IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11987 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ JIVRAJ MEHTA SMARAK HEALTH FOUNDATION BAKERI RESEARCH Petitioner(s) Versus AKHIL GUJARAT GENERAL MAZDOOR SANGH THRO GENERAL SECRETARY & 1 Respondent(s) ================================================================ Appearance:
MR PALAK H THAKKAR, ADVOCATE for the Petitioner(s) No. 1 MR AK CLERK, ADVOCATE for the Respondent(s) No. 1 MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/12/2012 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By this application under Article 227 of the Constitution of India, the petitioner has prayed for setting aside order dated July 19, 2012, passed by the Industrial Tribunal, Ahmedabad, below Exh.7 in Reference (I.T) No. 29 of 2012. By the said order, the Tribunal has granted interim relief of wage rise of Rs. 700 and Rs. 500 respectively from the date of application to those Class IV workers working with the Center, whose tenure of service is more than ten years and less than ten years respectively. The Tribunal further ordered the petitioner to pay costs of Rs. 2500 to the Union. The Tribunal also observed that the amount ordered would be adjusted against the amount that may be ordered in the final order while disposing of Reference I.T No. 29 of 2012 filed by the Union.
2. Being dissatisfied, the petitioner has come up with the present application under Article 227 of the Constitution of India.
3. The facts giving rise to the filing of the present writ- application may be summed up thus:
3.1 The petitioner Dr. Jivraj Mehta Smarak Health Foundation, Bakeri Research Medical Centre, is a Charitable Trust, registered under the Bombay Public Trusts Act, 1950. Thus, the petitioner is registered as a Society and a Public Charitable Trust, with effect from 29th November, 1983. It is the case of the petitioner that it runs the Hospital and the Research Centre without any profit motive. It is the case of the petitioner that the respondent No.1 Union submitted a charter of demand dated 27th June, 2011, demanding revision in wages, allowances and in respect of other conditions of service of Class IV employees working in the Centre of the petitioner. The petitioner gave reply to the said charter of demand on 22nd July, 2011. At the instance of the respondent No.1, the conciliation proceedings were initiated in respect of the charter of demand, which resulted in submission of a failure report.
3.2 The Commissioner of Labour, then by his order dated 27th February, 2012, made an order of Reference under Section 10 of the Industrial Disputes Act, 1947 (for short "the Act") to the Industrial Tribunal, Ahmedabad, referring the demands of the respondent No.1 Union for adjudication.
3.3 The Union filed statement of claim (Exh.6) in the Reference before the Industrial Tribunal. Along with the statement of claim, the Union also filed an application Exh.7 for interim relief, contending that there is no revision of pay- scale in respect of the workers. However, it was conceded on behalf of the workers that they were being paid minimum wages as per the Minimum Wages Act, 1948. The Union also contended that Special Allowance as declared by the State Government being paid to the workers is nothing in comparison to the Dearness Allowance being paid to the employees of the Central Government, State Government, Corporations, Banks etc. Thus, the Union, in the application, prayed to pay Rs. 1,200 and Rs. 1,000 from 1st January, 2012, to those workers whose tenure of service respectively is more than ten years and less than ten years.
3.4 The petitioner denied the allegations made in the application stating that the petitioner is a Charitable Trust and the Centre is run by the said Trust. The stand of the petitioner before the Tribunal was that the Centre is run from the donations received by the petitioner. The petitioner does not receive any grants from the State Government. The petitioner also contended before the Tribunal that the workers were paid more than the minimum wages. It was also contended before the Tribunal that in order to meet with the expenses, the amounts are collected from the patients and there is no profit motive. It is the case of the petitioner that since the petitioner is a Charitable Trust and the Centre is run only from the donations received by the petitioner, the petitioner will not be able to bear the financial burden, if the application is granted. Accordingly, the petitioner requested the Tribunal to reject the application.
3.5 The petitioner, by list of Exh.18, produced various documents such as statement showing the last wages paid to the workers, notices dated 8th May, 2012, 9th May, 2012, 10th May, 2012 and 11th May, 2012 placed on the Notice Board, asking the workers on strike to resume their duties. The petitioner by list of Exh.19 also produced various documents such as the State Government's Notification declaring the rate of minimum wages in respect of the employees employed in the Centre and Nursing Homes.
3.6 Ultimately, the Tribunal adjudicated the interim application and passed the impugned order. Being aggrieved and dissatisfied with the interim order dated 19th July, 2012, passed by the Tribunal, the petitioner has come up with this writ-application.
4. Stance of the respondent No.1 Union:
1. In an application under Article 227 of the Constitution of India, the Court cannot re-appreciate the evidence or interfere with the findings of fact recorded by the Labour Court, merely because a different view is possible. The interim order passed by the Labour Court is just, legal and proper and does not warrant any interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Since the petitioner challenges the award passed by the Industrial Tribunal below on the application for interim relief Exh.7 granting interim relief, the petition is not maintainable. No writ should be entertained against an interim order of the Labour Court, or the Industrial Tribunal. It is only when a final award is given, then a party should be allowed to challenge it, if he is aggrieved.
2. It is not in dispute that 84 Class IV employees, on whose behalf the dispute regarding wage revision was raised by the respondent, are paid only minimum wages according to the Minimum Wages Act, 1948, and no other benefits. The employes are not given any pay-scale or grade of pay. Some of the employees are working for more than 20 years and are still receiving only minimum wages. The respondent Union has justified its demand in the statement of claim by giving relevant facts, which have been duly taken into consideration by the Tribunal while passing the impugned interim order.
3. The Tribunal has found that the balance-sheet of the petitioner shows profit for the last five years. The Tribunal has also found that the honorarium and fees of the Doctors has increased substantially from the year 2006 to the year 2011. The cash and bank balance of the petitioner has also increased from year to year. It has also been found by the Industrial Tribunal, as a matter of fact, that the financial burden of the impugned order would be Rs. 1,20,000/- per month and Rs. 14,40,000/- per year, which the petitioner would be able to easily overcome as the income of the hospital after deducting expenses for the year 2011 is Rs. 1,22,58,212/- and for Health Care Unit it is Rs. 2,06,50,130/- and the cash and bank balance is Rs. 9,34,16,076/-.
4. Having regard to the findings of fact recorded by the Tribunal on the basis of documentary evidence on record, the impugned award granting interim relief of Rs. 700/- per month and Rs.500/- per month respectively does not warrant any interference by this Court.
5. It is also the case of the respondent No.1 Union that the petitioner has recently, given a contract to Messrs BVG India Limited, whereunder around 30 persons (10 persons in three shifts) are employed through contractor to do the same work as is being done by the Class IV employees. The petitioner has made a payment of total amount of Rs. 4,14,814.70 to Messrs BVG India Limited for the month of July, 2012. According to the respondent No.1, the rate of payment to employee per day is Rs. 295/-, which comes to Rs. 6,850/- per month, which is more than the wages paid to Class IV employees. This is suggestive of the fact that the petitioner is spending additional amount of Rs. 4 lac per month and can bear this financial burden while denying Rs. 1,20,000/- per month burden imposed by the impugned order.
6. The Tribunal has also found that the minimum wages of around Rs. 5,500/- per month is not sufficient to maintain a family of four persons when the inflation is so high and the prices of essential commodities are soaring. The Class IV employees are at the lowest rung of the establishment and they are working for minimum wages in these hard times without any other benefits whatsoever. The respondent No.1 has, therefore, prayed to dismiss the application.
5. Legal submissions on behalf of the petitioner:
1. Mr. Patel, the learned Senior Advocate appearing on behalf of the petitioner, has attacked the interim relief by contending that while passing such interim relief, the Tribunal below has failed to consider the total income of the petitioner. According to Mr. Patel, if the directions by way of interim relief granted by the Tribunal is implemented, it will exceed the total income of the petitioner, and thus, while passing such interim relief, the Tribunal below has failed to follow the well-accepted principles which are required to be followed in granting this type of interim relief. Mr. Patel points out from the auditor's report as well as the balance-sheets that having regard to the fact that for implementation of the interim order, the petitioner will become a losing concern, the Tribunal should not have passed such an interim order.
2. Mr. Patel also strenuously contended that people hailing from very poor strata of the society come for medical treatment at the hospital and the management has been charging very minimal fees from the patients compared to the charges payable in other hospitals in the town. Mr. Patel has also taken us through the chart giving a break up of the charges or fees levied by different hospitals in the city compared to those taken by the hospital run by the petitioner. According to Mr. Patel, if the interim order is allowed to be implemented, then employees of Class III, Class II and Class I will also raise the same demands and if the other employees of Class III, Class II and Class I are also to be given wage rise, then in such circumstances, the total financial burden on the hospital will be around Rs. 65,00,000/-lacs.
3. Mr. Patel submitted that the petitioner does not receive any financial help or grant from the State Government. In the circumstances, the Tribunal ought not to have considered the present case at par with the cases of industrial or commercial undertakings established for profit motive. It has been submitted that any additional burden imposed by way of interim relief will only lead to diversion of funds by the petitioner meant for cheaper and affordable medical services to the persons who are poor and who are unable to avail of medical facilities in other hospitals of the city. Mr. Patel also submitted that any claim for wages above minimum wages has to be justified on the basis of "industry-cum-region principle" and paying capacity of the employer. In other words, when the claim is for wages above minimum wages, the financial position and capacity of the employer to bear additional burden is the first and the foremost consideration. Mr. Patel also submitted that the balance sheet and profit and loss account for the year 2010-11 produced on record would indicate that there is an accumulated deficit of income over expenditure of Rs. 1,34,75,298/- as on 31.3.2011. The provisional figures according to the balance-sheet as on 31.3.2012 shows accumulated deficit of income over expenditure to the tune of Rs. 1,22,58,212/-. Mr. Patel also submitted that the cash surplus referred to by the Tribunal overlooks the fact that the petitioner, as a registered Charitable Trust engaged in the activities of Research and Medical Science, can, according to the provisions of the Income Tax Act, 1961, accumulate upto 15% of its gross income for the development of the object of the Trust. The said funds not exceeding 15% of the gross income, which can be set apart and utilised for development of the object of the Act, are required to be kept in fixed deposits in the Bank till its utilization.
4. Mr. Patel lastly submitted that the Tribunal committed serious error in coming to the conclusion that the financial burden would be hardly of Rs. 14,40,000/- per annum. According to Mr. Patel, any increase in wages even by way of interim relief of one class of employee (namely, Class IV employees numbering about 113) will have cascading effect on the wage structure of entire manpower establishment. Mr. Patel strenuously urged that if the wages of Class IV employees are increased, the petitioner will have to correspondingly increase wages of the Class III, Class II and other employees. There are in all 403 employees working with the petitioner. If the pro-rata increase in wage is to be given to all the employees on the basis of the order passed by the Tribunal in respect of Class IV employees, the total financial burden involved in such increase will be about Rs. 65 lac per annum.
5. Mr. Patel as well as Mr. Parikh, the learned Senior counsel appearing for the petitioner therefore, prayed to set aside the order passed by the Tribunal, or modify the same by reducing the wage rise accordingly.
6. Legal submissions on behalf of the respondent No.1 Union:
1. Mr. Abhilash Clerk, learned Advocate appearing on behalf of the employees - respondents, has, on the other hand, opposed the aforesaid contentions of Mr. Patel and has contended that the Tribunal has assigned cogent and convincing reasons while passing the interim order of wage rise and thereby has not committed any error, much less an error of law, warranting any interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
2. Mr. Clerk raised a preliminary objection as regards the maintainability of this petition on the ground that the petition should not be entertained against an interim order of the Industrial Tribunal. According to Mr. Clerk, it is only when a final award is given, that a party should be allowed to challenge it, if he is aggrieved. In support of his contention as regards the maintainability of this petition, Mr. Clerk has relied on a recent decision of the Supreme Court in the case of Dena Bank Vs. D.V. Kundadla, reported in 2012 Labour Law Reporter 115. Mr. Clerk also submitted that the Tribunal, on consideration of the entire materials on record, having passed an award which is interim in nature, and subject to adjustments at the time of final award, this Court, sitting in the jurisdiction under Article 227 of the Constitution of India, should not interfere as the award cannot, at any rate, be described as perverse or in violation of any law of the land. Mr. Clerk, therefore, prays for dismissal of the application.
3. Therefore, the only question that arises for determination in this application under Article 227 of the Constitution of India is whether the Tribunal below committed any error in passing the interim relief justifying interference under Article 227 of the Constitution of India.
7. Before we proceed to examine the matter on merits, we would like to deal with the preliminary objection raised by Mr. Clerk, the learned counsel appearing for the employees, as regards the maintainability of the present petition. Mr. Clerk has heavily relied upon the decision of the Supreme Court in the case of Dena Bank (supra), to fortify his submission that this petition is not maintainable as the same is against an interim order of the Industrial Tribunal.
8. We have gone through the judgment of the Supreme Court relied upon on behalf of the employees. The Supreme Court, in a very short order, has made the following observations.
"This Special Leave Petition has been filed against the impugned judgment of the Bombay High Court dated 2.1.2010 by which the Division Bench has upheld the order of the learned Single Judge. The learned Single Judge dismissed the writ petition filed by the petitioner herein challenging an interim order of the Central Government Industrial Tribunal No.1, Mumbai dated 28.5.1997.
2. It is well-settled by this Court that no writ should be entertained against an interim order of the Labour Court or the Industrial Tribunal. It is only when a final award is given, then a party should be allowed to challenge it if he is aggrieved.
3. In the present case, the order of the Tribunal dated 28.5.1997 was only an interim order and it did not decide the reference finally. Therefore, the writ petition was rightly dismissed. Hence, we are not inclined to interfere in this matter. The Special Leave Petition is dismissed accordingly.
However, if the final award goes against the petitioner, it will be open to the petitioner, while challenging that final award, to also challenge the interim order of the Tribunal dated 28.5.1997, if otherwise permissible."
9. Having gone through the entire judgment of the Supreme Court, we have noticed that it is not clear as to what were the facts of that case and what was the nature of the interim order passed by the Tribunal, which was the subject matter of challenge. It is true that the remedy under Article 226 or 227 of the Constitution cannot be permitted to be availed of for the purposes of frustrating the welfare legislation or allow to be an appeal in disguise. The remedy under Article 226 or 227 of the Constitution is not intended to circumvent the statutory procedure, if available in law. In a case where the petitioner is shown to have remedy of challenging the final order by way of appeal, ordinarily the High Court would not exercise its jurisdiction under Article 226 of the Constitution, as, if the High Court decides to interfere with the interim orders passed by the Labour Court or the Industrial Tribunal, the same is likely to frustrate the provisions of the Act, which are intended to achieve a social object as is evident from the statement of object and reasons. Under the Industrial Disputes Act, 1947, there is no provision of appeal against an interim award or final award, which may be passed by the Tribunal. The only remedy available with the aggrieved party would be to approach the High Court invoking the supervisory jurisdiction under Article 227 of the Constitution of India. At the same time, it is also true that there is no absolute bar on the exercise of writ jurisdiction by the High Court in any case, but before exercising such jurisdiction, self-imposed restraints are required to be taken note of. The Court may decide to exercise its jurisdiction where it is found that the order impugned was without jurisdiction or apparently contrary to settled position of law or was likely to result in miscarriage of justice or tantamount to abuse of process of Court or had been obtained by suppression of material facts or any circumstance, which shocks the conscience of the Court.
10. In our view, the decision of the Supreme Court relied upon cannot be construed as laying down an absolute proposition of law that in all circumstances, a writ Court cannot interfere with the interim orders made by the Industrial Tribunal. In a given case, where the Court may find that the order impugned is without jurisdiction or apparently contrary to certain position of law or is likely to result in miscarriage of justice, then in such circumstances, the High Court can entertain a petition filed under Article 227 of the Constitution of India against an interim order made by the Industrial Tribunal. Therefore, the learned counsel for the respondent may not be correct in saying that the petition is not maintainable as the same is directed against an interim order of revision of wages passed by the Industrial Tribunal.
11. It is now a well settled position of law that it is neither desirable, nor permissible to pick out a word or a sentence from the judgment of the Supreme Court, divorced from the context of the question under consideration and treat it to be the complete "law" declared by the Supreme Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Supreme Court. As observed earlier, we have no idea as to what were the facts of the case before the Supreme Court while taking the view that no writ should be entertained against an interim order of the Labour Court or the Industrial Tribunal. A decision of the Supreme Court takes its colour from the questions involved in the case in which it is rendered, and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of the Supreme Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by the Supreme Court, to support their reasonings. It is equally well settled that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made in it.
12. We are of the view that there is no merit in the preliminary objection raised by Mr. Clerk as regards the maintainability of this petition. We hold that this petition challenging the interim order of wage rise passed by the Industrial Tribunal is maintainable. We, accordingly, reject the preliminary contention and proceed to decide the matter on merits.
13. Before proceeding further, we are quite alive to the scope of interference at the instance of a High Court in a proceeding under Article 226/227 of the Constitution of India, as repeated and reiterated by the Supreme Court in the case of Shama Prashant Raje Vs. Ganpatrao, reported in AIR 2000 SC 3904, where the said Court made the following observations:-
“Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent Tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same on a mere perusal of the order of an inferior Tribunal if the High Court comes to a conclusion that such Tribunal has committed manifest error by mis-construing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior Tribunal or the inferior Tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior Tribunal. Then again the two questions on which the Tribunal under the Rent Control Order were required to give finding, namely, habitual defaulter and subletting are not pure questions of fact but can be held to be mixed questions of fact and law. In this view of the matter, on going through the Appellate order passed by the District Collector as well as the order of the learned single Judge, we are not in a position to hold that the High Court exceeded the parameters prescribed for interference with the findings of an inferior Tribunal. Under Clause 13(3)(ii) Controller has to be satisfied that the tenant is habitually in errors with the rent. The expression "habitually" would obviously connote some act of continuity. Under the Lease Deed dated 8-4-1982 between the landlord and the tenant Clause 4 made it obligatory for the tenant to pay the rent before 10th day of each English Calendar month, and under Clause 9 in the event of arrears of rent over 3 months is not paid then the landlord was entitled to give notice and then if the matter is not settled within one month from the date of the notice then the landlord is entitled to terminate the tenancy. Reading the aforesaid two Clauses it would not be correct, as contended by Mr. Verma, learned senior counsel appearing for the appellant, that under the agreement itself 4 months period has been provided to enable the tenant to pay the rent. If a tenant, notwithstanding the obligation of paying the rent by 10th day of each English calendar month continuously makes a default of paying the rent for the first month by two months thereafter, and pays the rent in similar manner, then he must be held to be habitually in arrear with the rent in question. This being the position, the fact that the rent for September to November, 1984 was paid in December only after the Distress Warrant was issued and that again from December, 1984 to March, 1985 the rent had not been paid and were deposited within the 10th of next month, as stipulated in the lease agreement would constitute the tenant to be habitually in arrear within the meaning of Clause 13(3)(ii) of the Control Order. The Appellate Authority under the Control Order was obviously in error in interfering with the well reasoned conclusion of the Controller on this score, and the High Court was fully justified in correcting the said error by interfering with the finding of the lower Appellate Authority on the question of applicability of Clause 13(3)(ii) to the case in hand. Similarly, on the question of subletting, there is no dispute with the proposition that the two ingredients namely, parting with the possession and some consideration therefor, had to be established. The conclusion of the lower Appellate Authority on this score was obviously on a mis-construction of the document Exhibit N2 and the High Court, therefore, was entitled to correct the error which was based upon a construction of the aforesaid document. The different Clauses of the lease deed unequivocally indicates that the sum of Rs. 1,500/- p.m. was the consideration money for parting with the possession of the premises and allowing the Singer Sewing Machine to do business in the premises.
6. In the aforesaid premises, we are unable to accept the contention of Mr. Verma, learned senior counsel appearing for the appellant that the High Court committed error in interfering with the finding of the Appellate Authority under the Control Order by way of re-appreciating the evidence. In our considered opinion, the High Court was fully justified in interfering with the conclusion of the Appellate Authority and correcting the error of the said Authority, as already stated. In the premises, as aforesaid, this appeal is devoid of any merits and the same is dismissed accordingly.”
14. It will also be profitable to quote and rely upon the decision in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation, reported in (2010) 3 SCC 192, in which the Supreme Court led emphasis to keep in mind while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the need to keep goals set out in the Preample and in part IV of the Constitution, while construing social welfare legislations. The Court made the following observations in paragraphs 21 and 23.
"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e),43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J., opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State" - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."
"23. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society."
15. Yet again in a recent pronouncement of the Supreme Court in Jai Singh and ors. Vs. Municipal Corporation of Delhi, reported in (2010) 9 SCC 385, the Court observed that the exercise of jurisdiction under Article 227 of the Constitution of India must be within the well recognized constrains. It cannot be exercised in the words of the Supreme Court like "a bull in a China shop" to correct all errors of judgment of the Court or a Tribunal, acting withing the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice.
16. Bearing in mind the aforesaid principles, we now proceed to consider the order of the Tribunal.
17. After hearing the learned counsel for the parties and after going through the materials on record, we find that the State, by virtue of powers conferred under Section 10(1) of the Industrial Disputes Act has referred the following disputes to the Tribunal, out of which the present application arises:
(1). Pay Scale as per the 5th Pay Commission to the Security Guards working in the establishment.
(2). Transfer
(3). Working hours and overtime
(4). Weekly Off, Public Holiday, CL, PL, Medical Leave
(5). ESI Act
(6). Uniform
(7). Payment of salary as a result of closure of the point
(8). Taking the employee on duty who has been denied the duty
(9). Retirement age limit
(10). Allotment of the duty point
(11). Expenditure to be borne in reference to the incidents occurring during the course of employment.
(12). Loan
(13). Education Loan
(14). Conveyance allowance
(15). Promotion, giving of recognition to the Union
(16). Provident Fund
(17). Interim Relief
(18). Issuance of pay slip
(19). Payment of salaries
18. The Tribunal below, on consideration of the materials on record including the documents which were exhibited at the time of disposal of the application for interim relief, came to the conclusion that for the year 31st March, 2007, 31st March, 2008, 31st March, 2009, 31st March, 2010 and 31st March, 2011, an amount of Rs. 22,28,428/-, Rs. 34,54,601/-, Rs.
36,41,074/-, Rs. 32,59,708/- and Rs. 29,42,236/- have been received towards the donation respectively whereas during the same period, the amount paid towards the honorary and professional fee for the year 2006-07 in the hospital comes to Rs. 37,30,538/- and Rs. 37,30,538/- for health care unit, Rs. 26,63,474/ for the Research unit, and in the year 2008, it has paid Rs. 45,11,601/- in the hospital, Rs. 45,11,601/- for health care unit and Rs. 2,65,294/- for research unit whereas for the year 2009, it paid Rs. 63,67,143/- for the research unit, Rs. 40,860/- and for health care unit Rs. 62,26,283/- and for the year 2010, it paid Rs. 68,00,050/- for hospital, Rs. 68,00,050/ for health care unit and Rs. 32,46,141/- for research unit for salary of contractor and service convenience whereas for the year 2011, for hospital Rs. 84,66,469/- for research unit Rs. 1,16,100/-, Rs. 40,66,707/- for contractor salary and allowances Rs. 40,66,807/- and Rs. 83,50,389/- in health care unit to the doctors, which means the establishment has gradually increased only the honorary and professional fees of the doctors from the year 2006 to 2011, which is clearly appearing.
19. The chart below would explain the position as narrated in paragraph 18.
20. The Tribunal also came to the conclusion that there has been a continuous rise in the cash and bank balance of the establishment. It has noted in its order that although the establishment has asserted that it is incurring losses being a charitable hospital, the balance-sheets clearly reflect that the financial position of the establishment is not such that it will not be able to bear the additional financial burden of Rs. 14,40,000/- per year. The Tribunal has also recorded a finding that the establishment is paying the wages to its Class IV employees, which are lesser than the living wages. According to the Tribunal, mere payment of wages in terms of the Minimum Wages Act to the new and the old employees and the Dearness Allowance thereon is not enough for an employee to maintain himself with his family in the present times of inflation.
21. At this stage, it would not be out of place to look into the balance-sheet showing the income and expenditure for the last four years.
The statement of income and expenditure account referred to above indicates that there has been a consistent increase in the income of the establishment. There is no doubt that as against the income, there has been rise in the expenditure also, but having regard to the financial position as reflected from the documents on record, it could not be said that the financial situation of the establishment is so poor that it will not be able to bear the additional financial burden of Rs. 1,20,000/- per month.
22. Reference could be made to the decision of the Supreme Court in the case of Hindustan Lever Limited Vs. B.N. Dongre and others, reported in AIR 1995 SC 817, wherein the Supreme Court explained the importance of the wages in life of the working classes. In the said judgment, the Supreme Court held that wages are among the major factors in the economic and social life of the working classes and the workers and their families depend almost entirely on wages to provide themselves with the three basic requirements of food, clothing and shelter. The other necessities of life like children's education, medical expenses, etc., must also come out of the emoluments earned by the bread-winner. Workers are therefore concerned with the purchasing power of the pay- packet he received for his toil. If the rise in the pay-packet does not keep place with the rise in prices of essentials the purchasing power of the pay-packet fails reducing the real wages leaving the workers and their families worse off. Therefore, if on account of inflation prices rise while the pay- packet remains frozen, real wages will fall sharply. This is what happens in periods of inflation. In order to prevent such a fall in real wages different methods are adopted to provide for the rise in prices. In the cost-of-living sliding scale systems the basic wages -are automatically adjusted to price changes shown by the cost-of-living index. In this way the purchasing power of worker's wages is maintained to the extent possible and necessary. However, leap-frogging must be avoided.
If the prices of food, clothing and other necessities of life which even the lowest wage earner purchases month after month rise and the basic wage remains constant, real wage actually falls creating a problem for survival for the lowest wage earner and it is a common knowledge that this frequently happens during the period of inflation.
23. We are not impressed by the submission of Mr. Patel and Mr. Parikh, the learned Senior Counsel appearing for the petitioner that if the interim order passed by the Tribunal is sustained and allowed to be implemented, then the total financial burden on the establishment would not be of Rs. 14,40,000/- per year, but will be around Rs. 65 lac, as similar claim would be raised by Class III, Class II and Class I employees of the establishment. We are afraid that there is no merit in this submission which has been very strenuously canvassed. As held by the Supreme Court in Indian Overseas Bank Vs. IOB Staff Canteen Workers' Union, reported in 2000 4 SCC 245, such argument could be termed as an argument "in terrorem". In the said case before the Supreme Court, an apprehension was expressed while submitting that if the claim of the canteen workers was upheld, then the appellant-Bank would have to face similar claims made by every employee of the canteen run everywhere and even subsequently by various contractors, for the similar reason that the Bank had provided subsidy either in cash or kind or in both, to facilitate the running of a staff canteen. The Court held while negativing the submission that if really the workers were entitled to the status they were claiming, they cannot be deprived of such status merely because some other employees similarly situated or dissimilarly situated may also claim the same.
24. Having examined the matter thread bare, we are unable to persuade ourselves to come to the conclusion that the impugned order passed by the Industrial Tribunal is in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice, thereby warranting interference under Article 227 of the Constitution of India.
25. For the foregoing reasons, we do not deem fit to disturb the interim order passed by the Industrial Tribunal and reject the petition accordingly with no order as to costs.
26. Before parting, we may only say that the main dispute is pending with the Industrial Tribunal and it will not be appropriate for us to go into the niceties of the question in detail, because any observation made by this Court may prejudice the case of either of the parties. It is needless to mention that the interim award will be subject to the award that will be passed by the Tribunal, and we also make it clear that we have otherwise not gone into the merits of the dispute, which is the subject of reference for which the final award is yet to be given. It will be open for both the sides to raise all possible objections the factual as well as legal, in the main dispute, which is pending and it is expected that the Tribunal would decide the main dispute as early as possible, preferably within a period of six months from the date of certified copy of this order is served upon the Industrial Tribunal.
(BHASKAR BHATTACHARYA, C.J.) (J.B. PARDIWALA, J.) Mohandas