Orissa High Court
Management Of Fci And Ors. vs Presiding Officer, Indl. Tribunal And ... on 4 February, 1992
Equivalent citations: (1993)ILLJ677ORI
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT Hansaria, C.J.
1. These petitions assail different parts of the award passed by the learned Industrial Tribunal, Bhubaneswar, in Industrial Dispute Cases Nos. 9/77(C) and 5/78(SC).
2. In Industrial Dispute Case No. 9/77(C), the reference required adjudication of the following disputes:-
"Whether the action of the Management of the Food Corporation of India in refusing employment of the Food Storage Depot, Jagannalhpur, to the workmen whose names are given in the Annexure below is justified? If not, to what relief are these workmen entitled?"
3. The subject-matter of adjudication in Industrial Dispute Case No. 5/78(C) was as below:-
"(1). Whether the action of the Management of Food Corporation of India in not treating the direct payment to workers of their depots at Jharsuguda, Jagannathpur, Dhenkanal and Kesinga as Departmental is justified? If not, to what relief are the concerned workmen entitled and from what date?
(2). Whether the action of the management of the Food Corporation of India in not paying subsistence allowance to the work men of their depots at Dhenkanal and Jharsuguda whose names are given in the Annexure in respect of the period of their suspension from the dates shown against each is justified? If not, to what relief are the said workmen entitled?"
4. Both the cases having raised similar questions of fact and law were taken up together and the learned Tribunal passed a joint award to the following effect:-
"23. To sum up, the workers involved in both the proceedings are held to be workmen. The 30 workers of Jagannathpur Depot covered in I.D. Case No. 9/77 involved in the criminal case (two are said to be dead) are entitled to reinstatement with full back wages. The 18 workers of Dhenkanal Depot and 26 persons of Jharsuguda Depot involved in the criminal cases are entitled to wages from the date of refusal of employment till they were taken back to employment. In determining the back wages of the workers of Jagannathpur, Dhenkanal and Jharsuquda, the number of days for which work was available in respective Depots and the prevailing piece rate shall be taken into consideration. The claim of the workers of four depots to be treated as departmentalised labourers is not acceptable and the action of the management in this regard cannot be said to be illegal."
5. The management has felt aggrieved at the first part of the award and the Union at the second part. Both of them have therefore filed the present applications.
6. To appreciate the rival submissions made by counsel on both sides, it would be apposite to note the basic facts at this stage:
The two parties are the Food Corporation of India and the persons working in four of its Depots situated in this State. These Depots are at Jagannathpur. Dhenkanal, Jharsuguda and Kesinga. The work of loading and unloading of food-grains in these Depots was being curried on at one stage through independent handling contractors paid on piece- rale basis. As early as 1973, the trade union demanded for abolition of handling contract system which was conceded to after the workers had resorted to strike. An agreement was arrived at on March 16, 1973 to the effect that the handling work would be done by the workmen as nominated and identified by the authorised representatives of the Union. In technical term, this was described as "direct payment system". For some time, the work was running on smoothly, but the workers again struck work with effect from January 27, 1975 which continued till March 10, 1975. As the labourers were said to have indulged in unlawful and criminal activities during the period of the strike, cases were registered against 34 labourers of Jagannathpur, 19 of Dhenkanal and 26 of Jharsuguda Depots. The management thereafter prohibited their entry into the Depot premises. In the police cases instituted as aforesaid, the labourers of Jagannathpur and Dhenkanal Depots were acquitted whereas those attached to Jharsuguda Depot came to be convicted. The Union thereafter requested vide its letter dated January 11, 1976 to allow the 34 labourers attached to Jharsuguda depot to resume work. On this not being done, an industrial dispute was raised which came to be referred for adjudication and became the subject-matter of Industrial Dispute Case No. 9/77(C).
The Union raised the further demand of subsistence allowance for the labourers whose entry was prohibited into the depots characterising the said prohibition as suspension. They also demanded for departmentalisation of the labourers engaged in the aforesaid four Depots. It may be stated here that the effect of departmentalisation is that the labourers become regular employees of the Corporation and became entitled to those benefits which are available to the regular employees, whereas these benefits are not available to the workers engaged under the "direct payment system". These two disputes were taken up for conciliation which ended in failure. After receipt of the failure report, the Government of India referred the two disputes for adjudication which became the subject-matter of Industrial Dispute Case.No. 5/78 (C).
7. We shall first take up the petition filed by the management. In support of the case of the management, Shri Ratho has advanced the following contentions:-
(1) The Tribunal had no jurisdiction to adjudicate the dispute.
(2) There did not exist the relationship of master and servant between the parties, and so, reinstatement of 30 workers could not have been ordered. In any case, the order of reinstatement was not justified.
(3) The order of reinstatement with full back wages was passed mechanically.
(4) The award in favour of 18 workers of Dhenkanal Depot was beyond jurisdiction inasmuch as the dispute relating to them had not been referred for adjudication.
8. We shall examine the contentions seriatim.
(1) (a) The contention relating to jurisdiction has been advanced because, according to the management, the question as to whether the system of contract labour prevailing in the aforesaid four Depots required to be abolished is to be decided in accordance with the provisions of the Contract Labour (Regulation and Abolition) Act, 1970; and the same cannot be the subject-matter of reference under the provisions of the Industrial Disputes Act, 1947. To support his submission, Shri Ratho first refers to Food Corporation of India Workers Union v. food Corporation of India, AIR 1985 SC 488, in which the question for determination was as to which is the "appropriate Government" for implementation of the provisions of the aforesaid act. The apex Court opined that it was the State Government. Pursuant to this decision, the matter was examined by the Government of Orissa and it was satisfied that there was no justification to prohibit engagement of contract labour in all the depots of the Corporation in this State. It is, therefore, urged by Shri Ratho that the dispute relating to the desirability of abolishing contract labour in the aforesaid depots could not have been referred for adjudication by the Tribunal. To bring home this contention, Shri Rathor refers to the Management of Hira Cement Works v. Union of India, (1986) 2 Orissa LR 416, in which a Division Bench of this Court held that the question of prohibition of contract labour which has been dealt with by Section 10 of the aforesaid Act cannot be, agitated under the Industrial Disputes Act. In taking this view, reliance was placed on Begoils Private Limited v. Worhnen AIR 1972 SC 1942, in which case the legality of the reference under Section 10 of the Industrial Disputes Act relating to abolition of contract labour system was challenged. The apex Court held that in view of Section 10 of the aforesaid Act, it is for the appropriate Government to decide this question and not for an industrial Court in a reference under Section 10 of the Industrial Disputes Act. Though the case of Management of Hira Cement Works (supra) dealt with a reference under Section 10-A of the Industrial Disputes Act, it was pointed out that the principles governing the reference under Section 10 shall apply to a reference under Section 10-A also.
(b) When the aforesaid aspect of the matter was brought to the notice of the Tribunal, it took the view that the reference was really not on the question of abolition of contract labour system, but it related to the question as to what relief can be granted to the workmen on the footing that the direct payment system had been introduced and further whether the workers can be treated as departmentalised labourers. This view was taken by referring to Clause (6) of the memorandum of settlement dated March 16, 1973, which was put on record of the Tribunal as Ext. 6, which dealt, inter alia, with the demand of the Union relating to abolition of the contract labour system and introduction of the direct payment system. In the aforesaid clause, it is stated as below:-
"The demand was agreed to the extent of termination of handling contracts at these four depots. Handling shall, for the time being, carried on directly, The issue shall in the meantime be referred to the Head Office of the Food Corporation of India for necessary instruction with regard to introducing the system of direct payment in the aforesaid depots, if they so approve."
(c) The above would clearly show that the question of abolition of the contract labour system in the aforesaid depots was no longer a subject-matter of controversy between the parties inasmuch as they had agreed for abolition of this system vide their aforesaid settlement. The Tribunal, therefore, rightly took the view that the reference as made was not illegal and it had jurisdiction to decide the disputes referred to it. We, therefore, reject the first submission of Shri Ratho.
(2) (a) Shri Ratho has taken great pains to persuade us that the order of reinstatement in favour of 30 labourers of Jagannathpur depot was not legal inasmuch as these labourers cannot be said to be the employees of the Corporation, because of which they were not entitled to reinstatement. In this connection, it is strenuously urged that the aforesaid agreement of 1973 had only the effect of substituting the contractor by a representative of the Union, and nothing further. This submission has been advanced because, despite the induction of the Union representative in place of the contractor, the labourers used to be paid by the representative of the Union who used to exercise control and supervision over them. It is the Union representative who used to maintain the acquittance roll and used to collect the total amount due to the labourers from the Corporation to be handed over to the labourers, of which the Corporation had no knowledge at all. In his written note, Shri Ratho has made copious reference to the statements made before the Tribunal even by the witnesses examined on behalf of the Union. Our attention is drawn to the fact that despite the 1973 settlement, which brought into force the Union representative, the manner of recording the total work done and issue of work slips, the preparation of bills for the total work done, the piece-rate and the payments made, remain unchanged. It is submitted that in none of the documents made available to the Corporation by the Union representative for the purpose of drawing the remuneration to be paid to be labourers, there was any mention of the name of the labourer, the duration of his employment, the quantum of work done by him or the payment made to him.
(b) Relying on the aforesaid oral and documentary evidence led in the two cases by the parties, Shri Ratho submits that the 30 labourers in question could not have been regarded as employees of the Corporation giving them the right of reinstatement as the workers of the Corporation. It is also urged that the reliance by the Tribunal on the case of Workmen of Food Corporation of India v. Food Corporation of India, 1985-II-LLJ-4, which dealt with the question of handling majdoors employed at Siliguri depot of the Corporation, was totally misplaced. This submission has been advanced because, in the aforesaid case, there were materials on record to show that the procedure in respect of direct payment system had been strictly followed inasmuch as the authorised representative of the Union used to accept payment and sign bills on behalf of the labourers and give acquittance, whereas in the present case, no such authorisation had been given by the labourers to the Union representative. It is further urged that in the case of Siliguri depot, there was evidence to show that the management had agreed to take work directly from the labourers and had agreed to pay to each labourer by name on piece-rate basis according to his outturn of work, which aspects of the matter are missing in the case at hand.
(c) According to Shri Ratho, therefore, the facts of the present case are not akin to that of the Siliguri depot, but are close to the case of India General Navigation and Railway Company Ltd. v. Their Workmen, (1966-I-Lab LJ 735) (SC). In that case, the award of the Tribunal directing the appellant to pay retrenchment compensation to certain categories of labour was not upheld. This view was taken by the apex Court because it came to the conclusion that there was no relationship of master and servant between the appellant-company and the labourers. This conclusion was arrived at after having taken note of the fact that the labourers were being paid by a contractor who used to receive the required money from the company. From this method of payment to the labourers, the Court was not satisfied if the relationship of master and servant came into existence between the company and the labourers in question. By referring to this case, it is submitted by Shri Ratho that as in the present case also, the Union representative used to receive the amount due to the labourers and it was he who used to disburse the same to the labourers, no relationship of master and servant was created between the petitioner and the labourers,
(d) In this connection it is also urged by Shri Ratho that as no control and supervision was being exercised by the management over the labourers in question, the former cannot be said to be the employer of the latter. Of course, Shri Ratho is fair in bringing to our notice the decision of the apex Court in Shining Tailors v. Industrial Tribunal, 1983-II-LLJ-413 (SC) which was also noted by the Tribunal, in which it was held, following the observations made by Mathew, J. in Silver Jubilee Tailoring House v. Chief Inspector of Shore Establishments, 1973-II-LLJ-495 (SC), that the test of control to determine the relationship of the employer and the workmen was fast losing ground, to be substituted by various other factors including the method of payment. In this context, it would be apposite to state that as to when labourers engaged by a contractor can be regarded as workmen of the principal employer has been the subject-matter of discussion in some other decisions of the apex Court also, to wit, Buslee Sugar Mills v. Ram Ujagar, AIR 1964 SC 355: and Management of D.C. Dewan Mohindeen Sahib and Sons v. Secretary, Bidi Workers Union, 1964-II-LLJ-633. As pointed out in the case of Silver Jubilee Tailoring House(supra), this question cannot be determined by referring to any one or two factors, but has to be decided by taking into account various aspects of the matter present in a case to come to the conclusion whether the labourers engaged by the contractor can be said to be the workmen of the principal employer.
(e) For the case at hand, it is not necessary for us to examine the materials on record as a Court of first instance (which we indeed cannot do also) inasmuch as the Tribunal has applied its mind to these materials and has given cogent reasons as to why the labourers in question were accepted to be the employees of the Corporation. A perusal of the impugned award shows that the Tribunal took note of these facts in coming to its aforesaid conclusion:
(i) The procedure to be followed to make payment to the labourers engaged under the "direct payment system" pursuant to the agreement of 1973 the same being (a) the bills should be prepared by the depot staff; (b) the labour should authorise their Sardar/Mondal to accept payment and sign bills on their behalf and give acquittance; (c) the authorised Sardar/Mondal may then receive money after giving the acquittance; and (d) the bill with acquittance in original should be submitted to the F.C.I. Compliance with the aforesaid procedure has been required by Ext. 9, a letter of the Dy. Manager (Labour) dated April 28, 1973. This did indicate a departure from the system which was in vogue prior-to 1973 when the goods were being hand -led through a contractor.
(ii) The Union representative did not take the colour of a contractor only because of the fact that he used to receive the payments on behalf of the workers. In this connection it was pointed out that the management's case itself was not that the Union representative had any share or profit in the amount being received by him towards emoluments to be paid to the labourers because of which the workers' representative could not lake the colour of a contractor.
(iii) The bills being prepared in connection with the payment were described as "workers' bills".
(iv) The settlement dated March 16, 1973 under paragraph 3 of the title "short recital of the case" stated that the management agreed that the wages due to the workers for the work done by them 'directly' will be made on the dates as noted in the paragraph.
(v) The notices dated February 22, 1975 issued to the labourers directing them not to enter the premises of the depot clearly make out that the labourers were under the direct payment system.
(vi) Exts 13 in I.D. Case No. 9/77 and 8 in I.D. Case No. 5/78 showed that the management decided to grant ex gratia amount in lieu of: bonus to each worker under the direct payment system.
(f) As to the reliance on the aforesaid factors by the Tribunal to conclude that it was "too late for the management to say that the direct payment workers were contract labourers and were not their employees", it is submitted by Shri Ratho that some of them did not really exist in the case. This submission is mainly advanced qua the first factor about which it is stated that though the management had agreed to follow the procedure mentioned therein, as would appear from the letter of the Corporation dated April 28, 1973 which was brought on the record of the Tribunal as Ext. 9, in practice this had not been done. As to this submission, we would like to observe that what is important for the purpose at hand is to confine attention to the agreement reached between the parties following which direct payment system was introduced. If the details of the same were not worked out, we do not think we would be justified in finding fault for the same with the workers. What we have to find out is the intention of the parties and as to what was really agreed upon. In this connection, the learned Tribunal has very appropriately and fairly stated that though in the present case the muster roll of the workers and the acquittance by individual workers is lacking, for this situation both the parties are to be blamed.
(g) In so far as the other factors relied on by the Tribunal are concerned, there is not much to be disputed by Shri Ratho inasmuch as they are matters of record. Of course, in so far as factor No. (ii) is concerned, that is a conclusion based on certain facts, which cannot be described as untenable.
(h) Because of the above, we would hold that the view taken by the Tribunal in regarding the labourers in question as workers of the management cannot be said to be ill-founded, unreasonable or perverse, because of which it is not open to this Court in a certiorari proceeding to set aside the finding. May we also slate that the aforesaid finding is not based merely on the method of payment, which was not regarded as conclusive, in India General Navigation and Railway Company's case (supra). So that case cannot assist the petitioner.
3(a). As to the third submission, it is enough to point out that payment of full wages on the reinstatement being the normal rule as recently pointed out by this Bench in O.J.C. No. 144 of 1987 (Management, Orissa Agro Industries Corporation Ltd. v. Presiding Officer, Industrial Tribunal) disposed of on January 7, 1992, after referring to Assam Oil Company v. Its Workmen 1960-I-LLJ-587 (SC) Management of Panitula Tea Estate v. The Workmen, 1971-I-LLJ-233 (SC) and Hindustan Tin Works v. Its Employees 1978-II-LLJ-474(SC), it was really not necessary for the Tribunal to give reasons as to why full back wages were being awarded along with the relief of reinstatement. Had it been that the Tribunal was denying full or part of the back wages, it would have been incumbent on its part to give reasons because the same can be done under exceptional circumstances see S.K. Verma v. Central Government Industrial Tribunal, AIR 1981 SC 422, the onus of establishing which lies on the employer, as staled in paragraph 12 of Hindustan Tin Works 5 (supra). So, it cannot be said, as is the contention of Shri Ratho, that the Tribunal had awarded full back wages mechanically and without applying its mind to this aspect of the case.
(b) The further submission relating to unjustifiablity of the granting of relief of reinstatement is that the view taken by the learned Tribunal that refusal of employment had been ordered without giving any opportunity to the workers to explain their conduct which was against the principles of natural justice, is not tenable in law. It is urged that natural justice was not required to be complied with when the labourers were involved in criminal cases. We do not propose to dilate much on the submission, and would remain content by saying that though principle of natural justice is not required to be followed while suspending an employee involved in a criminal offence, whether the same principle would apply while terminating his service for the aforesaid reason, is a question on which there may be two opinions. While putting the matter thus, we are conscious of the legal position that opportunity of hearing is not always required to be given when termination is ordered following the conviction of an employee in a criminal case because of what has been stated by the Constitution Bench in Union of India v. Tulsiram Patel 1985-II-LLJ-206, (SC) in which the majority overruled the decision rendered in Divisional Personnel Officer v. T.P. Challappan 1976-I-LLJ-68 (SC), But whether the same would apply to termination ordered during the pendency of a criminal trial is a matter of debate, because what applies to termination following conviction would not apply to termination during the pendency of the criminal trial, because a person gets adequate opportunity of hearing before he is convicted, but that would not be the position if a case is merely pending against him. For the disposal of the present case, nothing more is required to be said because the workmen whose reinstatement was ordered by the Tribunal had ultimately come to be acquitted by the Court,; and as such, their termination because of their involvement in criminal case lost all its importance, and they could not have been inflicted with the punishment of dismissal on the face of their acquittal by the criminal Court, as the termination was founded on their involvement in the criminal case.
4.This submission has, of course, merit in it because the dispute relating to payment of wages to the 18 workers of Dhenkanal depot and 26 of Jharsuguda depot was not a subject matter of reference. The Tribunal had, therefore, no jurisdiction to entertain this dispute and to allow these workers wages as stated in the impugned award.
5. In the result, the impugned award in I.D. Case No. 9/77 does not call for our interference except to the extent that the order to pay wages as indicated in the award to 18 workers of Dhenkanal depot and 26 workers of Jharsuguda depot cannot be sustained. The petition is, therefore, dismissed subject to what has been stated about lack of jurisdiction of the Tribunal in awarding wages to the aforesaid workers.
O.J.C.No. 1102 of 19908A. The petitioner herein is the Union. It has felt aggrieved at the answering of the two questions referred to the Tribunal which were the subject-matter of I.D. Case No. 5/78 (C) against the workmen.
8B. The first question relates to the demand of departmentalisation of the workers of four depots in question. This demand has been rejected by the Tribunal. Shri Palit, however, states that the rejection was not justified inasmuch as it had been agreed between the parties in the discussion held on 11th and 12th March, 1974 (minutes of which were brought on record by the Tribunal as Ext. 3) that there would be departmentalisation of the workers in the four depots in question, effect to which shall be given from November 1, 1973. It is also contended that leaving out the workers of the four depots at hand from the benefit of departmentalisation is discriminatory and so the same should not be allowed to subsist as the Corporation has been held to be a 'State' within the meaning of Article 12 of the Constitution in Workmen of the Food Corporation of India v. Food Corporation of India, 1985-II-LLJ-4 (SC), because of which Article 14 would come into play and would prohibit the aforesaid discrimination. In this connection, reference is also made to Food Corporation of India Workers' Union v. Food Corporation of India (1990) 3 JT 323:, in which the apex Court did not favour the wage disparity between the workers employed at Corporation's depots in Assam, Bihar, Orissa etc. and those employed at the ports and port-city godowns and depots in West Bengal, because of which a direction was given to revise the wages of the departmental workers employed in the former depots to bring the same at par with the wages of those employed in the latter depots.
8C. Shri Ratho, however, contends that though a decision had been taken in the meeting held between the parties on March 11th and 12th, 1974 to departmentalise the workers of the four depots also, but the decision was not given effect to because of the sad experience of the Corporation relating to the working of the departmentalised workers in other depots. It is also urged that the decision taken in the aforesaid meeting was tentative as the agreement was that "further departmentalisation, if necessary, will be done in a period of one month". If the minutes of the aforesaid meeting are read in entirety, the same would show that the observation regarding "further departmentalisation" referred to those number of workmen who would be beyond the figures given by the Regional Manager for the purpose of fixing the assessed strength, which figures were not agreed to by the representatives of the Union. The minutes further show that as regards Jharsuguda, Dhenkanal, Kesinga, the decision was that the number of workers indicated in the minutes attached to the depots in question "would be departmenlatised" subject to the liberty given to the Union to check up the correctness of the figures given by the Regional Manager. As to Jagannathpur, however, departmentalisation was to take place subject the approval of the Zonal Management. The decision that effects of departmentalisation will be given from November 1, 1973 does not leave much room for doubt that the decision arrived at in the aforesaid meeting was not tentative, but final. Shri Ratho, however, contends that the aforesaid decision was subject to check up of some figures, and the same not having been done, the departmentalisation as agreed to could not have been given effect.
9. A perusal of the award shows that the Tribunal did not concede to the prayer of the Union regarding departmentalisation because according to it there was no valid settlement between the parties to this effect. This view was taken also because the Tribunal felt that no follow up action was taken on the basis of the minutes of the aforesaid meeting. The non-recording of the decision taken in the meeting in a form of settlement also weighed with the Tribunal. This apart, it has been observed that the Union also did not appear to have raised any grievance about the non-implementation of the aforesaid decision. The non-checking of figures was assigned as another ground. Finally, though reliance was placed by the Union on Ext. 5, along with which a copy of the minutes of the discussion held on April 24, 1974 was enclosed, the Tribunal did not find anything in these minutes to suggest any action having been taken for departmentalisation.
10. According to us, the Tribunal did not approach the matter in proper perspective and gave disproportionate weight to certain factors. The finding based on such a reading of the materials on record has to be regarded as such, which no reasonable person instructed in law couldhave arrived at, because of which it would be open to this Court in the present proceeding to interfere with the same.
11. We have stated as above because non-recording of the decision arrived at in the meeting of March 11th & 12th 1974 in the form of settlement cannot water down or dilute the fact that the parties had, in fact, agreed to effect departmentalisation with effect from November 1, 1973. The form of a matter cannot override its substance. Then, non-checking of figures has nothing to do with the decision regarding departmentalisation of those number of labourers whose figures had been given by the Regional Manager. Though the Union representatives took a stand that the correct figures of the assessed strength would be higher than those given by the Regional Manager, the parties were in agreement to deparlmentalise that number of persons whose figure had been given by the Regional Manager. So, the fact that figures were not checked up has no importance and cannot affect the decision relating to those number of workmen whose figures were given by the Regional Manager. The observation of the Tribunal that the Union did not appear to have raised any grievance about non-implementation of the decision taken in the meeting is besides the point and, indeed, not correct. We have said "besides the point" because whether a grievance is made or not cannot determine the question if a particular decision was taken in a meeting or not. We have said about incorrectness of the settlement because the grievance relating to non-departmentalisation is writ large on the face of the record inasmuch as the Union raised an industrial dispute about it which came to be referred for adjudication by the Tribunal. The further fact that in Ext. 5 there is no suggestion about any action taken for departmentalisation is also an irrelevant consideration because that cannot be an indication about lack of decision on this point. This apart, we find from the minutes of the aforesaid meeting that under Demand No. 3, a contention had been raised by the Union that the workers had been departmentalised with effect from December, 1973.
12. In view of what has been stated above, we would set aside this part of the award and would state that the action of the management in not departmcntalising the workers of the depots in question was not justified; and so, we would grant this relief prayed for by the Union. In this connection, we would also state that non-departmentalisation of the labourers of four depots alone (with which we are concerned) would be discriminatory on the face of departmentalisation of the workers of the other depots, as we do not find any basis for this classification. The decision noted in paragraph 7 above further boosts the case of the workman.
13. Before leaving this aspect, we may, however, point out that though as regards Jagannath-pur depot, the decision relating to departmentalisation as taken in the aforesaid meeting was subject to the approval of the Zonal Manager and though no material has been brought to our notice that the Zonal Manager had approved the decision, we think it would only be meet and proper if the Zonal Manager is directed to give his approval regarding this, because we do not find any reason to deny the labourers of that depot the benefit of departmentalisation. We, however, leave him to decide regarding the number of workers for which he would give approval. We have given this direction with the aforesaid rider keeping in view the fact that the real dispute between the parties relating to Jagannathpur depot was regarding the number of workers who should be departmentalised. The management's assessment of the strength was given as 40, whereas the Union representatives were not prepared to accept the figure 40 and desired departmentalisation of 63 workers. The parties ultimately agreed to departmenlalise 63 workers, but left the matter open to be finally decided by the Zonal Manager. This would indicate that there was agreement between the parties regarding departmentalisation of the workers in this depot also, but there was no meeting of minds regarding the number of workers to be so departmentalised.
14. This takes us to another dispute between the parties which related to non-payment of subsistence allowance to the workmen of the depots at Dhenkanal and Jharsuguda. This payment was denied by the Tribunal because it was not satisfied if the workmen had at all been placed under suspension. This view was taken as the Union had failed to produce on record any suspension order and also because the order of the management prohibiting entry into the premises, which, as per the Union, constituted suspension, was not regarded to be so by the Tribunal, There is nothing unreasonable, according to us, in the view taken by the Tribunal on this aspect of the dispute. Therefore, this finding cannot be reversed by us.
15. In the result, this petition is allowed to the extent that the demand of the Union for departmentalisation of the workers of the four depots is accepted as indicated above.
B.N. Dash, J.
16. I agree.