Employers In Relation To The Management ... vs Their Workmen Through The General ...
2024 Latest Caselaw 10442 Jhar

Jharkhand High Court

Employers In Relation To The Management ... vs Their Workmen Through The General ... on 18 November, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   L.P.A. No. 737 of 2023
                             .........
       Employers in relation to the Management of M/s Bokaro
       Steel Plant (SAIL), Bokaro Steel City, Bokaro, through Mr.
       J.T. Kongari, aged about 55 years, son of Late P.L.
       Kongari,    working   as      constituted   Attorney   General
       Manager (Law), Steel Authority of India Limited, Bokaro
       Steel Limited, P.O. B.S. City, P.S. B.S. City, District-
       Bokaro.                                       ..... Appellant
                             Versus
       Their Workmen through the General Secretary, Bokaro
       Steel Workers Union, Sec. No. 11-A, Qr. No. 2-178, B.S.
       City, P.O. B.S. City, P.S. B.S. City, District-Bokaro.
                                                   .....Respondent
                                         .........
 CORAM:                HON'BLE THE CHIEF JUSTICE
                  HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                         .........
       For the Appellant     : Mr. Indrajit Sinha, Advocate
       For the Respondent    : Mr. Ratnesh Kumar, Advocate

C.A.V. ON 21/10/2024         PRONOUNCED ON:18 /11/2024
Per Deepak Roshan, J.

Heard learned counsel for the parties.

2. This intra court appeal questions, the correctness of

the judgement and order dated 4 October 2023 passed by

the learned Single Judge whereby the writ petition being

W.P.(L) No. 4675 of 2017 has been dismissed.

The fact reveals that an industrial dispute was

referred by the appropriate authority to the Central

Government Industrial Tribunal No.1, Dhanbad (hereinafter

referred to as the "Industrial Tribunal" for short) for

adjudicating the following reference:

"Whether the action of the management of Bokaro Steel

Plant, SAIL in not paying 20% special allowance to the

workers working in Bokaro General Hospital is legal and

justified? What relief the workmen are entitled to?"

On the basis of the above, Reference Case No. 39 of

2013 was registered.

3. Both the management as well as the workmen

appeared and filed their written statements.

4. The case of the workmen as set out in the

written statement is that the employees of Bokaro Steel

Plant working in Bokaro General Hospital, particularly

Nursing and para-Medical Staff are governed by the Service

Rules of Bokaro Steel Plant. It has been admitted by the

management of Bokaro Steel during conciliation

proceedings vide letter No. Pers/IR/2012-1209 dated

21.11.2012 that the employees of Bokaro Steel Plant

working in Bokaro General Hospital are governed by Service

Rules, Standing Orders and Executive Orders issued from

time to time and these employees have been getting all the

benefits under service Rules. The non-executive employees

of the BSL, who are covered under service Rules are

required to perform duties from Monday to Friday from

9:30 AM to 5:00 PM with a one-hour lunch break and on

Saturdays from 9:30 AM to 1 PM. So, the duty hours of

employees of BSL who are governed by Service Rules is 36

hours per week. The Circular No. GM (P&A)/2008-7267

dated 12.12.2008 issued by GM (P&A) of BSL categorically

clarifies the working hours of the non-executive employees

governed by Standing Orders and Service Rules as follows:

Standing Orders: - 8:30 AM to 5:00 PM (with half an hour lunch break)

Service Rules: - Monday to Friday 9:30 AM to 5:00 PM (with one hour lunch break, Saturday 9:30 AM to 1:00 PM)

It was further stated that the Nursing and para-

medical staff of Bokaro General Hospital are covered under

Service Rules as they are working for 48 hours in a week

and are also performing shift wise duties. The nursing and

para-medical staff are performing 12 hours additional duty

every week compared to the other employees who are also

governed by the service rules. The employees who are

governed by the service rules and working in the sales

accounts and EDP centre of BSL who are required to work

48 hours in a week in shifts are paid 20% of their basic pay

and DA as special allowance to compensate for the

extension at the time of change in working hours from 36

to 48 hours. They are also getting an incentive and reward

in addition to the aforesaid allowance of 20% of basic pay

and DA. The nursing and para-medical staff have been

deprived of their genuine legal rights for a long time and are

exploited through unfair labour practice by the

management; the staff have been getting all the benefits as

per the service Rules but they have been deprived of their

right of 20% of their basic pay DA as special allowance even

though they work 36 to 48 hours per week and are working

in shifts as well.

5. The case of the management is that the names

of workmen concerned are not incorporated along with the

order of reference and in the absence of the same, the

reference is indefinite and vague. Since the inception of

Bokaro General Hospital and introduction of shift wise

duty, the employees of the hospital whose service

conditions are governed by service rules have been

performing 48 hours duty in a week. The employees

working at the hospital have been performing 48 hours of

duty per week, 8 hours of duty per shift since the date of

joining in the hospital. The workmen of the BSL who have

been working 48 hours per week are entitled to get an

enhanced incentive and reward of 50% and those who are

working for less than 48 hours per week are getting 36% of

the incentive and reward. The management has never

changed the service condition of the workmen who are

working at the hospital from service rules or standing

orders and as such there has been no violation of the

provisions of Section 9A of the ID Act. The employees of the

hospital governed by service Rules have been getting all the

benefits of service Rules and have also been getting the

enhanced incentive and reward of 50% which is applicable

for the employees working for 48 hours in a week for

several years. Such workmen have been enjoying all the

facilities as per the applicable Rules including the leave

allowance. Hence the demand of the union for payment of

20% special allowance to the employees of the hospital is

not justified.

6. In course of the proceedings before the learned

Industrial Tribunal, the Workmen - Union examined three

witnesses, whereas the management examined one witness.

As many as 13 documents were marked as exhibits on

behalf of the Workmen- Union, whereas only one document

was marked as exhibit on behalf of the management. The

Industrial Tribunal passed the award on 20 April 2017,

answering the reference in favour of the workmen by

holding that the workmen were entitled to 20% special

allowance.

7. The management of Steel Authority of India

Limited, Bokaro Steel Plant challenged the Award dated

20.04.2017 passed by the Industrial Tribunal in Reference

Case No. 39 of 2013 by filing the above referred writ

petition, which was numbered as W.P.(L) No.4675 of 2017,

which has been dismissed by the impugned order dated 4

October 2023.

8. Learned counsel for the appellant contended

before us that the Industrial Tribunal has committed an

error of jurisdiction, inasmuch as, it has not returned any

finding far less positive finding as to how and on what basis

the Industrial Tribunal came to the conclusion that

workmen were entitled to get 20% extra allowances.

It has been further argued that though the workmen

had based their claim on the basis of parity with the

employees of another department who were receiving 20%

extra wage in terms of a scheme whereby if an employee

was working for more than 48 hours and in three shifts,

then they were entitled to the above-mentioned extra wage,

but, neither the workmen proved nor the tribunal returned

any finding on this aspect. Likewise, there is also no

finding, that the workmen before the Industrial Tribunal

were performing similar duties in the similar fashion or for

that matter working for 48 hours per week. According to

the counsel for the appellant, the award is perverse and

therefore is liable to be set aside and the learned Single

Judge has failed to appreciate the above contention in its

correct perspective and thereby has erred in not interfering

with the Award passed by the Industrial Tribunal, under

articles 226 and 227 of the Constitution of India.

9. On the other hand, the counsel for the

respondent has supported the award and contended that in

view of the evidence of the management witness which has

been quoted in the award (paragraph 14) particularly the

portion where the said witness has virtually admitted that

the workmen are entitled to get 20% extra allowance, the

learned Industrial Tribunal rightly arrived at the evidence

that the workmen are entitled to receive 20% extra

allowance. He further argued that the learned Single Judge

has also rightly negated this contention raised by the

Management - SAIL and has referred to the findings at

paragraph 15 of the judgment and order passed by the

learned Single Judge.

10. For proper adjudication of the issue in hand,

Paragraph 14, 15 and 16 of the Award and paragraph 15 of

the judgment and order passed by the Single Judge are

being extracted herein below:-

Extracts from the Award

"14. It is the admitted case that all technical staff of Bokaro Steel Plant receiving 20% extra wage from the date of introduction of scheme, barring the Bokaro General Hospital staff. Bokaro Hospital is looking the health of all officer, workmen of the Bokaro Steel Plant, they are also rendering emergency duty, if any accident in the factory occurred.

15. In the last line of the evidence, the management admitted in the suggestion that the workmen of the Bokaro general Hospital should not be debarred of 20% extra wage from the date of the scheme introduced. A few portion of cross examination is quoted below:-

There is no document to support paragraph 3 of the examination in chief. I also cannot say the truthfulness i.e. documents of para 4 of my chief. If is a fact that after attending the monthly production the employees are entitled to get incentive and reward. It is not a fact that, the para-6 of my affidavit is not partially wrong. The concerned workmen are not getting 20% extra wages. But many persons in BSL get 20% which called special machine allowance. It is not a fact that workman are not entitled to get 20% extra allowance."

16. On perusal of evidence of management, it is noticed that she has admitted that the concerned employees of this dispute are not getting 20% allowance like special /machine allowance which is being paid to other employees in similar situation.

Extract from the Impugned Judgment of the learned Single Judge;

"15. So far as the contention of the petitioner regarding the impugned award being bad in law and perverse is concerned, this Court after going through the materials in the record finds that 20% special allowance to the workmen working in Bokaro General Hospital is admissible to them because the parameter upon which such payment was made to the similarly paid workmen was that they were working for 48 hours in a week and working in shifts i.e. A, B and C and each shift consisting of 8 hours per day and they were also attending emergency duty in case of need like when the accident takes in the factory. As already indicated above, the Management has not assigned even a single reason as to why upon the admitted facts that the workmen working in Bokaro General Hospital were at par with at least the workmen working in Sales Account Section (Invoicing Group)

and EDP Centre (Input/Output Section) of Bokaro Steel Plant, will not be entitled to the emoluments at par with the workmen working in Sales Account Section (Invoicing Group) and EDP Centre (Input/Output Section) of Bokaro Steel Plant. Moreover, as the witness of the Management has also admitted by way of denying the denial suggestion and as the double negative in the sentence makes the sentence positive that the workmen of Bokaro General Hospital are entitled to get 20% extra allowance, by no stretch of imagination, it can be said that the award passed by the Industrial Tribunal is perverse or being not in accordance with law."

11. On perusal of the above paragraphs and also

the award and the impugned judgement order as a whole,

we do not find any basis for both the Industrial Tribunal as

well as Single Judge to come to a conclusion that it is an

"admitted fact" that the workmen, who are working in the

Bokaro General Hospital were at par with the workmen

working in the Sales Account Section (invoicing group) and

EDP Centre (input/output section).

The heavy reliance placed on the statement of

the management witness to come to a conclusion that the

management has admitted that the workmen are entitled to

get extra 20% allowance is completely misconceived.

Neither the industrial tribunal nor the learned single judge

have found that the management witness was competent to

make such a claim which could bind the management of

Steel Authority of India Limited (SAIL). After all, the

payment of extra wage is a policy decision which must be

taken by the competent authority and a witness who may

not be competent cannot admit to the liability to make such

payment. Therefore the said statement of Management

Witness cannot be treated as an admission on the part of

the Management - SAIL. The workmen in order to succeed

must establish before the Industrial Tribunal that they are

entitled to 20% extra allowances, inter alia, on the ground

that they were working for 48 hours a week and three shifts

or eight hours per day, and that the said office order would

apply to them with equal force.

12. There being no such finding, we are of the view

that the Award passed by the Industrial Tribunal and

affirmed by the learned Single Judge needs interference

and accordingly, both are set aside. The matter is remitted

to the Industrial Tribunal to decide the matter afresh from

the stage of hearing of arguments and on the basis of the

material already on record; and an Award be passed within

a period of three months from the date of communication of

this judgment and order.

We direct that the parties shall not be granted

unnecessary adjournments and it is expected that both the

parties will cooperate with the Industrial Tribunal in early

disposal of the proceedings. The parties are not permitted

to file any further documents or lead any further evidence,

unless the Industrial Tribunal feels that the same is

necessary for effective adjudication of the matter, and it is

permissible in law for the Industrial Tribunal to allow such

additional materials to be taken on record.

13. The present appeal therefore succeeds to the

extent indicated above and stands disposed of. Pending

I.A., if any stands closed.

(M.S. Ramachandra Rao, C.J.)

(Deepak Roshan, J.) Amardeep/ N.A.F.R