Food Corporation Of India Workers ... vs Shri G.R. Majhi And Ors.
2006 Latest Caselaw 2302 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. The challenge in this writ petition is to the applicability of certified standing orders to the employees working in Food Corporation of India ( for short FCI) and this challenge has been made by the union of the workers.

2. Briefly the facts are that the Labour Commissioner issued certified standing orders for the industrial establishment of FCI on 27.2.1996. In the back ground of this certification there was agitation of the FCI workers union who had submitted a charter of demands and also given a notice for trade union dharna at FCI office and godowns from 25.3.92 in respect of their demands. FCI management held several discussions with the trade unions on the charter of demands. However, on 25.3.1992 union organized dharna at headquater building in respect of their demands. Union was invited for discussion on various dates and as a result of discussion an agreement was arrived at with them. It was mutually agreed in the Memorandum of Understanding (MOU) that the agreement as arrived at shall be implemented within a month and amendments suggested by the union to the draft standing orders shall also be incorporated and within a month the parties shall sent a consent letter to Regional Labour Commissioner (Certification) for certification of the agreed standing orders.

3. In pursuance of this MOU, FCI made necessary changes in the draft standing orders and these draft standing orders were sent for certification to the office of certifying officer who certified the standing orders. However, petitioner's union felt aggrieved by the certified standing orders and raised objections to some of the clauses of the certified standing orders. It preferred an appeal before the Appellate Authority in respect of standing orders. In the appeal, the appellate took the stand that Industrial Employment Standing Orders Act, 1946 was not applicable to the employees working in FCI godowns since FCI godowns were not industrial establishment within the definition of Section 2(e) of the standing orders. The petitioner's union also agitated against certain provisions of standing orders. The Appellate Authority with certain further modifications approved the certified standing orders vide its order dated 31.8.1999. By this writ petition, the petitioner has challenged the order of the Appellate Authority in approving the certified standing orders on the ground that Industrial Employment Standing Orders Act 1946 was not applicable to the persons working in FCI godowns and the other objections is in respect of some clauses of the certified standing orders. The clauses of which legality are challenged are as under:

(a) Clause 2.5- Disciplinary Authority.

(b) Clause 13 (3)(b) & (j)- Grant of leave.

(c) Clause 14- Loss of lien on unauthorised absence.

I shall first deal with the legality of clause 2.5. Clause 25 is as under:

Disciplinary Authority" shall be the District Manager as an appointing authority or an authority not lower than the appointing authority as may be specified by a general or special order of the Managing Director of the Corporation in this behalf.

4. The objection against this clause is that appointing authority has not been defined in certified standing orders, therefore, this clause was very vague and imprecise. The certifying officer left power to notify the appointing authority with the Managing Director. This was unspecified power and it would be appropriate that only Senior Regional Manager or Regional Manager be declared as appointing authority.

5. I consider this objection of the petitioner is unfounded. Appointing Authority is not required to be defined. An appointing authority is that officer who has power to appoint employees. This clause provides that disciplinary authority shall be either District Manager as an appointing authority or authority not lower than the appointing authority. There is no vagueness in the clause. The appointing authority of each employee shall be a defined and identified person and the disciplinary authority as a normal rule can be either appointing authority or authority higher than that.

6. The other rules about which objections have been raised in the writ petitioner are 13(3)(b) and 13(3)(j). The rule reads as under:

13(3)(b): " When the exigencies of public service so required, leave of any kind may be refused or revoked by the competent authority but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the person concerned".

13(3)(j): " When a worker is dismissed, removed or resigned from the service of the FCU, he will not have any claim to any kinds of leave to the credit and encashment of earned leave.

7. It is submitted by petitioner that the leave to a workman cannot be refused or revoked in a case of maternity or sick leave, therefore, 13(3)(b) as certified by the certifying officer is irrational and unjust. I consider that this objection has no force. The maternity leave and other maternity benefits are available to all employees of the establishment in terms of the provisions of the Maternity Benefit Act 1961. The certified standing orders do not over rule the provisions of the Maternity Benefit Act 1961. The certified standing orders are in respect of leave other than maternity leave since maternity leave is covered by Maternity Benefit Act 1961. However, as far as sick leave is concerned if the management finds that the sickness was being feigned, the management can always refuse sick leave or can refer the workman to the medical board.

8. The other objection raised about the leave provision is the forfeiture of leave encashment as provided under Section 13(3)(j). I consider that there is no illegality in this provision. This provision put a premium on the worker who superannuates after regular service and remains a disciplined worker. This provision also puts a check on riotous, arrogant and insubordinates attitude of the workman and is conducive to discipline in the organization. A legitimate demand can always be raised through union and for raising legitimate demand by lawful means, the management cannot punish any person. However, when workers take law into their own hands and damage the properties of organization, or turn violent and take to uncivilized behavior, they cannot lay claim on leave encashment, if misconduct is proved, as per rules provided in the standing orders. Fair play does not mean that unjust and illegal acts of workmen are to be tolerated by the management. Protection under different articles of Constitution of India is not meant only for the workman, but it is also available to the managers, supervisors and responsible officers of the management who are often man-handled, insulted publically and some time beaten in violent demonstration by the workmen. Therefore, I find no infirmity in the above clause.

9. Clause 14 of the certified standing orders about which objections have been raised reads as under:

Clause No. 14: Loss of lien on unauthorised absence:

If a workman remains absent for 15 days beyond the period of leave originally granted or subsequently extended he shall be given 15 days notice (by registered post with acknowledgment due at his leave address) to explain the cause for his absence. In case his explanation is received to the satisfaction of the leave sanctioning authority or officer specified in this behalf by the employer, he will not lose his lien on his job. In case no explanation is received or if received, it is not considered satisfactory and workman returns to duty, he will be given a fresh appointment. He shall be entitled to make a representation to the Sr. Regional Manager for regularisation of the absence for continuity of service with all consequential benefits, who shall decide the issue on the basis of the principles of natural justice. the decision of the Sr. Regional Manger shall be final.

10. The petitioner's plea is that this clause is contrary to the judgment in the case of 1993 (67) FLR 111 D.K. Yadav v. J.M.A. Industries Ltd. I consider that principles of natural justice are inbuilt in this clause. This clause itself provides for issuance of show cause, giving opportunity of explaining the absence and making representation to Sr. Regional Manager, who has to decide the issues following the principles of natural justice. That ensures that the workman is given full opportunity to present his case before any decision is taken about termination of his lien on his unauthorized absence.

11. It is now settled law that while exercising powers under Article 226 of the Constitution of India, the High Court cannot interfere into the decision of the executive authority. In writ petition, the Court can only see if the process of arriving at the decision was fair and in accordance with the principles of natural justice. The different clauses of the certifying standing orders were certified after discussion with the union respondents in accordance with the prevalent provisions of Industrial Employment Standing Order 1946. Standing orders were modified in consultation with the union. It was not necessary for the management to agree to all modifications pressed by the union. It is the management who has to run the show and has to consider what was in the best interest of the organization. The Court cannot substitute its own views instead of views of the management nor the Court can give directions as to who should be appointing authority and who should be disciplinary authority and likewise.

12. The second limb of attack of the respondent was non applicability of the standing orders to the FCI. The petitioner has relied upon the definition of industrial establishment as given in Section 2(e) of the Industrial Employment (Standing Orders) Act, 1946. Section 2(e) reads as under:

(e) " Industrial establishment" means-

(i)an industrial establishment as defined in Clause (ii) of Section 2 of the Payment of Wages Act, 1936 (4 of 1936), or

(ii) a factory as defined in Clause (m) of Section 2 of the Factories Act, 1948 (63 of 1948) or

(iii)a railway as defined in clause 4 of Section 2 of the Indian Railways Act, 1890 (9 of 1890), or

(iv)the establishment of a person who, for the purpose of fulfillling a contract with the owner of any industrial establishment, employs workmen,

13. Section 2(e) refers to the definition of the industrial establishment as given in the Payment of Wages Act 1936. Section 2(ii) of the Payment of Wages Act reads as under:

2. (ii) " industrial or other establishment" means any-

(a) tramway service, or motor transport service engaged in carrying passengers or goods or both by road for hire or reward;

(aa) air transport service other than such service belonging to, or exclusively employed in the military, naval or air forces of the Union or the Civil Aviation Department of the Government of India;

(b) dock, wharf or jetty;

(c) inland vessel, mechanically propelled;

(d)mine, quarry or oil-field;

(e) plantation

(f) workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale;

(g) establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on;

(h) any other establishment or class of establishments which ( the appropriate Government) may, having regard to the nature thereof, the need for protection of persons employed therein and other relevant circumstances, specify, by notification in the Official Gazette;)

14. It is submitted by petitioner that the workmen employed in godown are primarily engaged for handling of bags, loading and unloading, stacking, re-stocking of the bags and other incidental activities, which do not come within the meaning and scope of the word 2(ii)(f) of Payment of Wages Act. If it is held that the godowns are covered under the Act and they were also covered under the Factory Act 1948, it would be mandatory for the management to apply under the relevant provisions of the Factory Act. FCI had not applied under the Factory Act for its registration. It was not an industrial establishment under the IESO Act.

15. The reasons given by the certifying officer for holding that FCI was industrial establishment are that FCI in its godowns not only stores but it also does work relating to protection of food stocks from vagaries of nature, damage by wetting, deterioration due to rodents/ insects and transportation of food grains from surplus to deficit areas. It arranges supply to the public distribution system at prices fixed by the Government and is responsible to keep the food grains fit for human consumption. Therefore, food depot of FCI were considered as industrial establishment. I consider that the reasons given by the certifying officer are valid reasons for covering FCI godown. Section 2(ii)(f) makes no exceptions of godowns. FCI godown are not mare storage depots where people can get their articles stored. They are the centres of management of public distribution system. The responsibility of the FCI is to replenish the stock, to keep the food grains and articles fit for human consumption, transport the food grains to deficit areas and to implement the policy of prices support system of the Government.

16. By no means it can be said that FCI was not an industrial establishment. Moreover, at the time as early as 1992, the workmen of FCI had gone on agitation and raised demands for standing orders and an agreement was arrived at between the parties that the draft standing orders shall be modified after discussion and shall be got certified. It is settled law that settlement arrived at between the management and the workmen through their union in accordance with the provisions of Industrial Disputes Act 1947 is binding on the parties. The petitioner's union who represented the workman through out and even during agitation was one of the signatory to the agreement, union cannot now turn around and say that it is not bound by the settlement and the standing orders should not be got certified. It is admitted by the petitioner in the writ petition that it had not raised any objection when the draft standing orders were modified after talks with the union representatives. It raised objections about non applicability of the Act only for the first time in the appeal.

17. In 1978 LAB. I. C. 1657- U.P. State Electricity Board and Anr. v. Hari Shanker Jain and Ors.- Supreme Court observed as under:

Experience has shown that " Standing Orders", defining the conditions of recruitment, discharge, disciplinary action, holidays, leave etc., go long way towards minimising friction between the management and workers in industrial undertakings. Discussion on the subject at the tripartite Indian Labour Conferences revealed a consensus of opinion in favor of legislation. The Bill accordingly seeks to provide for the framing of "standing Orders" in all industrial establishments employing one hundred and more workers.

18. I consider that writ petition seems to have been filed for ego satisfaction by the union office bearers and not for the benefit of the workmen. The workmen are always benefited if the terms and conditions of the service are certain and known. The purpose of getting standing orders certified is to make each workman know what are the terms and conditions of his services and what are his rights and obligations. Certified standing orders also curb arbitrariness and whimsical attitude on the part of the management. Management can proceed against the workman only in terms of certified standing orders.

19. I find no force in the writ petition. Accordingly, the same is hereby dismissed.