Union of India (Uoi) and anr. Vs. D.K. JaIn and ors. - Court Judgment

Excerpt:
- section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture whether or not the final product is an excisable product. in the process of manufacturing of country spirit, the over proof spirit which is not potable is reduced to issuable strength, which is potable. colouring and flavouring agents are added at the time of maturation. thereafter the liquor is supplied in sealed bottles to the retail contractors. this is the process of treatment given to over proof spirit in order to render it fit for human consumption in the form of country liquor. if the process is analysed there cannot be any scintilla of doubt that the process involves the manufacturing one under the provisions of section 2(f) of central excise act, 1944. as per the m.p. country spirits rules as well as clause 6 of the tender conditions it is mandatory for a distiller to supply country liquor in sealed bottles and not otherwise. therefore, packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of section 2 central excise act, 1944 in view of the definition contained in section 65(76b) of the finance act especially keeping in view the exclusionary facet and further regard being had to the circular issued by central board of excise and customs. - this committee submitted its report to the government in 1979. it recommended 9 pay scales to the industrial workers in the defence establishment which government reduced to 5 categories. however, with respect to 23 trades considered by the committee, the committee recommended for grant of pay scale of rs. 5. having failed to secure the pay scale of rs. 7. precisely, submission of shri s. 210-290. the expert classification committee recommended pay scale of rs. 260-400 recommended by this committee was applicable to 23 trades and not to the trades of the respondents.orderbhawani singh, c.j.1. this petition is directed against the order of the central administrative tribunal (annexure p-10), dated august 12, 1999, whereby respondents falling in the trade of fitters (auto/auto electric) have been granted pay scale of rs. 260-350 from 16-10-1981, before adverting to the submissions advanced by learned counsel for the petitioners, brief narration of facts would be necessary.2. respondents are working in the vehicle factory, jabalpur, in the trade of fitters (auto) and fitters (auto/electrical) in the pay scale of rs. 210-290. on the recommendations of third pay commission, an expert classification committee was set up in 1974 in the ministry of defence, under the chairmanship of justice k.c. puri. the committee had representatives from two defence employees federations and official members of the ministry of defence and finance. the task of this committee was to fit the industrial workers in the appropriate pay scales after applying the technique of job evaluation. this committee submitted its report to the government in 1979. it recommended 9 pay scales to the industrial workers in the defence establishment which government reduced to 5 categories.3. some of the unions felt dissatisfied with the pay scales. the result was that anomalies committee was constituted in 1983, report of which was implemented from 15-10-1984. emphasis by learned counsel for the petitioners is laid on the fact that this anomalies committee considered the anomalies in the pay scales with respect to 23 trades. the trades of respondents in this case were not before this committee. however, with respect to 23 trades considered by the committee, the committee recommended for grant of pay scale of rs. 260-400. consequently, this pay scale was granted to the workers to the 23 trades from 1984. this did not satisfy the workers of the trades, therefore, they challenged the decision claiming pay scales from 16-10-1981. ultimately, the supreme court allowed their claim and they were given this pay scale from 16-10-1981.4. further, it transpires that the respondents were granted pay scale of rs. 260-400 from 15-10-84 which the petitioners say that it was erroneously granted by the general manager of the factory at jabalpur. however, the fact remains that it was not withdrawn from these tradesmen at any stage. thereafter, these tradesmen claimed this pay scale from 16-10-1981. the claim was based on the decision of the apex court in case of bhagwan sahai carpenter and ors. v. union of india and anr., (air 1989 sc 1215) in which the apex court had held that upgradation of a few grades of the many was discriminatory, therefore, upgradation was available to all the workers similarly placed.5. having failed to secure the pay scale of rs. 260-400 from the petitioners, the respondents moved the central administrative tribunal jabalpur through o.a. no. 892/93. the claim has been allowed by order dated august 12, 1999 which has been challenged through this writ petition by the union of india.6. heard shri s.c. sharma, learned counsel for union of india and shri p.s. nair, senior counsel for respondents.7. precisely, submission of shri s.c. sharma is that the respondents fall to the category of fitters (auto) and fitters (auto/electrical); their initial pay scale was rs. 210-290. the expert classification committee recommended pay scale of rs. 210-290 to the category of semi skilled workers. having done so, the petitioners had no claim for higher pay scale. further contention is that case of respondents was neither sent to the anomalies committee, nor considered by it, therefore, pay scale of rs. 260-400 recommended by this committee was applicable to 23 trades and not to the trades of the respondents. shri p.s. nair, learned senior counsel for the respondents submits that category of the respondents was similar to those 23 trades. for what reason, the category of respondents was not made the subject matter of consideration by the anomalies committee is not understandable, nor any specific reason assigned by the petitioners. it means, cases of those who raised hue and cry were considered and they got the pay scale, but not the respondents who followed the law and remained disciplined. therefore, after consideration of all the facts of the case, the central administrative tribunal has allowed the relief to the respondents to which they were found entitled.8. after examining the matter, we find that respondents are governed by ordnance factories and ordnance equipment factories (group 'c' and group 'd' industrial posts) 1979, recruitment rules, framed under article 309 of the constitution, vide sro 357, dated december 10, 1979. under these rules, fitters grade a (auto/elec.) and fitters grade 'b' (auto) are in the same pay scale of rs. 260-6-326-eb-8-350. this order of the government has not been superseded at any time. the conclusion is irresistible that this being statutory, unless superseded, cannot be given a go-by. pay commission report does not supersede it, being executive order and sro has been framed in exercise of power under article 309 of the constitution of india. consequently, the respondents have the protection of the statutory rules in their favour therefore, the pay scale available to them cannot be denied to them unless it is superseded. since this was not done, pay commission report would not cause any grievous harm to them.9. no other submission was advanced by learned counsel for parties.10. consequently, for reasons stated above, we find no force in this petition and the same is dismissed.11. shri s.c. sharma, learned counsel for the petitioners, submits that period of six months may be allowed for implementing this judgment. we think it would be just and proper to allow 4 months time to do so.ordered accordingly.costs of parties.

Judgment:
ORDER

Bhawani Singh, C.J.

1. This petition is directed against the order of the Central Administrative Tribunal (Annexure P-10), dated August 12, 1999, whereby respondents falling in the trade of Fitters (Auto/Auto Electric) have been granted pay scale of Rs. 260-350 from 16-10-1981, Before adverting to the submissions advanced by learned counsel for the petitioners, brief narration of facts would be necessary.

2. Respondents are working in the Vehicle Factory, Jabalpur, in the trade of Fitters (Auto) and Fitters (Auto/Electrical) in the pay scale of Rs. 210-290. On the recommendations of Third Pay Commission, an Expert Classification Committee was set up in 1974 in the Ministry of Defence, under the Chairmanship of Justice K.C. Puri. The Committee had representatives from two Defence Employees Federations and official members of the Ministry of Defence and Finance. The task of this Committee was to fit the industrial workers in the appropriate pay scales after applying the technique of job evaluation. This Committee submitted its report to the Government in 1979. It recommended 9 pay scales to the industrial workers in the defence establishment which Government reduced to 5 categories.

3. Some of the Unions felt dissatisfied with the pay scales. The result was that Anomalies Committee was constituted in 1983, report of which was implemented from 15-10-1984. Emphasis by learned counsel for the petitioners is laid on the fact that this Anomalies Committee considered the anomalies in the pay scales with respect to 23 trades. The trades of respondents in this case were not before this Committee. However, with respect to 23 trades considered by the Committee, the Committee recommended for grant of pay scale of Rs. 260-400. Consequently, this pay scale was granted to the workers to the 23 trades from 1984. This did not satisfy the workers of the trades, therefore, they challenged the decision claiming pay scales from 16-10-1981. Ultimately, the Supreme Court allowed their claim and they were given this pay scale from 16-10-1981.

4. Further, it transpires that the respondents were granted pay scale of Rs. 260-400 from 15-10-84 which the petitioners say that it was erroneously granted by the General Manager of the factory at Jabalpur. However, the fact remains that it was not withdrawn from these tradesmen at any stage. Thereafter, these tradesmen claimed this pay scale from 16-10-1981. The claim was based on the decision of the Apex Court in case of Bhagwan Sahai Carpenter and Ors. v. Union of India and Anr., (AIR 1989 SC 1215) in which the Apex Court had held that upgradation of a few grades of the many was discriminatory, therefore, upgradation was available to all the workers similarly placed.

5. Having failed to secure the pay scale of Rs. 260-400 from the petitioners, the respondents moved the Central Administrative Tribunal Jabalpur through O.A. No. 892/93. The claim has been allowed by order dated August 12, 1999 which has been challenged through this writ petition by the Union of India.

6. Heard Shri S.C. Sharma, learned counsel for Union of India and Shri P.S. Nair, Senior Counsel for respondents.

7. Precisely, submission of Shri S.C. Sharma is that the respondents fall to the category of fitters (Auto) and Fitters (Auto/Electrical); their initial pay scale was Rs. 210-290. The Expert Classification Committee recommended pay scale of Rs. 210-290 to the category of semi skilled workers. Having done so, the petitioners had no claim for higher pay scale. Further contention is that case of respondents was neither sent to the Anomalies Committee, nor considered by it, therefore, pay scale of Rs. 260-400 recommended by this Committee was applicable to 23 trades and not to the trades of the respondents. Shri P.S. Nair, learned Senior Counsel for the respondents submits that category of the respondents was similar to those 23 trades. For what reason, the category of respondents was not made the subject matter of consideration by the Anomalies Committee is not understandable, nor any specific reason assigned by the petitioners. It means, cases of those who raised hue and cry were considered and they got the pay scale, but not the respondents who followed the law and remained disciplined. Therefore, after consideration of all the facts of the case, the Central Administrative Tribunal has allowed the relief to the respondents to which they were found entitled.

8. After examining the matter, we find that respondents are governed by Ordnance Factories and Ordnance Equipment Factories (Group 'C' and Group 'D' Industrial Posts) 1979, recruitment Rules, framed under Article 309 of the Constitution, vide SRO 357, dated December 10, 1979. Under these Rules, fitters Grade A (Auto/Elec.) and fitters Grade 'B' (Auto) are in the same pay scale of Rs. 260-6-326-EB-8-350. This order of the Government has not been superseded at any time. The conclusion is irresistible that this being statutory, unless superseded, cannot be given a go-by. Pay Commission report does not supersede it, being executive order and SRO has been framed in exercise of power under Article 309 of the Constitution of India. Consequently, the respondents have the protection of the statutory rules in their favour therefore, the pay scale available to them cannot be denied to them unless it is superseded. Since this was not done, Pay Commission report would not cause any grievous harm to them.

9. No other submission was advanced by learned counsel for parties.

10. Consequently, for reasons stated above, we find no force in this petition and the same is dismissed.

11. Shri S.C. Sharma, learned counsel for the petitioners, submits that period of six months may be allowed for implementing this judgment. We think it would be just and proper to allow 4 months time to do so.

Ordered accordingly.

Costs of parties.