Case: Hindustan Lever Limited Vs. Ram Mohan Ray and Others (With connected appeal)

be made in such cases as the remedy available was under Section 33C. We are not able to appreciate this argument. Indeed payment of wages is one of the most important among the workers conditions of service. The worker works essentially only for the wages to be paid to him. Therefore, the question that would really have to be answered is whether the refusal of the worker to work was justified or not. It is in evidence that the workers presented themselves for work every day and offered to work according to the old scheme but that they were not given any work according to the old scheme. They were told that as long as they refused to work under the new scheme they would be paid no wages. The refusal to pay, therefore, was not a solitary instance in respect of which an application could have been made under Section 33C. It was a continued refusal. It was, therefore, a permanent alteration of the conditions of service. The cause of action, so to say, arises de die in diem. If the refusal of the workers to work under the reorganisation scheme is justified then the refusal of the management to pay unless they worked under the reorganisation scheme would amount to alteration of the conditions of service of workers. If on the other hand the workers were not justified in doing so then no other question arises. But in the face of the finding of the Tribunal that the reorganisation scheme rendered some workers surplus and that the scheme had seriously prejudiced the workers, and that the apprehension of the workers that the reorganisation would result in some member of the staff becoming surplus came true, it cannot be said that the failure of the employer to give notice under Section 9A and introducing the scheme of reorganisation without such notice is justified. It means that the workers were justified in refusing to work under the new scheme. It follows that the refusal to pay their wages amounted to alteration of conditions of service and the applications were, therefore, rightly made under Section 33A.14. Even apart from that it was urged by Mr. Gupte relying upon the decision in National Coal Co. v. L. P. Dave, AIR 1956 Pat 294 that non-payment of wages was neither an alteration in the conditions of service nor is it a punishment and as such cannot come within the mischief of Section 33 of the Act. The Patna High Court relied also for its decision on the decision in Shama Biscuit Co. v. Their Workmen, (1952) 2 Lab LJ 353. The facts of that case are not quite clear. The Court gives no reason for its view that the non-payment of wages is not an alteration of conditions of service applicable to workmen and that it was only a case of default of payment of wages on the pay day falling under Payment of Wages Act. The facts there were in any case different from the facts of the present case. We may refer to the decision of the Allahabad High Court in Ram Nath Koeri v. Lakshmi Devi Sugar Mills, (1956) 2 Lab LJ 11 (All) where it was observed that the payment of wages is one of the essential ingredients of the contract of employment and that the word conditions includes the idea conveyed by the word terms but goes beyond it and is not confined to what is included in that word. The Court also held that term and conditions of employment is wider in scope than the expression terms and conditions of labour.But as we have already observed failure or refusal to pay wages for a certain period may necessitate proceeding under Section 33C, but refusal to pay wages indefinitely on the refusal of the workers to work according to a scheme of reorganisation which was not a valid one, because of the failure to give notice under Section 9A, cannot but be considered to be an alteration in the conditions of service of the workers.15. Mr. Gupte complained that the Tribunal has not decided the question whether the reorganisation was justified. He also contended that the applications by the workers as well as the reference made by the company should have been heard together and should not have been disposed of separately. That is really the main complaint of the employer. As we have pointed out earlier if all the evidence which was let in in the reference were available to the Tribunal which decided the applications of the workers, the result might well have been different. But we do not consider that the Tribunal was wrong in having proceeded to dispose of the matter in the way it did. Mr. Tarkunde rightly contended that even if an application had been made under S. 33C, the whole scheme would have to be considered and it is not fair at this distance of time to drive the workers to file applications under S. 33C, the procedure for which would be the same as under Section 33A, merely on the ground that the introduction of the scheme had taken place before the reference to adjudication was made. We consider that as an application under Section 33A has to be decided as if it were a reference under Section 10, the fact that the scheme had been introduced earlier than the reference to arbitration under Section 10, does not bar an application under Section 33A in the circumstances we have explained.16. We thus come to the conclusion (1) that non-payment of wages in the circumstances of this case amounts to an alteration in the conditions of service, (2) the fact that the scheme was introduced before the reference under S. 10 was made does not bar an application under S. 33A, and (3) that the Tribunal was justified in coming to the conclusion that this alteration in the conditions of service could not have been made without notice under Section 9A.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. He also urged that rationalisation and standardisation per se would fall under item 10 even if they were not likely to lead to retrenchment of workmen and only improvement of plant or technique would require that they should lead to retrenchment of workmen in order to fall under item 10. A further submission of his was that standardisation merely meant standardisation of wages.We are not able to accept this argument. It appears to us that the arrangement of words and phrases in that item shows that only rationalisation or standardisation or improvement of plant or technique, which is likely to lead to retrenchment of workmen would fall under that item. In other words, rationalisation or standardisation by itself would not fall under item 10 unless it is likely to lead to retrenchment ofare of opinion that the retrenchment contemplated under item 10 is retrenchment as defined in clause (oo) of Section 2 where it is defined as the termination by the employer of the service of a workmen for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include voluntary retirement of the workmen. The workers cannot, therefore, make a grievance of the voluntary retirement andof vacancies and try to bring it under item 10.8. As regards item 11 it was urged that as one department out of three has been abolished, this item applies. Though to bring the matter under this item the workmen are not required to show that there is increase in the workload, it must be remembered that the 4th Schedule relates to conditions of service for change of which notice is to be given and Section 9A requires the employer to give notice under that section to the workmen likely to be affected by such change.The word affected in the circumstances could only refer to the workers being adversely effected and unless it could be shown that the abolition of one department has adversely effected the workers it cannot be brought under item 11. The same consideration applies to the question of change in usage under item 8. Let us, therefore, see what was the scheme of reorganisation to which the workers tooksee no reason to differ from the finding of the Tribunal that there has been no change in usage adversely affecting the workers, and that as there has been no retrenchment item 10 of Schedule IV is not attracted nor is itemclose scrutiny of the various decisions would show that whether any particular practice or allowance or concession had become a condition of service would always depend upon the facts and circumstances of each case and no rule applicable to all cases could be culled out from these decisions.In the face of the elaborate consideration of the evidence and findings made by the Tribunal we are unable to hold that there has been any change in the terms and conditions of service of the workers in this case to their detriment. It follows, therefore, that Section 9A is not attracted. It is, therefore, unnecessary to consider the question whether the argument advanced by Shri Gupte on behalf of the employer that in view of the very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of Section 9A and the mere fact that a formal notice was not given under Section 9A would not make the reorganisation scheme notis in evidence that the workers presented themselves for work every day and offered to work according to the old scheme but that they were not given any work according to the old scheme. They were told that as long as they refused to work under the new scheme they would be paid no wages. The refusal to pay, therefore, was not a solitary instance in respect of which an application could have been made under Section 33C. It was a continued refusal. It was, therefore, a permanent alteration of the conditions of service. The cause of action, so to say, arises de die in diem. If the refusal of the workers to work under the reorganisation scheme is justified then the refusal of the management to pay unless they worked under the reorganisation scheme would amount to alteration of the conditions of service of workers. If on the other hand the workers were not justified in doing so then no other question arises. But in the face of the finding of the Tribunal that the reorganisation scheme rendered some workers surplus and that the scheme had seriously prejudiced the workers, and that the apprehension of the workers that the reorganisation would result in some member of the staff becoming surplus came true, it cannot be said that the failure of the employer to give notice under Section 9A and introducing the scheme of reorganisation without such notice is justified. It means that the workers were justified in refusing to work under the new scheme. It follows that the refusal to pay their wages amounted to alteration of conditions of service and the applications were, therefore, rightly made under Sectione scrutiny of the various decisions would show that whether any particular practice or allowance or concession had become a condition of service would always depend upon the facts and circumstances of each case and no rule applicable to all cases could be culled out from these decisions.In the face of the elaborate consideration of the evidence and findings made by the Tribunal we are unable to hold that there has been any change in the terms and conditions of service of the workers in this case to their detriment. It follows, therefore, that Section 9A is not attracted. It is, therefore, unnecessary to consider the question whether the argument advanced by Shri Gupte on behalf of the employer that in view of the very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of Section 9A and the mere fact that a formal notice was not given under Section 9A would not make the reorganisation scheme notMr. Gupte complained that the Tribunal has not decided the question whether the reorganisation was justified. He also contended that the applications by the workers as well as the reference made by the company should have been heard together and should not have been disposed of separately. That is really the main complaint of the employer. As we have pointed out earlier if all the evidence which was let in in the reference were available to the Tribunal which decided the applications of the workers, the result might well have been different. But we do not consider that the Tribunal was wrong in having proceeded to dispose of the matter in the way it did. Mr. Tarkunde rightly contended that even if an application had been made under S. 33C, the whole scheme would have to be considered and it is not fair at this distance of time to drive the workers to file applications under S. 33C, the procedure for which would be the same as under Section 33A, merely on the ground that the introduction of the scheme had taken place before the reference to adjudication was made. We consider that as an application under Section 33A has to be decided as if it were a reference under Section 10, the fact that the scheme had been introduced earlier than the reference to arbitration under Section 10, does not bar an application under Section 33A in the circumstances we have explained.16. We thus come to the conclusion (1) thatof wages in the circumstances of this case amounts to an alteration in the conditions of service, (2) the fact that the scheme was introduced before the reference under S. 10 was made does not bar an application under S. 33A, and (3) that the Tribunal was justified in coming to the conclusion that this alteration in the conditions of service could not have been made without notice under Section 9A.