th May, 1967, the respondent No. 3 submitted to the petitioner company a charter of demands demanding among others revision of pay scales, dearness allowance etc. On the 26th July, 1967 objections were raised by the petitioner company before the Conciliation Officer in respect of this charter of demands. On the 10th December, 1968 the second charter of demand was submitted by the respondent No. 3 to the petitioner company. On the 29th September, 1969 at the initiation of the Government of West Bengal, a tri-partite settlement was reached between the engineering establishments in West Bengal and the workmen represented by the two Engineering Associations and the workman represented by several unions, (hereinafter referred to as 1969 Settlement). The said settlement covered such issues as "Wages (basic)", "Dearness Allowance", "Payment in the revised scales of pay" etc. The said 1969 settlement was operative from July 1969 to 31st December, 1972 with the proviso that the terms and conditions would remain binding on the parties until terminated by writing by either party by serving two months notice. According to the petitioner company the 1969 settlement is still in force and the petitioner and its workmen are still bound by its terms and conditions. Clause 10 of the 1969 wage settlement made a provision for "opting out" by providing that if the total of the existing emoluments consisting of basic pay, dearness allowance and interim relief of workmen as a whole is deemed more favourable than the total emoluments (bases and dearness allowance) specified in the 1969 settlement the workmen through their Unions shall have the option of choosing to remain under the existing wages and dearness allowances scheme. It was further provided that in such case the terms of the 1969 settlement shall not apply to the workmen of such establishment. Pursuant to above a tripartite settlement was reached in conciliation proceedings on or about 21st February, 1970 between the petitioner and J. Stone Workmen's Union (Which is the recognized Union) representing the workmen. By the said 1970 Settlement the workmen of the petitioner company opted out of the 1969 settlement and arrived at a separate settlement as provided at a separate settlement as provided therein. The said settlement was operative for three years i.e. from the 1st January 1970 to 21st December, 1973. It was further provided that the same would continue to be binding even after the expiry of that period until two months notice in writing was given by either party in signifying its intention to terminate the settlement as required under Section 19(6) of the said Act. As already stated on the 6th May, 1971 the Government of West Bengal referred to the Tribunal the industrial dispute purported to exist between the petitioner company and its workmen represented by the respondent No. 3 for adjudication of the issues referred to therein. The issues, which are the subject matter of the said reference, are as follows :- (1) Grades and Scales of Pay; (2) Dearness Allowance; (3) Leave; (4) Gratuity; (5) Promotion; (6) Travelling expenses for enjoying holidays outside the Head-quarter.

(3.) On the 5th July 1971 the respondent No. 3 filed its written statement before the Tribunal. On the 23rd August, 1971, the petitioner company filed its written statement before the Tribunal inter alia raising preliminary objections regarding the validity of the order reference and the issues framed therein on the following grounds :-