Full Judgment Text
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CASE NO.:
Appeal (civil) 1324 of 2008
PETITIONER:
Management, The Assistant Salt Commissioner
RESPONDENT:
Secretary, Central Salt Mazdoor Union
DATE OF JUDGMENT: 15/02/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.25869 of 2004)
S.B. Sinha, J.
1. Leave granted.
2. Assistant Salt Commissioner, the appellant herein, is responsible for
monitoring production and supply of salt within his jurisdiction. Salt
Commission is attached to the Department of Industrial Policy and
Promotion (Salt Desk), Ministry of Commerce and Industry.
3. The Parliament enacted Central Excise and Salt Act, 1944 (the Act) to
consolidate and amend the law relating to central duties of excise and to salt.
4. Chapter V of the said Act provides for special provisions relating to
salt. Salt manufacture etc. is dealt with in Chapter VI of the Central Excise
Rules, 1944. Rule 102 prohibits manufacture of salt except under a licence.
Such a licence is to be granted by the Collector within the meaning of the
provisions of the said Act.
Rules 129 and 130 of the said Rules read as under:
Rule 129. Licensees to maintain in good order
roads, channels, reservoirs, etc.\027The licensee at
each salt factory shall be bound, at his own
expense, to construct and maintain within the
limits of the factory in good repair to the
satisfaction of the Collector all roads and all
channels, reservoirs, embankments, drying
grounds, platforms and other works used or
intended to be used for the manufacture and
storage of salt, and also any works wherever
situated for the protection of the factory from
inundation or for the supply of brine.
Rule 130. When works may be undertaken by
Central Excise Department.\027If the licensee fails
to execute the works specified in rule 129, or, with
the sanction of the Central Government, whenever
it appears desirable that any such work should be
undertaken by the Central Excise Department, the
Collector may cause such works to be executed
and may recover the cost thereof, in such
proportions as may deem fit, from the licensees.\024
5. Respondents were said to have been appointed by the holders of
licences granted under the said Act. They were refused regular appointment
by the Assistant Salt Commissioner, Tuticorin, whereupon an industrial
dispute was raised. The appropriate Government made the following
reference to the Labour Court for its adjudication :
\023Is the Assistant Salt Commissioner, Tuticorin
justified in refusing regular employment to the 12
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workmen (list enclosed) on the ground that they
are employed to maintain salt platform mazdoor on
behalf of the licensees and their appointment is
made by the department only for the purpose of
annual estimates? If not to what relief the
concerned workmen are entitled to?\024
6. According to the respondents, as they had been appointed by Assistant
Salt Commissioner and have been working as Platform Mazdoor for a period
ranging from 10 to 30 years and furthermore as they had completed more
than 240 days\022 work in a year, they should have been regularized in service.
Before the Labour Court, inter alia, a contention was raised that the
Platform Mazdoors were engaged on daily wages on behalf of the salt
licensees as per Rules 121, 129 and 130 of the Rules and the amount of
wages paid to them is recovered from the licensees by way of special cess.
It was stated that the said method was adopted when the platform and
drying grounds were being used jointly by a number of licensees.
Before the learned Labour Court, however, no evidence was adduced
on behalf of the appellant.
In its order, the learned Labour Court held :
1) Admittedly, respondents have been working in the Salt
Department.
2) They were appointed several decades back and have been
working directly under the Department.
3) Disciplinary proceedings are initiated by the Departmental
Officials.
4) They have been given housing facilities as also earned leave
facilities by the Department.
On the said premise, it was held that they are the workmen employed
by the Department itself.
7. A writ petition was preferred thereagainst and a learned Single Judge
of the High Court dismissed the same stating :
\023Apart from those particulars, one Arulamandam
one of the workmen was examined as W.W.1. He
asserted before the labour court that these workers
have been appointed several decades ago and are
working directly under the control and supervision
of salt Department. It is further seen from his
evidence that they have been provided with
housing facility, served leave benefits etc.
Through w.w.1 Ex.W.1 to W.27 were marked,
which clearly prove the claim of the workmen.
Admittedly, the management had not let in oral or
documentary evidence in support of their stand
taken in their counter statement. It is also brought
to my notice that, Ex.W3 proceedings dated
20.12.1991 of the Deputy Salt Commissioner,
Madras addressed to the Secretary, Central Salt
Mazdoor Union, which clearly shows that all the
workmen are eligible to leave benefits. The oral
evidence of w.w.1 and the abundant documentary
evidence produced on the side of the workman
prove their case said in the absence of any other
contra evidence on the side of the management, I
am of the view that the Labour Court has fully
justified in passing an award regularizing their
service as claimed. In the absence of any other
material before this Court, I do not find any good
reasons to interfere with the award of the Labour
Court. Consequently, the writ petition fails and the
same is dismissed. No costs.\024
8. An intra court appeal preferred thereagainst has also been dismissed
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by the impugned judgment, stating :
\023From the materials on records, we find that the
Industrial Dispute has been raised in the year 1992.
Having regard to the peculiar facts and
circumstances of the case, we are of the opinion
that even though direction regarding to the extent
that regularization is correct, such direction is to be
modified to the extent that regularization should be
given effect to from January 1992 and on that
basis, necessary benefits shall be conferred on all
the twelve persons concerned.\024
9. Mr. Radhakrishnan, learned senior counsel appearing on behalf of
the appellant, submitted :
(1) the industrial dispute raised by the workmen was not maintainable
as the matter relating to service of a Central Government employee
is required to be adjudicated before the Central Administrative
Tribunal constituted under the Administrative Tribunals Act, 1985.
(2) Appellants having been performing a statutory duty, the impugned
order is illegal.
(3) The Commission is not an industry and they having been no
sanctioned post, the impugned judgment cannot be sustained.
10. Mr. Jitendra Sharma, learned senior counsel appearing on behalf of
the respondent, on the other hand, submitted :
(1) that the question in relation to the jurisdiction of the Industrial
Court having never been raised, the same should not be permitted
to be raised for the first time before this Court;
(2) A finding of fact having been arrived at by the learned Labour
Court that there exists a relationship of \021employer and employee\022
between the appellant and the respondents, interference therewith
by this Court is not warranted; and
(3) In any event, as out of the twelve workmen, six have already
attained the age of superannuation, this Court may not exercise its
discretionary jurisdiction under Section 136 of the Constitution Of
India.
10. Matter pertaining to grant of licence and terms and conditions
therefor are governed by a statute. Rule 129 imposes an obligation on the
licensee, inter alia, to maintain the salt platform. Only in the event, the
same is not properly maintained, the appellant can take over the work for
such period as it may deem fit and proper. No statutory provision has
been placed before us to show that the appellant had the jurisdiction in a
case of the present nature, namely, to supervise salt platforms and drying
grounds for a large number of licensees together and charge a special
cess therefor.
11. We do not know as to whether such an arrangement was made with
an approval of the Commissionerate of Salt. Being creatures of the
statute, they were required to act within the four corners thereof and not
de hors the same.
12. We are, thus, of the opinion that the appellant has exceeded to its
jurisdiction in arriving at the aforementioned arrangements. Neither the
Central Excise and Salt Act, 1944 nor the Rules framed thereunder
empower the Assistant Salt Commissioner to take such a step.
13. We furthermore fail to understand as to on what basis, if the stand
of the appellant is correct, the workmen have been granted housing
facilities or earned leave, etc.
14. It is really a matter of grave concern that the authorities of the
Central Government are becoming law unto themselves. We do not
mean to say that there was any lack of bona fide on the part of the said
officer but what we mean is that all activities of the authorities of the
Central Government must have a statutory backing and the impugned
action is beyond the scope thereof.
We furthermore do not appreciate as to why, even in a case of this
nature, no evidence was adduced. The least which would be done was to
point out before the Labour Court that the licensees and the Department
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have entered into a mutual arrangement. It was expected that at least to
the said extent, some evidence would be brought before the Labour
Court. Some witnesses should have been examined to establish that a
policy decision have been taken in that behalf within the statutory
framework.
15. Evidently, there is no sanctioned post. Before making appointment
of the respondents, the provisions of Articles 14 and 16 have not been
complied with. We do not even know whether the Employment
Exchange was notified in regard to the purported vacancies or not.
Regularisation does not mean permanency. In Secretary, State of
Karnataka & Ors. v. Uma Devi & Ors. [(2006) 4 SCC 1], any
appointment made de hors the rules, has been held to be illegal by a
Constitution Bench of this Court.
16. We find from the award that a mention was made about a scheme
of regularization from 1973, but neither the same was placed before us
nor Mr. Sharma placed any reliance upon it. If there existed such a
scheme, the same was required to be framed within the constitutional
framework and in particular the equality clauses as enshrined under
Articles 14 and 16 of the Constitution of India should have been
complied with.
This, however, would not mean that the Central Government
would refuse to provide for the bare minimum wages to its workmen.
The workmen were not told as to on whose behalf the Central
Government was working. They were not only appointed, disciplinary
actions were taken against some of them. Applying the relevant tests for
determining the relationship of employer and employee, a finding of fact
has been arrived at that such a relationship existed.
The said finding being pure finding of fact is binding on us. The
question must, therefore, be posed as to what would be the consequences
therefor.
17. If regularization means permanency, the workmen cannot be made
permanent. For filling up the permanent posts, the posts must be created
at the first instance. They must be sanctioned. Terms and conditions
must be laid down by making Rules in terms of the proviso appended to
Article 309 of the Constitution of India or by reason of an executive
order made under Article 177 thereof by the Central Government.
18. We would assume that the industrial tribunal had no jurisdiction to
decide such a question after enactment of Administrative Tribunal Act,
1985. But such a contention had never been raised. The matter remained
pending before the Labour Court for a long time. We, therefore, should
not permit the appellant to raise such a contention before us for the first
time.
19. However, it must be borne in mind that the Central Government
cannot be held to be bound by an act of one of its officers. In terms of
the Rules, the job of a licensee could be taken over directly under Rule
130 of the Rules and not beyond the same. When a statutory action is
performed, it is trite, it must be done in the manner laid down under the
statute or not at all. All actions of the statutory authorities must be
confined within the four corners of the statute. If the appellant was not
authorized under the statute to take recourse to Rule 130 of the Rules for
the purposes as mentioned in the written statement before the Labour
Court, the said action itself must be held to be a nullity. In such a
situation and particularly in view of the fact that in making recruitments
of the respondents, the equality clauses contained in Articles 14 and 16
were not complied with, the respondents cannot derive any benefit
therefrom.
20. We, in the peculiar facts and circumstances of the case, would,
therefore, direct :
1. The remaining six workmen should be conferred all benefits which
have been conferred to those who have since superannuated.
2. If no benefit had been conferred upon the retired employees, the
Central Government shall, by way of compensation, pay a sum of
Rs.1,00,000/- to each of the workman.
3. The services of such respondents who are still working shall not be
terminated except in accordance with law.
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4. The Commissionerate of Central Excise would issue necessary
directions to all Assistant Salt Commissioners in regard to their
performance of statutory duties in terms of Rules 121, 129 and 130
of the Rules.
5. The workmen must be paid the minimum wages fixed therefor.
6. Appellant shall, subject to any statutory interdict may fix fair
wages for the remaining six workmen.
21. The award passed by the Labour Court is set aside. Appeal is
allowed subject to the aforementioned directions with costs quantified to
Rs.10,000/- (Rupees ten thousand only).