1. Rule. Rule is made returnable forthwith. With the consent of the learned counsel for the parties, the Petition is taken up for final disposal.
2. This petition is filed by the Employer-Ganesh Industries challenging the Award dated 11 June 2019 as corrected by further Order dated 12 November 2020 passed by the Industrial Court, Mumbai. By the impugned Award, the Industrial Court has partly allowed the Reference and has decided various demand (total 21 in number) raised by the Respondent-Union relating to rise in basic Wages, Dearness Allowance, Categorization of various Allowance (House Rent, Leave Travel, Education, City Conveyance, Washing, Medical and Lunch), Attendance bonus and Bonus, Festival Advance, Leave Facility, Uniform Facility and Shift Arrangement. It must be observed at the very outset that though total 15 demands of the Respondent-Union have been adjudicated by the Industrial Court, the Petitioner has restricted the challenge in this petition to the adjudication of demands pertaining to Ad-hoc rise in basic Wages and Education Allowance. A statement made on behalf of the Petitioner in this regard has been recorded by this Court during the course of hearing on 10 October 2023. Thus what needs to be decided in the present petition is the correctness of the decision of the Industrial Court with regard to the adjudication of demands relating to Ad-Hoc rise in basic Wages and Education Allowance only.
3. Briefly stated, facts of the case are that Petitioner is engaged in the business of trading of Papad from the year 2015, prior to which it was also involved in manufacturing of Papad. Petitioner has engaged several workers, majority of them being women in its establishment, for packing of Papad for its trading business. Respondent Sarva Mazdoor Sangh is the Union of employees working for the Petitioner-establishment.
4. The Respondent-Union filed Complaint (ULP) No. 593 of 2008 in the Industrial Court under the provisions of Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act) together with Items No.5, 6, 9 and 10 of Schedule-IV thereof. In addition to various other grievances, relating to non-conferment of permanency status, one of the grievances raised in the said complaint was about non-payment of minimum wages under the provisions of the Minimum Wages Act. The Industrial Court adjudicated the said complaint and by its Judgment and Order dated 20 September 2013 has dismissed the same.
5. Simultaneously, during pendency of Complaint (ULP) No. 593 of 2008, the Respondent-Union submitted Charter of Demands on 4 May 2009 raising total 23 demands. Demand No.1 was for ad-Hoc rise in basic wages w.e.f. 1 April 2009 at the rate of Rs.800/- in the first year, Rs.600/- in the second year and Rs.500/- in the third year. Respondent-Union also raised a demand for Education Allowance at the rate of Rs.1200/- per month. In support of the Charter of Demands, Respondent-Union filed Statement of Justification dated 6 November 2009 before the Assistant Labour Commissioner (Conciliation) and justified their demand for ad-hoc wage rise sought in the Charter citing the reasons of steep rise in the prices of essential commodities and profits earned by the Petitioner. Upon failure of conciliation proceedings, their demands were referred for adjudication before the Industrial Court, Mumbai by the Additional Labour Commissioner, Mumbai vide Order dated 10 October 2011.
6. The Respondent-Union filed Statement of Claim in support of the Charter of Demands before the Industrial Court, in which again it reiterated the demand for rise in wages at the rate of Rs.800/- per month from 1 April 2009 to 31 March 2010, at the rate of Rs.600/- per month from 1 April 2010 to 31 March 2011 and at the rate of Rs.500/- per month from 1 April 2011 to 31 March 2012. They justified demands for Education Allowance at the rate of Rs.1200/- per month. The Petitioner opposed the Charter of Demands by filing its Written Statement. Both the parties led evidence in support of their respective cases. The Industrial Court delivered Award dated 11 June 2019 and adjudicated the demands raised by the Respondent-Union. So far as the first demand for ad-hoc rise in the basic wages is concerned, the same is practically rejected. However, after not granting the ad-hoc rise in wages as sought by the Respondents, the Industrial Court proceeded to give direction to the Petitioner to pay wages to the workers as per the rates prescribed in the Minimum Wages Act with retrospective effect. So far as the Education Allowance is concerned, the Industrial Court has not granted the allowance at the rate of Rs.1200/- per month as demanded by the Respondent-Union but held the Education Allowance needs to be increased to Rs.6,000/- per year. Various other demands are also adjudicated. The operative portion of the Award of the Industrial Court reads thus :
“2..
(i) Demand No.(1) Ad-hoc rise in Basic Wages :-
The Second Party is entitled for wages as per Minimum Wages Act. First Party is bound to pay the wages as Minimum Wages Act. It is made clear that if the present salary is more than minimum wages as prescribed under Minimum Wages Act the same shall not be reduced. Workers at Sr. 11 to 20 at Exh.C-19 be paid at par with the workers at Sr. No. 5 to 9 of Exh.C-19 with retrospective effect.
(ii) Demand No. (2) Dearness Allowance :-
The Second Party is entitled for Dearness Allowance First Party is bound to pay Dearness Allowance. As far as Special Allowance as declared under Minimum Wages act from time to time with cumulative effect.
(iii) Demand No. (3) Categorization :-
It is the duty of the First Party Undertaking to categorize its employees in skilled, semi-skilled and unskilled categories.
(iv) Demand No. (4) House Rent Allowance :-
The Second Party is not entitled for the said demand. First Party to continue its practice of paying HRA on consolidated wages to its employees till the date of this Award. After categorization and fixing pay structure as per Minimum Wages Act, First Party should pay HRA as per Minimum HRA Act.
(v) Demand No. (5) Leave Travel Allowance :-
The Second Party is not entitled for said demand.
(vi) Demand no. (6) Education Allowance :-
In so far as this allowance is concerned the same be increased by Rs.6000/- per year. The same be give with cumulative effect.
(vii) Demand No. (7) City Conveyance Allowance :-
The Second Party is entitled @ Rs.300/- as City Conveyance Allowance.
(viii) Demand No. (8) Washing Allowance :-
The Second Party is entitled for said demand. First Party shall pay washing allowance @ Rs.200/- per month to all the employees without discriminating them.
(ix) Demand no. (9) Medical Allowance :-
Second Party is not entitled for said demand. There is not need to give special medical allowance.
(x) Demand no. (10) Lunch Allowance :-
The Second Party is entitled for the said demand. First Party has admitted to give reimbursement of amount spent on lunch and snacks, while they are doing outside work. First Party to act as per its admission.
(xi) Demand no.(12) & (13) Attendance Bonus & Bonus :-
Second Party is entitled for said demands. First Party is bound to give the same as per its own admission. First Party was paying bonus @ 25% bonus to its employees and fixed amount of Rs.5000/- towards ex-gratia. Under such circumstances, First Party should continue said practice.
(xii) Demand no. (15) Festival Advance :-
Second Party is entitled for the said demand. First Party has agreed to give the same @ Rs.5000/- to the workers per year which will be recovered in 10 equal installments commencing from the succeeding month of disbursement of the said amount. First Party is bound to give as per its admission.
(xiii) Demand no. (16) Leave Facility :-
First Party shall give one day earned leave for every 18 working days and 7 days casual leave every year with a facility of encashment of earned leave, if the same is not availed by the workers on 31 December of each year.
(xiv) Demand no. (19) Uniform Facility :-
This demand is left to the discrimination of the Second Party by continuing present practice.
(xv) Demand no.(21) Shift Arrangement :-
The Second Party not entitled for said demand. First Party is working only in general shifts. Therefore, said demand is not required to be considered.”
7. Both the parties sought clarifications in respect of the Award dated 11 June 2019. By Order dated 12 November 2020, the Industrial Court has clarified that so far as the direction for payment of Minimum Wages is concerned, ‘with retrospective effect’ would mean with effect from the date of Reference i.e. 10 October 2011. Similarly, Education Allowance is also directed to be paid from the date of Reference. Petitioner is aggrieved by the Award dated 11 June 2019 as clarified vide Order dated 12 November 2020 and has filed the present petition.
8. Mr. Pai, the learned counsel appearing for the Petitioner would contend that the issue of payment of minimum wages to the workers was not the subject matter of Reference and therefore the said issue could not have been decided by the Industrial Court. He would submit that the Reference made to the Industrial Court with regard to Demand No.1 was about ad-hoc rise in basic wages, at the rate of Rs.800/- for first year, Rs.600/- for second year and Rs.500/- for third year and the Industrial Court could not have decided anything beyond the Reference made to it. That minimum wages are neither demanded by the Respondent-Union nor a Reference in that regard is made to the Industrial Court. Even issue with regard to the payment of minimum wages was not framed. According to Mr. Pai, the direction to pay minimum wages is issued in absence of demand, reference, issue and evidence. That the minimum wages are actually being paid by the Petitioner to its workers and since Petitioner is taken by surprise by issuing direction to pay minimum wages, the evidence with regard to the payment of minimum wages could not be placed before the Industrial Court.
9. Mr. Pai would further submit that the issue of non-payment of minimum wages is barred by the principles of res-judicata. That the demand for payment of minimum wages was specifically raised in Complaint (ULP) No. 593 of 2009 and that the said complaint has been dismissed on 20 September 2013. That once the prayer for payment of minimum wages was rejected, it was not open for the Industrial Court to issue direction for payment of minimum wages in a Reference where the said demand was not even raised. Mr. Pai would highlight that as on the date of raising of Charter of Demands on 4 May 2009, Complaint (ULP) No.593 of 2008 for payment of minimum wages was pending adjudication before the Industrial Court. That therefore the Union did not raise a demand for payment of minimum wages. They sought an altogether different demand for ad-hoc rise in basic Wages. According to Mr. Pai, the net effect of the impugned Award of the Industrial Court is passing of contradictory orders in respect of the overlapping period i.e. from 10 October 2011 (date of reference) to 20 September 2013 (date of dismissal of Complaint (ULP) No.593 of 2008) wherein two distinct orders are passed by the Industrial Court rejecting and granting minimum wages to the workers of Petitioner.
10. Without prejudice to his objection of res-judicata, Mr. Pai would submit that the directions issued by the Industrial Court for payment of minimum wages is otherwise unsustainable. Referring to the relevant findings recorded by the Industrial Court, Mr. Pai would submit that the prayer of the Respondent-Union for grant of Ad-hoc wage rise has been rejected on account of failure to lead evidence. That after rejecting the said demand, the Industrial Court could not have granted the relief of minimum wages by way of sidewind without any evidence being led in that regard. That the issue whether the Petitioner is paying minimum wages or not was specifically raised in Complaint (ULP) No.593 of 2008 and both the parties led evidence in that regard. As against this, in Reference (I.T.) No.26 of 2011, neither any issue was framed nor parties led evidence to demonstrate that there was any failure on the part of the Petitioner to pay minimum wages.
11. So far as the direction to pay Education Allowance at the rate of Rs.6,000/- per year is concerned, Mr. Pai would submit that no reasons are recorded by the Industrial Court for issuing the said direction. That the Petitioner has already been paying Education Allowance of Rs.2,000/- per year to the workers. The only reason cited by the Industrial Court for allowing the demand relating to Educational Allowance is the cost of education and stagnation. Beyond this, no evidence is led by the parties to justify any rise in amount of regulation of allowance. He would further submit that the Education Allowance is directed to be paid to every Workman regardless of the fact whether their children are taking education or not.
12. In support of his contentions, Mr. Pai would rely upon the judgment of the Apex Court in Sindhu Resettlement Corporation Ltd. (Sindhu Resettlement Corporation Ltd. Vs. Industrial Tribunal of Gujarat and Others (1968) 1 SCR 515 [LQ/SC/1967/268] ) , Delhi Cloth & General Mills Co. Ltd. (Delhi Cloth & General Mills Co. Ltd. Vs. Workmen & Others (1967) 1 SCR 882 [LQ/SC/1966/261] ) and Pottery Mazdoor Panchayat (Pottery Mazdoor Panchayat Vs. Perfect Pottery Co. Ltd. And Another (1979) 3 SCC 762) [LQ/SC/1978/308] .
13. Per-contra, Mr. Shivdasani the learned counsel appearing for the Respondent-Union would oppose the petition and support the Order passed by the Industrial Court. He would submit that it is an obligation on the part of the employer to pay wages as prescribed under the Minimum Wages Act. That neither any Workman is required to raise any demand nor any evidence is required to be led for payment of wages as per the Minimum Wages Act. That it is inherent right of every Workman to be paid wages atleast as per the Minimum Wages Act. In support of his contention, he would place reliance on the judgment of the Apex Court in Kamani Metals and Alloys Ltd. (Kamani Metals and Alloys Ltd. Vs. Workmen AIR 1967 SC 1175 [LQ/SC/1967/19] ) .
14. Mr. Shivdasani would submit that since it is a statutory duty of the Petitioner-establishment to pay wages as per the Minimum Wages Act, absence of pleading, issue or evidence is inconsequential. He would submit that the Industrial Court has not committed any serious error in directing payment of wages as per the Minimum Wages Act. That Petitioners sought total rise of Rs.1900/- over three years and instead of granting the same, the Industrial Court has granted lesser relief of minimum wages. That the Court can always mold the relief. Mr. Shivdasani would submit that the reason for rejection of Complaint (ULP) No. 593 of 2008 is provision of inadequate details. That there is no adjudication of the demand on merits. Inviting my attention to the illustration of Smt. Shobana B. Solanki pleaded in para-7 of the Affidavit-in-Rejoinder, Mr. Shivdasani would submit that she is being paid wages at the rate of Rs.400/- per day which comes to Rs.10,400/- per month (for 26 days). That as per the Minimum Wages Act, the wages payable during January 2021 to June 2021 were Rs.11,025/- and during July 2021 to December 2021 were Rs.11,350/-. That thus, the workers are being paid lesser wages than the one guaranteed under the provisions of the Minimum Wages Act. That the same does not cause any heavy financial burden on the Petitioner. Inviting my attention to para-32 of the Affidavit-in-Reply, he would submit that minimal financial burden would be put on the Petitioner upon implementation of the directives of the Industrial Court.
15. So far as the Education Allowance is concerned, Mr. Shivdasani would submit that the same is payable irrespective of whether the children of the workmen go to school or not. That earlier Rs. 2,000/- was being paid as Education Allowance to every workman without requirement of children going to school. That this aspect is admitted by the Petitioner in the affidavit of evidence. That as against demand for payment of Education Allowance at the rate of Rs.1200/- (Rs.14,400/- per year), the Industrial Court has sanctioned only inconsequential rise at Rs.6,000/- per year, which again does not cast any financial burden on the Petitioner. Mr. Shivdasani would pray for dismissal of the petition.
16. Rival contentions of the parties now fall for my consideration.
17. As observed above, 15 demands have been adjudicated by the Industrial Court by Award dated 11 June 2019. Mr. Pai fairly concedes that except Demand No.1 (wages as per Minimum Wages Act) and Demand No.6 (Education Allowance), the Petitioner is willing to be abide by the directives with regard to rest of the demands. Thus, the lis between the parties in the present petition is limited to the extent of payment of wages as per the Minimum Wages Act and payment of Education Allowance at the rate of Rs.6,000/- per year.
18. The directives for payment of wages as per the Minimum Wages Act is opposed on two grounds viz. (i) absence of demand, reference, issue and evidence and (ii)res-judicata. So far as the first objection is concerned, it appears that the in the Charter of Demands dated 04 May 2009, following Demand No.1 was made:
"DEMAND NO.1:- AD-HOC RISE IN BASIC WAGES
All the workmen would be paid an Adhoc rise in basic wages per month (w.e.f. 01.04.2009) AS FOLLOWS:-
1 st Year 2nd Year 3rd Year Rs. 800/- Rs. 600/- Rs. 500/-"
19. In the Statement of Justification dated 06 November 2009, filed before the Assistant Labour Commissioner, Demand No.1 was justified as under :
"DEMAND NO.1:- The Union wishes to state that the present wages need to be increased considering the steep rise in the cost of all essential commodities in the past few years. Moreover, frequent rise in oil prices had led to rise in each and every commodity and services which the worker and his family members need or use. The demand made by the Union pertaining to the basic wages, is also due to the fact that the management has earned good profit and these are sincere, hardworking, disciplined, work conscious workers who are cooperating with the said management over several years and doing more than one Grade/ Category of work(till today) and running the factory even though capable, competent, qualified managerial staff does not exists. Members are giving highest production but without benefit of overtime allowances and as per the wishes of the management workers are insisted to work till late night."
20. By Order dated 10 October 2011, reference in respect of 21 demands was made and Demand No.1 in the Reference Order is as under :
"DEMAND NO.1:- AD-HOC RISE IN BASIC WAGES.
All the workmen should be paid an Adhoc rise in basic wages per month (w.e.f. 01.04.2009) As Follows:
1 st Year 2nd Year 3rd Year Rs. 800/- Rs. 600/- Rs. 500/-"
21. In the Statement of Claim filed by the Respondent-Union, following averments are made qua Demand No.1.
"6(a) Demand no.1
In respect of the ad-hoc rise in basic wages. It is submitted that considering the inflation rate and present consumer price index. the said index has gone up considering the rising trend of consumer price index clearly indicates that there is a high rate of inflation. Hence the ad-hoc rise in the basic wages other allowances are required to be considered. Basic wages as per schedule industries under category RESIDUARY and for the first year i.e. from 1-4-2009 to 30-3-2010 Rs. 800/- per month raise in basic wages, for the second year i.e. from 1/4/2010 to 30-3-2011 Rs.600/- per month raise in basic wages and for the third year 1-4- 2011 to 30-3-2012 Rs. 500/- per month raise in basic wages. The Union submits that the rising basic wages at least worker can maintain his family. It is submitted that the wages paid by the First Party / employer is party and below the living wages standard."
22. Thus at no point of time, Respondent-Union ever demanded wages as per the Minimum Wages Act. The Reference made by the Appropriate Government is also not for adjudication of any demand relating to payment of wages as per the Minimum Wages Act. Thus, the Industrial Court was expected to adjudicate the demand for ad-hoc rise in basic wages at the rate of Rs.800/- for first year, Rs.600/- for second year and Rs.500/- for third year. The Industrial Court accordingly proceeded to adjudicate the said demand but held as under:
“Due to lack of evidence, I am unable to assess what was the salary and what was the difference in wages from the year 2009 to the year 2011.”
23. By recording the above findings, the Industrial Court has not adjudicated as to whether the demand for ad-hoc rise in the basic wages at the rate of Rs.800/- for first year, Rs.600/- for second year and Rs.500/- for third year was grantable or not. However, it suddenly took a turn and proceeded to determine whether the wages paid by the Petitioner were in conformity with the provisions of the Minimum Wages Act. It has recorded following findings in paras-17 to 20 :
"17. From the above admission, it is clear that First Party is Paying only for the present days, if total working days in a month is considered to be 25 the maximum salary will be Rs.7,000/- to Rs.12,500/-. The same is certainly less than the minimum wages prescribed under the Minimum Wages Act. Same witness has admitted in his cross examination that workers names at Sr. No. 3 is a driver and Sr. No. 1 & 2 are the general workers and worker at Sr. No. 10 is the security guards, workers at Sr. No. 5 to 9 are the general workers doing packing and assortment and the workers at Sr. No. 11 to 20 are doing work of packing. Thus, work performed by workers at Sr. No. 11 to 2o is not much different then the work performed by workers at Sr. No. 5 to 9. Merely because they are not the male employees, they doesn't deserves less salary than the others. First Party has filed to follow the principle of equal pay for equal work. There is not reason to discriminate between the male and employees.
18. In the present matter for showing above disparity, Ld. Advocate for the Second Party has pointed my attention towards the nature work being performed by workers in the First Party undertaking. Undisputedly, the use of machinery involved in the First Party undertaking. The First Party has admitted that prior to the year 2015, the dough used for making papads was produced at Kandivali factory. For this purpose, First Party was using mixer grinder and said dough was sent to 6 different centres in and around Mumbai. Said dough was further distributed to the ladies who used to take the same at their home to prepare papads and submitted the same to the First Party on next day. Thereafter, rolled and dried papads were again collected from those ladies and sent for weight, pack and distribution. Packing is certainly done on machine Even vehicles are also used, there are drivers, packing and loading workers with the First Party. Under these circumstances, when I perused Schedule-I of Minimum Wages Act, the First Party Undertaking falls under the category of factory under Factories Act (Residuary). As per Minimum Wages Act, basic wages in the year 2011 was Rs.5,500/- for skilled and Rs.4,500/- for unskilled workers, At that time the Special Allowance (Dearness Allowance) for Mumbai was Rs.1,060.50. Thus, salary of the skilled workers in the year as per Minimum Wages Act was about 6,560.50/- and for unskilled workers was Rs.5,560.50/-. Whereas, from the chart given by First Party maximum salary of the employee was Rs.7,375/- and minimum salary was Rs.3,000/-(presuming 25 working days). Thus, even though the women workers are presumed to be unskilled then also their salary is much less than the Minimum Wages Act.
19. The employees are certainly entitled for minimum Wages as prescribed by Minimum Wages Act. In the present matter, Ld. Advocate for Second Party relied upon following judgment.-
Kamani Metals & Alloys Ltd. vs. Workmen (1967-2-SCR-463 SC)
"It is held that broadly speaking the first principle is that there is a minimum wage which, in any event, must be paid, irrespective of the tent of profits, the financial condition of the establishment or the availability of workmen on lower wages., This minimum wage is independent of the kind of industry and applies to all alike big or small. It sets the lowest limit below which wages cannot be allowed to sink in all humanity. The second principle is that wages must be fair, that is to say, sufficiently high to provide a standard family with food, shelter, clothing, medical care and education of children appropriate to the workman but not at a rate exceeding his wage earning capacity in the class of establishment to which he belongs. A fair wage is thus related to the earning capacity and the workload. It' must, however, be realised that 'fair wage' is not living wage' by which is meant a wage which is sufficient to provide not only the essentials above-mentioned but a fair measure of frugal comfort with an ability to provide for old age and evil days. Fair wage lies between the minimum wage, which must be paid in any event, and the living wage, which is the goal. As time passes and prices rise, even the fair wage fixed for the time being tends to sag downwards and then a revision is necessary."
20. Thus, on the basis of ratio laid down in above matters, the employees are certainly entitled for minimum wages and equal pay for equal work. Therefore, employees at Sr. 11 to 21 be paid at par with the workers at Sr. No. 5 to 9 in the list given at Exh. C-19 w.e.f. from 2011. In addition to this, if at all employees are getting less than minimum wages, First Party is bound to pay the wages as Minimum Wages Act. It is made clear that if the present salary is more than minimum wages as prescribed under Minimum Wages Act the same shall not be reduced."
24. Thus, despite not being called upon to adjudicate the issue of wages as per the Minimum Wages Act, the Industrial Court unnecessarily ventured into the said aspect and held that the Petitioner is bound to pay wages as per the Minimum Wages Act.
25. Mr. Pai has strenuously contended that in absence of demand, reference, issue and evidence, it was not open for the Industrial Court to make an adjudication. He has placed reliance on the Judgment of the Apex Court in Sindhu Resettlement Corporation Ltd. (supra). In para-4 the Apex Court has held as under:
"4. The second ground urged on behalf of the appellant is that, in this case, no dispute relating to reinstatement was actually raised either by Respondent 2 or Respondent 3 before the reference was made to the Industrial Tribunal by the Government of Gujarat and, consequently, that reference itself was without jurisdiction. When Mr A.K. Sen, counsel for the appellant, raised this ground, it was urged by Mr Gopalakrishnan on behalf of the respondents that this ground was being taken for the first time in this Court and had not been raised at any earlier stage, so that it should not be allowed to be taken in this Court. It, however, appears that the question of jurisdiction of the State Government to refer the demand for reinstatement for adjudication to the Tribunal was specifically urged in the High Court and the High Court actually dealt with it in its judgment, dismissing the petition filed on behalf of the appellant. The High Court clearly mentions that the counsel for the appellant contended that the Industrial Tribunal had no jurisdiction as the question referred to it and which it was called upon to adjudicate relating to reinstatement of Respondent 3 in the service of the Corporation would not fall within the scope of Item 3 in the Second Schedule to the Industrial Disputes Act, 1947. It was further urged that, since the third respondent was neither discharged nor dismissed by the appellant, the question of relief of reinstatement would not arise under that item and, there being no item under which the demand would fall, the State Government had no jurisdiction to refer such a demand for adjudication to the Tribunal."
26. In Delhi Cloth & General Mills Co. Ltd. (supra), the Apex Court held in paras-21 and 22 as under:
"21. From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word "incidental" means according to Webster's New World Dictionary:
"happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated:"
"Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct. In the light of the above, it would appear that the third issue was framed on the basis that there was a strike and there was a lockout and it was for the Industrial Tribunal to examine the facts and circumstances leading to the strike and the lockout and to come to a decision as to whether one or the other or both were justified. On the issue as framed it would not be open to the workmen to question the existence of the strike, or, to the Management to deny the declaration of a lockout. The parties were to be allowed to lead evidence to show that the strike was not justified or that the lockout was improper. The third issue has sub-issue, namely, if the lockout was not legal, whether the workmen were entitled to wages for the period of the lockout. Similarly, the fourth issue proceeds on the basis that there was a sit-down-strike in the Swatantra Bharat Mills on 23-2-1966 and the question referred was as to the propriety or legality of the same. It was not for any of the Unions to contend on the issues as framed that there was no sit-down strike. On their success on the plea of justification of the sitdown strike depended their claim to wages for the period of the strike.
22. Apart from the consideration of the various decisions cited at the Bar, the above is the view which we would take with regard to Issues 3 and 4. We have now to examine the decisions cited and the arguments raised and see whether it was competent to the Tribunal to go into the question as to whether there was a strike at all at the Delhi Cloth Mills or a sit-down strike at the Swatantra Bharat Mills or a lockout declare by the Management on 24-2-1966."
27. In Pottery Mazdoor Panchayat (supra), the Apex Court has reiterated that Tribunal cannot go beyond the terms of Reference made under Section 10(1)(d) of the Industrial Disputes Act. The Court held in paras-11 and 15 as under :
"11. Having heard a closely thought out argument made by Mr Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent's decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management.
15. The appellant's counsel also drew our attention to the definition of "closure" in Section 2(8) of the State Act according to which "closure" to the extent material, means the closing of any place or part of a place of employment or the total or partial Suspension of work by an employer or the total or partial refusal by an employer to continue to employ persons employed by him whether such closing, suspension or refusal is or is not in consequence of an industrial dispute. It may perhaps be that the concept of "closure" in the State Act is wider than what is commonly understood by that expression but we do not appreciate how the circumstance that even a partial closure of a business is closure within the meaning of the State Act can assist the appellant in its contention that under the terms of the present references, the Tribunals were entitled to enter into the question as to the fact of the closure. In this connection the provisions of Section 82 of the State Act, to which Mr Tarkunde appearing on behalf of the respondent drew our attention, are very significant. That section provides that the State Government may make a reference to a Labour Court or the Industrial court for a declaration whether any proposed strike, lock-out, closure stoppage will be illegal. If ever it was the case of the appellant that there was in fact no closure and there was really an illegal lock out, the reference would have been asked for and made not under Section 51 under which it was made, but under Section 82."
28. Thus, it is settled law that the Industrial Court cannot travel beyond the scope of reference made under the provisions of Section 10(1)(d) of the Industrial Disputes Act. In the present case, no reference was made to the Industrial court as to whether Respondent is paying wages as per the Minimum Wages Act or not. Such reference was rightly not made on account of no demand being raised to that effect by the Respondent-Union. Such demand was consciously not raised as the same was pending adjudication in Complaint (ULP) No. 593 of 2008. Therefore, in absence of any demand and reference, there was no question of framing of any issue or leading evidence by the parties on the said aspect. It is also Petitioner’s case that it has been paying wages as per the Minimum Wages Act. However, no opportunity was provided to the Petitioner to prove such defence.
29. In my view therefore, adjudication of something which does not form part of Reference could not have been undertaken by the Industrial Court. Therefore, direction for payment of wages as per Minimum Wages Act issued by the Industrial Court suffers from serious infirmity.
30. There is yet another ground why the direction qua Demand no.1 deserves to be set aside. Respondent-Union has unsuccessfully fought litigation with regard to their grievance for their wages as per the Minimum Wages Act in Complaint (ULP) No. 593 of 2008. One of the facets of unfair labour practices pleaded by the Respondent-Union in the said complaint was failure on the part of the Petitioner to pay wages as per the Minimum Wages Act. This is clear from the observations in para 17 of the Judgment and Order dated 20 September 2013 which reads thus :
"17. Further it is alleged that the Respondents have not paid minimum wages as per the Minimum Wages Act. The Respondents have not maintained the attendance register, not issued pay-slips and job card and thereby contravened the mandatory provisions of labour laws and thereby committed unfair labour practice under item 9 of Sch.IV of the Act."
31. The issue of payment of wages as per Minimum Wages Act came to be adjudicated by the Industrial Court and the said demand is rejected by holding in paras 28 and 29 as under.
"28. It is one of the contention of the Complainant Union that its members are not paid minimum wages, as declared by the Government of Maharashtra. It is also claimed that the Respondent Industry falls under "Residuary" Industry and the minimum wages declared by the Government of Maharashtra for the residuary industry is applicable to the employees employed by the Respondents Infact in the Complaint, there is no specific assersion to that effect. In the entire Complaint, nowhere it is stated by the Complainant as to what is the rate of minimum wages to which the concerned employees are entitled to and further as to what actually they were paid and what is the exact difference. Nothing is asserted by the Complainant. However, by filing certain charts alongwith Exh. U-30 and U-34, attempt is made to point out that the concerned employees are entitled for difference. Shri Abraham Mathew, Ld. Advocate for the Respondents,however submitted that since these statements are not part of the pleadings in the Complaint, the submission of the Complainant cannot be accepted.In support of this submission, Shri Abraham Mathew. Ld. Advocate for the Respondents relied upon the case of Kalyan Singh Chouhan v/s. C.P. Joshi, reported in AIR 2011 Supreme Court 1127 (SC).The Hon'ble Apex Court in para No.17 of this case, observed thus-
"17. This court in Ram Sarup Gupta (dead) by LRs V. Bishun Narain Inter-College & Ors. AIR 1987 SC 1242 [LQ/SC/1987/362] held as under:-
“It is well settled that in the absence of pleading, evidence, if any produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet--------In such case it is the duty of the court to ascertain the substance of the pleadings to determine the question".
29. In view of this legal provision and in view of the admitted fact that there is no specific assertion in the in the Main Complaint, whatever submitted by the Complainant by way of calculation statement cannot be accepted. Hence, it is has no meaning at all. Consequently it cannot be accepted that the Respondents have failed to pay minimum wages to the workers, as declared by the Government of Maharashtra. Thus, it cannot be said that there is unfair labour practice on the part of the Respondents under item 9 of Sch. IV of the Act."
32. As a matter of fact, the Charter of Demand dated 4 May 2009 was raised shortly after filing of Complaint (ULP) No. 593 of 2008. Since the complaint was pending, the Respondent-Union did not raise demand for payment of wages as per the Minimum Wages Act in the Charter. Their grievance with regard to payment of wages as per the Minimum Wages Act has been raised and rejected by the Industrial Court by its Judgment and Order dated 20 September 2013. Therefore, it is questionable as to whether the very same demand would be considered in reference pending in Complaint (ULP) NO. 593 of 2008.
33. The net effect of the impugned award dated 11 June 2019 (as clarified on 12 November 2020) is that during the overlapping period from 10 October 2011 to 20 September 2013, there are conflicting Orders of the Industrial Court. The demand for payment of wages as per the Minimum Wages Act is rejected by Judgment and Order dated 20 September 2013, which would apply ateast till 20 September 2013. However the impugned judgment directs payment of wages during the period 10 November 2011 to 20 September 2013. This is yet another reason why the impugned direction for payment of wages as per the Minimum Wages Act deserves to be set aside.
34. In my view, since the Industrial Court ought not to have entertained the issue of payment of wages as per the Minimum Wages Act, it is not necessary to go into the reasons as to whether such direction is justified on merits or not. Reliance of Mr. Shivdasani on the judgment of the Apex Court in Kamani Metals and Alloys Ltd. (supra) would not cut any ice. No doubt, the Apex Court has held in that judgment that minimum wages must be paid irrespective of extent of profits or financial condition of establishment. The unique facts in the present case are that the very prayer of the Respondent-Union has been adjudicated and rejected in Complaint (ULP) No. 593 of 2008.
35. Coming to the correctness of the direction for payment of Educational Allowance at the rate of Rs.6,000/- per year, it is seen that the demand of the Respondent-Union was for payment of Educational Allowance at the rate of Rs.1200/- per month (Rs.14,400/- per year). Though Mr. Pai has sought to contend that the Industrial Court has issued a blanket direction for payment of Educational Allowance to every workman irrespective of whether he/she has school going children or not, it is seen that the Petitioner has been paying Educational Allowance to every workman albeit at lower rate of Rs.2,000/- per year. Therefore, what is directed by the Industrial Court is mere rise in the said amount. Since the Petitioner pays Educational Allowance to each workman irrespective of the fact whether his/her children go to school or not, no grievance in that regard can be made about the direction of the Industrial Court. So far as the quantum of allowance is concerned, I do not find any serious infirmity in the enhancing the quantum of Rs. 2,000/- to Rs.6,000/- made by the Industrial Court considering the rate of inflation. I therefore do not find any reason to interfere in the said direction of the Industrial Court.
36. I accordingly proceed to pass the following Order :
"(i) The Award dated 11 June 2019 passed by the Industrial Court, Mumbai in Reference (IT) No. 26 of 2011 is partly set aside only to the extent of Demand No.1, i.e., direction to pay wages as per the Minimum Wages Act w.e.f 10 October 2011.
(ii) Rest of the directions in the Award are upheld.
(iii) It would be open for the Respondent-Union to raise a fresh demand for payment of wages as per the Minimum Wages Act and seek its adjudication as per the provisions of law."
37. With the above directions, the petition is partly allowed. Rule is made partly absolute.
