Anjan Kumar Sahoo and ors. Vs. the District Labour Officer-cum-conciliation Officer and anr. - Court Judgment

Excerpt:
labour and industrial - refusal - conciliation - section 10(2) of industrial disputes act, 1947 - petitioners were employees of respondent company - due to sick financial condition of respondent company petitioners had not been paid their salary - subsequently services of petitioner were terminated by respondent company - petitioner raised industrial disputes before respondent labour officer for conciliation - respondent refused to refer dispute - hence, present petition assailing order of labour officer - held, according to facts labour officer refused conciliation on ground that state government made some query about petitioners - but as per findings of concerned labour authority petitioners were workmen - hence, disputes raised by petitioners ought to have referred for conciliation on its own merits - labour officer committed error in refusing conciliation - dispute be referred for conciliation - petition allowed - labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 1 had recommended that the said union to registered under the trade union act, 1926. pursuant to such recommendation, a trade union was registered with effect from 1.11.1891. it is pleaded that several similarly circumstanced persons like the petitioners had initiated industrial disputes under the i. 25.10.97 on the above noted subject and to say that 'workman' has been clearly defined under section 2(s) of the industrial disputes act, 1947. the supervisors of ipitata refractories ltd.i. mahanty, j.1. in the present writ application the petitioner has sought to challenge the inaction of opposite party no. 1 -the district labour officer, dhenkanal in not entertaining the dispute raised by the petitioners for conciliation with regard to termination of their services and inaction of the state government to refer the matter directly for adjudication as provided under section 10(2) of the industrial dispute act, 1947 read with rule-3 of the orissa industrial disputes rules, 1959.2. the petitioners' claim is that they were workmen/employees working under m/s. nilachal refractories limited, dhenkanal and the said company was engaged in the process of manufacturing refractories bricks and other ancillary products. it is asserted that the petitioner no. 1- anjan kumar sahoo, who was initially appointed as a holper in the despatch section w.e.f. 4.1.1982 and thereafter promoted to the post of supervisor in inspection & despatch section w.e.f. 1.2.1991 in the scale of pay of rs. 900-30-1200 and continued as such till the company terminated his services on 31.3.2005. petitioner no. 1 submits that though he had been promoted to the post of supervisor and continued to do the same clerical job as ha was doing as a despatch assistant and that too the said promotion was a mere change of designation/up-gradation.petitioner no. 2 -sadasiba mishra who was initially appointed as a junior recorder temporarily and was subsequently appointed as a junior clerk vide appointment order dated 22.11.1982 and promoted to the post of supervisor (production) w.e.f. 1.10.1986 and continued as such till his services were terminated on 31.3.2005 by the company. the said petitioner asserted that although he had been promoted to the post of supervisor he continued to do the same clerical job as he was doing as a clerk and the said promotion was a mere change of designation/upgradation.petitioner no. 3- anwar mahammed who was initially appointed as a supervisory (trainee) on a consolidated pay of rs. 1000 vide appointment letter dtd. 16.10.1990, on successful completion of the training and probation period, he was appointed as an assistant ceramist (r&d;) lab. and continued as such till his services were terminated by the company on 31.3.2005.petitioner no. 4- samarendra mohapatra who was initially appointed as tester vide order dated 12.10.1982, was subsequently promoted to the post of laboratory assistant w.e.f. 1.10.1986 and thereafter, to the post of assistant ceramist w.e.f. 1.11.1990 and continued as such till his services were terminated by the company.petitioner no. 5- ramesh chandra mishra who was initially appointed as a trainee kiln operator vide order dated 16.7.1981, was absorbed as kiln operator vide order dated 17.5.1982 and subsequently he was promoted to the post of supervisor (kiln) in the grade i scale of rs. 425-20-675 and continued as such till his services were terminated by the company on 31.3.2005. the petitioner further asserted that although he had been promoted to the post of supervisor (kiln), he continued to do the same manual jobs as he was doing as a kiln operator and therefore the alleged promotion was a mere change of designation.3. m/s from the averments made in the writ petition it appears that nilachal refractories limited submitted an application on 13.12.1999 to the state government under section 25-o(1) of the i.d. act, 1947 for permission to close down its establishment at dhenkanal and such application was considered by the state government and after offering opportunity of hearing, the prayer for closure permission was rejected by the state government vide order dated 7.2.2000. the company once again on 17.4.2002 filed its second application seeking permission to close down the industrial establishment and this application was also rejected on 12.6.2002. further, it appears that upon rejection of company's second closure application, company filed an application on 15.7.2002 under section 25o(5) of the i.d. act, 1947 for review of the said rejection order dated 12.6.2002. during pendency of the review application the company gave a general notice on 31.7.2002(annexure-1) to all its employees indicating therein that as the financial position of the company had become critical, the company would not be able to pay salary and wages to the employees w.e.f. august 2002. in the said notice it was also mentioned that salary and wages payable shall accrue in the books of the company and whenever financial condition of the company permits, salary and wages shall be paid with retrospective effect.4. it appears that the review application dated 15.7.2002 was heard by the minister of state (industries), labour and employment on 19.12.2002 and the same was rejected vide order dated 30.12.2002. the company thereafter initiated a voluntary separation scheme (vss) on 31.1.2003 and while the other members of employees/workmen opted for the said scheme, the present petitioners did not opt for the same and are yet to receive their salary from the company. although the petitioners have approached the employer several times and gave several joint representations, they are not paid their salary from august, 2002 onwards. it further appears that the company gave a letter dated . 9.2.2004 vide annexure-2 stating therein that as the petitioners did not opt for the vss though they had bean afforded the said opportunity, they cannot ventilate any grievance for non-payment of salary. in the said letter, the company indicated that it was their last correspondence on the subject matter and the petitioners should not expect any reply to any future correspondence and should wait till the verdict/decision of the board for industrial and financial reconstruction (in short 'bifr') in case no. 8 of 2002 then pending before the bifr. it was asserted by the petitioners that though they were regularly going to the factory of the company and marking their attendance, neither the company assigned any work to them nor paid their admissible legitimate salary and other benefits for which they were constrained to approach the labour court under section 33(c)(2) of the industrial disputes act for computation of their unpaid salary which is pending for adjudication before the said court.5. in the above background of facts, the petitioners thereafter were issued with the notice of termination dated 31.3.2005 under annexure-4 by the company on the ground that there was no scope for revival of the factory and further claiming that the petitioners were not entitled to any salary/wages from august, 2002 till their termination on the basis of 'no work', 'no pay'. the petitioners being aggrieved by the said action of the company, wrote to the management requesting them to revoke the order of termination and to allow them to test their fate as per the verdict/decision of the bifr. but the said representation went unaccepted and in view of the inaction on the part of the management, the petitioners raised an industrial dispute on 19.5.2005 (annxure-5) before the district labour officer, dhenkanal for redressal of their grievances. the district labour officer- opp. party no. 1 refused to conciliate on the said complaint and under his letter dated 28.5.2005 (annexure-8) communicated his refusal basing upon government dated 14.10.1998 under annexure- 7.6. it is further pleaded that various employees of the company formed an union called ipitata employees association of the letter of the which the present petitioners are members and office bearers. pursuant to formation of the aforesaid union, an application for registration under the trade union act was submitted on 20.7.1990 before the addl. registrar of trade union-cum- deputy labour commissioner, sambalpur. the addl. registrar of trade union vide his letter dated 20.3.1991 directed opp. party no. 1 to conduct an enquiry and give a report with regard to the nature of work performed by the members of the said union. in compliance of the said direction, opp. party no. 1 had made a discrete inquiry and gave his report under annexure-9 categorically mentioning therein that though the management designated the employees as supervisors, foremen, accountant etc., but on verification of their nature of duties and on personal interrogation, it has been confirmed that their principal nature of duties are not supervisory and further the management included the said employees in the category of supervisors to keep them away from the purview of workmen under the i.d. act and accordingly, opp. party no. 1 had recommended that the said union to registered under the trade union act, 1926. pursuant to such recommendation, a trade union was registered with effect from 1.11.1891.it is pleaded that several similarly circumstanced persons like the petitioners had initiated industrial disputes under the i.d. act seeking to challenge the illegal order of termination and the same were entertained and award was passed in the case of one avoy kumar mishra, supervisor in i.d. case no. 9 of 1987 by the industrial tribunal, bhubaneswar.7. from the aforesaid facts, it appears that reliance was placed by opp. party no. 1 on a communication from thy under secretary to government dated 14.10.1998 under annexure-7 for the purpose of refusing to take up action in the natter. the sole question for consideration in the present writ application is as to whether opp. party no. 1 was justified in law in placing reliance on the letter dated 14.10.1998 under annexure-7 in order to justify his refusal to entertain the dispute raised by the petitioners. for the purpose of convenience, the contention of annexure-7 is extracted herein below:i am directed to invite a reference to your letter no. 5278(2) dt. 25.10.97 on the above noted subject and to say that 'workman' has been clearly defined under section 2(s) of the industrial disputes act, 1947. the supervisors of ipitata refractories ltd., dhenkanal are not coming under the definition of 'workman'.it is, therefore, requested to intimate this department under what circumstances to supervisors of the said refractories have been brought under the definition of the 'workman'.7.(sic) on perusal of the same, it is clear that the said letter is not a determination made by the labour and employment department regarding the status of the employees. in the said communication, opp. party no. 1 had been requested to intimate the department under what circumstance, supervisors of the company have been brought under the definition of the 'workman'. answer to the said question would lie in the inquiry conducted by the deputy labour commissioner, sambalpur, copy of which has been annexed to this writ application as annexure-8. the district labour officer after carrying out an inquiry, of course for the purpose of registration of the trade union had come to the following conclusion:ipitata refractories ltd. being set up in the year 1977 and total about 63 so called supervisors are members of existing ipitata employees union. they left out to exercise their fundamental rights to raise points of their grievances before the management without a registered trade union. in course of personal interrogation it was confirmed that some of the employees though promoted from the category of workman to the category of supervisor, practically there is no change in their duties, but they are debarred from some of the facilities they were enjoying in their previous categories of workman. this discrimination of treatment of workman and supervisors made the supervisors to raise point of law and made them to unite to form an union to exercise their rights under trade union act. from personal interrogation, i feel there is reasoning in their arguments and when they fulfill all norms prescribed under trade union act for registration of their union. i recommend that this union be registered under trade union act, 1926.8. in view of the above, we are of the considered view that the order of the district labour officer-opp. party no. 1 dated 28.5.2005 impugned in this writ petition as annexure-6, is without any lawful basis. the query raised in annexure-7 by the state government cannot act as a finding or decision for the purpose of determining as to whether the petitioners were 'workmen' or not, especially in view of the fact that the d.l.o. had earlier conducted an inquiry while verifying the particulars relating to ipitata employees association and had come to a finding as noted herein above and on the basis of which ipitata employees association had been granted registration under the trade union act. therefore, we are left with no alternative other than to allow the writ application and quash the letter dated 28.5.2005 under annexure-6 and we order accordingly. we further direct the district labour officer, dhenkanal-opp. party no. 1 to proceed with the matter in accordance with law keeping in view the findings arrived at by the d.l.o. under annexure-9 relating to the status of the petitioners.as the matter is pending since long and the petitioners have been deprived of their salary for more than 7 years, we further direct that the conciliation proceeding be disposed of within a period of six months from the date of communication of this judgmentl. mohapatra, j.9. i agree.