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PETITIONER: MCLEOD AND COMPANY LTD.

       Vs.

RESPONDENT: WORKMEN

DATE OF JUDGMENT: 29/11/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS

CITATION:  1964 AIR 1449            1964 SCR  (5) 568  CITATOR INFO :  RF         1972 SC1967  (3)  RF         1973 SC1156  (11)

ACT: Industrial Dispute-Worker’s claim for cash allowance in lieu of  tiffin  arrangements-Implied  condition  of  service-Re- employment of retired persons-Limited direction by Tribunal, if proper.

HEADNOTE: The  disputes between the appellant company and its  workmen were  referred  to  the Industrial  Tribunal.   The  workmen claimed that (1) they should be given cash allowance in lieu of the tiffin :arrangements made by the company, and (2) the practice  started  ,by the company of  re-employing  retired persons should be discontinued.  The Tribunal directed : (1) the clerical staff should be paid As. -/8/- per day and  the subordinate staff As. -/6/- per day on all working days, and (2)  the  company should stop the  reemployment  of  retired workmen in the category of clerks above C grade.  In respect of  the  subordinate staff as also in regard  to  the  lower grade  clerks, the Tribunal thought it unnecessary  to  make any such direction.  The evidence showed that in the  region 31  comparable concerns were supplying free tiffin to  their employees and that the appellant company had been throughout making .provision for tiffin to its employees.  It was  also found that the policy adopted by the company of re-employing the  retired personnel was not based solely on  humanitarian grounds and that when retired persons were re-employed  they were paid a much smaller salary for doing the same work than they were drawing before retirement. 569 Held:(i)  Though under the provisions of the  Factories  Act there was no obligation on the company, either statutory  or otherwise,  for  giving  the workers a  cash  allowance  for tiffin,  the  history of the relations between  the  parties coupled  with  the  prevailing practice  in  the  comparable concerns showed that it was an implied condition of  service that  in  addition  to the wages and  dearness  allowance  a provision  for tiffin was an amenity to which the  employees were  entitled, and that the decision of the Tribunal  could not be interfered with.

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(ii) The limited direction issued by the Tribunal in respect of the re-employment of retired persons was neither improper nor unjustified.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 514 of 1963. Appeal by special leave from the judgment Award dated August 21, 1962, of the Fourth Industrial Tribunal, West Bengal  in Case No. VIII-332 of 1961. A.V.  Viswanatha Sastri, D.N. Gupta, S.C. Mazumdar and  B.N. Ghosh, for the appellant. D.L. Sen Gupta and Janardan Sharma, for the respondents. November 29, 1963.  The Judgment of the Court was  delivered by GAJENDRAGADKAR,   J.-The  industrial  dispute  between   the appellant,  Mcleod & Company Ltd., and the respondents,  its workmen, which has given rise to the present appeal centered round  two  items  of claim made by  the  respondents.   The respondents claimed that they should be given cash allowance in  lieu of the tiffin arrangements at present made  by  the appellant,  and they urged that the practice started by  the appellant   of  re-employing  retired  persons   should   be discontinued.  The Tribunal has granted the first claim  and has  directed  that the clerical staff should  be  paid  As. -/8/- per day and the subordinate staff As. -/6 ’ - per  day on all working days in lieu of the tiffin arrangements which are  at  present made by the appellant.  In  regard  to  the second  claim, the Tribunal has ordered that  the  appellant should  stop  the re-employment of retired  workmen  in  the category of clerks above ’C’ grade.  In respect of the 570 subordinate  staff  as also in regard to  the  lowest  grade clerks, the Tribunal thought it unnecessary to make any such direction.  That is how the latter claim has been  partially allowed.   It is against this award that the  appellant  has come to this Court by special leave. The  total  number  of employees in the  employment  of  the appellant  is  about 453. 36 of them are  officers;  90  are junior grade Assistants, while 196 are clerks and 131 belong to  the subordinate staff.  It is in regard to the last  two categories  of the appellant’s employees that the two  items of  dispute have reference in the present  proceedings.   It appears that in 1956 there was an industrial dispute between the  parties,  one of the items in dispute being  the  claim made  by  the respondents in respect of  tiffin  on  working days.  In those proceedings, however, the said claim was not pressed  and  the matter was left to the discretion  of  the appellant.   After  the  award was  published,  the  parties entered into direct negotiations in respect of the claim  of tiffin  allowance  and  according to  the  evidence  of  Mr. Mazumdar,  the General Secreatry of the respondents’  Union, the  management then assured the respondents that  it  would consider the quantum and value of free tiffin afterwards and a settlement was then reached.  Accordingly, two cups of tea and two biscuits are given by the appellant to the  clerical staff, whilst one cup of tea and one biscuit is given to the members  of  the subordinate staff.  On Saturdays  the  same ration of tiffin is supplied to the clerks and the sub-staff alike.  In the present dispute, the respondents contended that  the tiffin    arrangements   made   by   the   appellant    were unsatisfactory  and they urged that a cash allowance  should be  given  to  them in that behalf.   This  claim  has  been

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allowed  by  the  Tribunal.  Mr. Sastri  for  the  appellant contends  that  the Tribunal has erred in law in  making  an award  in respect of the cash allowance for tiffin,  because he  argues  that  it is not obligatory on the  part  of  the appellant  to  make  any provision for  the  tiffin  of  its employees.  Under the relevant 571 provisions of the Factories Act, a canteen had been  started by  the  appellant,  but  there  is  no  obligation  on  the appellant, either statutory or otherwise, for providing  any further  facility to the employees by way of giving  them  a cash allowance for tiffin.  He also emphasised the fact that the wage structure which prevails in the appellant’s concern represents a fair wage structure and the dearness  allowance is  paid to the respondents according to the Bengal  Chamber of   Commerce   Formula;  the  said   formula   takes   care substantially of the rise in the cost of living from time to time.  That is another reason on which Mr. Sastri relies  in resisting the respondents’ claim for cash allowance in  lieu of  tiffin.   Prima  facie, there is  some  force  in  these contentions. But,  on  the  other hand, the evidence shows  that  in  the region as many as 31 comparable concerns are supplying  free tiffin  to their employees (Ext. 10).  Besides, as  we  have already  seen,  the  appellant has  throughout  been  making provision  for  tiffin of its employees and, in  fact,  when after  the award was pronounced in the proceedings  of  1956 and  this  question  was taken up  for  direct  negotiations between  the parties, the appellant agreed to  consider  the claim sympathetically and make a suitable provision in  that behalf  That is how the prevailing arrangements  for  tiffin came  to be introduced.  Under these circumstances,  if  the Tribunal  took  the  view that the appellant  was  under  an obligation to provide some cash allowance for tiffin to  its employees, we do not see how we can interfere with it on the ground that the impugned decision is erroneous in law.   The history  of the relations between the parties  coupled  with the  prevailing practice in the comparable concerns  in  the region strongly supports the view taken by the Tribunal that in  the appellant’s concern it was an implied  condition  of service   that  in  addition  to  the  wages  and   dearness allowance,  a provision for tiffin was an amenity  to  which the employees were entitled.  That being so, we do not think that the appellant’s grievance against the direction in  the award that 572 As. -/8/- and As. -/6/ - per day should be paid respectively to the members of the clerical staff and the substaff on all working days, can be upheld. That takes us to the respondents’ claim that the practice of employing  retired  men  should  be  stopped.   Mr.   Sastri contends  that in acceding partially to the demand  made  by the  respondents, the Tribunal has overlooked the fact  that the re-employment of retired persons was mainly inspired  by humanitarian considerations.  When it appeared to the appel- lant that some employees who had retired found it  difficult to  maintain  themselves and their families,  the  appellant sympathetically and generously considered their request  for re-employment  and that is, the basis on which some  of  the re-employments have been made.  It may be conceded that some of the re-employments may have been actuated by humanitarian motives  and the appellant cannot, therefore, be  blamed  on that  account; but there are some other factors in  relation to  this problem of re-employment which cannot  be  ignored. It  appears that as many as 6 persons have been  re-employed

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and  the correspondence between the parties on this  subject shows  that the respondents felt that the policy adopted  by the appellant in re-employing the retired personnel was  not based solely on humanitarian grounds.  When the  respondents had  raised  a  dispute on this point  in  1960,  the  State Government  had  refused to make a reference on  the  ground that  only 4 cases of reemployment had been brought  to  its notice,   and  so,  the  problem  did  not  call   for   any consideration at that stage.  Thereafter,  the   respondents represented to the State Government that though the  company gave  assurances to its employees that  re-employment  would not be resorted to on a liberal scale, those assurances were disregarded  and  the practice was being  followed  in  many cases and that posed a serious problem to the  -respondents. Besides,  it does appear that when retired persons  are  re- employed, they are paid a much smaller salary for doing  the same work than they were drawing before retirement.  Take, 573 for instance, the case of Chandi Charan Banerjee.  Before he retired,  he  was  drawing a basic salary  of  Rs.  380  and dearness   allowance.   On  his  re-employment,  he  got   a consolidated   salary  of  Rs.  250  without  any   dearness allowance. and that means that the re-appointed employee was getting  about  half  his former wages for  doing  the  same work  .  This  aspect of the  matter  introduces  a  serious infirmity  in  the,  appellant’s case as  it  was  presented before us by Mr. Sastri.  If re-employments are made on  the basis  of  reduced  salary,  that  really  means  that   the appellant is introducing a wage structure in respect of  the reemployed  personnel  which is definitely inferior  to  the wage structure devised for the employees of the appellant by the  award  ,  and that clearly cannot  be  permitted  under industrial law.  Besides, if senior persons are  re-employed after  retirement,  that  is apt to  retard  or  hamper  the prospects  of  promotion to which the junior  employees  are entitled to look forward.  It is in the light of these facts that the  question posed by the respondents’ demand must  be considered.   Thus considered, we see no  justification  for Mr. Sastri’s grievance that the limited direction issued  by the award is either improper or unjustified.  The fact  that the  re-employed persons have made an  affidavit  supporting the  practice adopted by the appellant can have no  material bearing  in  dealing with the point; in the very  nature  of things,  the said re-employed persons are bound  to  support the appellant. The result is, the appeal fails and is dismissed with cost.                                    Appeal dismissed. 574