Bombay High Court
Steel Authority Of India Ltd ... vs Nagpur And Wardha District ... on 1 October, 2015
Bench: B.P. Dharmadhikari
1
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pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4323 OF 2012
Steel Authority of India Ltd.
Branch Sales Office, Shri Mohini
Complex, 345 S. V. Patel Marg,
Nagpur. .. Petitioner
Vs.
1. Nagpur and Wardha District
Mathadi and Unprotected Workers
Labour Board, Office of Additional
Commissioner of Labour,
Bhonsala Chambers, Civil Lines,
Nagpur.
2. Rashtriya Mathadi Shramik Sangh
Shanti Nagar, Itwari,
Nagpur - 440 002.
3. Vidharbha Mathadi Kamgar Sangh
H.B. Town, Old Pardi Naka,
Bhandara Road, Nagpur.
4. Ma Balmeshwari Mathadi Kamgar
Sangh C/o Ganesh Lilaram Sahu,
Naik Talao, Bangladesh, Nagpur. .. Respondents
Mr. R. B. Puranik for petitioner.
Mr. M. R. Pillai for respondent no.1.
Mr. A. M. Gordey, Sr. Counsel with Mr. S. S. Ghate, Mr. D. M. Kakani
and Mr. H. D. Dubey for respondent nos.2 to 4.
CORAM: B. P. DHARMADHIKARI &
S. B. SHUKRE, JJ.
::: Uploaded on - 01/10/2015 ::: Downloaded on - 02/10/2015 00:01:59 :::
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RESERVED ON : APRIL 27, 2015.
PRONOUNCED ON : OCTOBER 01, 2015
JUDGMENT (Per S. B. Shukre, J.) :
1. Heard. Rule, made returnable forthwith. Heard finally by
consent of the parties.
2. By this petition, the grievance raised by the petitioner is that the
order dated 12/08/2011 passed by the respondent no.1 increasing rates of
wages payable to Mathadi workers by 23% is arbitrary and that the
respondent no.1 has failed to perform its duty in taking appropriate steps to
make full and adequate utilization of Mathadi workers.
3. The petitioner is a Government Limited Company within the
meaning of Section 617 of the Companies Act, 1956. It deals in
manufacture and sale of steel and its allied products. For the purposes of
marketing the steel products manufactured by it, the petitioner has
established a Central Marketing Organization, having sales offices situated
across India. One of its branch sale offices is situated at Nagpur. For the
purpose of storing and warehousing the steel products, the petitioner has
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established a warehouse at village Butibori situated near Nagpur. The
steel products of the petitioner are transported to Butibori Railway Station
by goods trains, where they are unloaded to the ground and then loaded on
the trucks for being dispatched, wholly or partly, to petitioner's warehouse.
If the goods are not sent to petitioner's warehouse at Butibori, the goods are
loaded on the trucks of the buyers to whom the goods are sold at the
railway station itself. For the goods sent to warehouse, again unloading
and loading operation is required to be undertaken. In addition to that,
stacking of goods in the warehouse also becomes necessary. For
performing the aforesaid activities, manual workers (hereinafter referred to
as "Mathadi workers") are deployed. The provisions of the Maharashtra
Mathadi, Hamal and Other Manual Workers' (Regulation of Employment
and Welfare) Act, 1969 (hereinafter referred to as "Mathadi Act" for short)
being applicable to these operations undertaken by the petitioner, which is
a registered employer with the Mathadi Board i.e. respondent no.1, the
Mathadi workers sent by respondent no.1 for carrying out the said
operations, have to be accepted by the petitioner. The State Government in
exercise of its power under Section 3 of the Mathadi Act has framed a
scheme known as "Nagpur Grocery Markets or Shops, Railway Yards and
Goods Sheds, Public Transport Markets Vehicles, Khoka Making
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Establishments, Timber Markets and Shops, Steel Markets or Shops,
Factories and Other Connected Establishments, Unprotected Workers
(Regulation of Employment and Welfare) (Amendment) Scheme 1990
(hereinafter referred to as "Scheme" for short).
4. It is the contention of the petitioner that the Board constituted
under Section 6 or 6A of the Mathadi Act, while fixing the rates of wages
payable to Mathadi workers, has to take into consideration the provisions
contained in the Scheme, in particular the provision of Clause 33. The
petitioner points out that the Board which passed the impugned order has
been constituted in terms of Section 6A of the Mathadi Act i.e. respondent
no.1, a one man Board and not in terms of Section 6 of the Mathadi Act,
which has a representative or popular character. Petitioner submits that
Clause 33 of the Scheme which deals with wages, allowances and other
conditions of registered workers is relevant for the purposes of this
petition. According to the petitioner, Sub-clause (5) of Clause 33 of the
Scheme provides for the factors to be considered by the Board while fixing
or revising or modifying the conditions of service of the registered
workers. The factors prescribed therein relate to cost of living, the
prevalent conditions of service in comparable employments in the local
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area, the capacity of the registered employers to pay and other relevant
circumstances.
5. Petitioner further submits that way back in February, 1991, the
respondent no.1 had fixed the formula of wages payable to the registered
Mathadi workers. At that time substantial work of loading and unloading
was being done manually. The respondent no.1 then devised the formula
for determining rates of wages payable to Mathadi workers by taking into
consideration the manual nature of operations and other relevant factors.
The wages were divided into two components, namely, basic wages and
dearness allowance. For fixing the rate of dearness allowance, the year of
1960 was taken as the base and it was provided that the rates would be
revised every year twice, firstly in the month of February and secondly in
the month of August. The formula envisaged 2% increase for every
increase of 10 points in the Consumer Price Index (CPI). Because of this
formula, petitioner further submits, over a period of time, the rates of
wages payable to Mathadi workers saw steep rise so much so that
petitioner was required to make a representation to respondent no.1 in the
year 2004 for reduction in the rates of wages as they were going beyond
the financial capacity of the petitioner. Since, by the year 2004, the steel
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material handling operations, due to technological innovations, had
undergone drastic changes with manual operations having reduced to a
minimum and use of cranes for handling the steel material having become
the order of the day, petitioner also requested respondent no.1 to
rationalize the rates accordingly. There were negotiations between the
representatives of the petitioner and the Trade Unions representing Mathadi
workers and as a result, an agreement between the two was struck, whereby
rates of wages payable to Mathadi workers were fixed. The rates, so
agreed, were some what lower than the existing rates. These rates were to
be effective till 8/5/2008. However, there was no optimization in number
of Mathadi workers sent to establishments of the petitioner.
6. Petitioner submits that even before the expiry of the term of the
agreement on 8/5/2008, Mathadi workers made another demand for
revision of wages. Several meetings were held between respondent no.1
and representatives of Mathadi workers. While petitioner pleaded for
rationalization of rates taking into account reduction of manual operations
and increased use of cranes for handling steel material, increase in turn
over, need for reducing number of Mathadi workers being deputed at
railway siding and warehouse at Butibori and other relevant factors,
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representatives of Mathadi workers stressed upon rising cost of living. No
agreement between two sides could be reached and, therefore, the then one
man Board considered various factors and by its order dated 17/1/2009,
revised the rates of wages. The order gave rise of 42.29% over the existing
rates of wages payable to Mathadi workers. However, the one man Board
rejected the demand of Trade Unions for revising the rates after every six
months and reverting back to 1991 formula. The one man Board further
directed that revised rates would remain in force during the period from
6/5/2008 to 31/3/2011. Petitioner submits that although the increase of
42.29% given by one man Board was not acceptable to it, it did not
challenge the order. Petitioner further submits that there was also reduction
in turn over during the period from years 2008-2009 to 2010-2011, as a
result of which there was increase in the amount of wages and levy paid by
the petitioner.
7. The rates so fixed were due for revision after March, 2011 and
there was once again a demand by respondent nos.2 to 4 for revising the
rates payable to Mathadi workers. Petitioner made an offer of Rs.40 Per
MT of material handled at Butibori railway siding and Rs.28 Per MT for
material handled at Butibori warehouse after calculating the weighted
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average of quantity handled and the amount paid during the period 2008-
2009 to 2010-2011. Petitioner contended that there was no justification for
keeping different rate structures, one for handling material weighing above
4 MT and the one below 4 MT as most of the operations were being done
mechanically and not manually. Petitioner submits that all that was
required to be done by Mathadi workers was to put a sling around the steel
bundles and attach them to the giant hooks of cranes which would lift the
material and put down on the ground or reload on the trucks. Petitioner
also pleaded that average of these two different rate structures be taken
and on this average, the petitioner also submitted, 10% increase could be
given. Petitioner also raised the issue of deputing excess Mathadi
workers and stressed the need for deploying optimum man power so that
each Mathadi worker would get three times more wages on same turn over
even without increasing the rates of wages. Petitioner also submitted that
steel business was highly competitive and it had to sell the steel at
competitive prices for which purpose it was necessary for it to reduce the
costs of inputs, so that it would be able to sell the steel material at
comparable rates. Petitioner submits, it had also pleaded before the
respondent no.1, that rates in the comparable industries in the region be
taken into account while revising the rates of wages payable to Mathadi
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workers. However, one man Board, by the order passed on 12/8/2011,
impugned herein, revised the rates of wages by taking into consideration
only one factor i.e. cost of living, although it accepted the proposal of the
petitioner to fix same rates of wages for handling of steel material and
doing away with differentiated rate structure of wages based on quantum
or tonnage system. But according to the petitioner, respondent no.1 did
not consider the average of two rates applicable to steel material weighing
more than 4 MT and the one weighing less than 4 MT and considered the
highest rate of wages of the two as the basis for granting increase. The
over all increase granted by respondent no.1 was of 23% and since highest
of the two different rates of wages was taken as the basis, the resultant rise
in rates of wages, according to the petitioner, is exorbitant. Petitioner
submits that the effective increase given for handling material at railway
siding is Rs.49.38% and the effective increase given for handling material
at warehouse is 66.66%.
8. Petitioner submits that on 30/3/2011 in another petition bearing
Writ Petition No. 826 of 2010, the Division Bench of this Court had passed
an order directing the Government that a decision for constitution of a
representative or popular board be taken within a period of three months
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from 30/3/2011. Therefore, petitioner further submits, one man Board
should have waited for appointment of a popular Board and should not
have gone ahead with passing of the impugned order. Petitioner submits
that in about six days after passing of impugned order, on 12/8/2011, a
popular board was constituted by a notification dated 18/8/2011.
9. Petitioner submits that while passing the impugned order, the
one man Board i.e. respondent no.1 has not at all considered two most
relevant factors as delineated in Clause 33 of the Scheme. These factors
are of financial capacity of the registered employer and prevalent rates of
wages existing in comparable industries in the region. Therefore,
according to the petitioner, the impugned order is absolutely illegal and
arbitrary and thus deserves to be quashed and set aside. Petitioner also
submits that respondent no.1 did not consider reduction of Mathadi
workers to be deployed at railway siding and warehouse of the petitioner in
view of substantial change in the nature of handling operations from
manual to mechanical. Therefore, petitioner has, by this petition, sought
quashing and setting aside of the impugned order dated 12/8/2011 and also
issuance of direction to respondent no.1 for scientifically deciding the
optimum number of Mathadi workers required to be sent at railway siding
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as well as warehouse of the petitioner for undertaking steel material
handling operations.
10. We have heard Mr. Puranik, learned counsel for the petitioner,
Mr. Pillai, learned counsel for respondent no.1, Mr. Gordey, learned
Senior Counsel for respondent nos. 2 to 4 i/by Mr. Ghate, learned counsel
for respondent no.2, Mr. Kakani, learned counsel for respondent no.3, and
Mr. Dubey, learned counsel for respondent no.4. With the assistance of
respective counsel for the parties, we have also gone through the impugned
order and the paper book of this case.
11. Mr. Puranik, learned counsel for the petitioner has submitted
that the impugned order is arbitrary and illegal as it does not take into
account relevant considerations while revising or modifying the earlier
rates of wages payable to Mathadi workers. Moreover, passing of the
impugned order also involves issue of propriety.
12. Mr. Puranik submits that 23% rise in rates of wages given by
respondent no.1 is exorbitant for the reason that while applying principle
of uniformity in the wage structure, irrespective of the quantum of steel
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material handled by Mathadi workers, a departure from the earlier
differentiated wage structure based on quantum or tonnage system, the
respondent no.1 considered highest rate of wages between two rates
applicable earlier as base and then considering the rise in cost of living,
gave increase of 23% to Mathadi workers. He submits that effectively the
rise given amounted to 49% to 66% over the earlier rates of wages and it
is here that the folly lies. He further submits that even the CPI of 2008
taken as the base for considering rise in cost of living is incorrect as the
Mathadi workers were already receiving higher wages not commensurate
with the work done by them, owing to shift from manual to mechanical
handling operations at railway siding as well as warehouse. According to
him, CPI of later year as the basis for considering rise in cost of living
would have been more appropriate.
13. Mr. Puranik further submits that in Writ Petition No. 826 of
2010, Division Bench of this court had already passed an order on
30/3/2011 directing the State Government to take a decision for
consideration of the representative Board within a period of three months
from the date of the order and, therefore, the one man Board constituted
under Section 6A of the Mathadi Act ought not to have taken such a major
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decision and awaited constitution of representative or popular Board so that
the matter could have been considered by the latter and a just decision to
the satisfaction of the stake holders was arrived at by it. He points out that
within six days of passing of the impugned order, popular Board consisting
of representatives of the registered employere, trade unions and State
Government in terms of Section 6 of the Mathadi Act was constituted by
issuance of notification dated 18/8/2012 by the State Government. He
submits that this only shows the hurry shown by one man Board i.e.
respondent no.1 in passing the impugned order is quizzical and raises an
issue of propriety in doing so. According to him respondent no.1 ought not
to have passed the impugned order on the ground of propriety.
14. Mr. Puranik further submits that two most relevant
considerations prescribed by sub-clause (5) of Clause 33 of the Scheme,
viz. financial capacity of the employer and prevalent rates in comparable
industries in the region have not at all been taken into account by
respondent no.1 in passing the impugned order. He submits that
respondent no.1 has only considered one factor which is of cost of living
and thus has committed a serious illegality. He submits that it is settled law
that while fixing the rates of wages, the relevant considerations must be
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considered and if they are not seen to be considered while passing the order
fixing the rates of wages, writ court would be justified in interfering with
such an order.
15. The other arguments of Shri Puranik, learned counsel that the
purpose of Wage revision was to rationalise the wages or to achieve
uniformity or about relevance of previous Wage revision on 17.01.2009
with impugned Wage revision or its impact on it, need not be mentioned in
detail at this stage. Shri Puranik, learned counsel has submitted that at
Railway siding at Butibori, there are two operations i.e. unloading from
Railway and loading into trucks while at godown of the petitioner, there are
three operations i.e. unloading, loading and stacking and it is also not very
relevant at this stage. The arguments have also been advanced about the
percentage of Wage revision with reference to chart placed on record or
then adoption of a particular rate to work out wages on tonnage basis. The
respondents have stated that looking to the financial condition and in order
to enable the petitioner - employer to compete in market, wages were
reduced in 2009. Their submission is, rates in 2004 were more than 2009,
hence, percentage hike granted by the impugned order needs to be
compared not with 2009 position but 2004 position. They have also
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attempted to point out how the issue has been looked into in the case of
similar industry by name Swetal Enterprises. Shri Puranik, learned
counsel, has tried to show that the order of Mathadi Board dated
25.01.2010 in the case of Swetal Enterprises in fact draws support from the
impugned Wage revision in the case of the petitioner. He has also
attempted to show how number of operations in the case of said industry
and the petitioner industry are distinguished artificially. The operations
counted as two in the case of the petitioner have been treated as 1.5
operation in the case of Swetal.
16. For the submissions so canvassed, learned counsel for the
petitioner has placed reliance upon the following cases:
(a) A. K. Bindal and anr. vs. Union of India and ors.
[(2003) 5 SCC 163].
(b) French Motor Car Co., Ltd. vs. The Workmen [AIR
1963 SC 1327].
(c) Concept Pharmaceuticals Ltd. vs. Concept
Pharmaceuticals Kamgar Sanghatana [2005 II CLR
337].
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(d) M/s. Polychem Ltd. vs. R. D. Tulpule, Industrial
Tribunal Bombay and anr. [AIR 1972 SC 1967].
17. Mr. Pillai, learned counsel for respondent no.1, strongly
opposing the writ petition, has submitted that no illegality nor any
arbitrariness has been committed by respondent no.1 in passing the
impugned order. He submits that while passing the impugned order,
respondent no.1 has taken into consideration all the relevant factors and has
particularly accepted the offer of the petitioner in giving rise of 10% to
Mathadi workers, who are a poor-plot and who are in need of protection
from the society. He submits that while rationalizing the rates of wages
payable to Mathadi workers, Board particularly gave its anxious
consideration as to which of the two rates prevailing earlier be accepted
as the basis for considering the offer of the petitioner and ultimately in it's
wisdom decided upon the highest of the two rates in the interest of the
workers and then considered the rise in cost of living on the basis of 2008
CPI as there was gradual rise in cost of living thereafter which was
required to be taken into account appropriately. He submits that no fault
could be found in such a consideration. He further submits that it cannot
be forgotten that the Board was considering revision of rates that were to
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apply from April 2011 onwards and, therefore, the Consumer Price Index
of April 2008 taken by the respondent no.1 as the basis for considering
increase in cost of living is appropriate and reasonable. He also submits
that under Clause 33 of the Scheme, discretion has been conferred upon the
Board to determine conditions of service of Mathadi workers, including the
rates, allowances, over-time, hours of work, rest intervals, leave with
wages and other service conditions applicable to them. The discretion so
conferred upon the Board cannot be substituted by court of law just
because another view is possible. Ultimately, learned counsel submits, the
power is administrative although the decision taken by the authority is
subject to judicial review, but that would be on the sound principles of law
and not just because a registered employer feels that decision is
burdensome for it.
18. Mr. Pillai, learned counsel further submits that so far as
financial capacity argument is concerned, no data, except for one
representation regarding finalization of wage revision dated 3/5/2011,
which was devoid of any relevant data, was placed before respondent no.1.
Therefore, learned counsel further submits, now it would not be open to the
petitioner to raise any challenge on this ground.
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19. Mr. Pillai learned counsel also submits that the rise given by
respondent no.1 in the impugned order is not at all exorbitant and
respondent no.1 has even considered financial capacity as well as applied
the principle of industry-cum-region while finalizing the rates of wages. In
order to illustrate, he submits that rates of wages payable in other
comparable industries like Swetal Steel, TISCO and other establishments
were much higher than the rates determined in respect of the petitioner.
According to him, while a rise of 42.3% in rates of wages was given to
workers of Swetal Steel, only 23% rise has been given to Mathadi workers
of the petitioner.
20. Learned counsel also submits that there are other social aspects
which need to be taken into consideration while determining rates of wages
payable to Mathadi workers. He submits that Mathadi Act is a beneficial
legislation enacted for giving protection to unorganized manual workers
and ensuring their adequate supply as well as proper and full utilization in
the establishments where they are deputed for doing manual work. He
submits that Mathadi workers do not have fixed working hours and many a
times they have to wait at the sites of the establishments until the work is
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made available to them and they are paid wages only after work is offered
to them. They are also not paid any over-time or other benefits as an
employee in regular service would get. Therefore, learned counsel
submits, the respondent no.1, while determining the rates of wages payable
to Mathadi workers, in the instant case, has ensured that no financial loss is
caused to them while also keeping in view the financial interest of the
petitioner.
21.
Mr. Gordey, learned Senior Counsel for respondent nos.2 to 4
submits that the criteria laid down in sub-clause (5) of Clause 33 of the
Scheme refers to four factors, namely, cost of living, financial capacity,
rates prevalent in comparable industries and other relevant circumstances.
He submits that all these factors have been appropriately considered by
respondent no.1 in passing the impugned order. Of course, he further
submits, there may be an error here and there, but unless and until any
perversity is shown in the impugned order, which is not the case here, no
interference by writ court would be warranted.
22. Mr. Gordey, learned Senior Counsel, further submits that
respondent no.1 has rightly taken year of 2008 as the base year for
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considering the increase in CPI and there is no reason to find any fault with
the approach so adopted by respondent no.1. He submits that the CPI has
steadily shown an upward trend of which judicial notice could be taken and
if it is taken, it could very well be found that Mathadi workers are entitled
to get even more wages than those given in the impugned order. He further
submits that keeping in mind the objects of Mathadi Act and the Scheme
framed thereunder, wage revision has to be considered as a beneficial
measure adopted for ensuring welfare of manual labour as well as well
being of the industry. He also submits that somewhere respondent no.1 is
required to strike a balance between the welfare of the workers and well
being of the industry and while striking the balance, if the scale is slightly
tilted in favour of the workers, it could not be said that the Board has
committed such a grave error as would warrant judicial interference. In the
instant case, he submits, there is no jurisdictional error nor any error of law.
According to him, although no material was produced by the petitioner
before respondent no.1 in support of its contention regarding its capacity to
pay, judicial notice of the fact that steel business is a roaring business could
be taken. He also submits that the contention that more than required
workers are being deployed by respondent no.1 deserves to be rejected on
the ground that no prejudice has been shown to be caused to the petitioner
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by such deployment. On these grounds he has urged that the petition be
dismissed.
23. The first contention of the petitioner relates to giving of rise of
23% in revision of wages being exorbitant with appropriate CPI not
considered as the basis and various contentions of the petitioner ignored. It
is also the contention of the petitioner that while departing from the earlier
differentiated wage structure based upon quantum or tonnage system, the
respondent no.1 ought to have taken minimum of the two rates as the basis
for considering giving of rise, but same has not been done by respondent
no.1. Thus, according to the petitioner, effective rise given by the
impugned order ranges from about 49% to 66%, which, in the opinion of
the learned counsel for the petitioner, is exorbitant. However, one has to
accept the fact that the decision impugned herein is the one taken by a body
having specialised knowledge of the subject while exercising
administrative powers. Although, such a decision is amenable to judicial
review, the scope of review is limited. As rightly submitted by learned
Senior Counsel and learned counsel for the respondents, unless the
administrative or expert decision is shown to be perverse or so illogical as
no prudent administrator or alert expert would take it, judicial review of
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such a decision would not be permissible. In the case of Union of India
vs. Cynamide India Ltd. and anr. [(1987) 2 SCC 720], wherein
notifications fixing maximum prices at which various indigenously
manufactured bulk drugs may be sold by the manufacturers issued under
the provisions of the Drugs (Prices Control) Order 1970 and later the Drugs
(Prices Control) Order 1979 were under challenge on various grounds.
Laying down principles of law for reviewing such a decision, Hon'ble
Apex Court held that price fixation was neither the function nor the forte
of the court and court of law would not be concerned with either policy or
rates fixed under the policy, except to a limited extent. The relevant
observations as appearing in paragraph 4 of the said judgment are
reproduced as under :-
"4. We start with the observation, `Price fixation is neither the
function nor the forte of the court'. We concern ourselves
neither with the policy nor with the rates. But we do not
totally deny ourselves the jurisdiction to enquire into the
question, in appropriate proceedings, whether relevant
considerations have gone in and irrelevant considerations kept
out of the determination of the price. For example, if the
legislature has decreed the pricing policy and prescribed the
factors which should guide the determination of the price, we
will, if necessary, enquire into the question whether the policy
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and the factors are present to the mind of the authorities
specifying the price. But our examination will stop there. We
will go no further. We will not deluge ourselves with more
facts and figures. The assembling of the raw materials and the
mechanics of price fixation are the concern of the executive
and we leave it to them. And, we will not re-evaluate the
considerations even if the prices are demonstrably injurious to
some manufacturers or producers. The court will, of course,
examine if there is any hostile discrimination. That is a
different `cup of tea' altogether."
24. The same principles of law would be applicable to judicial
review of power to fix or revise the rates of wages payable to Mathadi
workers. This court would not be concerned as to of what year the CPI
should be taken as the base and at what percentage the hike should have
been given by the Board, unless it is demonstrated that the rise given is
perverse in the sense that it does not take into account the relevant factors
or is so illogical as no prudent man would ever think of it.
25. In case of M/s. Gupta Sugar Works vs. State of U.P. And ors.
[1987 (Supp) SCC 476], the Hon'ble Apex Court reiterated the aforesaid
principles when it observed in paragraph 4 thus:-
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"4. This will be the parameters and the limitation of inquiry
by courts whenever the price fixation of any essential
commodity is called into question. The court does not act like
a chartered accountant nor acts like an income tax officer. The
court is not concerned with any individual case or any
particular problem. The court only examines whether the price
determined was with due regard to considerations provided by
the statute. And whether extraneous matters have been
excluded from determination."
26. It would be thus clear that in matters like fixation of prices only
limited enquiry by courts is permissible and it is confined to examining
whether the prescribed factors are present to the mind of the authorities
specifying the price and that the courts will not go into the mechanics of
price fixation nor would re-evaluate the considerations even if the prices
are demonstrably injurious to some manufacturers or producers. Order
impugned in this petition essentially being of the same nature as order of
price fixation, same principles of judicial review will apply to it.
Therefore, it would not be possible for us to interfere in the impugned
order only on the ground that the rates are exorbitant or CPI year is
incorrectly taken or highest of two different rates of wages has been
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considered for giving rise in wages. However, we make it clear here that
this observation of ours is confined only to the examination of the
impugned order from the view point of what rates ought to have been given
and what rates ought not to have been given and not any further. The
impugned order is still required to be assessed for its correctness or
otherwise on the anvil of other principles of law as laid down in the
aforesaid cases of Cynamide India Ltd. and anr. and M/s. Gupta Sugar
Works which we would be doing in the remaining part of this judgment.
27. It is the further contention of learned counsel for the petitioner
that when representative Board was about to be constituted following the
directions of this court, one man Board i.e. respondent no.1 was at the
relevant time ought not to have gone ahead with revising the rates by
passing the impugned order and, therefore, respondent no.1 committed a
gross impropriety. The argument cannot be accepted for the reason that, as
rightly submitted by learned Senior Counsel and the learned counsel for the
respondents, it is nobody's case that respondent no.1 has no jurisdiction to
revise the rates. Section 6A of the Mathadi Act is very clear in this regard.
It lays down that for the reasons stated in sub-clause (1), if the
representative Board could not be constituted, the State Government may
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by publishing a notification in the official gazette appoint a person who
shall hold office until a Board is duly constituted under Section 6. Under
sub-clause (2) of Section 6A, one man Board so appointed is deemed to
constitute the Board for the time being and exercises all the powers and
performs and discharges all the duties and functions conferred and
imposed upon the representative Board. The person so appointed continues
to function in office until the day immediately preceding the date of the
first meeting of the representative Board constituted under Section 6. This
should make it clear to us that one man Board appointed under Section 6A
is for all purposes, a Board constituted under Section 6 until the date
immediately preceding the date of the first meeting of a representative
Board. There is also no provision contained in the Mathadi Act that one
man Board constituted under Section 6A cannot perform any function in
terms of Clause 33 of the Scheme, nor any such prohibitory provision has
been brought to our notice by the petitioner. If it be so, the question of
propriety would not arise and one man Board under Section 6A would be
within its powers when it revises or modifies the rates of wages in
pursuance of the power under Clause 33 of the Scheme.
28. Now, this brings us to the most crucial aspect of the case -
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whether relevant considerations have been gone into by respondent no.1
while passing the impugned order? - and this issue would have to be
examined by carefully considering the provisions of sub-clause (5) of
Clause 33 of the Scheme and the arguments canvassed in this regard by
both sides. Sub-clause (5) of Clause 33 reads as under:-
33. WAGES, ALLOWANCES AND OTHER
CONDITIONS ig OF SERVICE OF REGISTERED
WORKERS:
1) ......
2) ......
3) ......
4) .....
5) In fixing, revising or, as the case may be modifying the
conditions of service of the registered workers, the Board shall
have regard to the cost of living, the prevalent conditions of
service in comparable employments in the local area, the
capacity of the registered employers to pay and any other
circumstances which may seem relevant to the Board."
29. This provision clearly envisages such factors as cost of living,
the prevalent conditions of service in comparable employments in the local
area and the capacity of the registered employers to pay and also other
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circumstances which may seem to be relevant to the Board as the guiding
factors for the Board for determining or revising or modifying the wages
payable to Mathadi workers. We have seen in the cases of Cynamide India
Ltd. and anr. and M/s. Gupta Sugar Works that in such matters the court is
not concerned with policy or rates and it is neither the function nor forte of
the court to delve into and decide the wages applicable to Mathadi workers.
The only enquiry which is permissible is as to whether or not the relevant
considerations have been gone into and irrelevant factors have been kept
out as courts are not supposed to act like chartered accountants or cost
analysts. But, courts can certainly look into the order fixing or revising the
wages and set it aside if it is found that it does not reflect consideration of
relevant factors or shows consideration of irrelevant ones.
30. Testing the impugned order on the above referred parameters,
we find that the impugned order dated 12/8/2011 passed by the respondent
no.1 takes into account only the rise in cost of living and it does not
consider the other two important factors such as financial capacity and
prevalent rates of wages in comparable industries, and out of these two, the
latter is indicative of industry-cum-region principle. Learned Senior
counsel and learned counsel for the respondents have argued that these two
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factors were indeed considered by the respondent no1, but, on a closure
examination of the impugned order, we are unable to see any such
consideration therein. Learned Senior Counsel and learned counsel for the
respondents have also submitted that no data nor any documents were
placed before respondent no.1 by the petitioner in order to buttress its case
regarding its incapacity to pay higher rates and the rates prevalent in
comparable industries in the same region and, therefore, the impugned
order should not be faulted on this ground. Again we are unable to accept
the contention for the reason that the impugned order nowhere shows that
the respondent no.1 could not consider these two factors because of failure
of the petitioner to produce before it the relevant material.
31. Even if it is assumed, just for the sake of argument, that the
contention so advanced on behalf of the respondents is right, still, a duty is
cast upon respondent no.1 under the provisions of the Scheme (Clause 33
(2)) to call upon the registered employers and trade unions of workers to
submit appropriate representations and, therefore, it was necessary for
respondent no.1 to call upon the petitioner to place before it proper
representations. If the petitioner had failed to place before respondent no.1
the appropriate data even thereafter, respondent no.1 would have been right
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to have not considered the factor of financial capacity of the petitioner. As
regards the following of industry-cum-region principle or the prevalent
rates of wages in comparable or similar industries in the region, respondent
no.1 could not be said to have been dependent upon the data to be
submitted by the petitioner, as such information would have been available
on its own record. It may be emphasized here that the principle of
industry-cum-region, which must be followed while fixing rates of wages
has been firmly entrenched in our ig labour jurisprudence. This could be
seen from the ratio of the cases of A. K. Bindal and anr., French Motor Car
Co. Ltd., Concept Pharmaceuticals Ltd. and M/s. Polychem Ltd., (Supra)
referred to us by the learned counsel for the petitioner. We find that the
impugned order having been based upon only one factor of rise in cost of
living, and being oblivious to the two most relevant factors such as
financial capacity to pay and prevalent rates of wages in similar industries
in the region, cannot be upheld by us. It deserves to be quashed and set
aside.
32. At this juncture, we find that after the impugned order was
passed, the petitioner had made a representation on 2/9/2011 (Annexure
"J") to the representative Board constituted under Section 6 of the Mathadi
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Act for reconsideration of the impugned order. It has also been brought to
our notice by the learned counsel for the petitioner that there is yet another
representation dated 29/12/2011 (Annexure "K") made to the same Board
making a composite request for reconsideration of the rates fixed under the
impugned order as well as deployment of optimum man power by
reducing the number of workers being deputed by the Board at railway
siding and warehouse at Butibori. In fact, it is also the grievance of the
petitioner in this petition that inspite of several requests made to the Board,
the Board has not considered the issue of deployment of optimum man
power at railway siding, Butibori and warehouse of the petitioner at
Butibori, which is resulting into rise in cost of inputs of steel material,
which ultimately results in increase in the selling price of the steel material.
There is also a prayer made by the petitioner in this regard, which is in
addition to seeking a relief of quashing and setting aside of the impugned
order. The Board, however, by its letter dated 30/1/2012 (Annexure "L")
informed the petitioner that since one man Board constituted under Section
6A of the Mathadi Act had the jurisdiction to decide the issue of revision or
modification of rates of wages payable to Mathadi workers, there was no
question of the new Board reviewing the impugned order. This letter is,
however, silent as regards the other request of the petitioner relating to
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optimization of man power being deployed at the sites of the petitioner. As
we have found the impugned order as unsustainable in law, it would be
appropriate that the case is sent back to the Board for reconsideration of the
matter of revision of the rates of wages and also consideration of the
representation of the petitioner regarding optimization of man power in
terms of the powers of the Board under Clause 33 of the Scheme.
33. Before parting with the judgment we would like to state that
even though the Mathadi Act is a beneficial legislation and interest of the
poor workmen must be protected while making the employers realize their
social obligations, more particularly to the have-nots of the society, as held
in the case of Bhuwalka Steel Industries Ltd. vs. Bombay Iron and Steel
Labour Board and anr. [(2010) 2 SCC 273] relied upon by the learned
Senior Counsel for the respondent nos.2 to 4, the relevant considerations,
which have not been gone into by respondent no.1 while passing the
impugned order and which have been pointed out by us earlier is
something which cannot be ignored. The Board is obliged to keep in view
the lofty ideals for meeting of which the Mathadi Act has been enacted and
the Board also cannot be faulted with if it tilts the balance some what
towards the poor workmen while fixing the rates of wages payable to them,
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yet the Board is under a duty to also give its thoughtful consideration to all
the factors prescribed by law. If the Board ignores the relevant factors, the
law would step in and remind the Board of its duty in that regard. This is
what we think we are doing in the present case by remanding the matter for
consideration afresh in accordance with law.
34. In the light of this application of mind, it is seen that the other
arguments of respective counsel noted by us briefly are not relevant at least
at this stage. Those facets can be looked into by Mathadi Board while
undertaking the process of Wage revision afresh as being directed by this
Court and the parties can also demonstrate these necessary facts to support
their rival contentions. The mode and manner in which work is done, the
optimum strength of labour required to manually assist the Crane operator,
the percentage of wage revision etc. are the facets which can be looked into
by Mathadi Board.
35. In the result, the petition is allowed. Impugned order dated
12/8/2011 is hereby quashed and set aside. The matter is remanded back to
respondent no.1 - Board for reconsideration of the issue of revision or
modification of the rates of wages payable to Mathadi workers by the
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petitioner in terms of sub-clause (5) of Clause 33 of the Scheme and for
consideration of the request of the petitioner made vide representation
dated 29/12/2011 (Annexure "K") regarding deployment of optimum man
power in terms of sub-clauses (1) and (2) of Clause 33 of the Scheme. The
respondent no.1 shall give opportunity to the petitioner as well as
respondent nos.2 to 4 to place before it relevant material. The respondent
no.1 - Board shall decide the issues afresh as directed herein-above in
accordance with Clause 33 of the Scheme as expeditiously as possible and
till that time the petitioner shall continue to pay the wages to Mathadi
workers at its establishments at the rates at which it is presently paying.
After respondent No.1 passes the order, as directed by this court, the
concerned parties shall abide by it.
36. Rule is made absolute in the above terms with no order as to
costs.
(S. B. SHUKRE, J.) (B. P. DHARMADHIKARI,J.)
