Madhya Pradesh High Court
Kailash Chandra Tiwari vs Ultratech Cement Limited (Unit Vikram ... on 1 October, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2024:MPHC-IND:28785
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 1 st OF OCTOBER, 2024
WRIT PETITION No. 15520 of 2022
KAILASH CHANDRA TIWARI
Versus
ULTRATECH CEMENT LIMITED (UNIT VIKRAM CEMENT WORKS )
THROUGH FACTORY MANAGER
Appearance:
Shri Jagdish Baheti, learned counsel for the petitioner.
Shri Girish Patwardhan, learned senior counsel with Ms.Rachana
Zamindar, learned counsel for the respondent.
Shri Kushagra Jain, learned counsel for the respondent/state.
ORDER
The present petition is filed being aggrieved by the order dated
27.05.2022 passed by Presiding Officer, Labour Court in a proceeding of
application filed under Order 7 Rule 11 read with Section 151 CPC filed by
respondents mentioning that the UltraCement Limited is an integrated plant
in which the work of cement industry and mining is run by a single legal
entity. The mines are used for cement industry for which mining lease has
also been obtained. It was also stated that the state government does not have
jurisdiction in the matter as per notifications dated 08.12.1977 and
20.05.2005, wherein it has been directed the cement industry being
controlled industry, the appropriate government Central Government if the
cement industry is part of mines and queries.
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2. By the impugned order, the Labour Court has allowed the
application filed under Order 7 Rule 11 of CPC holding that the Central
Government is only the appropriate government with regard to the
respondent/industry and the State Government is not the appropriate
government. The Labour Court directed to return the reference holding the
same without jurisdiction.
3. Learned counsel for the petitioner submits that the aforesaid issue
has been answered by the Division Bench in a batch of appeals in W.A
No.1167/2019 (Ultra Tech Cement Ltd. Vs. Additional Labour
Commissioner and Ors) dated 24.09.2024 and other connected appeals
holding that for workmen working in a cement factory, the appropriate
government would be the State Government.
4. Learned counsel for the respondent could not dispute the aforesaid
contention that the issue involved in the present petition stands answered by
the Division Bench but submitted that against the said order, a Special Leave
to Petition (SLP) has been filed and the diary number has been given as
45541/2024. However, he fairly submits that there is no stay on the judgment
passed by the Division Bench.
5. Two issues have been considered by the Division Bench that
whether the Central Government or the State Government is an appropriate
government for workmen working in a cement factory for the purpose of
making reference of Labour Court and whether the statutory increase in the
age of retirement i.e. 60 years by the State of M.P. shall apply to the
Workmen of Vikram Cement Lime Stone Mines and Cement Plant, a unit of
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the petitioner/appellant.
6. So far the first issue raised by the appellant/ petitioner is that the
appellant is a controlled industry under the Industries (Development &
Regulation) Act 1951 and is governed by CGAct of 1946. The Act of 1951
places certain industrial establishments under the control of the Central
Government in the interest of the public. Section 2 of the Act of 1951 read
with the First Schedule provides for industries under the control of the
Central Government and Cement is one of the industry which is categorized
as an industry is categorized as a Schedule Industry. The State of Madhya
Pradesh enacted the M.P. Act of 1961 which came into force on 28.07.1961.
Proviso to Section 2 (1) of the Act of 1961 provides that the Act of 1961 will
not apply to an undertaking carried on by or under the authority of Central.
7. After the enactment of the M.P. Act of 1961, the Act of 1946 was
amended in the year 1963 and a proviso was inserted in Section 1(4) thereof
which specifically provided that the M.P. Act of 1961 would not apply to
industrial establishments under the control of the Central Government.
Relevant extracts of the CGAct of 1946 are reproduced below:
"1. Short title, extension and application.-
...
(4) ...
(ii) any industrial establishment to which the provisions
of the Madhya Pradesh Industrial Employment
(Standing Orders) Act, 1961 apply:
Provided that notwithstanding anything contained in the
Madhya Pradesh Industrial Employment (Standing
Orders) Act, 1961, the provisions of this Act shall apply
to all industrial establishments under the control of the
Central Government."
(Emphasis Supplied)
8. The Government of India vide Notification bearing No.SO 757
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(E) dated 08.11.1977 specifying that Section 2 (a)(i) of the ID Act would
include within its ambit, the cement industry which has been declared as a
controlled industry under Section 2 of the Act of 1951. Section 2(a)(i) of the
ID Act provides situations/circumstances in which the Central Government
will be the appropriate Government.
9. However, the provision of the Act of 1961 would apply to the
Cement Unit because the Central Government in the exercise of its control
over the cement industry delegated its powers to the State Government vide
notification dated 08.12.1977. By virtue of such delegation of powers, the
State Government was also authorized to exercise such powers as the Central
Government
10. The Ministry of Labour and Employment, Government of India
vide circular dated 15.01.2014 clarified that for the cement industry, the
Central Government is the appropriate Government within the ambit of the
ID Act and Contract Labour (Regulation & Abolitions) Act, 1970 despite
delegation of power to the State Government. The relevant extracts are
reproduced below:
"It has come to the knowledge of this office that there is
confusion over the issue of 'Appropriate Government'
in respect of the Cement Industry amongst the Officers
working in the Labour Department of Central
Government and the State Government for dealing any
dispute raised by the workers/ unions etc. in their
jurisdiction. It is clarified that for the Cement Industry,
the Central Government is the Appropriate Government,
within the ambit of the Industrial Disputes Act, of 1947
and the Contract Labour (Regulations & Abolitions)
Act, of 1970. Though the Central Government
delegated the powers to the State Government under
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section 36(B) of the Industrial Dispute Act, 1947, the
original powers remain with the Central Govt."
(Emphasis
Supplied)
11. In view of the above writ court and the learned Industrial Court
have rightly held that the State Government also has the power to refer the
dispute to the Labour Court or the Industrial Court as the case may be.
12. Shri Patwardhan learned senior counsel has relied on the order
passed in UltraTech Cement Limited V/s Shrinivas Narayanrao Moharil,
2010 SCC OnLine Bom 223 in which the High Court of Bombay held that
both Central Government and State Government are appropriate
Governments for cement industry, however, the industry will be governed by
central enactments. In Orient Cement Limited V/s Ramesh Dhannu Baviskar,
2018 SCC OnLine Bom 21408 it was held that the appropriate Government
in relation to a controlled industry would be the Central Government and
State enactments would not apply. In M/s Sintra Limited & Ors. V/s State of
Bihar & Ors., 1998 SCC OnLine Pat 386, the High Court of Patna has held
that the cement industry is a controlled industry and the Central Government
is the appropriate Government. In JSW Cement Limited v. State of Andhra
Pradesh, 2020 SCC OnLine AP 3, the High Court of Andhra Pradesh has
also held that the appropriate Government for the cement industry is the
central Government. In those States there is no local enactment like the M.P.
Act of 1961, hence these judgments will not help the appellant/ petitioner.
13. The Hon'ble Supreme Court in Yovan India Cements Employees
Union and Anr. V/s Management of Indian Cements Limited & Ors., (1994)
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1 SCC 572 while holding that the appropriate Government for the purposes
of ID Act are both Central Government and State Governments on account
of delegation of power by the Central Government by notification dated
08.12.1977 have placed reliance on the notification dated 08.11.1977 issued
by the Central Government declaring cement industry as controlled industry.
14. The second issue raised by the appellant/petitioner is that the
Settlement arrived between CMA and the workers' union is binding on
Workmen is unacceptable and is also liable to be rejected. According to the
appellant, the service conditions of Workmen working at the Cement Unit
are regulated by way of periodic settlements arrived between Workmen
unions and the management of cement plants of the appellant under Sections
12(3) and 18(3) of the ID Act, 1947 before the Chief Labour Commissioner
(Central). The workers' unions in the charter of demands raised the issue of
the age of retirement, however, the same was not agreed upon in the
settlements. Learned senior counsel has relied on judgment passed by the
Apex court in the case of National Engineering Industries V/s State of
Rajasthan, (2000) 1 SCC 371, Barauni Refinery Pragatisheel Shramik
Parishad V/s IOCL, (1991) 1 SCC Cases 4, Rajashree Cement General
Workers & Staff Union V/s Management of M/s Ultratech Cement Limited
in Writ Appeal No.200010/2022, The Management of Hindalco Industries
Limited V/s General Secretary, Indal Employees' Union & Ors., Writ
Appeal No. 100235/2022 by the High Court Karnataka in similar
circumstances held that during the operation of settlement, it is not open for
Workmen to demand change in condition of service contrary to settlement
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arrived between the parties. The said judgment has also been affirmed by the
Supreme Court in SLP Diary No.42618/2023 and Review Petition Diary
No.16975/2024. As held above by us in the above discussion in the State of
M.P. the working conditions of the cement workers are governed under the
M.P. Act of 1961, not under the biparty settlement. The service conditions
which are more beneficiary to the workmen under the statute shall prevail
over the settlement.
15. The Vikram Cement Lime Stone Mines which is captive to the
Cement Unit of the appellant /petitioner does not form a composite unit. It is
to be noted that the service conditions of the Workmen working at the
limestone mine and those working at the Cement Unit of the
appellant/petitioner cannot be regulated under the same laws as they are
governed under the Mines Act and Factories Act 1948 respectively. As per
Clause 28 of the CSO for the Vikram Cement Lime Stone Mines, the age of
retirement of Workmen is 58 years. An increase in the age of retirement of
Workmen at the Cement Unit of the appellant/petitioner is governed under
the M.P. Act of 1961
16. In view of the aforesaid, the impugned order is set aside. The
Labour Court is directed to proceed in the matter in accordance with law.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
