Paradeep Phosphates Employees' Union Vs. State of Orissa and Ors. (25.02.2000 - ORiHC) - Court Judgment

Excerpt:
service - quarter - allotment of - petitioner-union raised demand for upgrading induction grade - matter referred to arbitrator - arbitrator passed award - management changed seniority list in view of award and prepared new seniority list - 'a' grade employee were entitled for allotment of 'b' type of quarters - after some time management changed its policy - management instead of adhering to prevailing practice of allotment of quarters on basis of seniority, has fixed up different norms of its own and office order issued - hence, present writ petition - held, if management has on consent of parties have taken decision for allotment of 'b' type quarters in accordance with seniority list, no exception can be taken to such decision - decision made in peculiar circumstances of matter - from document on record it is clear that there is no illegality in decision - writ petition dismissed - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the first category of employees actually having waited with the date of their original employment in the 650 grade stand at a higher footing than the employees who have come in the grade subsequently and got the pecuniary benefit granted retrospectively, it is averred that iti employees, therefore, cannot lay a better claim compared to the b. 3 on august 10, 1998. the management has prepared a seniority list as on june 27, 1994, a copy of which is annexure-a/2. in view of the policy and in absence of any specified grant of consequential relief retrospectively, the said policy is to be deemed to be a sound one and any claim of the petitioner may amount at best to be a fresh dispute which requires adjudication as provided in law. it is therefore, the contention of the management that the first category of employees actually having waited with the date of their original employment in the 650 grade stands at a higher footing than the employees who have come to the grade and got the pecuniary benefit granted retrospectively, and therefore, the iti employees cannot lay a better claim compared or the executive to decide as a matter of policy, how the equation of post would be effected. the seniority list of june 27, 1994 having been acted upon for allotment of 'a' type quarters and 49 of its members having taken benefit thereof in terms of annexure-a/4, it is not open to the petitioner to contend that the policy of allotment in annexure-6 is bad or unfair. it has clearly been stated in annexurc-6 that pursuant to the decision held with the petitioner's union staff association and the management held on august 21, 1997, the policy of allotment was agreed upon and therefore, if pursuant to the said decision the order of allotment of quarters in accordance with the list, anncxurc-a/4 dated august 26, 1997 was issued, it cannot be contended that prior to the issuance of the letter dated september 5, 1997, annexure-6 the allotment orders could not be made on august 26, 1997. 10. in that view of the matter, and in the peculiar circumstances of the case, if the management has on consent of the parties have taken a decision for allotment of 'b' type quarters in accordance with the seniority list drawn as on july 26, 1994, no exception can be taken to such decision and we find no illegality or infirmity in the said decision to interfere in this writ petition.p.k. mohanty, j.1. the petitioner, a registered trade union of workmen of paradeep phosphates ltd. assails the letter of opposite party no. 3 paradeep phosphates ltd. by its senior manager (p6a), para 6 indicating therein that for allotment of 'b' type quarters the seniority as on june 27, 1994 is to be taken into consideration and after exhaustion of the said seniority list, a new quarters allotment policy shall be framed.2. the petitioner's case in short is that the union raised a demand for upgrading the induction grade of workmen with iti qualification from rs. 570/- grade to rs. 650/-grade and that was referred to the arbitrator-labour commissioner by the government of orissa under section 10(1)(a) of the industrial disputes act, 1947. the arbitrator gave its award on april 28, 1994 and it was published in the official gazette on may 27, 1994 a copy of which is annexure-1 to the writ petition. the management opposite party no. 3 had changed the seniority list 1 of b.sc./diploma holders from rs. 650/ grade to rs. 700/- grade with effect from november 1, 1988 and, therefore, in view of the award under annexure-1, the effective date of upgrading the induction of workmen with iti qualification from rs. 570/- grade to rs. 650/- grade was made effective retrospectively from january 1, 1988. a seniority list was prepared in accordance thereof, but keeping in mind the fact that already the quarters have been allotted prior to the making of the award and those persons were in occupation of quarters, the management decided to make allotment of quarters on the basis of seniority revised in view of the award. the xerox copy of the decision of the management is annexure-2 to the writ petition. it is the case of the petitioner that as per the decision of the management and so also as per the prevailing practice, 'a' grade employees who are in the scale of rs. 650-850/- are eligible to be given 'b' type quarters and accordingly a circular was issued as per annexure-3. the management also by its office order dated may 9, 1994 brought out necessary amendment in the travelling allowance, luggage allowance, medical policy, conveyance advance and quarters allotment procedure, a copy of which is annexure-4 to the writ petition.3. the grievance of the petitioner is that although employees in grade rs. 650/- are entitled to 'b' type quarters and the seniority list was drawn on the basis of the award with effect from january 1, 1988 and it was decided to allot the 'b' type quarters on the basis of the said seniority list and in fact the management adhered to the said policy, but, however, after some time, deviated from the said norms. the management of paradeep phosphate ltd. without any agreement with the petitioner's union changed its policy deciding to make allotment on the basis of the seniority list as on 1994. but even though it was mentioned under annexure-6 that petitioner-union had consented for the same, but that was not correct and the union had never agreed for such a decision nor did it give its consent for which immediate protest was raised, a copy of which is annexure-7. it is alleged that the management instead of adhering to the prevailing practice of allotment of quarters on the basis of seniority, has fixed up different norms of its own and office order vide annexure-6 has been issued. by the letter dated july 14, 1988, the management called for views of the petitioner's union. however, the petitioner's union in its letter dated july 24, 1998, copy of which is annexure-9, intimated its views to the management and prayed for restoration of prevailing practice of allotment on the basis of seniority in terms of the award as on january 1, 1988. the contention of the petitioner is that there cannot be two seniority lists, one for the purpose of allotment of quarters and the other for service benefits. in other words, seniority list for the purpose of quarters allotments to be drawn up as on june 27, 1994 whereas the general seniority list of the grade is to be recasted taking into account the date january 1, 1988. the decision of the management for reservation of 10% of quarters for management quota is also assailed being arbitrary and discriminatory. it is contended that allotment of quarters if takes place on the basis of annexure-6, then the juniors would be benefited whereas the seniors in grade would be left out for the coming 15 years. the prayer is for quashing the policy decision vide annexure-6.4. the opposite parties 3, 4 and 5 have filed their counter-affidavit refuting the claims made by the petitioner-union. it is their case that the original quarters allotment policy provided for allotment of 'b' type quarters to the employees in the grade 'k' to 'p' i.e. 1275, 1090, 940, 840, 820, 760 and 700 corresponding to presently 4000, 3500, 3200, 2672 and 2510 respectively. subsequently to fill up the quarters which were lying vacant, the management took a decision to give 'b' type quarters to 'a' grade employees i.e. 650 grade by its order dated november 4, 1988. the scope was vastly enlarged by grant of induction grade to the iti cadre of 570 to 650 and thereby to the claim of the consequential relief to come under the zone of allotment of 'b' type quarters arise. the basis of grant of benefit to the iti qualified employees in 570 to 650 grade was on the consideration that the gap between the grade for b.sc./diploma holders and the iti qualified persons has widened. the b.sc./ diploma holders in the higher grade hold a higher status vis-a-vis iti employees. the first category of employees actually having waited with the date of their original employment in the 650 grade stand at a higher footing than the employees who have come in the grade subsequently and got the pecuniary benefit granted retrospectively, it is averred that iti employees, therefore, cannot lay a better claim compared to the b.sc./diploma holder employees placed in rs. 650/- grade. according to these opposite parties in terms of the arbitration award, it is apparent that the consequential benefits associated with grant of a higher grade were not discussed nor answered and, therefore, what has not been answered by the arbitration, cannot be deemed to drive other benefits. the award being silent in this aspect the petitioner's claim cannot be entertained as a matter of right before the issue in dispute if decided in the proper forum. there is a huge waiting list of employees originally having joined their service with the grade qualifying them for allotment of 'b' type quarters. the opposite, parties to resolve the dispute with regard to grant of 'b' type quarters and the same has been approved by the opposite party no. 3 on august 10, 1998. the management has prepared a seniority list as on june 27, 1994, a copy of which is annexure-a/2. in view of the policy and in absence of any specified grant of consequential relief retrospectively, the said policy is to be deemed to be a sound one and any claim of the petitioner may amount at best to be a fresh dispute which requires adjudication as provided in law. it is the stand of these opposite parties that unilaterally drawing of the seniority list for allotment of 'b' type quarters ignoring the claim of those b.sc./diploma holder employees will amount to serious miscarriage of justice and without opportunity to the affected persons who were not parties in the arbitration proceeding. therefore, the management took a view that the claim of the b.sc./diploma holders originally in the grade of 650 should get exhausted against the present availability of quarters and after such process is over, taking into consideration the seniority as declared from the effective date of publication of the award, the iti holders will be entitled to the allotment of 'b' type quarters. it is, therefore, the contention of the opposite parties-management that there is no infirmity or illegality in the decision contained in annexure-6. the petitioner has also filed a rejoinder to the counter-affidavit filed on behalf of opposite parties 3, 4 and 5 reiterating the stand taken in the writ petition and denying the averments made in the counter-affidavit.5. some technical assistants, senior assistants and senior technicians working under the paradeep phosphate ltd. who are members of the paradeep phosphate staff association, a registered trade union had filed an application for intervention and intervention had been allowed by the order dated september 14, 1998 in misc. case no. 11970 of 1998. the intervenor-petitioners have taken a stand that by virtue of the mou with the union the induction grade of b.sc. and diploma holders was changed from rs. 650/- i.e. grade-iv to rs. 700/- i.e. grade-v and subsequently a demand was also raised by the iti certificate-holders for change of their induction grade from the scale of rs. 570/- to rs. 650/-i.e. from grade-ill to grade-iv. the award under annexure-1 deals with the change of induction grade of iti certificate holders and as such, they have been given the benefit of their induction grade from grade-ill to grade iv with effect from january 1, 1988. paradeep phosphate staff association had signed an agreement regarding the promotion policy of iti holders and as such, the persons holding grade-iii are promoted to the grade-v with effect from june 27, 1994. it is stated that as per the quarters allotment policy, the employees belonging to grade-v carrying the scale of rs. 650/- and above are eligible for 'b' type quarters and many employees in the eligible grade were in the waiting list for allotment of quarters by the time when the award under annexure-i was published. taking into consideration the award wherein grade-ill employees were given benefits of grade-iv employees with retrospective effect, the management discussed the matter with both the petitioner union and the intervenors-petitioners on august 22, 1997 wherein it was agreed by the parties that 'b' type quarters shall be allotted according to the seniority list as on june 27, 1995 and after exhausting the said list, a new quarters allotment policy shall be framed, and accordingly, allotments were made in respect of 49 employees, out of which 35 belong to petitioner union and are iti certificate holders and only four quarters were : given to b.sc./diploma holders belonging to intervenors' union. it is the stand of the intervenors-petitioners that having availed the benefit the petitioner union has now challenged the same policy only to deprive the b.sc., diploma holders who are members of the staff union the benefit of house accommodation notwithstanding their eligibility.6. thus, in view of the pleadings of the parties, the question that arises for determination is as to whether the decision of the management vide annexure-6 for allotment of 'b' type quarters on the basis of the seniority list as prevailing on june 27, 1994, is legal, just and proper.7. the undisputed facts are that the petitioner's union raised a demand claiming induction grade of workmen with iti qualification from rs. 570/- grade to rs. 650/-grade and the demand was referred to the arbitrator labour commissioner of the government of orissa by order of reference of the government dated october 29, 1993 under section 10(1)(a) of the industrial disputes act, 1947. the terms of reference were as under:(a) whether the action of the management in changing the induction grade of b. sc. /diploma holders in engineering from rs. 650/- grade to rs. 700/- grade is legal or proper. if not, what should be the induction grade for b.sc./diploma holders in engineering? (b) whether the demand of the action for change in induction grade of workmen with iti qualification from rs. 570/- grade to rs. 650/- grade in view of change already made by the management in respect of b. sc./diploma holders in engineering from rs. 650/- grade to rs. 700/- grade is legal and/or proper; if so, what are the details? 8. the arbitrator, by his award dated april 28, 1994 held that the demand regarding upgradation in induction point of workmen with iti qualification from rs. 570/- to rs. 650/-grade is justified and should be accepted with effect from the date on which rs. 650/- grade was upgraded to rs. 700/- grade for the b.sc. diploma holders i.e. with effect from january 1, 1988. the award was published under section 17 of the industrial disputes act on may 27, 1994, copy of which is annexure-1. prior to the award, under the quarter allotment policy, employees in 'k' to 'p' grade with different pay scales were eligible for 'b' type quarters. since they belonged to different grades, but for the purpose of quarter allotment, they were considered for that class of persons, on the basis of their being in service, 'b' type quarters were allotted to them. pursuant to the award, 'q' grade employees with rs. 650/-grade were inducted into the zone of consideration for allotment of 'b' type quarters along with the employees belonging to 'k' to 'p' grade.9. the bone of contention is that since the persons with iti qualification have come under the induction grade of rs. 650/- and have come to the 'q' grade with retrospective effect i.e. from january 1, 1988. even though the award under section 11 of the industrial disputes act was published on may 27, 1994 whether they are entitled to be considered for allotment of 'b' type quarters, taking into consideration their seniority to be redetermined with effect from january 1, 1988. the petitioner-union challenges the decision of the management under annexure 6 on the purported agreement of both the unions namely, paradeep phosphates employees' union and paradeep phosphate staff association on august 22, 1997 to the effect that for allotment of 'b' type quarters the seniority list on june 27, 1994 has to be taken into consideration and after exhaustion of the said seniority list, the new quarters allotment policy shall be framed. according to the learned counsel for the petitioner since the employees in the 'g' grade have been given induction grade of rs. 650/- with retrospective effect there cannot be two seniority lists, i.e. one for the purpose of counting the seniority in service and the other for the purpose of allotment of quarter. it is the contention of the learned counsel for the management that the original quarter allotment policy provided for allotment of 'b' type quarters to the employees in the grade of 'k' to 'p' i.e. rs. 1275/-, rs. 1090/-, rs. 940/-, rs. 840/-, rs. 820/-, rs. 760/- and rs. 700/-corresponding to presently rs. 4000/-, rs. 3500/-, 3200/-, rs. 2672/-, and 2510/-. subsequently, to fill up the quarters lying vacant, the management took decision to give 'b' type quarters to 'q' grade employees i.e. rs. 650/- grade by its order dated november 4, 1988. the scope was vastly enlarged by grant of induction grade to the iti cadre of rs. 570/- to rs. 650/- and thereby to the claim of the consequential relief to come under the zone of allotment of 'b' type quarters arose. the basis of the grant of the benefit to the iti qualified employees in rs. 570/- to rs. 650/-grade was on the consideration that the gap between 'the grade of b.sc./diploma holders and the iti qualified persons has widened. b.sc./diploma holders, admittedly, were in the higher grade and hold a higher status vis-a-vis the iti employees. it is therefore, the contention of the management that the first category of employees actually having waited with the date of their original employment in the 650 grade stands at a higher footing than the employees who have come to the grade and got the pecuniary benefit granted retrospectively, and therefore, the iti employees cannot lay a better claim compared or the executive to decide as a matter of policy, how the equation of post would be effected. the courts will not interfere with decision unless it is shown to be arbitrary, unreasonable and unfair and if no manifest unfairness or unreasonableness is made out the court will not sit in appeal and would not examine the principle for equation of post adopted by the government. there is no dispute that the employees holding b.sc./diploma qualification were in the induction grade of 650, which was raised to 700 with effect from january 1, 1988 and they were in the grade 'p'. undisputedly, the employees from grade 'q' to grade 'p' were entitled to 'b' type quarters and 'g' grade employees were made eligible for the 'b' type quarters with effect from november 4, 1988 (annexure-3). in view of the fact that the induction grade was raised to rs. 6507- with effect from may 27, 1994 by virtue of the award, the members of the petitioner's union are entitled to 'b' type quarters, the award having been published on may 27, 1994. between january 1, 1988 and the date on which actually the award was published, and the members of the petitioner-union were entitled to 'b' type quarters, a large number of persons were in waiting list for allotment of 'b' type quarters. it appears that the management has taken the decision as in annexure-6 that the seniority list of june 27, 1994 will be taken into account as a matter of policy with regard to grant of 'b' type quarters and thereafter, when the list is exhausted, the new quarter allotment policy shall be framed. this is a matter of policy and it must be borne in mind that in a case of a policy decision, the court should be reluctant to interfere unless, the said decision is illegal, arbitrary and unfair. it transpires from annexure-6 itself that the decision for allotment of quarters on the basis of seniority list as on june 27, 1994, was adopted in a joint meeting with petitioner's union and the paradeep phosphate's staff association (intervenors) and the management held on august 22, 1997. the contention of the petitioner's union that it had not agreed to such an arrangement, cannot be accepted for the simple reason that pursuant to such agreement, the quarters allotted in favour of the members of the union was acted upon and in the process about 49 such persons nave got the 'b' type quarters, without any protest or objection from me petitioner' s union. the seniority list of june 27, 1994 having been acted upon for allotment of 'a' type quarters and 49 of its members having taken benefit thereof in terms of annexure-a/4, it is not open to the petitioner to contend that the policy of allotment in annexure-6 is bad or unfair. the petitioner cannot approbate at the same time inasmuch as it is estopped from challenging the policy after having acted upon it. the contention of the learned counsel for the petitioner that the letter under annexure-6 having been issued on september 5, 1997, the purported order of allotment in favour of 49 persons from the petitioner's union could not have been made on september 26, 1997 is misconceived and is to be rejected. it has clearly been stated in annexurc-6 that pursuant to the decision held with the petitioner's union staff association and the management held on august 21, 1997, the policy of allotment was agreed upon and therefore, if pursuant to the said decision the order of allotment of quarters in accordance with the list, anncxurc-a/4 dated august 26, 1997 was issued, it cannot be contended that prior to the issuance of the letter dated september 5, 1997, annexure-6 the allotment orders could not be made on august 26, 1997.10. in that view of the matter, and in the peculiar circumstances of the case, if the management has on consent of the parties have taken a decision for allotment of 'b' type quarters in accordance with the seniority list drawn as on july 26, 1994, no exception can be taken to such decision and we find no illegality or infirmity in the said decision to interfere in this writ petition. however, it must be emphasized that since the decision is made in the peculiar circumstances of the matter as contemplated in annexure-6 itself, the management must follow the same in its letter and spirit and thus on exhaustion of the list dated july 26, 1994, the allotment of quarters should be made in accordance with the fresh policy as contemplated therein.11. in the result the writ petition is dismissed with the aforesaid observation. but in the facts and circumstances of the case, there shall be no order as to costs.p.k. misra, j.i agree.