CW 2010/95 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1-Civil Writ Petition No.2010/1995 Hitech Glass Factory Dholpur Versus Sarro & Anr. 2-Civil Writ Petition No.3551/1995 Hitech Glass Factory Dholpur Versus Chhotey Khan & Anr. 3-Civil Writ Petition No.3552/1995 Hitech Glass Factory Dholpur Versus Hubbi & Ors. 4-Civil Writ Petition No.3554/1995 Hitech Glass Factory Dholpur Versus Shri Balder & Ors. 5-Civil Writ Petition No.3559/1995 Hitech Glass Factory Dholpur Versus Munnu 6-Civil Writ Petition No.3560/1995 Hitech Glass Factory Dholpur Versus Liyakat Ali 7-Civil Writ Petition No.3561/1995 Hitech Glass Factory Dholpur Versus Tunnu & Ors 8-Civil Writ Petition No.35621995 Hitech Glass Factory Dholpur Versus Ram Partap & Ors. 9-Civil Writ Petition No.3563/1995 Hitech Glass Factory Dholpur Versus Har Prasad. 10-Civil Writ Petition No.3565/1995 Hitech Glass Factory Dholpur Versus Karan Singh. 11-Civil Writ Petition No.3567/1995 Hitech Glass Factory Dholpur Versus Chiman & Anr. 12-Civil Writ Petition No.3568/1995 Hitech Glass Factory Dholpur Versus Pooran & Ors. 13-Civil Writ Petition No.3569/1995 Hitech Glass Factory Dholpur Versus Shankar & Ors. 14-Civil Writ Petition No.3570/1995 Hitech Glass Factory Dholpur Versus Babulal & Ors. 15-Civil Writ Petition No.3571/1995 Hitech Glass Factory Dholpur Versus Ram Singh & Ors 16-Civil Writ Petition No.3576/1995 Hitech Glass Factory Dholpur Versus Cheba & Ors. 17-Civil Writ Petition No.3577/1995 Hitech Glass Factory Dholpur Versus Jahoor Khan 18-Civil Writ Petition No.3629/1995 Hitech Glass Factory Dholpur Versus Lalaram & Ors 19-Civil Writ Petition No.3630/1995 Hitech Glass Factory Dholpur Versus Pooran & Ors And 20-Civil Writ Petition No.3708/1997 Munna & Others Versus Labour Court Bharatpur & Ors Date of Order ::: 11/09/09 Hon'ble Mr. Justice Ajay Rastogi CW 2010/95 //2// Mr. Dharmendra Jain, for petitioner-Factory Mr. JK Yadav, for respondent-workmen Instant petitions are filed by Hitech Glass Factory, Dholpur and CWP-3708/1997 filed by certain workmen (Munna & Others working on piece rate basis – whose claims were rejected) are directed against common order dt.14/03/95 passed by learned Labour Court, Bharatpur in different cases instituted by workmen and since involve common controversy as regards exercise of powers U/s 33C(2) of Industrial Disputes Act, 1947 (“ID Act”), hence, were heard together and are being decided by present order. Rajasthan State Ganganagar Sugar Mills Ltd (“Company”) is a Government of Rajasthan Undertaking having its registered office at Jaipur. Hitech Glass Factory (“Glass Factory”) Dholpur is one of its units having taken on lease and Company is also running Sugar factory at Sri Ganganagar besides country liquor units at Jaipur & other places in Rajasthan. As alleged, Glass Factory since was continuously sustaining losses, its Management decided to close down the Unit and is lying closed since 1994. As alleged in the petition, Company (petitioner) formulated pay scales & dearness CW 2010/95 //3// allowances for certain categories of workmen except working on piece rate basis, in Glass Factory. Accordingly, pay scales & dearness allowances analogous to 2nd Sugar Wage Board were given to the workmen w.e.f. 01/03/73 vide order dt.25/04/73 (Ann.1); and the workmen working as unskilled, skilled & semi-skilled were fixed in the pay scale & dearness allowances duly revised subsequently on a number of times from time to time on the basis of demands raised by workmen of Glass Factory in terms of various settlements arrived at between the Union and petitioners. In the year 1991, 71 workmen including piece rated, unskilled, semi-skilled filed claim applications U/s 33C(2) of ID Act and claimed that management of petitioner-company has not implemented its order dt.25/04/73 (Ann.1) and has not given benefit of pay scales & dearness allowances to them; as such each of workmen (claimants) is entitled to received Rs.55,000/- as difference (Rs.35,000 towards pay scale while Rs.16,000/- towards dearness allowance w.e.f. 01/03/73 besides interest of Rs.4,000/-). Reply to claim petitions was filed by petitioner-Co., inter- alia alleging therein that out of 71 workmen CW 2010/95 //4// (claimants) about 40 were piece rated while remaining were unskilled, semi-skilled & skilled workmen and that apart, certain workmen were appointed in the years 1970 (Seven), 1971(two), 1972(five), 1973(four), 1974(28), 1975 (One), 1977(Seven), 1978(three) & 1980(One); yet they filed claim petitions. It has been further averred that basic resolution dt.25/04/73 (Ann.1) which the workmen sought to enforce, based on pay scale & dearness allowances analogous to 2nd Sugar Wage Board, was rescinded in April, 1974 and their pay scales were revised from time to time and settlement was later on arrived at between the parties on 10/05/1991 (Ann.5) in course of reconciliation proceedings U/s 18(3) of ID Act being duly represented by recognised Union representing majority of its workers, where other Unions were summoned – relevant para 1, 5, 7, 13 & 16 of settlement are thus : “1-यह िक िनयोजक प्ष 1 जनवरी 1990 से हाईटेक ग् लास फैक् टरी धौलपुर में िनयिमत वेतन ौɍखलाओ में कायर्रत ौिमको एवं कमचािरयो का राजः थान राज् य कमर्चारीयो के वेतनमान के सम्ष वेतनमान देने को सहमत है पिरवितर्त वेतनमानो में वेतन का िनयतन वतर्मान मूल वेतन के समान ः टेट पर िकया जायेगा यिद समान ः टेज िवƭमान न हो तो अगली ः टेज पर िकया जायेगा 5- पिरवितर्त वेतनमान के आधार पर बकाया के रूप में भुगतान योग् य रािश पर बोनस व एक् समेिशया के अितिरक् त CW 2010/95 //5// अन् य कोई भुगतान देय नहीं होगा 7- यूिनयन प्ष सहमत है िक वेतनमान सम् बन् धी सभी कोटर् केसेज िनयोजक प्ष के िवरूƨ िविभन् न ौम न् यायालयो/ औघोिगक न् यायािधकरण में चल रहे उन् हे िबना िकसी शतर् के वापस ले लेगा 13- ौिमक प्ष सहमत है िक ऊपर विणर्त मांग पऽ या अन् य कोई मांग पऽ ौंिमको की ओर से शेष नही है या है तो उन मांगो को वािपस िलया माना जायेगा तथा इस समझोते की िदनांक को/से अन् य कोई मांग शेष नहीं मानी जावेगी 16- ौिमक प्ष सहमत है िक हाइटेक ग् लास फैक् शी धोलपुर िनरन् तर घाटे में चल रही है तथा घाटा बढ़ता जा रहा है अत: ौिमक प्ष िवत् तीय भार उत् पन् न करने वाली कोई भी मांग 1-1-90 से 4 वषर् के िलए िनयोजक प्ष को ूः तुत नहीं करेगा एवं अविध में पूणर् रूप से औधोिगक शािन् त बनाये रखेगा हडताल गो ः लो इत् यािद पर नहीं जायेगा एवं नोमर्स के अनुसार उत् पादन देकर उत् पादन में वुिƨ करके घाटे की कमी कम करने में िनयोजक प्ष को सहयोग करेगें उक् त 4 वषर् मांग रिहत वषर् माने जायेगे " It is pertinent to mention that prior to settlement arrived at on 10/05/91 during reconciliation proceedings, vide Resolution dt.01/08/75, the Board approved increase of Rs.15/- in dearness allowance per month to those being in regular pay scale w.e.f. 01/07/75 and an increase of paisa 50 per day in the wages for workers working on piece rated basis and increase of Fifty paise in wages of casual workers w.e.f. 01/07/75. Further, vide resolution dt.04/05/77, Glass CW 2010/95 //6// Factory workers in regular pay scales were given increase of Rs.15/- in dearness allowance w.e.f. 01/05/77 while blowers/ helpers/cutters/tradesmen/airmen/bubble makers were given increase of paise 50 per day while paisa 25 to those getting Rs.6.25 per day wages. Vide resolution dt.14/09/77, further increase of 25 paise w.e.f. 01/09/1977 was given to such piece rated workers who were allowed increase vide resolution dt.04/05/77. Vide resolution dt.27/01/1983, the Board linked dearness allowance of Glass Factory to consumer price index w.e.f. 01/10/82. Settlement dt.30/12/85 relates to pay scales revised by Rs.100/- while agreement dt.11/03/88 relates to pay scales revised w.e.f. 01/01/88 while vide settlement dt. 10/05/91, State Govt pay scales were given. In reply to claim petition, it has also been averred that as per settlement, no further demands shall be raised atleast for a period of four years from 01/01/90 while claim petitions were filed in the year 1991; thus dispute could not have been raised as a result of settlement being arrived at between them for claiming pay scales & dearness allowances in terms of resolution of petitioner-company CW 2010/95 //7// dt.25/04/73 (Ann.1). It was also averred that workmen of Glass Factory time & again demanded similar pay structure based on the UP formula but it has never been agreed upon and their demand was rejected by Management of petitioner Company and thereafter settlement was arrived at. It would be relevant to note that in para 4 of the reply to claim petition filed before Labour Court, it was specifically averred that 2nd sugar wage board is applicable only to sugar factory and not upon Glass Factory who claimed pay scales/dearness allowances based upon settlement dt.25/04/73, as 2nd sugar wage Board resolution cannot be enforced on account of there being latter tripartite agreement & settlement dt.10/03/91. Without taking note of material on record, learned Labour Court allowed all the claim petitions filed U/s 33C(2) of ID Act vide common judgment dt.03/03/94 (Ann.20) and awarded Rs. 51,000/- to each of workmen – against which writ petitions were filed before this Court and the same were decided by common order dt.20/09/1994 in CWP-2737/1994 & cognate matters (Ann.21) whereby this Court remanded CW 2010/95 //8// the matters to Labour Court to decide afresh on the basis of material already on record keeping in mind following issues framed : “1. Whether it was incumbent upon the workmen to give break up of their claims in the application under section 33(C)(2) of the Act or not ? 2. Whether piece rated workers were also entitled for any benefit under the orders dated 25/04/1973 ? 3. While deciding the matter, different dates of appointment of the workmen would also be given due importance ? 4. What were the benefits granted to the workmen under the order dated 25/04/1973; what amount has already been paid to them and what is the short-fall ? 5. If any amount in excess has been paid then how it is to be adjusted ? 6. It will also consider the various extracts filed by the parties, details of which are mentioned in para 13 of this order. 7. In addition to this, it will also decide the other points raised by the parties within the scope of this case.” Taking note of observations and directions of this Court while remanding the matter vide common judgment (supra), Labour Court examined the dispute afresh and jointly decided issue Nos.1 & 6 whereby it was finally observed that CW 2010/95 //9// S.18(3) of ID Act has no application as neither the workmen had carried out terms & conditions of settlement nor they were signatories to it; in such circumstances, it is not binding upon them. It has further been observed that to provide break up of the amount being received by individual workman, the burden was upon employer as the record is in their possession. At the same time, for issue No.3 & 4, it was observed that there was material on record that 2nd sugar wage Board pay scales are applicable upon employees of Glass Factory. Despite there being no oral evidence adduced by workmen in support of their claim, yet Labour Court finally observed in para 23 that each of workmen is entitled for Rs.51,000/- other than piece rated workers, without taking note of their entitlement and so also the fact that majority of workmen were appointed after 24/05/73. Finally, Labour Court while rejecting (41) applications of piece rated workmen, allowed rest of (30) applications filed U/s 33C(2) of ID Act awarding Rs.51,000/- to each of workmen vide common judgment dt.14/03/95 (Ann.22) against which instant petitions along CW 2010/95 //10// with others were filed. Instant petitions (S.No.1 to 19) were allowed by this Court while CWP-3708/97 (Munna & Others – piece rated workers) was dismissed vide common order dt.14/04/2000 against which special appeals (Writ) No.735/2001 & 18 Others were preferred by petitioner Company & piece rated workers (Munna & Ors). Division Bench of this Court allowed special appeals (supra) and while remitting vide common judgment dt.25/11/2005, however, observed that contention of the employer that the workmen were entitled to only wage structure of 2nd sugar wage Board decision/ recommendations under the garb of order dt. 25/04/73, was not considered by Single Judge under judgment impugned and further observed that document (Ann.4 in CWP-3708/1997 (Munna & Ors. Vs. Labour Court Bharatpur) about all unskilled, piece rated workers being allegedly fixed in lowest rate of 2nd sugar wage board Award, was also not considered by Single Judge; and accordingly parties were allowed to raise all legal issues before Single Judge. It appears from record particularly from written statement filed by petitioner company before Labour Court, it was basically CW 2010/95 //11// averred that 2nd sugar wage board's pay structure is applicable only to employees of sugar factory and not upon Glass factory; and that apart, after resolution dt.25/04/73 which has been made to be a basis by workmen seeking its execution, pay scales were revised from time to time as per settlement dt.10/05/91 arrived at between the Union and management of Company and in accordance therewith, pay & dearness allowance were revised and paid to individual applicant/workman and after settlement has been enforced, such applicants could not claim execution of resolution of petitioner-company dt.25/04/73 (Ann.1) U/s 33- C(2) of the Act. It has been averred in para 2 of writ petition that in terms of order dt.25/04/73 pay scale & dearness allowances analogous to 2nd sugar wage board pay structure were given from 01/03/73 but it was averred in the context of the fact that pay scales being beneficial and better than pay scales referred to & analogous to 2nd sugar wage board pay structure, were later on revised on account of settlement arrived at between the parties, were paid to the workmen but emphasis was laid on the settlement having arrived at on CW 2010/95 //12// 10/05/91 and so also the fact that pay scales revised alongwith dearness allowance having been made effective in terms of resolutions arrived at between parties, were fully carried out and in such circumstances, application U/s 33C(2) of ID Act being related to enforcement of pre-existing right due to change in circumstances, was not maintainable. As regards CWP-3708/97 filed by Munna & other piece rated workers, basic objection raised by petitioner-Company was that document dt.24/05/73 (Ann.4) relied by them for seeking execution whereof, was only a proposal and no such final resolution was arrived at, which has not conferred any pre-existing right upon workmen to be executed U/s 33-C(2) of the Act. I have considered rival contentions of Counsel for parties and with their assistance, examined material on record. Controversy raised herein is to examine the effect of resolution dt.7th & 14th March, 1973 where the petitioner company took decision to allow pay scale analogous to pay scale & revision prescribed by 2nd sugar wage board w.e.f. 01/03/73 other than piece rated workmen, in terms of order dt.25/04/73 (Ann.1). The workmen after having filed their CW 2010/95 //13// application U/s 33C(2) of ID Act, failed to record oral evidence in support of their averments pleaded in the application, itself, so as to show as to what pay scales & dearness allowances were paid and what remained due & payable. It is also the fact that applicants- workmen were appointed in different years and certainly those who were appointed after year 1973, to be more specific after resolution having been passed, no distinction was made and this issue remained un-decided as to whether resolution of 7th & 14th March, 1973 of the Board of Directors referred to in the order dt.25/04/73 can be enforced by such workmen working as unskilled, semi-skilled & skilled and how their pre-existing right was affected for claiming benefits U/s 33C(2) of ID Act and what was the basis by which a sum of Rs. 51,000/- was arrived at by individual applicant (workman) claiming pay & dearness allowance based on order dt.25/04/73. As observed (supra), written statement filed by petitioner company was not to the effect that pay scales analogous to 2nd sugar wage board pay structure in terms of order dt.25/04/73 has been paid and what was submitted & averred in written statement was CW 2010/95 //14// that pay scale & dearness allowance having been revised from time to time in terms of resolutions placed on record before Labour Court, that has been paid in terms whereof to individual workman, which as per contention of petitioner-company, was much beneficial than what was revised & paid in terms of order dt.25/04/73, inasmuch as such workmen having been appointed after resolution being enforced atleast, cannot be said to have any pre- existing right which could be executed under limited scope U/s 33C(2) of ID Act. It was also one of averments made by petitioner company that order dt.25/04/73 which was made the basis under order impugned of Labour Court was withdrawn vide order dt. 01/08/75 (Ann.8); as such there was no pre- existing right conferred upon applicant workmen, which could be enforced/executed by application under limited scope of S.33C(2) of ID Act and indisputably, there was no other evidence adduced by applicant-workmen in support of their claim, which is certainly disputed by petitioner company and so also of settlement was arrived at between the parties on 11/05/91 (Ann.5), which being tripartite settlement, as alleged was binding upon every CW 2010/95 //15// workman in the establishment provided U/s 18 (3) of ID Act. Scope of S.33C(2) of ID Act was considered by Apex Court in Municipal Corpn of Delhi Vs. Ganesh Razak (1995(1) LLJ 395=(1995 (1)SCC 235) and further considered in UP State Road Transport Corpn. Vs. Birendra Bhandari (2006 (111) FLR 393). “The power of the Labour Court under Section 33-C(2) extends to inter- pretation of the award or settlement on which the workman's right rests, like the Executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer.” From the decisions (supra), it clearly emerges that application U/s 33-C(2) of ID Act would be maintainable provided the same is based upon pre-existing right and such proceedings are in the nature of execution proceedings initiated U/s 33C(2) of ID Act. However, as regards raising of an industrial dispute, it is always open rather it would never preclude the workmen from raising industrial dispute CW 2010/95 //16// U/s 2(k) for adjudication, if so advised. In instant case, after passing resolution dt.07th & 14th March, 1973 (referred to in order dt.25/04/73 (Ann.1)) whereby Board of Directors at one time took decision in regard to employees of Glass factory other than piece rated workers to allow pay structure analogous to that of 2nd sugar wage board w.e.f. 01/03/73, it was re-examined as is evident from order dt.01/08/75 (Ann.8) whereby it was felt that there was no question of applying the UP pattern for increase of wages for sugar workers to Hitech employees who were manufacturing glasswares and decided to increase wages to workers of Glass factory w.e.f. 01/07/75. Apart from it, settlement was later on arrived at between the parties on 10/05/91 (Ann.5) – in course of proceedings whereof, it has been noted that there were three workmen's Unions of Hitech Glass factory and apart from office bearers of Glass factory who did not appear despite service of notice being affected and two recognised workers' Unions representing majority of workers as well and in their presence, tripartite settlement was arrived at between parties, which became binding upon all of them in terms CW 2010/95 //17// of S.18(3) of ID Act, and it is evident from Schedule A appended thereto that pay scales of various posts were revised and such applicants workmen who were working as un-skilled, semi- skilled and skilled workers were entitled for pay scales in terms of settlement. It is not the case of applicant workman that pay scales & dearness allowances revised from time to time in terms of latter resolution and settlement arrived at in the year 1991, benefit of revision of pay has not been paid to them. Submission of Counsel for respondents workmen that order dt.25/04/73 (Ann.1) was never withdrawn and their pre-existing rights could not have been defeated, which has been considered by Labour Court, in the opinion of this Court is not supported by any material on record and is also of no substance for the reason that after resolution dt.25/04/73, further resolutions were passed by Management of petitioner company revising pay scales and dearness allowances applicable to the workers; as such it stood superseded and could not have been executed U/s 33C-(2) of the ID Act. As regards latter resolution dt. 01/08/75 (Ann.8), it has been specifically CW 2010/95 //18// resolved that the UP patterns for increase of wages for sugar workers cannot be made applicable to Hitech Glass factory who were manufacturing glasswares. At the same time, it was considered to be appropriate to increase their wages w.e.f. 01/07/75 and that was revised from time to time. In fact after passing of latter resolution, the basic resolution which the applicants workmen relied upon seeking its execution (Ann.1) certainly was not available and it cannot be said that applicants workmen have any pre-existing right based upon order dt.dt.25/04/73 (Ann.1) which could be executed in proceedings U/s 33C(2) of ID Act. That apart, none of applicants workmen led their evidence in support of their claim in applications U/s 33C(2) of ID Act and there is no material on record, by which it could be inferred of their entitlement for a sum of Rs.51,000/- in execution of order dt.25/04/73 (Ann.1) and initially burden was certainly upon applicants workmen which they failed to discharge and only thereafter onus would have been shifted upon employer to justify how much amount remained due – in absence whereof, finding recorded by Labour Court while holding CW 2010/95 //19// that the record is maintained by employer, and in absence of oral evidence being led by workman, finding recorded while holding that every workman is entitled to be paid a sum of Rs.51,000/- other than piece rated workman cannot be said to be legally sustainable. Further submission made on behalf of workmen having been considered by Labour Court that the workmen were not party to settlement arrived at between parties, is also without substance for the reason that all the three worker's unions were duly summoned and unions being duly recognised and representing majority of workers had signed settlement and other two unions being summoned were present at the time when settlement being arrived at, certainly it was binding upon them as well in terms of S.18(3)(b) of ID Act. It has also been considered by Apex Court in National Engineering Industries Ltd Vs. State of Rajasthan (2000(1) LLJ 247= 2000 (1) SCC 371) ad infra: (para 26 A to B ) “26. .. A settlement which is sought to be impugned has to be scanned and scrutinized. Sub-sections (1) and (3) of Section 18 divide settlements into two categories, namely (1) those arrived at outside the conciliation proceedings and (2) those arrived at CW 2010/95 //20// in course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the established or part of the establishment, as the case may, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. A settlement arrived at in the course of conciliation proceedings with a recognised majority union will be bin ind on all workmen of the establishment, even those who belong to the minority union which had objected to the same. Recognised union having majority of members is expected to protect the legitimate interest of labour