2000(4) ALL MR 338
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

R.J. KOCHAR, J.

Sangamner Bhag Sahakari Sakhar Karkhana Ltd. Vs. Rashtriya Sakhar Kamgar Union Sangamner & Anr.

Writ Petition No. 3403 of 1989

16th June, 2000

Petitioner Counsel: Shri. R. N. DHORDE
Respondent Counsel: Shri. S. K. SHELKE

(A) Bombay Industrial Relations Act (1946), S.73-A r/w. S.42(2) - Proceedings under - Demand of employees vague - Also no particulars given in evidence - Order mere declaration of law - Liable to be set aside. (Paras 4, 6)

(B) Bombay Industrial Relations Act (1946), S.73A - Apprentices Act (1961) - Proceedings under - Demand that employers not to appoint any apprentice as unskilled workman but if does so then workman be paid on par with unskilled workman - Also demand that apprentices appointed to other posts outside Apprentices Act be given 60% of wages and D. A. of that post - No instance given of employer appointing apprentices outside Apprentices Act - Demand merely declaration of law and vague - Order in terms of such demand - Set aside. (Paras 4, 6)

JUDGMENT

JUDGMENT :- The petitioner, a sugar Karkhana, is aggrieved by the award and order dated 9-6-1986, directing the karkhana as under :

"1. The IInd party shall not appoint any apprentice as unskilled worker in the Karkhana.

2. The IInd party shall pay those apprentices who are appointed or will be appointed for unskilled work the basic pay and dearness allowances on par with the unskilled workers.

3. The IInd party shall also pay to such of the apprentices who are appointed otherwise than under the Apprentices Act, 1961, to any other posts other than the unskilled workers the 60% of the wages and dearness allowance of that post.

4. This order is to be given effect from the date of notice of change i.e. 26-9-1980."

2. The petitioner Karkhana has impugned the aforesaid award and the order of the Industrial Court passed U/s. 73A of the Bombay Industrial Relations Act, 1946, in a reference IC No. 6/84 submitted by the respondent union. By a notice of change dated 26-9-1980 the respondent union, a representative and approved union for the sugar industry in the local area of Ahmednagar, desired a change U/s. 42(2) of the Act in respect of an industrial matter not specified under schedule 1 or 3 of the Act. It would be appropriate to reproduce the change desired by the union.

"1. Sangamner Division Cooperative Sugar Factory Ltd. No apprentice should be appointed in the post of an unskilled worker. Such apprentices as are appointed or as will be appointed to do the work of unskilled workmen should receive the basic pay and dearness allowance as is given to the unskilled workmen.

2. To apprentices who are appointed to posts other than those of unskilled workmen and who are asked to do other kinds of work should be given basic pay and dearness allowance that is sixty percent of that which is normally given for such posts & such work.

3. These changes should come into effect from the date of the notice."

3. Since there was no agreement between the parties the union approached the conciliator who commenced conciliation proceedings and who gave his failure certificate on completion of the conciliation proceedings that there was no agreement or conciliation between the parties and that the conciliation had failed. The union thereafter referred the Industrial Dispute for arbitration. In justification of its notice of change the union filed its statement of claim. On notice the petitioner Karkhana filed its written statement contesting the reference made by the union. Both the parties adduced their oral and documentary evidence. The Industrial Court after hearing the parties answered the reference in favour of the respondent union and gave its award and order as reproduced in the beginning of this judgment.

4. At the outset I am constrained to observe that the notice of change as well as the statement of claim filed by the respondent union are as vague as possible. There are no particulars given by the union in respect of its demand. It has also not cared to examine even a single apprentice out of allegedly 70 of them whose cause the union claimed to espouse in this reference. Instead of adducing any oral and documentary evidence of the apprentices themselves, the Secretary of the Union stepped in the witness box to give evidence in support of the apprentices and even in the evidence he does not come out with any specific case or with detailed particulars in support of the case of the apprentices. Since the statement of claim was vague the Karkhana has also filed its written statement in general terms without committing itself and without taking any position in the matter of apprentices. It has also barely denied the charge of the union that the petitioner Karkhana was employing apprentices to do the work of unskilled workers or skilled workers at a fixed rate of Rs. 300/- p.m. in the guise of appointing apprentices. The Industrial Court has also based its award and order in general terms. It has given declarations which is the law itself. It has directed the karkhana not to appoint any apprentices as unskilled workers in the Karkhana and that it shall pay those apprentices who are appointed or will be so appointed their unskilled scale, the basic pay and the dearness allowance on par with that of the unskilled workers. It has further directed that those apprentices who are appointed otherwise than under the Apprentices Act, 1961 to a post other than the unskilled worker's post shall be paid 60% wages and the dearness allowance of that post. The demand of the union and also the order of the Court both match with each other in the quality of vagueness. It is as good as saying or declaring that no employer shall engage in any Unfair Labour Practice and that the employers are restrained from engaging in any unfair labour practice. Shri. Dhorde, learned advocate for the petitioner therefore, is right in his criticism that the notice of change as well as the order of the Industrial Court both are classically vague and there is nothing specific in the demand and even in evidence no particulars are given. The Union has demanded a declaration of law. In fact, Shri. Dhorde, has no objection in accepting the two orders given by the Industrial Court that the Karkhana shall not appoint apprentice as unskilled worker in the Karkhana and that any apprentice who is appointed to do unskilled work will be paid the wages of that category. As far as the order No. 3 is concerned Shri. Dhorde, has submitted that there is not even single specific instance given by the union that the Karkhana had appointed anyone as an apprentice otherwise than under the Apprentices Act, 1961 and therefore, there is no question of giving any direction of general nature that such a person shall be paid 60% of the wages carried by such a post. Even otherwise the legal position is clear that if any person is appointed under the guise of apprentice and if he is not paid wages of the post for which he is appointed he should be paid the wages of that post. At this stage Shri. Dhorde, has pointed out that such an apprentice will have his own remedy under the provisions of the Apprentices Act, 1961 and there is total bar U/s. 20 of the said Act for any Labour Legislation to entertain such a dispute between the employer and any apprentice.

5. Shri. Dhorde, has relied on certain judgments on the point of maintainability of the reference under the provisions of the B.I.R. Act. In view of my above judgment, it is not necessary to refer to those judgments.

6. The petition succeeds. The award and order of the Industrial Court is quashed and set aside to the extent of order No. 3 and 4. Shri. Dhorde, in his usual fairness has accepted the first two orders given by the Industrial Court that the Karkhana shall not appoint any apprentice as unskilled workers in the Karkhana and if appointed it shall pay to such unskilled workers the basic pay and dearness allowance of that post. Rule is made absolute as above with no order as to costs.

Order accordingly.