Full Judgment Text
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PETITIONER:
MANAGEMENT OF VISHNU SUGAR MILLS LIMITED,HARKHUA, DISTRICT
Vs.
RESPONDENT:
THEIR WORKMEN REPRESENTED BY CHINI MILL MAZDOOR UNION,HARKHU
DATE OF JUDGMENT:
09/03/1960
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
CITATION:
1960 AIR 812 1960 SCR (3) 214
ACT:
Industrial Dispute-Refercnce by State Government-Competence-
Controlled industry-"Appropriate Government," meaning of-
Industries (Development and Regulation) Act, 1951 (65 of
1951). -Industrial Disputes Act, 1947 (14 Of 1947), S. 2 (a)
(i).
HEADNOTE:
A dispute relating to a workman in the appellant sugar mill,
situate in Bihar, was raised by the Workers Union and a
reference was made by the State Government. Under s. 2 (a)
(1) of the Industrial Disputes Act, 1947, "’Appropriate
Government’ means in relation to any industrial dispute
concerning any industry carried on by or under the authority
of the Central Government...... or concerning any such
controlled industry as may be specified in this behalf by
the Central Government...... the Central Government ". The
question was whether the State Government was competent to
make the reference, as sugar was a controlled industry under
the Industries (Development and Regulation) Act, 1951.
Held, that in order that the appropriate government under s.
2 (a) (1) of the Industrial Disputes Act, 1947, may be the
Central Government for a controlled industry it is necessary
that such controlled industry should be specified by the
Central Government, and that in the absence of a
notification for the
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purposes of s. 2 (a) (1) of the Act, the State Government
was competent to make the reference.
The Bijoy Colton Mills Ltd. v. Their Workmen and Another
[1960] 2 S.C.R. 982, followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 402 of 1958.
Appeal by special leave from the Award dated January 29,
1957, of the Industrial Tribunal, Bihar, at Patna in
Reference No. 7 of 1956.
Sukumar Ghose, for the appellant.
M. K. Ramamurthi, R. K. Garg, A. N. Nag and
Suresh Aggarwal, for the respondents.
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S. P. Varma, for the intervener (State of Bihar).
1960. March 9. The Judgment of the Court was delivered by
WANCHOO, J.-This is an appeal by special leave against the
award of the Industrial Tribunal, Patna. The appellant is a
Sugar Mill in District Saran in the State of Bihar. One
Ramkrishna Prasad was appointed as clerk in this mill in
1933. Gradually, he worked his way up and was drawing Rs.
140 per month in October 1952. The mill created a new post
of store in-charge about that time as the work in the Stores
Department of the Mill had increased. On October 4, 1952,
Babulal Parekh was appointed to this new post on a
consolidated salary of Rs. 180 per menses. A letter of
appointment was issued to him on that date and he was told
that he would be on probation for one year. He was also
asked by another letter to take charge immediately. He took
charge on October 7, 1952. On November 28, 1952, an order
was passed by the mill distributing the duties between the
various clerks employed in the Stores Department and it was
stated therein that all the staff of the Stores Department
would work as subordinate to Babulal Parekh. On December 2,
1952, another order was passed by which Ramkrishna Prasad
was ordered to hand over the keys of the stores to Babulal
Parekh. Thereafter Ramkrishna Prasad made a representation
against his being made subordinate to the stores in-charge.
This representation was rejected. A dispute was then raised
by the union and a reference was made by the Government of
Bihar on May 9, 1956, in which the
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following three matters were referred to the tribunal:-
1.Whether the status of workman, Sri Ramkrishna Prasad,
Store-keeper, and the nature of the job performed by him has
been changed to his prejudice with the appointment of a
separate store in charge;
2.Whether in view of the satisfactory performance of
duties of store-keeper for the last 20 years by the above-
named workman, it was at all necessary to appoint a separate
store in-charge over him with higher emoluments and whether
Shri Ramkrishna Prasad is entitled to be appointed to the
post of store in-charge; and
3.Whether the claim of the above-named workman for
promotion to higher grades has been overlooked by the
management, and if so, what relief the workman is entitled
to.
When the matter came up before the tribunal, the main
contention on behalf of the mill was that it was exclusively
the management function to decide its labour strength, both
qualitatively and quantitatively, and that so far as
Ramkrishna Prasad was concerned his position had not been
prejudicially affected by the creation of the new post of a
store in-charge. The workmen on the other hand contended
that Babulal Parekh was first appointed as a mere clerk
under Ramkrishna Prasad to begin with and it was only on
November 28, 1952, that he was promoted over the head of
Ramkrishna Prasad as a store in-charge, thus superseding
Ramkrishna Prasad. This stand of the workmen was
controverted by the mill and its case was that Babulal
Parekh was from the very beginning appointed as store in-
charge.
The tribunal came to the conclusion after a consideration of
the evidence produced that Babulal was first appointed as an
ordinary clerk in the Stores Department and was subsequently
made a store incharge. It held that this caused reasonable
heart burning to Ramkrishna Prasad. The tribunal was
conscious of the principle that promotion to a higher post
was the exclusive function of the management and should not
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ordinarily be interfered with. But
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in spite of that it was of the view that this was a fit case
for interference; but on other considerations which were not
specified in the order by the tribunal it held that it would
not interfere with the arrangement made by the mill; it
instead granted an increment of Rs. 30 per month from the
date of its order to Ramkrishna Prasad to meet the ends of
justice. It is this order which is being challenged before
us.
Two points have been urged before us on behalf of the
appellant. In the first place it is urged that the
reference was incompetent as sugar was a controlled industry
and only the Central Government could have made the
reference and not the State Government. Secondly, it is
urged that the order of the tribunal granting an increment
of Rs. 30 per month to Ramkrishna Prasad was patently
perverse and that there was no change in the status or
emoluments of Ramkrishna Prasad by the creation of the new
post and the employment of Babulal Parekh on it.
So far as the question of the competence of the reference is
concerned, we are of opinion that there is no force in it, A
similar question was raised before this Court in The Bijoy
Cotton Mills Ltd. v. Their Workmen and Another (1) and it
was held there on the language of s. 2(a)(1) of the
Industrial Disputes Act, 1947, that before that provision
could apply to a controlled industry there must be a
notification by the Central Government for the purposes of
s. 2(a)(1) of the Industrial Disputes Act. Section 2(a)(1)
is in these terms-
" I Appropriate Government’ means in relation to any
industrial dispute concerning any industry carried on by or
under the authority of the Central Government or by a
railway company or concerning any such controlled industry
as maybe specified in this behalf by the Central Government,
or in relation to an industrial dispute concerning a banking
or an insurance company, a mine, an oil-field or a, major
port, the Central Government. "
The argument is that as sugar is a controlled industry under
the Schedule to the Industries (Development and Regulation)
Act, No. 65 of 1951, the appropriate
(1) [1960] 2 S.C.R- 982,
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Government for the purposes of s. 2(a)(1) with reference to
the sugar Industry is the Central Government. Reliance is
placed on the words " concerning any such controlled
industry as may be specified in this behalf by the Central
Government " appearing in s. 2 (a)(1). It is true that
sugar is a controlled industry under the Industries
(Development and Regulation) Act, 1951, but that in our
opinion does not conclude the matter. In order that the
appropriate government under s. 2(a)(1) may be the Central
Government for a controlled industry, it is necessary that
such controlled industry should be specified by the Central
Government for the purposes of s. 2(a)(1). This in our
opinion is obvious from the words " controlled industry as
may be specified in this behalf by the Central Government "
appearing in s. 2(a)(1). It is not enough that an industry
should be a controlled industry to attract this provision of
s. 2(a)(1) ; it is further necessary that it should be
specified in this behalf, namely for the purposes of s.
2(a)(1), as a controlled industry by the Central Government,
before the Central Government can become the appropriate
government within the meaning of s. 2(a)(1). We may in this
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connection refer to Firebricks and Potteries Ltd., etc. v.
Firebricks and Potteries Ltd. Workers Union Ltd. (1) where
the same view has been taken. We are of opinion that is the
correct meaning of these words appearing in s. 2(a)(1), as
already held in The Bijoy Cotton Mills Ltd. (2) . The
objection that the reference was not competent therefore
fails.
We next come to the contention raised on behalf of the mill
that there was in fact no prejudice whatsoever so far as the
status and emoluments of Ramkrishna Prasad were concerned by
the creation of the new post and the appointment of Babulal
Parekh on it, and that the tribunal was not justified in any
case in granting an increment of Rs. 30 per menses to
Ramkrishna Prasad. The main consideration which influenced
the tribunal in passing the order which it did was that in
the view of the tribunal Ramkrishna Prasad was superseded by
Babulal Parekh who was first appointed as a clerk under him.
This view of
(1) I.L.R. [1955] MYS. 546. (2) [1960] 2 S.C.R. 982.
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the tribunal in our opinion is patently erroneous. The
appointment order dated October 4, 1952, clearly shows that
Babulal Parekh was appointed as store inches from the very
beginning at Rs. 180 per month. The tribunal referred to
certain entries in the attendance register to hold that
Babulal Parekh worked as clerk to begin with. It appears
from the attendance register for the months of October,
November and December that Babulal Parekh was marked present
from October 7 to November 9. Thereafter from November 11 to
the end of December he signed the attendance register. The
statement of Cbaudhari, Labour Welfare Officer of the mill
was that the practice in the mill was that officers used to
be marked present in the attendance register while clerks
used to sign it themselves. The tribunal has concluded from
the fact that Babulal. Parekh signed the register in
November that he must have been a clerk to begin with. The
tribunal, however, completely overlooked that from October 7
to November 9, Babulal Parekh was marked present which would
show that he was not a clerk. The tribunal also overlooked
that even from November 28 to the end of December when
Babulal Parekh admittedly was not a clerk but store in-
charge he still signed the register, though he should have
been marked present. Chaudhari was unable to explain how
this happened, but he was hardly the person to explain this.
It is, however, clear from this confusion that no importance
can be attached to whether Babulal Parekh was marked present
in the register or signed it. The real thing which
determined the status of Babulal Parekh was the appointment
order dated October 4, 1952, which the tribunal has accepted
as correct. A question was certainly put to Chaudhari at
the end of his cross-examination that he had manufactured
the statements put in by him only the night before but he
denied it. We cannot accept the suggestion on behalf of the
respondents that the appointment order was ante-dated, for
no such suggestion was made to Chaudhari and the tribunal
itself does not find so. It is clear therefore that the
finding of the tribunal that Babulal Parekh was appointed as
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clerk under Ramkrishna Prasad to begin with is patently
perverse and it must be held that Babulal Parekh was from
the very beginning working as store in-charge. Now in so
far as Ramkrishna Prasad was concerned his work and
emoluments remained the same after the appointment of
Babulal Parekh. If a higher post was created in the Stores
Department because of the increase in work, Ramkrishna
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Prasad could not claim promotion to it merely because he was
working as a store-keeper before. There is of course no
question of supersession in this case and therefore there is
no reasonable cause for any heart burning. As the learned
tribunal itself points out, " promotion to higher post was
the exclusive function of the management " and if a new post
is created and a new man appointed, as in this case, it
cannot be said that Ramkrishna Prasad’s status was in any
way prejudicially affected. It is also remarkable that
after saying all that it could in favour of Ramkrishna
Prasad the tribunal did not interfere with the arrangement
made by the mill for reasons which were not specified by it
in the order. As such there was no reason for granting an
increment of Rs. 30 per mensem to Ramkrishna Prasad, for
even the workmen did not claim that he was entitled to any
compensation in the shape of an increment in his pay because
of the appointment of Babulal Parekh. The order of the
tribunal therefore is patently unsupportable and must be set
aside. We therefore allow the appeal and set aside the
order of the tribunal and hold that no relief is due to
Ramkrishna Prasad. In the circumstances we pass no order as
to costs.
Appeal allowed.
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