,0

'J',li"l,I~'.~~~,I ~'·~L

I~l!!1:,

f~";'.,l'

aJ\~:,!.,,:1

"

~\

11I';'1

Government of West BengalLabour Department

I.R. BranchN.S.Buildings, 12th Floor, 1<01-1

Date: 10.01.2018No.Labr'/20/(LC-IR)I

IR/11L-100/17II ORDER

WHEREASunder the Government of West Bengal, Labour Department Order No, 285/1(3)-LC-IRdated 16,03,2017 the Industrial Dispute between M/s. The Peerless Inn 12, Jawaharlal Nehru Road,Kolkata-700013 and Sri Debabrata Dey, Treasurer of Peerless Hotel & Travels Ltd. Workers Union, 249,B,B,GangulyStreet, Kolkata-700012 regarding the issuementioned in the saidorder, being amatter specifiedin the seccnd/Thtrd Schedule to the Industrial Dispute Act, 1947(14 of 1947), was referred for adjudication tothe Judge,IFirst Labour Court Industrial Tribunal, West Bengal.

IAND WHEREAS, the Judge of the said First Labour Court Industrial Tribunal, West Bengal, hassubmitted to the State Government its award on t~e said Industrial Dispute.

NOW,THEREFORE,in pursuance of the provisions of Section 17 of the Industrial Dispute Act, 1947 (14of 1947), the Governor is pleased hereby to publish the said award asshown in the Annexure hereto,. .

ANNEXURE(Attached herewith)

ByOrder of the Governor

Assistant Secretary to theGovernment of West Bengal.

No.Labr./20/1(5 )/( LC-IR) Date: 10.01.2018

1.

Copywith a copy of the Award forwarded for information & necessary action to :­The PeerlessInn,12, Jawaharlal Nehru Road,Kolkata-700013

2, TheTreasurer, Sri Debabrata Dey, PeerlessHotel & Travels Ltd. Workers Union, 249,

B.B.GangulyStreet,Kolkata -7000123, TheAssistant Labour Commissioner, West Bengal in-Charge, Labour Gazette.4, _/he Labour Commissioner, W.B. New Secretariat Buildings, (11th Floor),l, K.S.RoyRoad,Kol-l

~ TheO,S.D" ITCell, Labour Department, with the request to cast the Award in the Deptt.'s website,

)1:)0'Assistant Secretary to the

Government of West Bengal

Date: 10.01.2018

Copy forwar d for information to :-1. The Judge, Fir t Industrial Tribunal, West Bengalwith reference to his Memo

No, 2167-LTda ed 18.12.2017.2, Commissioner (Statistics), West Bengal,6, Church Lane, Kol-l.

Sabita/IRIOOIZ018

/Assistant Secretary to the

Government of West Bengal

,!

In the matter of a reference under Section 36A of the IndustrialDisputes Act, 1947 being no. 285/1(3)(LC-IR)/11L-45/15 dated 16.03.2017between Peerless Hotels & Travels Ltd. Workers' Union having its registeredoffice at 249, Bipin Behari Ganguly street, Calcutta-700 012 represented byShri Debabrata Dey, Treasurer being the Applicant and MIS, Peerless Inn, 12Jawaharlal Nehru Road, Calcutta- 700 013 being the opposite Party/Company.

(Case No.Ol/2017 under Section 36A of the Industrial Disputes Act,

1947)

Present: Nilanjana Chatterjee,Judge, First Labour Court, Kolkata

Dated: 6th day oIDecember 2017

Award

This court received a reference from the Secretary, Labour

Department, and Government of West Bengal under Section 36A of the

Industrial Disputes Act, 1947. The reference was received on 18.04.2017.

Since the point of reference involved interpretation of a phrase in the

settlement entered between the management and the Union, neither of the

parties adduced any oral evidence. Both parties filed documentary evidence

which were marked exhibits since neither of the parties disputed the veracity

of these documents. After the copies of documents were exchanged and filed,

the instant reference was put up for hearing. The Learned Advocates were

heard at length and after much deliberation, this court has reached to the

decision which is discussed and detailed in the following lines, passages and

paragraphs. The documents which have been admitted as evidence by both

the parties shall be delved upon in the course of my discussion which shall

hereinafter follow.

DECISION WITH REASONS

On the onset, I shall first narrate the relevant portions of the order of

reference dated 16.03.2017.

"The background of the case in brief is that an agreement was

executed between the Management of Peerless Hotels and travels Ltd. and

Peerless Hotels & Travels Ltd. Workers' Union on 05.10.1994 defining the

benefits which the employees of the said company are entitled to. The

benefits detailed in the agreement include holidays, leaves, uniform, service

charge, pay scale, annual increment, VDA,House Rent Allowance, Ex-gratia,

LTCetc.

Contd ...2

[2]

Clause 5 of the aforesaid agreement provides for payment of Service

Charge collected by the company to the employees. Clause 5 reads as follows

"it is agreed between the parties that effective 1st October, 1994, 70% of

Service charge is collected on Food & Beverages sales will be disbursed

amongst all employees including managerial personnel connected with the

hotel functioning. The Industrial Trainees and the hotel operation trainees

coming for the job training from different Institute/ sources will not get share

of service charge. The tipping zone employees will get 50% less service charge

than the amount payable to the non-tipping zone employees. From 1st

October, 1996 disbursement of service charge will be 75%.

Now the question is whether an employee under suspension is entitled

to get the share of service charge along with his Subsistence Allowance

during the period of his suspension.

Hon'ble Justice I.P. Mukerji, Calcutta High Court passed an order on

04.12.2015 directing the Secretary, Ministry of Labour, Govt. of West Bengal

or any senior officer authorised by him to go into the question whether the

said dispute should be referred to the Learned Lower Court under Section

36A of the Industrial Disputes Act, 1946 and to pass a reasoned order after

giving the opportunities to both the parties to make their submission.

In compliance with the said order and being authorised by the

Additional Chief Secretary, Labour Department, Govt. of West Bengal vide his

order dated 06.03.2017, the matter is taken up today for hearing. Both the

parties are heard at length."

"Considering the aforesaid deliberations, I understand that the words

"connected with the hotel functioning" in clause 5 of the Agreement assume

immense importance or relevance in deciding the admissibility of service

charge to a suspended employee ..And it needs to be interpreted in a lawful

manner to decide the case.

Keeping in mind the order of the Hon'ble High Court and taking the

entire conspectus into consideration, I decide that it is a fit case for being

referred to the Learned First Labour Court under Section 36A(1) of the

Industrial Disputes Act, 1946.

Contd ...3

[3]

Hence, it is ordered that the matter be referred to the First Labour

Court for proper interpretation of clause 5 of the Agreement and decision."

Thus, the above portion of the order of reference reveals that a dispute

had arisen between the management of the Peerless Inn and the union on

the matter as to whether suspended employees would be entitled to service

charge as mentioned in clause 5 of the agreement dated 05.10.1994.

This dispute led to the filing of a writ petition [W.P. 23862(w) of 2014] before

the Hon'ble High Court at Calcutta. On 04.12.15, the Hon'ble Court passed

the following order:

" In my opinion, it is within the domain of the learned Labour Court

under Section 36A of the Industrial Disputes Act, 1946, provided the

appropriate Government forms the opinion that a difficulty or doubt

arises with regard to the interpretation, inter alia of a settlement. The

Court's intervention at that stage is not contemplated by ~he statute."

"In that view of the matter, the above dispute between the parties is

referred to the Secretary, Ministry of Labour, Government of West

Bengal or any senior officer authorised by him to go into the question

whether the said dispute should be referred to the Learned Lower

Court under Section 36A."

Therefore, the Hon'ble Court has opined that the dispute in question is

within the domain of the provision of Section 36A of the Industrial Disputes

Act, 1947 [hereinafter referred to as the Act for the sake of brevity] but the

Hon'ble Court has been pleased to hold that the appropriate Government can

refer the matter provided the government forms the opinion that a difficulty

or doubt arises in the interpretation of the settlement. Thus, the appropriate

government has been given the ultimate prerogative to decide whether the

dispute in question is capable of being referred for interpretation under

Section 36A of the Act.

The Union and the O.P have filed their respective written statements.

According to the Union, the Company with a vindictive attitude illegally

and unjustifiably suspended 19 workman and stopped paying these

suspended employees service charges which was payable to all employees

under the settlement dated October 5, 1994.

~~''\I.·'~O('\

\/.>~( ~~t.~~t·~')< (1:1", 0.!~. f~::),,~t Cc ~'-i.:.~ :/(i\ "'f ffi. (i':i~q.~~.~".t).',_,. *~"~ tiENGI>~

Contd ...4

[4]

The Company, in its written statement has denied the legality of the

reference made by the government under Section 36A of the Act. According

to the management, there is no "difficulty or doubt" in the phrasing of clause

5 which would require interpretation contemplated under Section 36A of the

Act. According to the O.P., when an employee is suspended pending enquiry,

the contract of employment is kept under animated suspension and as such

the question of payment of payment of service charges does not arise.

Secondly, service charges are paid for rendering active service and in the

absence whereof the same cannot be paid and there is no scope for any

payment without rendering active service. Since the suspended workmen did

not render any service, the question of being entitled to service charge in

accordance to the memorandum of settlement dated 5th October, 1994 does

not arise.

The O.P. Company has disputed the legality of the reference itself on

the ground that the same does not fulfil the pre-conditions set in the

provision of Section 36A of the Act. This issue has been keenly contested and

the Learned Advocate for the O.P has argued on this point at length.

According to him, unless an award or settlement suffers from "any difficulty

or doubt", reference under Section 36A is a nullity and the same is liable to

be quashed. It has been argued on behalf of the Company that appropriate

government can refer a matter under Section 36A to the Tribunal or Labour

Court only when there is any difficulty or doubt in interpreting any

settlement and not otherwise. The O.P claims that clause 5 of the settlement

dated 5 October 1994 suffers from no ambiguity. It has been urged that the

words of Clause 5 of the Settlement dated 5 October 1994 (Exhibit no. 1)

clearly excludes suspended workmen from the benefits of Service Charge. In

support of his argument, the Learned Advocate for the O.P has referred to

the decision reported in 1961-11- LLJ 310 {Britaruiia Engineering

Company Ltd. and Anr. vs. BasuMazumdar and Ors J. In this case, the

question was whether the workman was entitled to emoluments awarded by

the Mercantile Tribunal or under Engineering Tribunal. Industrial Tribunal

held that he was entitled to benefits under the award of Engineering

Tribunal. In appeal, the Labour Appellate Tribunal held that the workman is

entitled to benefits on the basis of Mercantile Tribunal award. A writ petition

followedwhich was dismissed. Thereafter, Government made a reference ul s

Contd ...5

[5]

36A of the Act on the ground that difficulties had arisen with regard to

certain questions as to the interpretation of the award of the Industrial

Tribunal and modified decision of the Labour Appellate Tribunal. The order

of reference was challenged on the ground that it was not in accordance to

the provisions of Section 36A. The Hon'ble court held that the reference itself

was vague as it did not mention the point of doubt or difficulty. On perusing

the decision, I find that the issues mentioned in the reference were such that

are required to be determined under Section 10. The Hon'ble Court was

pleased to hold that ix] s 36A of the Act, a reference cannot be made in order

to supplement the original award. The reference was held, accordingly, to be

defective. It must be mentioned here that the O.P of this case did not prefer a

writ challenging the legality of the reference. On the question of "doubt and

difficulty", the Company has also referred to the decision of The KirloskarOil Engines Ltd. vs. Their Workmen and others reported in 1961 -II-LLJ-

675 and argued that the Hon'ble Supreme Court has been pleased to hold

that the appropriate government can refer any question to the Tribunal if the

said government is satisfied that any difficulty or doubt arises as to the

interpretation of any provision and not otherwise. In this decision, the

Industrial Tribunal passed an award inter alia (1) that if a workman had to

work on a weekly off or on a holiday he should be paid 1 1/2 times his wages

and dearness allowance over and above a substituted holiday and (2) that all

the workmen shall be granted 15 days privilege leave in a year which could

not be allowed to be accumulated up to 45 days. The company applied to the

government xx] s 36A of the Act stating that the directions given by the

tribunal had to be clarified. The Learned Tribunal made a clarification as

regards privilege leave confining it to only those workmen who had put in

240 days or more of actual working. It was held by the Hon'ble Court that

Section 36A empowers a tribunal to clarify the provisions. of the award and

not to review or modify its own order. Any question about the propriety,

correctness of the award is outside the purview of Section 36A. It has been

argued on behalf of the O.P that statute provides for reference ix] s 36A only

in case of doubt and difficulty and the same cannot be referred unless such

pre-conditions are satisfied. While referring to the decisions reported in 2011(13) SCALE 460 [Chief Information Commissioner -vs- the State of

Manipur and othersJand 2015 LLR 337 (SC)[MacKinnon Mackenzie &

Company Ltd. -vs- Mackinnon Employees Union J the Learned Advocate

Contd ...6

[6]

for the O.P expounded the legal principle that if a statutory provision

prescribes a particular procedure to be followed by the authority to do an

act, it should be done in that particular manner only or else such act shall

be held to be null and void ab initio in law. He furthersubmitted that when a

procedure is laid down statutorily and there is no challenge to the said

statutory procedure, the court should not, in the name of interpretation, lay

down a procedure which is contrary to the express statutory provision.

These decisions referred by the Learned Advocate for the O.P would, no

doubt, be the guiding force in determining whether the present reference

lacks a necessary legal standpoint. It is revealed in the decisions referred

above that the ultimate authority to decide as to whether doubt or difficulty

exists in an award or settlement and the same is required to be interpreted

under Section 36A of the Actlies with the appropriate government. Needless

to say, the appropriate government must say on what point of interpretation

it had doubt or difficulty. The provision of Section 36A of the Act which is

pertinent is required to be recited at this point.

"(1) If, in the opinion of the appropriate Government, any difficulty or

doubt arises as to the interpretation of any provision of an award or

settlement, it may refer the question to such Labour Court, Tribunal or

National Tribunal as it may think fit.

(2) The Labour Court, Tribunal or National Tribunal to which such

question is referred shall, after giving the parties an opportunity of being

heard, decide such question and its decision shall be final and binding on all

such parties."

In the present case, the reference is very clear. It clearly points out

thatdifficulty or doubt is created in the clause 5 of the Settlement dated 5

October, 1994 as to whether an employee under suspension is entitled to get

the share of service charge along with the Subsistence Allowance during the

period of his suspension and whether the phrase "connected with the hotel

functioning" existing in the Clause 5 of the Settlement would include

suspended workmen as well or not. This doubt had been raised in the writ

petition too and the Hon'ble Court was pleased to opine that this dispute is

within the domain of Section 36A of the Act. The statute empowers this court

to decide any doubt or difficulty arising out of interpretation of an award or

Contd ...7

" ,[7]

settlement. The interpretation of a sentence in the settlement is not within

the purview of Section 10 and has to be decided only under Section 36A. The

Secretary of the Labour Department, in his order dated 16.03.2017, on

hearing the submissions of both the parties has stated-"the words

"connected with the hotel functioning" in clause 5 of the Agreement assume

immense importance or relevance in deciding the admissibility of service

charge to a suspended employee. And it needs to be interpreted in a lawful

manner to decide the case." The point on which the doubt has been raised

has been explicitly mentioned in the order dated 16.03.2017. In such

circumstance, the appropriate government has acted within the scope of the

statute in referring the matter in doubt to this court under Section 36A of

the Act for interpretation. There has been no violation of a statutory

procedure.Accordingly, the issue asto thevalidity of the reference is decided

in favour of the government apropos in favour of the applicant.

Now, comes the question of interpretation of the Clause 5 of the

settlement dated 5 October 1994 [hereinafter referred to as 'the settlement'

for the sake of brevity].

The words commg clause 5 of the settlement is unambiguous and

unequivocal save for the phrase "connected with the hotel functioning".

Clause 5 of the settlement makes way for a benefit to the employees in the

form of service charge. The recital of Clause 5 is required to be repeated for

the sake of better comprehension.

"it is agreed between the parties that effective 1st October,

1994, 70% of Service charge is collected on Food & Beverages

sales will be disbursed amongst all employees includingmanagerial personnel connected with the hotel functioning.The Industrial Trainees and the hotel operation trainees coming

for the job training from different Institute/ sources will not get

share of service charge. The tipping zone employees will get 50%

less service charge than the amount payable to the non-tipping

zone employees. From 1st October, 1996 disbursement of service

charge will be 75%."

5. SERVICE CHARGE

Contd ...8

[8]

Thus, it had been agreed in the settlement between the management

and the Union that 70% of the service charge collected from the customers

shall be disbursed amongst all employees including managerial personnel

connected with the hotel functioning. It is the case of the Company that the

suspended employees do not fall within the qualifying clause of "connected

with the hotel functioning" since they are debarred from entering the

premises of the Company. While referring to the decision of the Hon'ble

Supreme Court reported in 2013(9) SCALE 671 [State of Punjab -vs­Jastwant Singh Kanwarj, the Learned Advocate for the O.P submitted that

the Hon'ble Court has explained the concept of suspended employees in the

following words:

" The term 'suspend' would mean 'to debar usually' for a

time from any privilege, the execution of an office or from the enjoyment of

an income. It is temporary deprivation of office or privilege. By reason of

suspension, the powers, functions and privileges remain in abeyance but one

continues to be subjected to the same authorities. The above definition

makes it clear that during the period of suspension, all the privileges and

benefits attached to the office is temporarily suspended unless the period of

suspension is considered as the period spent on duty". It is also argued on

behalf of the company that a suspended employee in the state of West Bengal

is governed under the West Bengal Payment of Subsistence Allowance Act,

1969. The definition of wages in that Act is the same as defined in Section

2(rr) of the Industrial Disputes Act, 1947. Relying on the decision referred

above, it has been argued on behalf of the Company that though the

relationship of employee and the employer is not severed in case of

suspended employees, they are usually debarred from any privilege,

execution of any office or from enjoyment of an income. The Learned

Advocate for the Union, on the other hand, submitted that service charge,

like conveyance allowance, is part of the wages and should be included in the

Subsistence Allowance of the suspended employees. According to him, where

there is no exclusion by statute, it cannot be excluded by unilateral act of the

parties or by agreement. The Learned Advocate for the union, in support of

his argument, has referred to the payslips of the suspended employees which

include conveyance allowance. According to the Learned Advocate for the

Union, the suspended workmen do not attend office yet they are paid

Contd ...9

[9]

conveyance allowance. Similarly, the entitlement of the suspended employees

to Service charge cannot be disputed merely because the suspended

workmen are debarred from attending office/ work. In reply to the argument

placed on behalf of the Union, the Learned Advocate for the Company argued

that there are several components in the payslips and, evidently, all the

components mentioned therein are not covered under wages as defined

under Section 2(rr) of the Act. In this connection, he referred to the Exhibit

nos. 21, 22 series and submitted that unlike Conveyance allowance which

falls squarely within the definition of wages, the Service Charge is merely

additional payments made to the employees. It is true that these exhibits

being the payslips list Basic, VDA, HRA, Conveyance Allowance under the

heading 'Earnings'. The definition of wages under Section 2(rr) mentions all

these as components for wages. The payslips list Service Charge, Bonus and

LTAunder the head of 'Add'. No doubt, the service charge has been not been

included in the category of 'Earnings' but has been entered separately. The

statutory entitlement of suspended employees are guided by the

W.B.Payment of Subsistence Allowance Act. It is not within the scope of this

court under Section 36A to determine whether service charges are included

in the definition of wages. This court, in the present case, shall only interpret

the sentence which has created doubt and difficulty and shall not venture

into adjudicating any other fact.

The applicant, in its written statement has prayed for the following

relief:A) Issue a declaration that Memorandum of Settlement dated October 05,

1994 does not differentiate between workmen in the categories of

"working workmen" and "suspended workmen" hence the denial of

service as a component of wages while computing the subsistence

allowance of the workmen payable is bad in law;

B) Issue a declaration that Memorandum of Settlement dated October 05,

1994 provides that all workmen whether in the categories of "working

workmen" and "suspended workmen" are entitled to Service Charge as

component of wages upon which the Subsistence Allowance has to be

calculated;

C) Pass such further and/ or other order(s) / direction(s) as may seem fit

and proper.

Contd ... 10

,v' [10]

The Learned Advocate for the O.P has argued that this court, acting under

Section 36A of the Act, cannot give a declaration as sought for. I am in

unison with the argument of the Learned Advocate for the O.P that there is

no scope for this court under Section 36A of the Act to give a declaration.

Under the present reference, this court shall only interpret the point of doubt

and difficulty that has arisen in interpreting clause 5 of the settlement.

In the course of the hearing of the present reference, the decision of the

Hon'ble Calcutta High Court reported in 2005 (2) CHN 616 {Allahabad

Bank -vs- Presiding Officer, Central Government Industrial Tribunal]

has been referred by the Learned Advocates for both the parties in support of

their respective cases. In this case, the Telex operators claimed special

allowances at the same rate that was allowed to the employees operating

Advanced Ledger Posting Machines and Advanced Electronic Accounting

Machine. Award was passed granting the special allowance. The Hon'ble

Single Judge was pleased to dismiss the writ petition filed by the employer

on the ground that on materials the Learned Tribunal was justified in

granting the relief. The Division Bench of the Hon'ble High Court held that

when an agreement is specific and clear and is agreed between the parties,

neither the Tribunal nor the Court can substitute the agreement nor can it

extend the scope of the agreement. The Tribunal and Court have to accept

the agreement, which is binding between the parties. Any interpretation

which amounts to novation of the agreement or extension of the agreement

or modification of the agreement, is wholly outside the jurisdiction of the

Tribunal or the Court. The scope of interpretation of the scope of an

agreement is limited to the expressions used and the classifications made.

Neither the Court nor the Tribunal can erase the distinction or difference

between different categories; nor is it within the scope of the Court to

undertake job evaluation and substitute its view replacing an existing

agreement.

The Learned Advocate for the applicant has argued that where there

exists a doubt as to the interpretation of an award or settlement, the benefit

must go in favour of the weaker section being the Labour. In this connection,

the Learned Advocate has referred to the decisions reported in 2010

(124)FLR 700 {Harjinder Singh -and- Punjab State Warehousing

Contd ... 11

[11]

Corporation} and 1978-I-LW 322 [K.C.P. Employees' Association,

Madras -and- Management of K.C.P. Ltd., Madras & Others}.

In reply, the Learned Advocate for the O.P has referred to the decisions of

the Hon'ble Supreme Court in Daleo Engineering Private Ltd. -vs- Satish

PrabhakarPadhey&Ors. [2010 AIR SCW 231 O}and State of U.P -vs- Jai

Bir Singh [2005 (4) SCALE 696}.

In the 2005 decision, the Hon'ble Court held that the Industrial Disputes

Act is not merely a worker-oriented statute. The main aim of the statute is to

regulate and harmonise relationships between employers and employees for

maintaining industrial peace and social harmony. In the Daleo Engineering

case, the Hon'ble Court was pleased to hold, "we agree that the socio­

economic legislations should be interpreted liberally. It is also true that

courts should adopt different yardsticks and measures for interpreting socio­

economic statutes as compared to penal statutes and taxing statutes." In the

Daleo Engineering case, the statute in question had specifically excluded

private employers by using the words "non- discrimination in government

employment" instead of merely using the words "non-discrimination in

employment". Inclusion of the word 'government', clearly excludes

employment other than government employment.

The decisions referred above lay down the scope and limitation of this

court in interpreting the terms of the settlement. Every settlement and the

terms agreed thereon are different and have to be judged in its own unique

facts and circumstances. The Hon'ble Supreme Court and the Hon'ble High

Courts, through their numerous pronouncements have cautioned that the

courts cannot expand the application of a provision in a socio-economic

legislation by judicial interpretation to levels unintended by the legislature or

in a manner which militates against the provisions of the statute itself or

against any constitutional limitations.

The present case is not interpretation of a provision of the Act but to

interpret the terms of a bilateral settlement. However, the principles of

interpretation as pronounced in the various decisions shall be applicable in

the present interpretation as well. Interpretation of the terms would not

mean extending the meaning beyond the intention of the parties.

Contd ... 12

[12]

It has already been mentioned earlier that the appropriate government

had pointed out the point of doubt in the settlement and the same has been

sent to this court under Section 36A of the Act for interpretation. The plea

of the O.P that the terms of the settlement is specific and clear is a debatable

point which requires to be settled. The relevant portion of the Clause 5 reads,

"it is agreed between the parties that effective 18t October, 1994, 70% of

Service charge is collected on Food & Beverages sales will be disbursed

amongst all employees including managerial personnel connected with the

hotel functioning". Under the provisions of Section 18 of the Act, the terms of

a bilateral settlement are binding on the parties. In the present case, the

Learned Advocate for the applicant has tried to stress on the fact that service

charge shall be included in the definition of wages and, as such, service

charge shall be included in the subsistence allowance payable to the

suspended employees. The question to be decided here is not whether the

service charge shall be included in the subsistence allowance or not but

whether disbursement of service charges to all employees would include the

suspended employees as well or not. The O.P has contended that the term

specifically and intentionally inserts a qualifying clause "connected with the

hotel functioning" regarding the categories of employees who shall be entitled

to service charge. It has been argued that any employee who is not connected

with the hotel functioning is disqualified to receive share of the service

charge. According to the O.P., since suspended employees are debarred from

attending their work, it would mean that they are not connected with the

hotel functioning and, consequently, shall be excluded from receiving the

benefits of service charge.

An agreement between the parties must be read as a whole. The short

recital of the settlement lays down, " In the course of negotiation, the union

as well as the management reiterated to continue to maintain and strengthen

the spirit of understanding the relationship at all levels of employees and

facilitate the spirit of collaboration for effective performance towards

achieving business results, peace and harmony." The intention of the

settlement was to strengthen the spirit of understanding the relationship at

all levels of employees. Thus, the recital does not differentiate between the

working employees and suspended employees and aims at strengthening the

spirit of understanding the relationship at all levels. The intention to exclude

Contd ... 13

[13]

must be either express or flow from the words by way of necessary

implication. Here, when the intention was to exclude, as in the case of

trainees, there was no mincing of words.The document spelt very clearly that

trainees were not to be given a share of the service charge. In the same vein,

when there is an ambiguity, the doubt must be settled in favour of labour;

the company must bear the burden of the same; it being cavalier in

expressing its intent to exclude by using suitable words to that effect.

The purpose and purport of the settlement is the key to the expounding of

the reference. If it was the objective of the contracting parties to record in

black and white the consensus reached by and between them regarding the

entitlement of service charge, the law relating to suspension, suspended

employees and the incidents of suspension become irrelevant. In such event,

it is the settlement which must hold sway and the existence, or otherwise, of

the right in question must be determined on the touchstone of the words

constituting the document.

The phrase "connected with the hotel functioning" seems redundant in

the present context. Every employee of the hotel must be connected with its

functioning for if it were otherwise he/she would not have been employed in

the first place. The phrase, giving a magnanimous latitude to the draftsman

of the settlement could have had been used to exclude those category of

employees whose duties were peripheral to the running of the hotel; the

nature of work so distant from the core functioning of the business (e.g., the

accountant, the legal advisor, the macro-managerial cadre, the directors, the

advertising branch etc.) that neither law nor equity would support their

inclusion in sharing the service charge. Employees, including suspended

employees, whose duties are connected to the actual running of the hotel

should always get a slice of the service charge unless there be clear words to

suggest the contrary. In this context one must take note of the fact that

suspension being temporary disability imposed by the employer and not

equable to voluntary abstention from work, ought not to be visited with

additional penalty (additional in the sense that the suspended employees are

already forced to make do without their full wage) in the form of deprivation

of the share of service charge. If benefits to which an employee is entitled are

to be curtailed, the same has to be done in clear words. The same cannot be

left to interpretation from the words of the document.

Contd ... 14

[14]

Lastly, in the facts and circumstances of the present reference the words

"will be disbursed among all employees including managerial personnel

connected with the hotel functioning" may well be interpreted on the basis of

the rule of 'the last antecedent'. The words employees and managerial

personnel are not connected with the word 'and', Instead, the word which

connects these words is 'including'. Invoking the doctrine of the last

antecedent, I am inclined to interpret that the disbursal shall be among all

the employees but only those in the managerial cadre who are connected

with the functioning of the hotel shall get a share of the service charge. That

is, the phrase "connected with the hotel functioning" qualifies onlythe words

"including managerial personnel" and not the entire sentence. This line of

thought is consonant not only with the tenor of the language used in the

settlement but also with the notion of an equitable distribution of the service

charge. That is, it means, all employees, including managers whose duties

are intimately connected with the running of the hotel to get a share of the

service' charge. Employees in the managerial cadre not linked or casually

linked with the day-to-day operations of the hotel are to be kept out of the

pool of recipients.

Before I conclude, I must reiterate the above discussions in a nutshell.

At the first glance, the phrase "connected with the hotel functioning"

seems to be redundant as there cannot be an employee who is not connected

with the functioning of the hotel. Second, the relationship of employee and

the employer between the suspended employees and the Company is still in

existence. The benefit of service charge is the fruit of a settlement between

the union and the management and is not guided under the provisions of the

W.B. Payment of Subsistence Allowance Act, 1969.If a benefit has to be

curtailed by way of a settlement, the same has to be done in express words.

Finally, the coining of the impugned words show that the dispute has to be

settled by invoking the doctrine of last antecedent. Thus, the entitlement of

suspended workmen to service charge cannot be depleted in any way.

Accordingly, I am of the opinion that the Clause 5 of the settlement dated

5 October 1994 which calls for distribution of service charge to all employees

include all employees without differentiating working employees and

suspended employees. The settlement does not exclude suspended

employees from their entitlement to service charge.

Contd ... 15

[15]

Hence, it is

ORDERED

the above reference under Section 36A of the Industrial Disputes Act,

1947 be and the same is disposed of on contest in favour of the applicant

Union in accordance to the above discussion. The sentence, "will be

disbursed among all employees including managerial personnel connected

with the hotel functioning" shall include the suspended employees.

This is my award.

Let a copy of this order be sent to the concerned department of thegovernment.

Typed by me:

~d/--Judge

. ~()j .(Nilanjana Chatterjee)Judge, 1st Labour CourtKolkata, West Bengal.

06-12-2017