MANAGEMENT OF THE NATIONAL PROJECTS CONSTRUCTION CORPORATION LTD., CHANDAN DAM UNIT Vs. THEIR WORKMEN AND ORS.

JUDGEMENT

(1.) These are two applications by the Management of the National Projects Construction Corporation Ltd. filed for cancellation of an award dated the 27th of May, 1968, made by Shri S.C. Prasad, Arbitrator, appointed by the consent of the parties, being the petitioner and respondent no. 1, the Union representing the workmen of all grades employed in the construction of the Gandak Barrage in the district of Champaran and Chandan Barrage in the district of Bhagalpur. The petitioner is a company incorporated under the Indian Companies Act, 1956, with its registered office at E -9, Defence Colony, New Delhi -3, and functions as a contracting agency. It is purely a commercial concern, and works on competitive terms with other contracting firms for executing River Valley projects in allied works. In conducting its affairs, the Corporation opens up field units and employs workmen for specific jobs according to the requirements of the particular project undertaken within the period specified by the other contracting party. The classes of workmen engaged by the petitioner are the following:

(2.) The Government of Bihar, by notification no. 111/D. 1 -19011/67 -L & E of the Department of Labour and Employment, referred the matter for arbitration under Sec. 10A of the Industrial Disputes Act, 1947 to the arbitration of Shri S. C. Prasad, Presiding Officer, Industrial Tribunal, Bihar. Both the parties filed their written statements before the Arbitrator. The Corporation produced copies of its Standing Order No. 60, made in November, 1905, as also other papers showing revision of pay scales and dearness allowance made from time to time and grant of various other benefits to the workmen, which, according to the Corporation, was done in confirmity with the broad principles of wage structure and the regional peculiarities during the years 1959, 1962, 1965 and 1966. The Corporation also produced evidence of having provided amenities like free accommodation, free water and electricity, free school for children, free medical aid, free buildings for recreation club and co -operative stores, assistance in procurement or foodstuffs for the benefit of the workmen, which shows the margin of the benefit and the rise in the percentage of wages paid to the workmen as compared to the minimum wages fixed by the Government under the Minimum Wages Act. The Corporation also produced evidence relating to its financial position and capacity, including its balance -sheets and statements of its assets and liabilities and of the reserves on account of development rebate and depreciation reserve permissible under the provisions of the Income -Tax Act. Shri K.B.J. Sebastian, Senior Accounts Officer, was also examined for the Corporation in proof of the various matters urged in support of the case for the Corporation. The Arbitrator however, disposed of Reference No. 14 of 1967 between the petitioner and its workmen engaged in the Chandan Dam unit and also Reference No. 5 of 1967 between the petitioner and its workmen at Balmikinagar Champaran, represented by the Gandak Yojna Karmachari Kalyan Sangh, Balmikinagar and N.P.C.C. Worker's Welfare Union Balmikinagar by one common order. The following demands were formulated by the workmen for decision by the Arbitrator.

(3.) Mr. Balabhadra Prasad Singh has urged that the Arbitrator was in error, in the first place, in revising the rate of wages to be paid to the muster -roll workmen as also to the other categories of workmen without keeping in view the paying capacity of the Corporation. What was referred to the Arbitrator for an award was the fixation of a wage structure, and not revision of pay scales. It has been so held by the Supreme Court in a series of decisions, e.g. (1) Ahmedabad Millowners' Association, etc. V. The Textile Labour Association ( : A.I.R. 1956 SC 497) and (2) All India Reserve Bank Employees' Association V. Reserve Bank of India [ : 1965 (2) Labour Law Journal 175]. The paying capacity of the employer is a necessary factor in determining the amount of wages to be paid as also the local peculiarities where the particular industry, in which workmen have been engaged, is situate. Learned counsel for the workmen has, however, urged that the Supreme Court has held that minimum subsistence wages must be paid, and, if any industry is not in a position to do so, it has no right to exist. Reference is made to the decision of the Supreme Court in the case of Express Newspaper (Private) Ltd. V. The Union of India (A.I.R. 1958 Supreme Court 578). The contention of Mr. Lal Narain Sinha for the workmen and of Mr. Ranen Roy, who appeared for some of the workmen, appears to be well -founded that, where wage structure has to be fixed, a certain minimum is an absolute necessity to be borne in mind. There is such a thing as living wages, subsistence wages. If the amount of wages paid by the industry falls short of the subsistence wages, the plea of the employer that it has not got the means to do so cannot be entertained, and the question of paying capacity, therefore, is not a material factor in deciding the wage structure. The difference between revision of pay scale and fixation of wage structure is not a real one in several cases because fixation of wage structure has to bear in mind subsistence wages and likewise revision of wages also will be governed to a great extent by the amount requisite for the subsistence of the workmen consistent with their efficiency, the nature of the work to be done, and then also the paying capacity of the employer. In the circumstances, therefore, Mr. Balabhadra Prasad Singh has mainly concentrated his argument upon whether the Arbitrator was justified in applying the standard of revision of wages in regard to muster -roll workmen. He has referred, in this connection, to the settlement in coarse of the conciliation proceedings by the Labour Commissioner, and has urged that, since there is a provision for payment of a minimum of Rs. 3/ -, an increase of fifty paise in the wages of all the muster -roll workmen, reference, which was made to the Arbitrator, excluded the consideration of the case of the muster -roll workmen. The reference must, therefore, be confined to the pay scales of the regular staff, and, at the highest, the work -charged workmen and not muster -roll workmen. He has drawn our attention in this connection to the use of the phrase "pay scale" in the order of reference. The fact that, in the charter of demands formulated by the workmen, "pay scale" was referred to in regard to other categories of workmen and not for muster -roll workmen for whom demand no. 2 was formulated, the natural inference should be that the award of the Arbitrator in respect of muster -roll workmen was beyond the terms of reference, and it must be cancelled. A good deal of argument, therefore, was addressed to the Court by learned counsel for the parties as to what is the meaning of "pay scale" - - whether it is to be confined to those workers who got monthly payment, such as members of the regular staff, engineering, administrative, etc., and the work -charged workmen, who too receive payment on a monthly basis, and this Court would exclude muster -roll workmen. Mr. Lal Narain Sinha and Mr. Ranen Roy, on the other hand, have urged that the phrase "pay scale" has got no technical significance, and that this phrase should be held to be synonymous with payment scale, which would obviously include payment to all workmen, whether as daily wages or on monthly basis. In my opinion, however, it is not necessary to deal with these matters at length, inasmuch as what exactly is the meaning of "pay scale" would depend upon the context in which the expression has been used. In the present context, it is not denied that the entire strength of the labour force engaged in the construction work at Chandan Dam was two thousand, and the charter of demands agreed upon between the parties in the form of settlement before the Labour Commissioner as also the reference under Sec. 10A of the Industrial Disputes Act to the Arbitrator by the Government refers to two thousand workmen. If muster -roll workmen were taken to fall beyond this category, then undoubtedly, the inference would follow that the settlement arrived at before the Labour Commissioner was final and the reference was not intended to cover the cases of muster -roll workmen. The award of the Arbitrator in that event would be unsustainable as it would be excess of jurisdiction on the part of the Arbitrator to pass any order in favour of muster -roll workmen. Since, however, it is stated that the entire number of workmen was two the sand and this number must specifically refer to those to be affected by the award, the expression "pay scale" must be interpreted as referring to the amount payable to all the workmen engaged either on the basis of daily wages or by way of monthly salary. This contention of Mr. Balabhadra Prasad Singh to the contrary therefore, cannot be accepted, and the above award cannot be held to be vitiated in respect of muster -roll workmen only on this ground.