N. Kadar Vs. Union of India (Uoi) - Court Judgment

Kalyan Jyoti Sengupta, J.

1. I have had the benefit of going through the draft judgment of my learned brother Justice Soumitra Sen, I fully agree with his Lordship's order and the reasons. However, I want to add a few words of my own in the manner as follows:

In this case whether the administration has any constitutional basis to mete out the discrimination to the writ petitioner not treating him at par with other drivers, under the same administration or not. Under the provisions of the Constitution discrimination based on reasonable classification is always permissible. The petitioner all along has been treated, and in fact, he by his own conduct accepted to be a driver-employee of the factory run by the administration. He has been receiving special pay on account of overtime or other benefit which are not admissible to the staff car drivers so he cannot be treated to be at par with other drivers of the same establishment.

2. Therefore, the decision rendered by the learned Tribunal or for that matter of the administration cannot be said to be invalid. My learned brother has recorded in detail and painstakingly the other factual and legal aspects of the matter to which I endorsed my agreement already.

3. In this application the petitioner has challenged an order dated 16th September, 2005 passed by the Central Administrative Tribunal.

4. The petitioner was appointed in the post of a Driver on 31st December, 1981 of the Government Press, Port Blair on an adhoc basis. The said adhoc appointment was extended from time to time. On 29th December, 1982 the petitioner was appointed as a Driver against a regular vacancy.

5. On 17th January, 1994 the Assistant Secretary (SMT), A & N Administration issued a circular to all the head of departments forwarding a copy of the Office Memorandum dated 30th November, 1993 issued by the Director, Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), New Delhi requesting all the heads of the departments to furnish the size of cadre strength of Staff Car Drivers working in the respective establishment for the purpose of creating higher grade for the post of Driver. In the year 2000 the petitioner was granted pay scale under the Assured Career Progression (ACP) Scheme.

6. On 16th August, 2000 a final seniority list of Light Vehicle Drivers of the Directorate of IP & T was circulated. In the said list the applicant was not included. From then on the petitioner started making representation for being considered for promotion at par with other Staff Car Drivers of the A & N Administration.

7. It appears from records that several inter department correspondences have been exchanged in order to consider the petitioner's case.

8. On 25th September, 2003, the Manager, Government Press, furnished his clarification to the Assistant Director (Administration), Directorate of IP & T, whereby, it was clarified that since the petitioner is an industrial employee his case should be considered for seniority as an industrial staff.

9. On 23rd April, 2004 the Assistant Director (Administration) issued a letter to the Manager, Government Press, informing that the fixation of the petitioner's seniority at par with other Staff Car Drivers of the Administration cannot be considered.

10. Under the aforesaid circumstances the petitioner filed an application before the learned Central Administrative Tribunal (in short, Tribunal). The said application was contested on behalf of the Administration and the learned Tribunal ultimately passed the impugned order.

11. The petitioner's case before the learned Tribunal was that since the petitioner was appointed by the Administration along with other Staff Car Drivers and was granted the higher scale of pay under the ACP Scheme, the petitioner cannot be discriminated as against the other Staff Car Drivers and should be included in the seniority list for being considered for promotion and/or consequential higher scale of pay.

11 On behalf of the respondents, it was submitted that the petitioner was initially appointed as a Peon in 1968 and thereafter he was appointed as a driver on an ad hoc basis in 1981. A post of Jeep Driver was created for Government Press in 1981 against which the petitioner was ultimately given regular appointment.

13. It was further submitted that in 1984 the petitioner himself made a demand for grant of Over Time Allowance and liveries at par with industrial workers with effect from the date of his appointment as a Driver in Government Press.

14. Under this circumstances a reference was made to the Manager, Government of India Press, New Delhi. In reply to which it was intimated by letter dated 22nd January, 1985 that Jeep Drivers attached to Government of India Press are entitled to liveries and over time allowances at double rate as admissible to industrial employees. Accordingly, the A & N Administration granted such benefit to the applicant and the petitioner was continued to be treated to be a worker of an industrial establishment.

15. It was further submitted on behalf of the respondents that the Lieutenant Governor of A & N Islands by an order dated 14th February, 1985 decided that all Jeep/Cars attached to different departments/offices of A & N Administration will be treated as Staff Car and the Drivers attached to those vehicles will be treated as Staff Car Drivers for all purposes and their over time allowances etc., will be regulated in terms of Staff Car Rules. However, the said decision was not made applicable to industrial drivers who were eligible to get OTA at higher rate as per work charged establishment rules under the Industrial Disputes Act.

16. It was, therefore, submitted that the petitioner belongs to a different class and/or category of workers and cannot be clubbed and/or be treated as within the same class of Staff Car Drivers.

17. The contention of the petitioner that the petitioner was granted higher scale of pay under the ACP Scheme and therefore was entitled to be treated similarly with other Staff Car Drivers was disputed on behalf of the respondents by contending that though the petitioner was granted higher scale of pay under the ACP Scheme, he will only be entitled to second upgradation on completion of 24 years of service and not after 15 years as is admissible to a Staff Car Driver.

18. The petitioner has also contended that the Government Press is not a factory since no notification has been issued to declare the Government Press as a factory and in support thereof Section 85 of the Factories Act has been relied upon. For the sake of convenience Section 85 of the Factories Act, 1948 is set out hereunder:

85. Power to apply the Act to certain premises.--(1) The State Government may, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply to any place wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on, notwithstanding that:

(i) the number of persons employed therein is less than ten, if working with the aid of power and less than twenty if working without the aid of power, or

(ii) the persons working therein are not employed by the owner thereof but are working with the permission of, or under agreement with, such owner:

Provided that the manufacturing process is not being carried on by the owner only with the aid of his family.

(2) After a place is so declared, it shall be deemed to be a factory for the purposes of this Act, and the owner shall be deemed to be the occupier, and any person working therein, a worker.

19. From the aforesaid it is clear that Section 85 is an enabling provision which empowers the State Government to declare an/or any of the provisions of this Act to apply to any place wherein a manufacturing process is carried on with or without the aid of power or it so ordinarily carried on notwithstanding the circumstances mentioned in Clauses (i) and (ii) of the said section.

20. It, therefore, does not mean that unless the Government issues a notification, the premises which comes within the definition of 'Factory' as defined under Section 2(m) of the said Act cannot be considered as a factory. It, therefore, appears to us that the object of Section 85 is to empower State Government to include any premises within the meaning of the definition of factory apart from what is included within the said definition given in Section 2(m), of the said Act. For the sake of convenience the Section 2(m) of the said Act is set out hereunder:

(m) 'factory' means any premises including the precincts thereof:

(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or

(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on, or

but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952), or a mobile unit belonging to the armed forces of the Union, a Railway running shed or a hotel, restaurant or eating place.

21. In the instant case, the Government Press has been granted a licence under the Factories Act. The nature of activity carried on by the Government Press makes it clear that the premises where such activity is carried on clearly comes within the meaning of factory as defined in Section 2(m) of the said Act. Furthermore, it could not be seriously disputed on behalf of the petitioner, that he has received benefits of over time allowances and others at par with an industrial worker. It could not also be disputed that the petitioner himself had asked to be treated as an industrial worker and on his request he was treated as such.

22. The finding of fact of the learned Industrial Tribunal could not be controverted by any corroborating evidence that the petitioner was regarded as an industrial worker within the meaning of Industrial Disputes Act and was extended all admissible benefits according to rules applicable to an industrial worker. The unassailable finding of fact by the Tribunal that the petitioner was given benefit of over time allowances at higher rate is a very significant issue in the instant case.

23. The petitioner once having received benefit of over time allowances and others at a higher rate and not received by other Staff Car Drivers cannot now contend that he should be treated at par with other staff car drivers.

24. In the facts and circumstances of the case, we are unable to accept the submissions made on behalf of the petitioner that the Government Press is not a factory. The provisions of Section 85 read with Section 2(m) makes it clear that the Government. Press is indeed a factory.

25.The notification issued by the Lieutenant Governor, A & N Islands which was relied upon on behalf of the petitioner in support of the contention that the petitioner is treated as a Staff Car Driver makes it clear that the said notification is not applicable as far as industrial workers are concerned who are governed by different set of rules applicable to an industrial worker under the Industrial Disputes Act.

26. For the reasons as aforesaid, we are of the opinion that the impugned order cannot be interfered with. The application is therefore, without any merit. The same is, accordingly, dismissed.

There will be no order as to costs.