Full Judgment Text
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CASE NO.:
Appeal (civil) 3747 of 1998
Appeal (civil) 3748 of 1998
PETITIONER:
THE MANAGING DIRECTOR, A.P. STATE ROAD TRANSPORT CORPORATION
Vs.
RESPONDENT:
THE PRESIDING OFFICER INDUSTRIAL TRIBUNAL, RAMKOTE, HYDERABAD & ORS.
DATE OF JUDGMENT: 01/02/2001
BENCH:
S. Rajendra Babu & S.N. Variava
JUDGMENT:
J U D G M E N T
RAJENDRA BABU, J. :
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The transport wing of Tirupathi Tirumala Devasthanam
(for short T.T.D.] was transferred to the Andhra Pradesh
State Road Transport Corporation (for short the
Corporation] under an agreement dated 8.8.1975. It was
provided in the agreement that 850 workmen to be transferred
to the Corporation. The transfer of the workmen to the
Corporation was challenged in a writ petition No. 1361 of
1976 but it was dismissed on 13.7.1977 and a writ appeal
filed against the said judgment was also confirmed. While
some of the transferred T.T.D. transport workers who opted
to come under the Corporation Rules and Regulations were not
before the court, the other workers wanted to maintain their
separate identity in spite of their transfer to the
Corporation and so they did not opt to come under the
Corporation Rules and Regulations. Subsequent to the
transfer certain settlements had been entered into with the
Corporation by the Union of the workmen from time to time.
The members of the Union made a demand that under clause 13
of the transfer agreement dated 8.8.1975 they were entitled
to the benefits which accrued to the present T.T.D. workers
after 8.8.1975 but the Corporation did not agree for such
demand, an industrial dispute was raised which was referred
to the Industrial Tribunal (hereinafter referred to as the
Tribunal] under Section 10(1)(d) of the Industrial Disputes
Act (for short the Act]. The question referred to the
Tribunal reads as follows :-
Whether the former transferred T.T.D. workers
(presently the APSRTC workers) are entitled to the benefits
accrued to the present T.T.D. workers after 8.8.75 in terms
of the agreement dated 8.8.75. If so, to what extent?
After notice the representatives of the Union, the
Corporation and the T.T.D. filed their statements. The
Union raised several questions although the question
referred to the Tribunal was with reference to the benefits
that have accrued to the present T.T.D. workers would be
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applicable to the erstwhile T.T.D. workers or not. In view
of the several claims made before the Tribunal the scope of
the reference was to be considered. The Tribunal examined
various contentions and raised certain issues which are :
1. Whether the second respondent TTD represented by its
Executive Officer is a proper and necessary party in this
industrial dispute?
2. Whether the members of the petitioner Union are
entitled to the benefits conferred on the TTD employees
subsequent to 10.8.1975 merger?
3. If any relief is to be granted in this industrial
dispute against whom should the award be passed?
4. To what relief?
The Tribunal noticed that clause 11 of the agreement
indicated that the T.T.D. reserved its right to retain
vehicles, equipment and other assets as required by them
along with the required number of workers to operate them.
Clause 13 stipulated that all the remaining workmen working
in the transport undertaking of the T.T.D. without
interruption in their service are taken by the Corporation
and protection is given in pay and allowance, provident fund
contributions and gratuity in terms of Section 25FF of the
Act and T.T.D. agreed to pay such compensation if any as is
liable to be paid to workmen who do not opt to serve under
the Corporation. Under clause 14 arrangement is made for
retirement benefits, provident fund and gratuity. Under
clause 15 T.T.D. agreed to continue to permit the employees
to continue to reside in their quarters subject to certain
conditions. Pursuant to the take over there was complete
cessation of legal relationship between the members of the
Union and the T.T.D. and after 10.8.1975 these employees
have entered into various agreements and settlements with
the Corporation and the T.T.D. was not a party to those
agreements and none of these workers opted to be retrenched
and claimed compensation from the T.T.D., the Tribunal
confined the dispute only as against the Corporation. The
entire transport wing had been handed over to the
Corporation and, therefore, Section 25FF of the Act would be
applicable. But the workmen also exercised their option in
the form indicated in Ex.M9 in which they have to give an
undertaking that they shall abide by the rules of RTC in
force from time to time subject to the workmen rights under
Section 25FF of the Act. This option form was provided
pursuant to a writ petition No. 4456 of 1975. In the
circumstances, the Tribunal found that having given
categorical undertaking that they would abide by the rules
and regulations of the Corporation in force, it is not open
to the members of the claimant Union to now contend that
they continued to be governed by the T.T.D. rules and
regulations and they continue to be employees of the T.T.D..
Therefore, the Tribunal held that they are not entitled to
claim benefits which conferred by the T.T.D. Management on
its employees subsequent to 10.8.1975. However, after
rejecting several other reliefs claimed, the Tribunal
granted the following four reliefs :-
(1) Pay in the selection grade will have to be fixed
taking 1.1.1975 as the crucial date.
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(2) Regarding promotions, it held as under :
if and when the workers opt to be governed by
A.P.S.R.T.C. Regulations then they may be given promotions
taking into account their total service and the seniority
including the TTD services.
(3) The facility for bus tour on concessional hire, and
(4) Ex gratia bonus should be paid to the members of the
claimant Union on the same basis on which ex gratia bonus is
paid to other employees of the RTC.
The matter was carried in writ petition to the High
Court and the High Court by its order made on 3.12.1996 did
not interfere with the award made by the Tribunal. It is
only in regard to these four reliefs that arguments are
addressed before us.
In this Court the contentions urged before the Tribunal
and the High Court are reiterated that the question referred
to the Tribunal being of a limited character as to whether
the benefits accruing to the present T.T.D. workers could
be extended to the employees of the transport wing or not
and having answered that the said employees have all opted
for being governed by the Corporation rules and regulations
and other service conditions, it is not open to them to
claim those benefits.
So far as the first question raised before us regarding
selection grade is concerned, it is noticed by the Tribunal
that selection grade has been given with effect from
1.1.1974 restricting the monetary benefits to be given only
from 1.1.1978; that the orders were actually issued in the
year 1976, and that the Corporation had agreed to safeguard
the conditions of service of the workers. The Tribunal
further noticed that the claim in that regard was pending
consideration before the take over and, therefore,
restricting the monetary benefits to be given only from
1.1.1978 was not justified and the monetary benefits will
have to be given with effect from 1.1.1975. This claim
appears to us has been rightly allowed by the Tribunal and
thus calls for no interference.
So far as ex gratia bonus is concerned, on an earlier
occasion this question has been raised and the matter had
reached this Court in Civil Appeal No. 4693 of 1984 and
this Court disposed of the matter on 23.11.1984 stating that
the parties had agreed that on payment of Rs. 7,50,000 by
the respondents to the petitioners within six weeks from
that day as ex gratia payment the disputes raised by the
workmen of the transport wing which was the subject matter
of that appeal should be treated as settled and resolved
completely. The direction of the Tribunal in this regard is
that ex gratia shall be paid to the members of the claimant
Union on the same basis on which ex gratia is paid to other
employees of the RTC. Inasmuch as the employees working in
the transport wing have now opted to be governed by the RTC
regulations and other service conditions, the Tribunal held
that they should be treated at par from the year 1986
onwards and they should be given similar benefits that have
been given to the other RTC workers earlier. Therefore, we
find, this finding recorded by the Tribunal also to be
justified.
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So far as the claim for bus tour on concessional rate is
concerned, although original concessional rate was @ Rs. 1
per kilometer , the Tribunal fixed at Rs. 2.50 per
kilometer for the years 1985 onwards till the Corporation
changes the rate of hire under Section 9A of the Act and the
Tribunal adopted as a rule of thumb and with a view to find
out an equitable solution for the dispute between the
parties. Inasmuch as the Tribunal had found that unilateral
alteration of hire rate to Rs. 4 per kilometer was not
justified adopted the rule of thumb, we do not think that
the discretion exercised by the Tribunal in this regard is
improper.
Now the only question for consideration before us is
with regard to the direction given by the Tribunal regarding
promotion of the employees. The Tribunal noticed that the
difficulty in regard to promotion had arisen on account of
the fact that employees in the transport wing of the
Corporation who were erstwhile employees of the T.T.D. were
retrenched to go out of station and, in fact, those who were
promoted and posted out of station came back to Tirupathi by
giving up benefit of promotion. In these circumstances, the
Tribunal felt that if and when the workers opt to be
governed by the RTC regulations then they may be given
promotions taking into account their total service and the
seniority including the T.T.D. services. This direction
would give rise to a lot of difficulties in the services
inasmuch as several others have already been promoted and
given that benefit and now to consider the cases of the
members of the Union for promotion would lead to anomalous
results that apart from financial burden that will arise in
the case. Therefore, all that could be done now is to
consider the cases of these employees for promotion as and
when vacancies arise bearing in mind whether their juniors
have been promoted earlier or not. In such cases, since the
workmen in the transport wing have also opted to be governed
by the RTC regulations, their cases will have to be examined
for promotion but where promotions had already been given to
others the same cannot be disturbed. Notional promotion may
be given to them without any monetary benefits and suitable
adjustments in seniority be made. Direction of this sort
given in modification of the award of the Tribunal would
meet the requirements of justice. We order accordingly.
Shri Nageswara Rao pointedly addressed that direction given
by the Tribunal is far beyond the scope of the reference.
The question referred to the Tribunal though worded as to
the cover applicability of conditions of service in T.T.D.
to the members of the respondent Union, what was really in
issue is as to what conditions of service are applicable to
them after they exercised their option to abide by the
Corporation regulations, and thereafter both parties have
raised pleadings and adduced evidence. Hence, we cannot say
that the Tribunal travelled beyond the scope of reference.
Subject to the modification of the award as stated
above, the award made by the Tribunal is upheld as confirmed
by the High Court. In the circumstances, the appeals are,
therefore, partly allowed. The parties are left to bear
their respective costs.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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CIVIL APPEAL NO. 3748 OF 1999
M/s L & T Mc Neil Limited Appellant
Versus
Government of Tamil Nadu Respondent
WITH CIVIL APPEALS NOS. 3808/2000, 3809/2000,
1043/2000, 3727/2000 AND 5307/2000
J U D G M E N T
RAJENDRA BABU, J. :
The Government of Tamil Nadu issued a notification under Section 10(1) of the
Contract Labour (Regulation & Abolition) Act, 1970 [hereinafter referred to as the
Act] prohibiting the employment of contract labour in the process of sweeping and
scavenging in the establishments/factories which are employing 50 or more workmen.
This prohibition is without reference to class of establishment which is involved or the
conditions of work in a particular establishment. Under Section 10 of the Act the
Government is obliged to consult the Tamil Nadu State Contract Labour Advisory Board
[for short the Board] before issuing a notification in question. The appellants
contended that there has been no effective consultation with the Board inasmuch as the
only occasion when this aspect was considered was in the Sub-Committee meeting of the
Board. The Minutes of the meeting made available to the Court disclosed that it
recorded the views of the All India Manufacturers Organisation to the effect that the
sweepers and scavengers work not for more than 2 to 3 hours daily and the view of the
employees representatives was that sweepers and scavengers are working for more than
120 days in a year. No decision as such was made but it was noted that the Government
should take a decision in the matter. The said notification was challenged before the
High Court in a writ petition. The High Court, following its earlier decision in Bharat
Heavy Electricals Limited v. Government of Tamil Nadu and Ors., 1997 (3) LLN
495, dismissed the writ petition holding that the notification had been issued after fully
complying with the prescribed procedure under Section 10 of the Act to prohibit
employment of contract labour after proper consultation with all relevant parties and
evaluation of all relevant factors and materials by the State Government. Following this
aforesaid decision, the writ petition filed by the petitioner also stood dismissed. Hence
these appeals.
The Division Bench of the High Court in the course of its order noticed that apart
from Sub-Committee report, to which reference has been made, the Minutes of the 17th
Meeting of the Board also disclosed that the Board had elaborately considered the matter
with reference to the question of issuing a draft notification abolishing contract labour
system in sweeping and scavenging among other nature of work and though it appeared
that a further consideration by the Government was suggested during the course of
deliberations, the Board did not appear to have thought any need for further
consideration. On that basis the Division Bench took the view that since the matter had
been left for consideration of the Government by the Board with its report and
Government had also considered the need and necessity in the light of the requirements
of the law as enumerated under Section 10(2) of the Act to issue the notification in
question, there is no justification to interfere with the notification in question. Whereas
at
the time when the learned single Judge considered the matter the report of the Sub-
Committee was not available at all.
Before us in these appeals against the order of the High Court what is principally
contended is that (i) there is no effective consultation with the Board by the Government
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before issuing the notification in question, and (ii) the Government did not have any
relevant material otherwise and, therefore, in the absence of relevant material the
Government could not have issued any notification and thus calls for interference at our
hands.
Consultation does not mean concurrence and the views of the Board are
ascertained for the purpose of assisting the Government in reaching its conclusion on the
matter one way or the other. The Government reached the conclusion on the basis of
notings made on various aspects and the aspects taken note of by the Government are as
follows :-
a) Whether the process, operation
or other work is incidental to,
or necessary for the industry
trade, business manufacture
or occupation that is carried
on in the establishment. Yes
b) Whether it is of perennial nature,
that is to say, it is of sufficient
duration having regard to the nature
of industry, trade business
manufacture or occupation carried
on in that establishment. Yes
c) Whether it is done ordinarily through Can be done
regular workman in that through
establishment or an establishment regular
similar thereon. Workmen
d) Whether it is sufficient to employ
considerable number of whole
time workmen. Yes
What is set out in this format is what is contained in Section 10 of the Act and is
a
mere repetition of the expression used therein. The questions posed indicate the
provisions contained in the Section, while answers given thereto are by monosyllables
and it is not clear from the record available as to whether the same were based on any
material. In the 16th Meeting of the Board, it is noted that the members were also
informed that as far as sweepers and scavengers were concerned the matter would be
examined and necessary proposals sent to Government. In the 17th Meeting of the
Board, it was noted that various Sub-Committees have been formed in different industries
such as (a) Cement, (b) Paper, (c) Textiles, (d) Chemicals and (e) Electricity Board and
thereafter the draft notification abolishing contract labour system in sweeping and
scavenging was taken up for consideration. While the view expressed on behalf of the
Management is that the sweepers and scavengers are not having 8 hours of work but they
work not more than 2 or 3 hours a day and since employing permanent workmen is not
economically viable, they are employing contract labour in this type of work and,
therefore, the Government needed to examine whether the requirements of Section
10(2)(a) to (d) of the Act have been fulfilled before finalising the notification. While th
e
representatives of the All India Trade Union Congress (AITUC) took the stand that if the
work is done for more than 120 days it has to be considered as being of intermittent
nature and also stated that because of the contractual nature of the work they cannot fully
get benefits of employment. The Chief Engineer of the Tamil Nadu Electricity Board
pointed out that regular workmen are not willing to do this type of work and requested
the Government not to proceed with the notification. The representative of AITUC stated
that no further examination is necessary by the Board and notification could be issued.
His view was supported by another member representing Hind Mazdoor Sabha (HMS).
The Chairman stated that the Government should take a decision in the matter.
Thus, it is clear that no definite view was expressed by the Board in this regard.
The fact that the Board had been consulted in the matter is indisputable. So also the fact
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that no decision was taken by it. Therefore, we asked the learned counsel for the State of
Tamil Nadu to make available the necessary files leading to the draft notification and
final notification and other materials that were relied upon in issuing the notification in
question. Even after careful perusal of these files, we found that there is no further or
fresh material available in these files. In the circumstances, it is not very clear as to
how
the Government could have reached the conclusion one way or the other in the absence of
any advice by the Board and in the absence of any other material. The decision of the
Government in issuing the notification under Section 10(1) of the Act is thus vitiated
because of non-consideration of relevant materials. The mere fact that several
notifications have been issued in relation to contract labour or that system in sweeping
and scavenging has been abolished in some other industries may not, by itself, be
sufficient to hold that a common notification applicable to all industries and
establishments abolishing contract labour in sweeping and scavenging could have been
issued by the Government without necessary material. The Government ought to take
into consideration the relevant factors contained in Section 10(2)(a) to (d) of the Act and
thereafter decide the matter. These aspects were, however, lost sight of by the High
Court in the decisions rendered by it earlier.
In the circumstances, we have no hesitation in quashing the notification issued
by the Government of Tamil Nadu. However, it is made clear that it is open to the
Government to issue a fresh notification after due consideration of the matter in
accordance with law.
The appeals stand allowed accordingly.
..J.
[S. RAJENDRA BABU ]
..J.
[ S.N. VARIAVA ]
NEW DELHI
JANUARY 30, 2001.
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