Appeal No 141 of 1959
Appeal by special leave from the Award dated July 19 1958 of the Fourth Industrial Tribunal West Bengal in Case No VIII 240 16657 C K Daphtary Solicitor General of India Vidya Sagar and B N Ghosh for the appellants
P K Sanyal and P K Chakravarty for R C Datta for the respondents
March 23
The Judgment of the Court was delivered by DAS GUPTA J
On December 13 1957 the Government of West Bengal referred under section 10 of the Industrial Disputes Act the following dispute between MS Northbrook Jute Co Ltd and Dalhousie Jute Mills Who are appellants before us and their workmen 47 366  Do the proposals of rationalisation in the above two mills involve any increase in workload  If so what relief the workmen are entitled to  Almost a month before this the proposal of introducing a rationalisation scheme in time mills of these companies had been considered at an extraordinary meeting of the Works Committee and the Committee had agreed to the proposal
A notice tinder section 9A of the was then given by the companies to the Unions of their workmen and it was because the workmen objected to the introduction of the rationalisation scheme that the dispute arose and was refer red by the Government to the Tribunal
On December 16 when the above reference was pending before the Tribunal the management
of these mills put the rationalisation scheme into operation but the workmen refused to do the additional work placed on them by the scheme
Later the same day the mills declared a lock out
Work was however resumed again in all departments excepting the weaving and finishing departments on December 20 and in these two departments on December 21 as a result of a settlement arrived at between the workmen represented by their Unions and the Mills as regards the introduction of the rationalisation scheme
But a dispute arose as regards the payment of wages to workmen for their dues during the period when the mills were closed viz 16th December to 20th December in the weaving and finishing departments and 16th December to 19th December in all other departments
This dispute was also referred to the Tribunal by an order of the Government dated February 1 1958
The earlier issue as regards the proposed introduction of the rationalisation scheme was also amended in view of what had happened in the meantime by substituting therefore   Have the rationalisation effected in the above two mills since 16th December 1957 involved any increase in the workload  To what relief the workers are entitled to  We are no longer concerned with this issue as the decision of the Tribunal thereon which is against the workmen is no longer disputed
As regards the other two disputes the Tribunal has made an award in favour of the 367 workmen that they are entitled to wages for the period of absence above mentioned
On this question the workmen s case before the Tribunal was that the reason that workmen could no do any work on the days in question was the illegal look out by the employers the employer s case was that the workmen had struck work illegally and so the closure of the mills on the 16th of December after such strike was not illegal or unjustified
The Tribunal was of opinion that the eimloyer s attempt to put the rationalisation scheme into effect on the 16th December was a contravention of section 33 of the  and so the workmen s refusal to works in accordance with that scheme was not an illegal strike and the employer s closure of the mills was illegal
Learned counsel for the employer mills has tried to convince us that they had acted in accordance with law in introducing the rationalisation scheme on the 16th December
He pointed out that the Works Committee duly constituted under the Act had considered the scheme and approved of it and argued that as the workmen s representatives on the Works Committee bad agreed to the scheme the workmen themselves should be taken to have agreed to it
That the workmen s representatives on the Works Committee agreed to the introduction of the scheme by the companies  whenever they desired  is established by a copy of the resolution of the Works Committee
It has to be noticed however that the workmen s representatives on the Works Committee do not represent the workmen for all purposes but only for the purpose of the functions of the Works Committee
Section 32 of the Act sets out the functions of the Works Committee in these words  It shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and to that end to comment upon matters of their common interest or concern and endeavor to compose any material difference of opinion in respect of such matters
 368 The language used by the Legislature makes it clear that the Works Committee was not intended to supplant or supersede the Unions for the purpose of collective bargaining  they are not authorised to consider real or substantial changes in the conditions of service heir task is only to smooth away frictions that might rise between the workmen and the management in day to day work
By no stretch of imagination can it be said that the duties and functions of the Works Committee included the decision on such an important matter as the alteration in the conditions of service by rationalisation  To promote measures for securing and preserving amity and good relations between the employer and workmen  is their real function and to that end they are authorised to  comment upon matters of their common concern or interest and endeavour to compose any material difference of opinion in respect of such matters The question of introduction of rationalisation scheme may be said to be a matter of common interest between the employers and workmen but the duty and authority of the Works Committee could not extend to anything more than making comments thereupon and to endeavour to compose any material difference of opinion in respect of such matters
Neither  comments nor the  endeavour  could be held to extend to decide the question on which differences have arisen or are likely one way or the other
It was rightly pointed out by the Labour Appellate Tribunal in Kemp and Company Ltd vs Their Workmen  that  the Works Committees are normally concerned with problems arising in the day to day working of the concern and the functions of the Works Committee are to ascertain the grievances of the employees and when occasion arises to arrive at some agreement also
But the function and the responsibility of the works committee as their very nomenclature indicates cannot go beyond recommendation and as such they are more or less bodies who in the first instance endeavour to compose the differences and the final decision rests with the union as a whole
 The fact that the workmen s representatives on the Works Committee agreed to the introduction of the 1 369 rationalisation scheme is therefore in no way binding on the workmen or their Union
The next argument was that whatever alteration was effected in the conditions of service was made on the date when notice under section 9A was given and that being before the 13th December there was no contravention of section 33
There is in our opinion no substance in this contention Section 9A in accordance with which the notice was given provides that  No employer who proposes to effect any change in the conditions of service applicable to any workmen in respect of any matter specified in the Fourth Schedule shall effect such change a without giving to the workmen likely to be affected by such a notice in the prescribed manner of the nature of the change proposed to be effected or b within twenty one days of giving such notice
With the proviso to the section we are not concerned
What is important to notice is that in making this provision for notice the Legislature was clearly contemplating three stages
The first stage is the proposal by the employer to effect a change the next stage is when he gives a notice and the last stage is when he effects the change in the conditions of service on the expiry of 21 days from the date of the notice
The conditions of service do not stand changed either when the proposal is made or the notice is given but only when the change is actually effected
That actual change takes place when the new conditions of service are actually introduced
It necessarily follows that in deciding for the purpose of section 33 of the Act at what point of time the employer  alters  any conditions of service we have to ascertain the time when the change of which notice under section 9A is given is actually effected
If at the time the change is effected a proceeding is pending before a Tribunal section 33 is attracted and not otherwise
The point of time when the employer proposes to change the conditions of service and the point of time when the notice is given areequally irrelevant
It was further contended that in any case the alteration was not to the prejudice of the workmen
How such a contention can be seriously made is difficult to 370 understand
The whole basis of the scheme was so to allocate the machines to workmen as to enable fewer workmen to work the machines than the number previously required so that surplus workmen could be discharged
The object was to decrease the cost of production
The method adopted for attaining the object was to obtain more work from the workmen for approximately the same wages
However laudable the object be it cannot be doubted for a moment that the scheme prejudiced the workmen seriously
Mr Fraser the company s witness stated in his evidence that while previously for every machine in the batching department there were two hands now there are two hands for two machines
In giving the reasons for the introduction of the scheme he said  we had surplus labour in both the mills
The company was losing heavily
Till then we depended on natural wastage and did not think of rationalisation in November last year the decision was taken to take action on rationalisation  Rationalisation which was introduced had therefore two effects first that some workers would become surplus and would face discharge and secondly the other workmen would have to carry more workload
The introduction of the rationalisation scheme was therefore clearly an alteration of conditions of service to the prejudice of the workmen
The alteration was made on the 16th December when reference as regards the scheme had already been made and was pending before the Industrial Tribunal
The Tribunal has therefore rightly held that this introduction was a contravention of section 33
Lastly it was contended that even if the introduction of the rationalisation scheme was a contravention of section 33 the workmen s remedy lay in applying under section 33A and that they were not entitled to strike work
Section 33A no doubt gives the workmen aggrieved by the contravention by the employer of section 33 to apply to the Tribunal for relief but the existence of this remedy does not mean that the workmen were bound to work under the altered conditions of service even though these were in clear contravention of law
When they refused to do the additional work which the 371 rationalisation scheme required them to do they refused to do work which the employer had no right in law to ask them to do
It is difficult to say that this amounted to a  strike by the workmen but even if it could be said to be a  strike  such strike was certainly not illegal or unjustified
Our conclusion therefore is that the Tribunal was right in its opinion that the closure of the mills by the employer amounted to an illegal lock out and the workmen unable to work in consequence of the lockout are entitled to wages for the period of absence used by such lock out
The appeal is therefore dismissed with costs
Appeal dismissed


Summary:
There can be no doubt from the point of view of Economics that the clerical and subordinate staff of an industry like its manual workers contribute to its production and there can therefore be no reason for excluding them wholly from the benefits of a scheme of incentive bonus
The fact that the clerical staff are paid dearness allowance at a higher scale can be no reason for their exclusion
11956 424 Where as in the instant case the company had already Introduced a scheme of incentive bonus for the majority of its workmen there could be no reason why the Industrial Tribunal should not be able to extend that scheme to the clerical and subordinate staff
Ms Titaghur Paper Mills Co Ltd vs Their Workmen 1959 Supp 2 SCR 1012 considered