Tata Hydro Companies Employees ... vs The Tata Power Company Ltd. And ...
2001 Latest Caselaw 46 Bom

ORDER

R.J. Kochar, J.

1. The petitioner is a representative and approved union for the local area in the respondent No. 1 undertaking under the provisions of the Bombay Industrial Relations Act (hereinafter referred to as "the Act"). The petitioner union has challenged the ad-interim order dated 19th October, 2000 passed by the learned Member of the Industrial Court Exh. UT filed by the petitioner for certain interim orders in its complaint of unfair labour practices filed by it under the M.R.T.U. & P.U.L.P. Act, 1971 under Hems 5, 9 and 10 of Schedule IV of the Act. The complaint of the petitioner union is that the respondent No. 1, Company has failed to implement the settlement dated 28.1.2000. The main grievance of the petitioner union appears to be that the respondent Company has committed an illegal change contemplated under Section 46 of the Act read with Section 42 and Items 1, 2 and 4 of Schedule II of the said Act. In the complaint, there are other issues which are yet to be decided by the Industrial Court and therefore, they are kept open. The only point which I am called upon to decide is whether the respondent Company is required under Section 42(1) of the Act before reducing or increasing the number of posts or persons employed in the managerial, administrative, supervisory or technical capacity category who do not fall within the definition of "employee" given by the Act. According to the petitioner union even if the respondent Company wants to reduce or increase the posts/persons in the aforesaid categories drawing basic pay exceeding Rs. 1000/- per month as contemplated by the definition of employee given in Section 3(13) of the Act it must comply with Section 42(1) of the Act. According to the interpretation of the union, the following two items of Schedule 11 include even the aforesaid categories of the persons employed in the aforesaid posts in the establishments or undertaking.

2. Reduction intended to be of permanent or semi-permanent character in the number of persons employed or to be employed in any occupation, or process or department or departments or in a shift not due to force majeure.

3. Permanent or semi-permanent increase in the number of persons employed or to be employed in any occupation or process or department or departments.

4. Shri Shetty, the learned Advocate for the petitioner union has submitted that the aforesaid items have deliberately used the word "Persons" and not employees and, therefore, a wider interpretation has to be

given so that the posts in the managerial, administrative, supervisory or technical capacity would be included for the purpose giving a notice of change under Section 42(1) of the Act. (for the purpose of brevity, the aforesaid categories would be referred to hereinafter as the category of "Non-Employees".) According to Shri Shetty, if the management or the employer desires to increase or reduce the number of posts/persons employed in the aforesaid categories, a notice of change under Section 42(1) of the Act is obligatory and any change effected by the employer without giving such notice of change would amount to an illegal change under Section 46 of the Act and also an unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. He has strenuously submitted by pointing out certain sections from the Act that the Legislature has used the words "person employed" wherever required for definite purpose to enlarge the scope of the items. Shri Shetty has pointed out that in the Schedule the words are "in the number of persons employed" and therefore, the person would include not only persons employed in the employee category but also "non-employee" category. According to him, therefore, the respondent Company has reduced the number of persons holding the posts of "employee" categories and by reclassifying them as the employees in the managerial etc. category, without notice of change under Section 42(1) it has committed an illegal change and an unfair labour practice as aforestated. Shri Shetty has further submitted that even increase in the number of persons employed or to be employed in such "non-employee" category in violation of Section 42(1) also amounts to an illegal change and an unfair labour practice. Shri Shetty has submitted that the respondent Company has committed an illegal change and an unfair labour practice in reducing the number of persons/posts of employee category by reclassifying them in the "non-employee" categories and as a result it has increased the number of persons/posts in the "non-employee" categories. Both these changes are effected by the respondent Company without following the mandatory provisions of Section 42(1) of the Act.

5. It would be relevant to mention at this stage itself that the respondent Company has re-classified about 115 employees in accordance with the settlement at the request of the employees in writing to consider applications for re-classification and the respondent Company has accordingly acted as per its organisational requirements and at its discretion. It is an agreed term of the settlement that the posts held by the concerned employees who are reclassified will not be filled in, meaning thereby that the number of such persons employed will stand reduced by specific agreement.

6. According to Shri Naik, the learned Counsel for the respondent Company, the management has only implemented the clause 29 of the said settlement between the petitioner union and the Company, and therefore, it cannot be said that it has committed any unfair labour practice or has effected any illegal change as contended by the union. The process of re-classification was agreed upon between the parties and the management has given effect thereto. Shri Naik has submitted that it was by an agreement that re-classification of the employees at the request of the employees was processed and the posts which became vacant as a result of such re-classification, all such posts would not be filled in.

According to Shri Naik, for permanent or semi-permanent increase or reduction in the posts and persons of "non-employees", categories there is no restriction under the Act and there is no application of section 42(1) of the Act to give a notice of change for such a decision of the employer management. According to the learned Counsel, the B.I.R. Act applies only to the persons who are employed as employees as defined by Section 3(13) of the Act and it does not apply to the persons who are specifically excluded in the definition of the employee, given in section 3(13) of the Act. According to him, if the employer wants to employ more number of persons in the aforesaid "non-employee" category, there is no obligation to give a notice of change under Section 42(1) of the Act. In addition to the aforesaid contention Shri Naik has also emphasised the fact that the process of re-classification was already agreed upon under the registered agreement and the petitioner union cannot raise any objection to re-classification of the employees and it cannot insist to fill up the posts left vacant after such re-classification. Such reduction in the number of persons or posts was an agreed fact under the registered settlement and now the union cannot insist for a notice of change to fill up the posts in the "employee" categories.

7. The Act was enacted, as the preamble itself says, to regulate the relations of employer and employees to make provisions for settlement of industrial disputes and to provide for certain other purpose. This piece of legislation was enacted to protect the interests of the employees specifically. The employee has been defined to mean any person employed to do any skilled or unskilled work for hire or for reward in any industry. His an inclusive definition to further include two categories of the persons. viz., a person employed by a contractor and a person who was dismissed, discharged etc. as contemplated in special clauses (a) and (b) of Section 3(13) of the Act. The definition further excludes or does not include a person employed in non-employees category drawing basic pay (excluding allowances) exceeding Rs. 1000/- per month. There is another category of persons or class of persons who are also excluded from the definition of employee with which we are not concerned. It is, therefore, clear that the Act is intended to protect the class of persons employed by the employer in the category of employee as defined in Section 3(13) and none else. Even the definition of industrial dispute and industrial matter clearly indicate that the Act concerns only the employees and none else. It would be relevant to reproduce both definitions of industrial dispute and industrial matter.

"(17) "industrial dispute" means any dispute or difference between an employer and employee or between employers and employees or between employees and employees and which is connected with any industrial matter:

(18) "Industrial matter" means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment, and includes :-

(a) all matters pertaining to the relationship between employers and employees, or to the dismissal or non-employment of any person;

(b) all matters pertaining to the demarcation of functions of any employee or classes of employees;

(c) all matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or award made under this Act;

(d) all questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole".

8. Even the definition of wages is crystal clear to indicate that it is the employee who is required to be paid his remuneration in respect of his employment or work done in such employment. There arc 39 sub-clauses of the definitions given in Section 3. In none of the sub-clauses of definition, it is indicated even remotely that the category or class of non-employees are included. The excluded category of the persons in the definition of employee have no say or have no protection of the Act. I, therefore, do not agree with the learned Advocate for the petitioner union that a notice of change under Section 42(1) must be given by the employer even when he wants to reduce or increase the number of persons employed in the category excluded by the definition of the employee. Even the Chapter 7 which is regulating the standing orders to regulate the relations between the employer and his employees, with regard to the industrial matters mentioned in Schedule I. Section 42 requires to be reproduced at this stage ;-

"42. Notice of change.- (1) Any employer intending to effect any change in respect of an industrial matter specified in Schedule II shall give notice of such intention in the prescribed form to the representative of employees. He shall send a copy of such notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed. He shall also affix copy of such notice at a conspicuous place on the premises where the employees affected by the change are employed for work and at such other place as may be directed by the Chief Conciliator in any particular case.

(2) Any employee desiring a change in respect of an industrial matter not specified in Schedule I or III give a notice in the prescribed form to the employer through the representative of employees, who shall forward a copy of the notice to the Chief Conciliator, the Conciliator for the industry concerned for the local area, the Registrar, the Labour Officer and such other person as may be prescribed.

(3) When no settlement is arrived at in any conciliation proceedings in regard to any industrial dispute which has arisen in consequence of a notice relating to any change given under sub-section (1) or sub-section (2), no fresh notice with regard to the same change or a change similar in all material particulars shall be given before the expiry of two months from the date of the completion of the proceeding within the meaning of Section 63. If at any time after the expiry of the said period of two months, any employer or employee again desires the same change or a change similar in all material particulars, they shall give fresh notice in the manner provided in sub-section (1) or (2), as the case may be.

(4) Any employee [or a representative union] desiring a change in respect of (i) any order passed by [the] employer under standing orders, or (ii) any industrial matter arising out of the application or interpretation of standing orders, of (iii) an industrial matter specified in Schedule III. [except item (5)

thereof] shall make an application to the Labour Court [and as respects change desired in any Industrial matter specified in [item 5 of Schedule III, to the Industrial Court) :

Provided that, no such application shall He unless the employee [or a representative union] has in the prescribed manner approached [the] employer with a request for the change and no agreement has been arrived at in respect of the change within the prescribed period".

9. It is crystal clear that If the employer intends to effect any change in respect of an industrial matter specified in Schedule II, he has to give notice of such an intention in the prescribed form to the representative of the employees. The representative of employees has been clearly defined to include a representative union. Such a union cannot enroll as members who arc not "the employees" as contemplated by the Act. It is only in the case of employees, the employer is required to give notice of change in respect of industrial matters, specified in Schedule II. The section further provides that if any employee desired a change in respect of an Industrial matter, not specified in Schedule I or III has to give notice of change. Such an employee has also to give a notice of change in respect of other matters, which are prescribed in Section 42(4) of the Act. Every chapter and every section concerns the employees only and no other class of persons who are excluded from the definition of employee are required to be protected by this Act. Shri Shetty has given emphasis on the word "persons employed" or to be "employed" in the Items I and II of Schedule II. He wants me to hold that the word "persons" includes even the non-employees category i.e., the managerial class of persons employed by the employer. It is only a person who is employed and after employment he becomes employee and therefore, the word person has been very aptly and rightly used by the Legislature. The word person is not used to indicate or connote all those persons who are excluded from the definition of the employee. Shri Shetty has drawn my attention to Section 33 wherein the word person is used but it is of no assistance to Shri Shetty as that word is used in entirely different context and not to include all those who are excluded by the definition of the employee. It will be stretching too far to include even the category of persons who are specifically excluded from the definition of employee. By this process, it appears that the representative union which is already all powerful wants to gain more powers to control even the employment of persons in the managerial, administrative, supervisory and technical category. It is entirely the discretion of the management to manage its own affairs as far as the persons who do not fall in the category of employees. It is, therefore, not necessary much less it is obligatory or mandatory for the employer to give a notice of change under Section 42 to effect any change in respect of Items 1 and 2 of the Schedule II of the Act, for the category of the persons who arc specifically excluded from the definition of employee. If the employer wants to increase or reduce the number of or complement of class of managerial, administrative, supervisory and technical persons, it would not be governed by the provisions of the Act. As a matter of law, however, it must be stated that in case of "employees" for any change in relation to Items 1 and 2 of the Schedule II of the Act, ordinarily, the respondent Company ought to have complied with the mandatory provisions of Section 42(1) of the Act. In the facts and circum-

stances of the present case, however, the number of posts/employees employed are being reduced by a registered agreement with the petitioner union and therefore, it does not amount to an illegal change. In the absence of such agreement/settlement the respondent Company would have been required to follow the Section 42(1) of the Act. Though however, no such notice would have been necessary in the case of increase or reduction in the number of posts/persons to be employed in the non-employees categories. As far as the employees category is concerned, there is no escape for the employer from Section 42(1) to effect any change as provided in the Act. Similarly even the employees/representative union also cannot run away from Section 42 of the Act.

10. Shri Shetty has however, made a genuine and practical grievance that as far as promotional channels are concerned, they would be totally blocked. To this Shri Naik has made a statement that as and when vacancies in the non-employees category arise applications are always Invited from the employees and they are considered on merits by the management. Besides, he has also pointed out that promotion rules are framed and if the union desires that promotion rules should be framed, in that case, it is always open to the union to raise an industrial dispute for promotion rules or policy, as such a dispute would be entirely covered by the provisions of the Act. In that case, the representative union would be entirely justified as it would be raising a dispute for the employees who are required to be considered for promotional channel. Such a notice of change would be well within the four corners of the law and not outside.

11. Shri Shetty has relied upon a judgment of this Court in the case of Co-operative Banks Employees Union v. Yeshwant Sahakari Bank,. The facts of this case are totally different and the ratio of that judgment has absolutely no application to the question of law raised by the learned Advocate in the present petition. In that case the Court was concerned with a point whether notice of change is required to be given by the employer even when the employees are not adversely affected. In our case, representative union is seeking to "net in" the category of "non employees" by requiring the employer to give notice of change under Section 42(1) of the Act, even for the service conditions of the persons who are specifically excluded from the definition of employee. I am not referring to other authorities as the question in the present petition is entirely different i.e., the interpretation of Section 42(1) read with Items I and II of Schedule II of the Act and the question whether the Act applies also to the category of persons other than the employees in the employment of the employer.

12. It is clarified that I have not considered any other point and all other points are kept open to be decided by the Industrial Court in the pending complaint in accordance with law.

13. In the aforesaid circumstances, the writ petition is dismissed and rule is discharged with no orders as to costs.