Birla Cotton Spinning & Weaving Mills v. Workmen and Others

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 104 of 11J56. Appeal by special leave from the Award dated December 29, 195a of the Industrial Tribunal, Delhi in I. D. No. 36 of 1957 published in the Delhi Gazette dated 5th Mn.rch, 1959. G. B. Pai and J. N. Shroff, for the A~pellant. M. K. Ramamurthi, R. K. Garg, S. C, Agarwala and D. P. Singh, for the Respondent 1. 1962. May 2. The Judgement of the Court wa.e delivtired by WANcHoo, J.-This appeal by specia.1 lea.ve a.rises out of an industrial dispute between the Birla Cotton Spinning and Weaving Mills Limited (hereinafter called the appellant) and its workmen. A large number of matters were referred for adjudication to the industrial tribunal but in the present appeal we are concerned with two, namely, (i) whether the wages require to be increa.eed and standardised, and what directions are neoess&ry in this respect, a.nd (ii) whether a.ny of the workmen doing the work of fancy jobbers should be designated a.nd paid accordingly.

The first point has however been confined to mistries and line jobbers only as the other operatives were covered by another award in another reference (No.I.D. 52 of 1957) bet· ween the same parties, which wa.e decided earlier by this tribunal. That award came in appeal this Court and the decision of this Court is reported in The Management of Birla Cotton Spinning and W eatJ- ing Milla Ltd.. v. Its workmen ·(1). Thie court had set aside the earlier award and sent the case back to the tribunal to prO<'.eed in the manner indicated in the judgment. We a.re told that that matter ha.e ended in a compromise between the parties. The claim of the workmen concerned in the present (I) AJ.R, (l961) S.C. 11711. y reference (namely, mistries and · linejobbers) was that their wages were low and not standardised and in spite of representations made to the appellant, nothing had been done in the matter.

The workmen therefore claimed that the wages should be increased and standardised and incremental pay scales should be introduced so far as mistries and line jobbers, were concerned. As to fancy jobbers the workmen's claim wali that they had been wrongly designated recently as aBBistant fancy jobbers, though they were doing the job of fancy jobbers. It was therefore contended that they should be designated as fancy jobbers and their pay also increased and standardised accordingly. The appellant resisted the claim on a number of grounds. It was contended firstly that there was an earlier award in 1951 made by Shri Dulat, which was still in force and therefore the reference was incompetent. Next it was contended that there was no comparison between the Swatantra Bharat Mills and the Delhi Cloth Mills on the one hand and the appellant-mills on the other and therefore the wages prevalent in those mills could not be taken as a standard for fixing wages for the appellant's workmen.

Thirdly, it was urged that incremental scales were provided now]iere in the textile industry and therefore·• this claim should be rejected. Fourthly, the workmen designated as assistant fancy jobbers had been so designated rightly aI!d could not claim to be fancy jobbers. And lastly, it was urged that there was no. case for applying the Bombay standardisation scheme. to the appellant's workmen for conditions in Bombay and Delhi were in many respect different. ' The tribunal rejected the contention that t11e Dulat award of 1951 had not been terminated and therefore the present reference was incompetent~ The tribunal further held that though there were difference between the Swatantra Bharat Mills and B irlo C.ll011 Sit• • Wr1t· Jl.i"ll• Wotbn1n WonelrooJ. B;.la Cotlon Spg • .e l,,g.

MiUs W0t"en 720 SUPREME COURT REPORTB [1983) the Delhi Cloth Mille on tile one hand and the appellant on the other, both in the matter of the ' working of the mills and in the matter of their financial position, they were not of importance &11 there were bound to be differences between unit and unit of the same industry a.nd thus the wages pa.id in those two mills were comparable. As to tbe claim for increm ~ntal scale of wages, the tribunal held that no incremental scale . had been provided in any standardisation scheme 1elating to textile industry and rejected this claim. It further he Id • that the workmen now designated as &BBistant fancy jobbers were really fancy jobbers and had been previoa.sly designated as such. Recently, however, they started to be ca.lied assistant fancy jobbers and therefore it was ordered that they should be designated as fancy jobbers.

And lastly, the tribunal following its earlier award referred to above held that the Bombay standardisation scheme should be adopted for miatries and line jobbers &11 well as . fancy jobbers. It also directed that "wherever the ea.id existing wages are higher than those fixed under the Bombay Standardisation Scheme, they shall remain and shall not be lowered".

It also directe<l. that where operatives were designated by any other name, either not included in the Bombay list or materially different from the one appearing in the list, they should be paid the ea.me wa.ires as those doing identical work according to the Bombay list and a joint . committee consisting of the representatives of the management and the union might be formed to investigate the anomalies, a.rising out of the applioation of the Bombay standardisation echeme, and in "Case of disagreement the matter might be referred to the industrial tribunal either through a regnlar reference made with mutual consent or ae an arbitrator mutually agreed upon. r SUPREME COURT RE.PORTS The appellant. challenges the award and its main contentions are -· (i) that the. reference was incompetent as the Dulat award of 1951 had not been terminated; (ii) · that the tribunal was wrong in holding that the assistant fancy jobbers should be designated as fancy jobbers; (iii) (iv) Re. (i). that the tribunal was wrong in applying the Bombay standardiBation · scheme to the. appellant's workmen without allow· ing the appellant even a chance of producing ·.evidence with respect to that scheme and showing the difference bet· ween the conditions in Bombay and the conditions in Delhi, which would require modification of that scheme in its application to the appellant's workmen; that the tribunal by directing the appointment of a joint committee to investigate the anomalies had not solved the dispute referred t6 it with the result that there would, be further disputes arising out of this dir.ection of the tribunal; and that· the tribunal's direction that "wherever the ea.in existing jWages are higher than those fixed under the Bombay standardisation scheme, they ·~hall :.remain, and shall not be lowered" is against the principle on which the standar<fisation schemes are· based.

The question whether the 1951 stood iii the way of the .. j Dnlat award of present reference· Birla Cotton Spg.· • Wt'g, Mi/l.r Wurlmtn Wanchoo I. lflS Bir/a Oo11<0 BH. "1 Wt:11. Milli Wor.tmen SUPREME OOURT REPORTS (1963) being oompet11nt was considered by this Court in the earlier O&Se (referred to above) and was rejected. ' It w&e then pointed out that the Dul&t award had held that there .w&B no justification for delaying standardia&tion and haa ordered the parties to work out & eoheme taking the Bombay award No. l && the working model. In pursuance of that direction, & eoheme was worked out and the parties agreed to it on September 29, 1951. It wa.s urged for the appellant that the agreed eoheme of September 1951 thus became in & sense a part of the - Dul&t &ward and as it w&e terminated only in November 1956, while the present referenoe was made on March 3, 1956, that award st,ood in the way of the present reference being competent.

This contention w&e negatived by this Court in its earlier jud~ment on two grounds. In the first place, it was pointed out that this agreement could not be a part of the Dulat award in any sense and therefore the Dul&t award could not stand in the way of the oompetenoe of the referenoe even if it was not terminated before the reference. In the second y plaoe, it was pointed that the agreement of 1951 did not a.mount to a settlement within the meaning of a. 2 (p) of the Industrial Dispute& Aot, 1947, aa it stood in 1951, and therefore s. 19 (2) would not apply to that agreement. We were of opinion that on the 11&111e reasoning the present argument that the reference when it W&B made was incompetent beO&uee of the Dulat award being still in force, must fail and the contention on this head ' ie rejected. Re. (ii).

We &re of op1D1on th&t the tribunal w&11 zight in holding that It was only shortly before the reference that thoae workmen who used to be called fanoy jobbers began to be designated aa &llllistant fanoy jobbers. The tribunal hae considered the entire evidence on this point and we are in agreement .witli the view expressed by it, namely, that the assistant fancy jobbers should be designated as fancy jobbers as before and the recent innovation calling them assistant fancy jobbers was only a device to depress the status of this class of workmen. The contention therefore on. this head must also fail •. Re. (iii) It appears that the tribunal merely followed its earlier award in ID 52 of 1957 when it proce&- ded to apply the Bombay standardiS&tion scheme to mistries and line jobbers as well as fancy jobbers. That award, as we have pointed out, was set aside by this Court in the earlier judgment on various grounds.

It is not necessary for us to repeat the reasons which impelled this Court in the earlier appeal to set aside the award in ID 52 of 1957. Those reasons in our opinion apply with full force to the present award also. in so far as it introduces the Bombay standardisation scheme for the workmen concerned in the present dispute. In addition we may point out that the appellant wanted to produce evidence with respect to the Bo!Dbay standardisation soheme and to summon two witnesses from Bombay. and Kanpur with respect to the working of that scheme; bot the tribunal by its order · dated January 6, 1958, held that it was not necess· ary to examine those witnesses in view of the con· ditions obtaining in Delhi, the region with which it was concerned.

But even though the tn'bunal thus refused to examine ·evidence with respect to the· working of the Bombay standardisation scheme it went on ~ the adopt that scheme in its entirety without . any modification when it came to make its award, in view of its earlier award. We are of opinion that it · was not fair for the tribunal to shut out evidence with respect ·to the working of the Bombay staridardisation l)oheme which the'app· ellant wanted to produce and then apply .Jhat 11162 Birla Coffo• 8pg. d W•g.Mlll• WOf'kmen 1962 - Birla U 1t1W1 ~/Jg, cf, Wog .• ilit/1 Wo1km,n WanchooJ. SUPREME OOURT REPORTS [1963] scheme without any modification to the appellantmill. Another reaaon which impelled the tribunal to apply the Bombay etandardiea.t.ion ecLeme in this case waa stated by it to ho that the eoheme was applicable to this claBB of workmen in the Dolhi Cloth Mills and the Swatantra Bharat Mills.

Thie statement in our opinion is not borne out by thtt evidenoe of the two witneBBes produced by the workmen from those two mille. Manobarlal (W.W. 19), a labour officer of the Bharat Mille, WRI eirn.mined in this connection. He stated that for workttrs the Swatantra Bharat Mills had followed the Bombay standardisation scheme in the matter of payment of wages on voluntary basis but not fo• mietries and jobbers. This statement was apparently treat.ed by the t.ribunal &11 meaning that th" Bomhay standardisation scheme was applicable ·to mistri .. s and jobbers though Manohar Lal stated ex,,ct.ly the oppnsite. It is true that Mauoharlal stated that for certain categories of mistrice and jobbers the Swatautra Bharat Mille paid more than th" Bombay standardisation scheme gave to rnch categories; Lut that does not mean that the Bombay standardisation scheme as such was applicable to Rli mistriea and jobbers in the "watantra Bharat Mills. The second witne.ss was B. L. Saxena, the labour offioer. in the Delhi Cloth Mille.

He stated that the wages of line jobbers and mistries were more in certain oases and in some cases at par with the wages in the Bombay standardisation scheme. But he also stated that the line jobbers and mistries in the Delhi Cloth Mille had not been brought under the Bombay standardisation scheme. It appears from the evidence of both these witnesee1 that th.,re is no fixed grade for mistries and jobbers and each one gets what may be called his own pay. Ther~fore in some caees the pay whioh a jobber or a mistry gets may be higher or may be v equal to the wages in the standardisation scheme. But this does not mean that the Bombay standardi· sation scheme as suoh has been applied to mistries and jobbers in the other two mills in Delhi. The tribunal was therefore wrong even on a comparison of the other two mills in Delhi to hold that the Bombay standardisation scheme should be applied to the appellant·mills also.

The tribunal's award with respect to fanoy jobbers would also show how the mRnner in which the tribunal dealt with the application 'of the Bombay standardisation scheme to the appellantmills has resulted in unfairness. After having rightly held that the assistant -Canoy jobbers should be designated as Canoy jobbers, the tribunal went on to award that the fancy jobbers so designated should be paid according to the Bombay stand!Lrdi. sation scheme without apparently examining that scheme. A copy of that scheme has been produced before us and it shows that the Bombay scheme envisages three categories of workers in what is called Canoy work, namely, head fancy jobber, fancy jobber and assistant fancy jobbers.

Therefore before the tribunal decided to apply the Bombay standardisation scheme it was neoeBBary to compare the work done by the fanoy jobbers in the appellant. mills with the work done by either the fanoy jobber or assistant fanoy jobber in the Bombay standardisation scheme and then decide whether they would come under the designation of fan"oy jobbers or aBSistant fancy jobbers under the Bombay standardi~ sation scheme or some under one and some under the other. We are therefore of opinion that the manner in which the case has been dealt with by the tribunal show, as was pointed out in - the earlier case also, that it was dealt with in a ever fnnctory way, though in this case the tribunal had the exou8e to follow its own award in the earlier case. We are Bir la C1 tton Yp1. C Wvg. MUls Watkm"n Wanch .. J. I9dl Bir/a 0,·1<m S/Jf. c6 Wo1. \/ill• w .. """.

W01rthoo J. however of opinion that if the Bombay standardisation scheme is tn be applied to the appellantmille with respect to the workmen concerned in the pres-•nt appeal, the tribuna.I should go into the matter. carefully again on the lines indicated by this Court in its earlier judgmept and then decide whether the Bombay standardisation scheme as a whole should be applied to the appellant-mills with respect to the workmen concerned in the present dispute or whether there should be any modification of that scheme in view of differences between the conditions in Bombay and the conditions in Delhi. This applies to all the workmen concerned in this appeal, i. e. the line jobbers, mistrieR and fancy jobbers. We are therefore of opinion that this appoo-1 must be allowed and the <'.880 sent back to the tribunal for reconsideration on the lines indicated above and in aC'cordance with the earlier judgment of this Court. Re. (iv).

As to the direction by the tribunal that a joint committee should be appointed to go into what is call"d anomalies, it is enough to refer to what was said by this Court in the earlier judjlillent where a similar direction had been made. It wa.s point.-d out there that l!y making the direction the tribunal had left a part of the dispute to be resolved by the parties themselves, so that the tribunal had not done what it was expected to do itself under the terms of referenoe. We set aside this direction and order that the tribunal should go into this matter itself with the assistance of assessors, if it considers that necessary, before it applies the Bombay standardisation scheme either in its entirety or with modification to the workmen concerned in the appellant-mills. Re. (v). This brings us to the last point.

The direction in the present award by the tribunal is that 2 s.c.R. '•wherever the said existing wages are higher than those fixed under the Bombay standardisation soheme, they shall remain, and shall not be lowered''. Objeotion is ta.ken to this direction by the appellant. There was a similar direction in the earlier award also and in that conneotion this Court observed as follows at p. ll82 :- "It cannot be disputed that when a stand· ardisation soheme oomes into force it is an illtegrated whole and may sometime result in some categories of. workmen getting l~ss than what they were getting before. The whole purpose of a standardisation scheme is to standardise wages and where they are low to raise them to the standardised level. Similarly where the wages are high they have to be reduced in order to fit them in the stand· ardised scheme.

The tribunal therefore was olea.rly wrong in aoting against the basic principle of a standardised soheme when it order· ed that the wages should be increased according to the standardised scheme where they were low but should not be Jecreased where they were high. This principle of standard· isation is clear and even the learned counsel for the workmen had to admit it." It is urged on behalf of the respondents that these observations are liable to be misunderstood and may give rise to the impression that it is not open to a tribunal to proteot the wages of individual workmen who may be getting more than the wages fixed under the standardisation scheme, at the time when such a scheme comes into force.

The respondents do not dispute that the liasic principal behind the standardisation scheme is what has been stated by this Court; but they contend that though after a standardisation scheme ha.a beon brought into force it may not be open Bir/a Cotton r:pg. d:J Wvg Milli Workmen Wanchoo J. irla Cotton Sf't· &:: Wot· Mills Workmen WancluJo J. SUPRF.ME COURT REPORTS (1963] even to the management to give more wages than those provided in the standardisation scheme, that principal does not require neceBBB.ri!y that the wages of individuals who might be drawing more at the date the standardisation scheme comes into force should also be reduced and should not be protected for those individuals only.

It is urged that it is open to the tribunal to protect the wages of such workmen who might he drawing more than the wages fixed in the standardisation scheme, though it may not be open to the management after · the standardisation scheme comes into force to pay more wage~ than fixed in the standardisation scheme to any one employed thereafter. On the other hand, it is contended for the appellant that when a standardisation soheme C'omes into force even the wages of individuals who. are getting more than what is provided in the standardisation scheme must be reduced and the tribunal cannot protect the wages even of such individuals. Reliance in this connection has been placed on behalf of the appellant on Daru v. Ahmedabad Spinning and Manufacturi7111 Company limited. (I) In that oase the principles governing a standardisation scheme were considered by the Bombay High Court considering the report of the Textile Labour Inquiry Committee and also the book of Dr. D. R. Gadgil on "ltegulation of wages and other Problems of Industrial Labuur in India''.

It was pointed out that when in an industry divergent wages were being paid and there was considerable difforence between the top wage and the lowest wage, it was very difficult to standardise these wages and therefore the first thing to be done was to fix a minimum wage which is generally somewhere between the top and bottom; but where wages in a particular occupation are not very divergent and are more or ·Iese uniform, that is (I) (19l5) I L. L. Cl. 555, 1 the time and the stage when a labour: tribunal may well Htandardise those wages because in standardising them although it may result in some workers being paid less than what they are being paid, the loss to them would not be considerable and if it is in the interest of labour that all workers should be paid the same wages who are doing the same work then the standardisation would result in benefit to the cause of labour.

There can be no dispute as to the validity of these principles and their soundness will be clear from the facts of that case. In that case a standardisation scheme had been brought into force in 1948. ·In 1951, one of the mills governed 1 by the standardisation scheme introduced a new section the wages in which were covered by the standar· disation scheme. However, the wages in the new section fixed by the said mill were higher than those fixed by the standardisation scheme. Later in 1953, the mills gave notice to the workmen reducing the wages fixed in · 1951 so as to conform to the wages laid down in the standardisation scheme. This was objected to by the workmen whose wages were reduced and that is how the dispute arose.

The High Court held in those circumstances that in view of the fact that the standardisation scheme was in force from 1948, it was not 'open to the employer to, give higher wages than those fixed in the standardisation scheme in 1951 because it was of the essence of the standardisation scheme that the wages for the· same work should be equal and that where higher wages had been paid than those fixed in the standardisation scheme. they should be reduced to that level. That case however· was not concerned with. protection of the wages of individuals who might be getting more than what is provided in the st&nda.rdisation scheme at the . time when it is Birla Cotton Spg. &: Wog.Mills Workmen WanchooJ. 1'62 airla Catton Spg. & Wii1. MitU War.bnm brought into force. It is in this context that the observations made by the High Court have to be understood and in that context tho observations laying down the principles behind a standardisation scheme &re, if we may say so with respect, sound.

It is however urged on behalf of the respondents that tho protection given by the tribune.I in this oe.se is no more than prote<:tion for individual workmen who may be getting more wages than those fixed in the standardisation scheme when it comes into force and this direction is correct, and that there is nothing in law which prevents the tribunal from giving such a direction for the protection of individuals who might be getting more wages at the time the standardisation scheme is brought into force. It seems to us that it would not be against the basic principle of standardisation to which this Court referred in the earlier case to protect the wages of individual workmen who might be getting more than the wages fixed in the standardisation scheme at the time when such a scheme is brought into force. It will be for the tribunal to deeide whether it will protect these individual workmen or not.

If it gives no direction for protection to individual workmen, they will not be protected and their wages will have to be lowered in case they a.re higher than those fixed in tho standardisation scheme. But if the tribune.I considers that it will be more in consonance with justice to protect the wages of individual workmen it may give a direction to that effect, even though they may be more than the wages fixed in the standardisation scheme. In such a case three conditions will always have to be borne in mind. In the first place, there oe.n be no further raising of the wages of these protected workmen by the management after the standardisation scheme comes into force, for any such further rise will he age.inst the principle of standardisation.

In the sooond l "fl/I ~· place, if the standardisation soheme fixes incremental sca\e of wages and ifthe ·protected workman is getting a wage which is between the minimum and the maximum and he is not entitled in accordance with the length of his service to that wage hut something lees in the grade, the extra amount that he may be getting will have to be absorbed in future increments till he is properly fitted in the incremental soale according to the length of service. ~ Thirdly, when any workman's service comes to an end for any reason whatsoever, no other employee whether new or old would be entitled to claim the pa.y which the outgoing employee was gettfog on the ground that a vacancy with that higher pay has arisen. :Subject to these three conditions it may be open to a tribun'l.l to proteot the wages of iridividual workmen even though he may be getting higher wages than those fixed in a sta.ndardisation scheme at the time when the ~cheme is iritroduced.

Now let us see what the tribunal has done in this matter. It directs that "wherever the said existing wages are higher than those fixed under the Bombay standardisation scheme, they shall remain, and shall not be lowered." This in our opinion is not protection of iridividual workmen but protection of wages, which may be higher than those fixed in the standardisation scheme. This in onr opinion cannot be done as it is' against the basic principles of a standardisation scheme 1\8 observed iri the earlier case. The result of this direction by the tribuna.I would be that a partioular post carrying with it higher wages will remain protected so that when the individual who may be getting that pay at the time the standardisation scheme comes into force is no more employed, the other workmen may be able to claim wages on the ground that the wages have. been protected. The proper way of giving proteotion, II the tribunal · thinks that justioe demands that individuals who 196!

Bi~la Cotton Sf;t. ct , WPg. A1ills Workmen &rla Cotton Spg. &.! W•g. Mills Workmen WonehotJ. SUPREME OOURT REPORTS [1963] are getting higher wages then those fixed under a standardisation scheme should be protected, is to direct that the wages of such individuals should be fixed according to the standardisation scheme, and the difference, if any, between their wages and the standardised wages .should be pa.id to them as personal pay so long as they are in service. As soon as such an individual goes out of service, another coming in his place will not be entitled to the personal pay the outgoing workman was getting, and will be fixed in the standardisation scheme. The direction however of the tribunal in this case is cr.pable of being read not for the protection of individuals but for the protection of wages, and this in our opinion cannot b_e done in view of the basic principles governing a standardisation scheme.

We are therefore of opinion that the dir~ction for tho protection of existing wages given in the form in which it has been given by the tribunal must be set aside. At the same time we leave it to the tribunal to . decide if it considers it just when the matter goes back to it for reconsideration whether individual workmen should be protected, even in case a etandardisation scheme ie introduced, in the manner we have indicated above. We therefore allow the appeal and set aside partly the order of the tribunal with respect to certain matters with which we have dealt in the course of this judgment and direct that the tribunal should re-hear the reference and re-consider in the light of this judgment and the earlier judgment what should be its award witp respect to mistries, line-jobbers and fancy jobbers in connection with t.he following term of reference : •·Whether the wages require to be increased and standardised, and what directions are necessary in this respect."

2 S.C . .B.. ~ Parties will be ·at liberty to lead suoh further evidence on all mir.tters sent back for reconsidera· tion as they· think fit. In the .oiroumstances we order parties to bear their own costs. _ Appeal allowed. THAKUR SUKHPAL~SINGH THAKUR KAtYAN SINGH (J. L. KAPUR, K. C. J?As GUPTA and RA.GHUBA.R DAYAL, JJ.) App.al-Appellant appearing at hearing but not addressing court-Diemiesal for default-Legality of-1f Court bound to decide appeal on merits after perusal of record-Befueal of adjournment-Interference by appellate court-Code of OivilProced• ure, 1908 (Art. V of 1908), 0. 41, rr. 16, 30, 31, 32. The appellant's appeal was listed for hearing before the · High Court four times during the course of about a year. On the last occasion the appellant"s counsel stated that he had no instructions. . The appellant who was present asked for an adjournment to arrange for the fees and to instruct another counsel.

The adjournment was refused and upon the appellant expressing inability to address the court the High Court dismissed the appeal for default. The appellant contended that the High Court was bound to dispose of the '( appeal on merits ort the material before it. Held, that. the High Court had the power to dismiss the appeal without considering .the merits. An appellate court was bound to consider only the submissions made by the appellant and if. no submissions were made by him, it was not bound to look tnto the record ; it could simply say that the appellant had not urged anything to show that the judgment and decree under appeal were wrong. . Mt. Fakrunisa v. Moulvi lzarue, A. I. R. 1921 P. C. 55. rehed on. Mathur11 Das v. Narain Das, I. L. R. 1940 All. 220, · approved. llJrJB Bfrla Couon Spg. &: W·vg. Mi1ls Woikmen' Wtinchoo J. 1B61 M•:! B.