IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :27.08.2008 Coram : The Honourable Mr.Justice D.MURUGESAN and The Honourable Mr.Justice S. PALANIVELU W.A.No.3246 of 2004 The Management of the Kanyakumari District Co-operative Spinning Mills Ltd., Aralvoymozhi-629301 .. Appellant / Petitioner Vs 1. The Presiding Officer, Industrial Tribunal, City Civil Court Buildings, Madras 600104. 2. The Secretary, Kanyaspin Thozhilalar Sangam, Aralvoymozhi-620301. Kanyakumari District. 3. The Secretary, Kanyakumari District Cooperative Spinning Mills Workers Progressive Union, Aralvoymozhi-629301 Kanyakumari District. .. Respondents / Respondents Writ Appeal under clause 15 of the letters patent against the Order passed in W.P.No.2287 of 1997 dated 13.02.2004. Writ Petition filed under Article 226 of constitution of India, to issue a Writ of Certiorari, calling for the records on the file of the first respondent and quash and set aside the impugned award dated 24.07.96 in I.D.No.42/82. For Appellant : Mr. S. Jayaraman For Respondents : Mr. K.M.Ramesh [for R-3] For R-2 No appearance. https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT S. PALANIVELU,J. The brief facts depicting factual matrix of the matter are as under: 1. (i) The appellant Management is a Co-operative Society registered under the Tamil Nadu Co-operative Societies Act. It is having a spinning mills at Aramboly. It has a spindle capacity of 25,000 spindles. It employs about 714 permanent workmen. It has been functioning right from 1965. 1. (ii) In the year 1969 the Government of India thought to rehabilitate Sri Lanka Repartriates. One of such measures was that they should be considered for employment in Co-operative Spinning Mills and other industrial establishments. The Director of Rehabilitation, Government of India administers the scheme of assistance and appropriate directions are given from time to time to the State Director of Rehabilitation, who in turn gives directions to the Director of Handlooms who controls the co-operative spinning mills as to the woes of repatriates and grant financial assistance. They were employed as such irrespective of their qualification or experience and the object of providing employment is to rehabilitate them. 1. (iii) In pursuance to the above said events certain repatriates from Sri Lanka were employed in the appellant Mills as workers. The second and third respondents' union represents those workmen also. 1. (iv) In the claim statement filed by the Kanyaspin Thozhilalar Sangam before the Industrial Tribunal, Madras, it is stated that the repatriate workers, should be paid occupational wages. Since the said demand was refused by the Management, they raised an Industrial Dispute on the strength of the settlement under Section 12(3) of the Industrial Disputes Act dated 8.11.1973 and 15.07.1977 and the same was referred by the Government of Tamil Nadu to the Industrial Tribunal, Madras, in G.O.Ms.No.1976 Labour and Employment dated 18.9.1982 wherein the following Industrial Dispute had to be resolved: "Whether the demand that the Sri Lanka repatriates workers should be paid occupational wages, is justified, if so, from what date". 1. (v) In the settlement dated 8.11.1973 the Management had agreed that those employees, who are employed in the Mills are not in receipt of occupational wages, will be paid occupational wages with effect from 01.07.1973. However, the Management had not paid https://hcservices.ecourts.gov.in/hcservices/ occupational wages to Sri Lanka Repatriate Workers as per this settlement. They have been given the same kind of work like that of other workers, but the Management is paying wages contrary to the above stated settlement. They have be absorbed as permanent workers in accordance with the terms of employment agreed with the Director of Rehabilitation. The Management is bound to treat them as permanent workers. They are doing equal work as turned out by other workers but they are not paid equal wages. They are paid lesser wages which are discriminatory, unlawful and violative of settlement. They are entitled to get full occupational wages. 2. In the Counter statement filed by the Management, it is stated that provision was made for grant of loans, subsistence allowance, rations etc., to the Sri Lankan Repatriates. The wages and other service conditions of the Sri Lankan Repatriates are governed by the directions given to the Directors of Rehabilitation of the Central and State Governments from time to time. They are treated as a separate category of workmen and dealt with differently from other workmen. In a period of five years, their wages have been progressively increased with the advancement of their service and are brought on par with the permanent workmen. By reason of their position as Repatriates they are in a position to get employment overlooking the claims of more qualified unemployed youth and they are not subjected to any qualification, age or experience. Even though they were employed in the first five years temporarily, they are being absorbed as permanent workers after five years. Naturally they cannot have a claim for occupational wages. The difference between wages actually drawn by them and the occupational wages is adequately compensated by the grant of rations, subsistence allowance and other financial assistance given by the State Government and Central Government. The demand referred for adjudication has been conceded from 1.12.1982 and there is no scope to grant relief for the earlier period. 3. The Industrial Tribunal, Madras, passed an award on 24.7.1996 allowing the demand of the workmen, directing payment of occupational wages for 151 Sri Lanka repatriate workmen from their date of joining in the Mills till 30.11.1982. The Management took up the matter in W.P.No.2287 of 1997 before this Court in which learned Single Judge has confirmed the award by dismissing the writ petition and hence the Writ Appeal before this Court. 4. There is no debate as to the clauses found in the two settlements entered into between the Management and the workers union dated 18.11.1973 and 15.07.1977. It is advantageous to have a look at the matter in the back ground of the concerned stipulations found in those settlements. Even though the subject earmarked was for wage increase to Sri Lankan Repatriate workers, it was not specifically agreed to in the settlement dated 15.07.1977. The Management agreed to pay occupational wages to one R. Nataraja Panicker with effect https://hcservices.ecourts.gov.in/hcservices/ from 1.7.1977. However, in the earlier settlement dated 08.11.1973, while conceding to the demand of payment of occupational wages to the workmen, it has been agreed as under: "4. It is agreed that such of these employees who are employed in the Mills and who are not in receipt of occupational wages will be paid occupational wages with effect from 1.07.1973. It is further agreed as a gesture of goodwill in lieu of the claim for arrears for the period from 1.7.73, the Management will pay a lumpsum of Rs.250/- to each worker in full satisfaction of the claims of the workmen for arrears." 5. It transpires from records that at the time of entering into the settlement, Srilankan Repatriates were not in the employment of the Management. Hence there was no specific mentioning in the said settlement about their service conditions in the establishment. While discussing this point, the Industrial Tribunal has followed the decision of the Apex Court and reached conclusion that the agreed demands will also govern the successors, assigns or heirs of the employer. In 1975 I LLJ P 163 [Jhagrakhan Collieries (P) Ltd. vs. G.C. Agarwal] the Supreme Court has held as follows: "Section 17 makes it clear that a settlement arrived at in the course of conciliation proceeding is binding not only on the actual parties to the industrial dispute but also on the heirs, successors or assigns of the employer on the one hand, and all workmen in the establishment, present of future, on the other." 6. In view of the ruling of the Apex Court it has to be observed that if settlement is reached with regard to a particular demand, it shall bind not only the parties to the industrial dispute but also on the heirs successors or assigns of the employer on the one hand and all the workmen in the establishment, present of future, on the other. It is made clear in the award of the Industrial Tribunal that on the date of this settlement, Sri Lanka repatriates were not workmen in the establishment. However, the said settlement shall govern the workmen who would get employment in the Management in future as per law of the land. 7. It is the foremost and backbone contention of the Management that the Sri Lankan Repatriate workmen have been provided with concession to their livelihood by means of the proceedings of the Director of Rehabilitation, enabling them to draw ration of rice, wheat at subsidised rates, subsistence allowance depending on the size of the family, hutting grant, and housing loan etc., which are not available to the other workmen and hence they could not be treated on par with other workmen who are not made eligible to the https://hcservices.ecourts.gov.in/hcservices/ above said concessions and hence payment of occupational wages to the repatriate workers would not arise. 8. We have to see whether provisionally such allowances would deprive them of claiming the right to get occupational wages on par with other workers. The answer would be, emphatic 'No'. The reason is, merely because a class of persons are provided with some facilities in given circumstance which are not available to other class of persons, denying the statutory rights conferred upon the persons who are eligible for certain facilities could not be justified as per the judicial pronouncements of the Supreme Court. We are of the considered view that applying analogy of the decision of the Supreme Court is appropriate to the facts of the case. In 1983 (1) LIJ 220 [Sanjit roy vs. State of Rajasthan], the Supreme Court has laid down the ratio as follows: "The presumption therefore, must be that the work undertaken by the State by way of famine relief is useful to the society and productive in terms of creation of some asset or wealth and when the extracts Labour or service from the affected persons for carrying out such work, for example, a bridge or a rod, which has utility for the society and which is going to augment the wealth of the State, there can be no justification for the State not to pay the minimum wage to the affected persons." 9. In view of the cordinal legal principles pronounced by the Supreme Court, the Management could not deny payment of occupational wages merely because the repatriate workmen have been provided with the above said facilities. The Governments formulated schemes and thought fit to provide those allowances to the repatriates so as to enable them to lead their life in a country alien to them, on humanitarian consideration and when they render equal work as that of regular workmen, they are competent to receive the benefits as gained by the other workers who are benefited monetarily or otherwise. 10. With reference to the concept of "Equal pay for equal work", the constitution declares that it is a fundamental right when a class of persons executes equal work of the identical nature as done by like section of people, they are entitled for equal pay. While dealing with this position, the Honourable Supreme Court in 1982 I LLJ 344 [ Randhir Singh vs. Union of India & other] has observed as follows: "It is true that the principle of "equal pay for equal work" is not expressly declared by our constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims "equal pay for equal work" https://hcservices.ecourts.gov.in/hcservices/ for both men and women as a Directive Principle of State Policy. "Equal pay for equal work for both men and women" means equal pay for equal work for every one as between the equals." 11. There shall be no quarrel with regard to the aspect that the repatriate workers are performing the same kind of work as done by the other workers. Of course, in the affidavit filed in W.P.No.2287 of 2007 the Management has taken a plea that they were only inducted as apprentices not employed with any experience and their efficiency to turn out the work could not be equal to the work done by the other workers. We do not accede to this contention, for the reason that this stand was taken by the Management only in the writ proceedings and not before the Industrial Tribunal. Even if the repatriate workers served as apprentices they should have rendered the same kind of service to the Management since they are unskilled workers. It is the contention of the Management that it is absolutely difficult without any previous experience to perform same duties and give same production as accomplished by the long experienced permanent workers and hence the theory of equal pay for equal work would not work out. As adverted to supra, the nature of work undertaken by the repatriate workers is unskilled one and so by no stretch of imagination it could be stated that they could not carry out the work as performed by other workmen. 12. Mr.S. Jayaraman, learned counsel for the appellant would submit that the advantage provided to a class of persons could not be automatically made available to the other and in this case since the repatriate workmen have been getting the allowances as per the Government scheme and hence they are not entitled to get occupational wages on par with other workmen. In support of his contention he placed reliance on the decision of the Honourable Supreme Court reported in 2008 (3) L.L.N.135 [New Delhi Municipal council vs. Pan Singh and others], wherein Their Lordships have held as follows: "12. The direction in terms of the award was confined only to those who were in employment at the time when the said benefit was given to the said 17 meter readers. 13. They, thus, formed a class by themselves. A cut-off date having been fixed by the Tribunal, those who were thus not similarly situated, were to be treated to have formed a different class. They could not be treated alike with with the others. The High Court, unfortunately, has not considered this aspect of the matter." https://hcservices.ecourts.gov.in/hcservices/ 13. In the case before the Honourable Supreme Court, 17 individuals were posted as Shift-in-charge (220-400), however, for certain reasons they opted to become Meter Readers (185-300) which is a lower category of service. They were drawing the pay of Shift-in- Charge. The Management viz., New Delhi Municipal Council permitted them to act as such. It was decided by the administrator that the matter be examined whether higher pay scale of Rs.220-400 could be given to the 17 such senior Meter Readers purely as on adhoc measure which would be personal to them and orders were passed positively. After about 17 years the individuals who belong to the post of Meter Readers preferred a writ petition stating that the above said orders would not stand and they shall also be granted the same pay scale as that of other Meter Readers who were benefited by the Order impugned. After considering the matter in issue, the Supreme Court found that it was only an adhoc measure and they were given higher scale which were personal to them and it was not by way of a revision of scale of pay as understood in the ordinary sense of the term. In other words, it was decided that the impugned order enabling the 17 individuals who held the post of Shift-in-Charge to act as Meter Readers was only an adhoc measure, which order was passed only for those persons and it could not be expected to be extended to other category of persons. The present appellant could not take recourse to the above said decision for the reason that there is no concept of adhoc measure provided to the regular workmen in its management. 14. Mr.K.M. Ramesh, learned counsel appearing for the third respondent would contend that inasmuch as the provision has been made in the settlement entered into between the parties, it is uncharitable on the part of the management to turn around and say that they would not extend the benefit on the pretext of other allowances being provided to repatriate workmen. The appellant could not be allowed to deny the right that would accrue subsequently to repatriate workmen which would be against law. When a class of persons derive a right in an establishment by virtue of settlement even before their employment, they could not be refused the benefits subsequently. In view of such matter, we find no merit in the appeal. To reiterate, having consciously included the cluse with regard to the payment of occupational wages to the workmen concerned, now the appellant is not supposed to deny extension of the benefits to the repatriate workmen who are subsequently inducted into service. 15. In the light of what has been discussed above, we hold that the repatriate workmen are entitled for the occupational wages from their date of joining in the mills till 30.11.1982, since it is in the counter statement that the Management has provided wages, allowances, privileges and concessions to repatriate workmen on par with other permanent workmen of the company including occupational wages with effect from 01.12.1982. The appeal suffers dismissal. https://hcservices.ecourts.gov.in/hcservices/ 16. In fine, writ appeal is dismissed. The order passed by the Single Judge in W.P.No.2287 of 1997 dated 13.02.2004 is confirmed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ggs To The Presiding Officer, Industrial Tribunal, City Civil Court Buildings, Madras 600104. + 1 CC To Mr.S.Jayakumar, Advocate SR NO.48476 + 1 CC To Mr.K.M.Ramesh, Advocate SR NO.48034 W.A.No.3246 of 2004 VM(CO) SRA(17/09/2008) https://hcservices.ecourts.gov.in/hcservices/