Madras High Court
Bap Employees Union vs Government Of India on 3 August, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.8.2012 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition Nos.28352 and 30157 of 2011 W.P.No.28352 of 2011: BAP Employees Union Rep. by its General Secretary Regn.No.373/NAT (Participative Union) Bharat Heavy Electricals Limited Ranipet 632 406 petitioner Vs. 1. Government of India Rep. by its Secretary Ministry of Labour and Employment New Delhi 2. Assistant Labour Commissioner (Central-I) Office of Deputy Chief Commissioner (Central) 26, Haddows Road Chennai 600 006 3. Government of Tamil Nadu Rep. by its Secretary Labour and Employment Department Fort St. George Chennai 600 009 4. Labour Officer-I Vellore 5. Bharat Heavy Electricals Limited Rep. by its Chairman and Managing Director BHEL House, Siri Fort New Delhi 110 049 6. Management Bharat Heavy Electricals Limited Boiler Auxiliaries Plant Ranipet 632 406 .. Respondents W.P.No.28352 of 2011: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus forbearing the fifth and sixth respondents from altering the service conditions of the employees/discontinuing the existing practice with regard to the encashment of earned leave/half pay leave, which is being now calculated by dividing the monthly wage by 26 which is as per circular, dated 30.1.2004, without giving appropriate notice under Section 9A of the Industrial Disputes Act, 1947, and before the dispute, dated 17.9.2011, raised by the petitioner union, regarding change of service condition being adjudicated by the competent industrial adjudicator which is pending conciliation before the second respondent and further direct the conciliation officer viz., the second respondent to conciliate and effect settlement and if no settlement is forthcoming to submit failure report under Section 12(4) of the Industrial Disputes Act and in turn direct the first respondent to refer the dispute for adjudication before the competent adjudicator. W.P.No.30157 of 2011: Boiler Plant Employees Union Rep. by its General Secretary M.Baskaran Bharat Heavy Electricals Limited Trichy petitioner Vs. 1. Government of India Rep. by its Secretary Ministry of Labour and Employment New Delhi 2. Government of Tamil Nadu Rep. by its Secretary Labour and Employment Department Fort St. George Chennai 600 009 3. Assistant Labour Commissioner (Central-I) Office of Deputy Chief Commissioner (Central) 26, Haddows Road Chennai 600 006 4. Deputy Commissioner of Labour Office of Deputy Commissioner of Labour Abdul Salam 3rd Street, Khaja Nagar Trichy - 20 5. Bharat Heavy Electricals Limited Rep. by its Chairman and Managing Director BHEL House, Siri Fort New Delhi 110 049 6. Management Bharat Heavy Electricals Limited Boiler Plant Trichy - 14 .. Respondents W.P.No.30157 of 2011: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus forbearing the respondents from altering the service conditions of the employees/discontinuing the existing practice with regard to encashment of earned leave/half pay leave which is being now calculated by dividing the monthly wage by 26 which is as per circular dated 30.1.2004 without following due procedures contemplated under Industrial Disputes Act, 1947. W.P.No.28352 of 2011: For petitioner : Mr.Balan Haridas For respondents : Mr.R.Achuthan for R1 Mr.S.Navaneethan AGP for R2, R3 and R4 Mr.Sanjay Mohan Senior Advocate for M/s.S.Ramasubramaniam and Associates for R5 and R6 W.P.No.30157 of 2011: For petitioner : Mr.S.Ramesh For Respondents : Mr.R.Achuthan for R1 Mr.S.Navaneethan AGP for R2 to R4 Mr.Sanjay Mohan Senior Advocate for R5 and R6 M/s.S.Ramasubramaniam and Associates C O M M O N O R D E R
Since, the issues involved in both the writ petitions are similar in nature, they have been taken up together and a common order is being passed.
2. In the writ petition, in W.P.No.30157 of 2011, filed by the Boiler Plant Employees Union, Bharat Heavy Electricals Limited, Trichy, it has been prayed that this Court may be pleased to issue a writ of Mandamus, forbearing the respondents from altering the service conditions of the employees or by discontinuing of existing practice, with regard to the encashment of earned leave and half pay leave, which is being calculated by dividing the monthly wages of the employees concerned, by 26 days, as per the circular, dated 30.1.2004, without following the due procedures contemplated, under the provisions of the Industrial Disputes Act, 1947.
3. The writ petition, in W.P.No.28352 of 2011, has been filed by BAP Employees Union, Bharat Heavy Electricals Limited, Ranipet, praying that this Court may be pleased to issue a writ of Mandamus, forbearing the fifth and the sixth respondents from altering the service conditions of the employees, by discontinuing the existing practice, with regard to the encashment of earned leave and half pay leave, which is being calculated by dividing the monthly wages of the employees concerned, by 26 days, as per the circular, dated 30.1.2004, without appropriate notice being issued, under Section 9A of the Industrial Disputes Act, 1947, as it was before the dispute, dated 17.9.2011, raised by the petitioner Union, which is pending conciliation before the second respondent, and for a direction to the first respondent to refer the dispute for adjudication, if no settlement had been arrived at and when a failure report is submitted.
4. The learned counsel appearing for the petitioner Union had submitted that the Management of the Bharat Heavy Electricals Limited have altered the service conditions of the employees, employed in Bharat Heavy Electricals Limited, of the Trichy and the Ranipet Units, who are the members of the petitioner Union, without following the procedures established, under the Industrial Disputes Act, 1947. The Management of the Bharat Heavy Electricals Limited has been calculating the earned leave and half pay leave, for their encashment, by the employees concerned, by dividing the monthly wages of such employees, by 26, as per the circular, dated 30.1.2004, without issuing a notice, under Section 9A of the Industrial Disputes Act, 1947.
5. The learned counsel for the petitioner Union, in W.P.No.30157 of 2011, had submitted that the sixth respondent had issued a circular, dated 30.1.2004, stating that, while computing the one day wage of the employees concerned, for calculating the leave and encashment amount, the monthly wages of the employees, including the special pay, personal pay, welding allowance, non-practicing allowance, if any, and the dearness allowance, shall be taken into account to arrive at the total amount payable by the employees, which had been divided by 26. The rate of encashment per day of leave of the employees concerned had been calculated, based on the said circular and the employees had been encashing the earned leave and half pay leave, accordingly. While so, the sixth respondent had issued a notice, on 17.4.2007, under Section 9A of the Industrial Disputes Act, 1947, to modify the method of computing the one day wage of the employees concerned, by dividing the monthly wage payable to them, by 30 days, instead of 26 days. Therefore, the petitioner Union had raised an Industrial Dispute before the fourth respondent, vide letter, dated 23.4.2007. After several rounds of talks, the conciliation had failed and a failure report, dated 31.10.2007, had been sent by the fourth respondent, to the second respondent.
6. It had also been stated that, from 17.4.2007 till the second notification had been issued, in the month of September, 2011, the fifth and the sixth respondents did not give effect to the proposed change in the computation of the earned leave. However, when the matter was pending before the second respondent, the fifth respondent had issued a circular, on 1.9.2011, communicating its unilateral decision to adopt 30 days formula for the purpose of calculating leave encashment and had directed the sixth respondent to give effect to the said circular, from 1.9.2011. Accordingly, the fifth respondent had issued the present circular modifying the service condition of the employees, who are members of the petitioner Union, without any prior notice being issued, as per the relevant provisions of the Act.
7. Thus, it is clear that the fifth respondent is adopting devious methods, by changing the service condition of the employees, arbitrarily, taking advantage of the pendency of the matter before the second respondent, pursuant to the failure report submitted by the conciliation officer in the year, 2007.
8. It had also been stated that, as per the provisions contained in Sections 12 and 33 of the Industrial Disputes Act, 1947, the sixth respondent Management cannot alter the service conditions of the employees, when disputes are pending before the Conciliation Officer, Board or Tribunal. While the failure report had been submitted to the Government of Tamil Nadu, the second respondent herein, the sixth respondent Management has attempted to change the service conditions of the employees concerned, without following the relevant provisions of the Act. While so, the petitioner Union, along with the other Unions, had approached the third respondent, who had directed the sixth respondent Management to maintain the status quo, as it remained prior to 1.9.2011. In such circumstances, the petitioner Union has preferred the writ petition, in W.P.No.30157 of 2011, before this Court, under Article 226 of the Constitution of India.
9. The learned counsel appearing for the petitioner Union, in W.P.No.28352 of 2011, had submitted that the fifth and the sixth respondents were attempting to alter the service conditions of the employees, who are the members of the petitioner union, by calculating the one day wage, with regard to the encashment of earned leave and half pay leave payable to the employees, by dividing the monthly wage by 30 days, instead of 26 days, as per the circular, dated 30.1.2004, without giving prior notice, under Section 9A of the Industrial Disputes Act, 1947, and when the dispute, dated 17.9.2011, raised by the petitioner Union, regarding the change of service condition, is being adjudicated by the competent industrial adjudicator, the second respondent in the writ petition.
10. He had also submitted that it would be appropriate for this Court to direct the second respondent, to carry on the conciliation proceedings and to effect an amicable settlement in the said dispute, and if no such settlement is arrived at, to direct the second respondent to submit a failure report, under Section 12(4) of the Industrial Disputes Act, 1947, and in turn, direct the Government of India, the first respondent in the writ petition, to refer the dispute for adjudication, before the competent authority.
11. The learned counsel appearing for the petitioner Union had further submitted that the sixth respondent Management had issued a circular, dated 30.1.2004, relating to the computation of the one day wage, for calculating the leave encashment amount of the employees concerned. However, instead of calculating the one day wage of the employees concerned, by diving the monthly wage, by 26 days, the sixth respondent Management had issued a notice, on 17.4.2007, under section 9A of the Industrial Disputes Act, 1947, proposing to compute the same, by dividing the monthly wage, by 30 days, instead of by 26 days. Therefore, the petitioner Union had raised an Industrial Dispute, before the fourth respondent, on 27.4.2007. The conciliation talks had ended in failure and it had been recorded, on 17.3.2009. However, during the pendency of the dispute before the fourth respondent, the sixth respondent Management had not given effect to the proposed change. While so, the fifth respondent had issued a circular, dated 1.9.2011, based on which the fifth respondent had adopted the 30 days formula for computing the earned leave encashment, for all the employees.
12. It had also been stated that the said circular had been issued, by the fifth respondent, for bringing uniformity in computing the earned leave encashment, in respect of all the employees. The sixth respondent had given effect to the circular, dated 1.11.2011, in a mechanical manner, without complying with the procedures established by law. No prior notice had been issued before the change in the service conditions of the employees had been effected.
13. It had also been stated that, in respect of the payment of gratuity and over time wages, the 26 days formula is being followed by the Management. Therefore, it cannot be a different kind of yardstick, in respect of the earned leave payable to the employees concerned.
14. It has been further stated that the sixth respondent Management ought to arrive at the one day wage, on the basis of 26 days formula, as per the decision of the Supreme Court. It had been further stated that, in the year, 2007, when a similar attempt had been made, the sixth respondent Management had issued a notice, dated 17.4.2007, under Section 9A of the Industrial Disputes Act, 1947. Based on the said notice, the fourth respondent had initiated conciliation proceedings, which had ended in failure. However, no failure report had been issued by the fourth respondent, till date. Till the failure report is submitted by the fourth respondent, the dispute is deemed to be pending and therefore, it would not be open to the sixth respondent to alter the service conditions of the employees concerned, without following the principles established by law. However, the sixth respondent, based on the circular, dated 1.11.2011, issued by the fifth respondent, had effected the change in the service conditions of the employees concerned. In such circumstances, the petitioner Union had raised an industrial dispute, dated 17.9.2011, before the second respondent. The said dispute is being conciliated by the second respondent. While so, the fifth and the sixth respondents in the writ petition, who are supposed to be model employers, cannot bye-pass the rule of law and bring about the change in the service conditions of the employees concerned, contrary to the provisions of the Act.
15. Even if the service conditions of the employees concerned had been altered by the fifth and the sixth respondents, it is non est in the eye of law. In such circumstances, the petitioner union has filed the present writ petition, before this Court, under Article 226 of the Constitution of India.
16. The learned counsel appearing on behalf of the fifth and sixth respondents had submitted that the writ petitions filed by the petitioner Unions are not maintainable. If there is any violation of the provisions of Section 33 of the Industrial Disputes Act, 1947, as alleged by the petitioner Unions, the remedy available to them is to invoke the proceedings, under Section 33A of the Industrial Disputes Act, 1947.
17. In the case of the petitioner Union, in W.P.No.28352 of 2011, relating to the employees of the Ranipet Unit of the Bharat Heavy Electricals Limited, the remedy would lie before the Conciliation Officer concerned and in respect of the petitioner Union, in W.P.No.30157 of 2011, relating to the employees in the Trichi Unit of the Bharat Heavy Electricals Limited, the remedy would lie before the conciliation officer, if the conciliation proceedings are pending before the industrial tribunal concerned if the matter is referred to the said tribunal, for adjudication, by the Government concerned.
18. It had been further submitted that, in the case of the employees, who are the members of the petitioner Union in the Trichi unit of the Bharat Heavy Electricals Limited, there is an order of reference and therefore, apart from Section 33A proceedings, an interim award can also be prayed for, by the affected parties.
19. It had also been stated that the embargo relating to the change in service conditions would be available, under Section 33A of the Act, only if the conciliation proceedings are pending before the authority concerned.
20. It is stated, in Section 20 of the Act, that the conciliation proceedings would end, when the failure report is received by the appropriate Government.
21. It had also been stated that the appropriate Government, in respect of the Bharat Heavy Electricals Limited, is the Central Government, with effect from 15.9.2010. As such, the proceedings before the conciliation officer, who is an authority under the Government of Tamil Nadu, would have come to an end, automatically, when the Central Government became the appropriate Government. Therefore, there was no embargo against implementing the Section 9A notice, dated 17.4.2007. The said notice had not been withdrawn, by the Management of the Bharat Heavy Electricals Limited, Tiruchi, as alleged by the petitioner union. In fact, the proposed changes had been kept in abeyance, by the Management of Bharat Heavy Electricals Limited, Tiruchi, suo motu.
22. It has been further stated that the change in the service conditions had been given effect to, on 1.9.2011, and the leave encashment had been paid to the employees concerned on the basis of the 30 days formula, till the interim order had been passed by this Court.
23. It had been further stated that the decision, with regard to the legal and factual issues arising for the consideration for this Court, in the present writ petitions, could be decided by the Tribunal concerned. In fact, the factual issues, which are in dispute, cannot be decided by this Court, in the present writ petition, under Article 226 of the Constitution of India. Further, huge amounts of money would have to be paid to the employees, who would be seeking encashment of earned leave, even while they are in service. If the amounts, relating to the encashment of earned leave, are given to those employees, who are retiring from service, on attaining the age of superannuation, it would be become extremely difficult to recover the amounts paid to them, in view of the interim order granted by this Court, if the issues raised by the petitioner unions are decided in favour of the Management of the Bharat Heavy Electricals Limited, finally.
24. Further, the reliefs granted to the workmen may have to be extended to those, who are in non-workman category as well. In such circumstances, this Court may be pleased to direct the Management of the Bharat Heavy Electricals Limited, to keep the differential amounts due to the employees, who are the members of the petitioner unions, relating to the encashment of earned leave, in a separate fixed deposit, in the name of Bharat Heavy Electricals Limited, and to direct the Industrial Tribunal concerned, which has taken cognizance of the Industrial Dispute, pursuant to the reference made by the appropriate Government, to dispose of the same, within a period of six months.
25. It had also been prayed that this Court may be pleased to direct the Government of India to refer the matter for adjudication, in respect of the issues, which are in dispute relating to the employees of the Ranipet unit of Bharat Heavy Electricals Limited (W.P.No.28352 of 2011) and in respect of the issues in dispute, relating to the employees of Trichi unit of the Bharat Heavy Electricals Limited, this Court may be pleased to direct the first respondent to refer the matter for adjudication, before the appropriate tribunal, if the failure of conciliation report had already been submitted to the said Government.
26. The learned counsel appearing for the petitioner in W.P.No.28352 of 2011, had relied on the following decisions in support of his contentions:
1. M/S.LOKMAT NEWSPAPERS PVT. LTD., Vs. SHANKARPRASAD AIR 1999 SC 2423
2. JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD., Vs. RAM GOPAL SHARMA (2002) 2 SCC 244)
3. ESSORPE MILLS LTD., Vs. PRESIDING OFFICER, LABOUR COURT (2008) 7 SSC 594
4. A.V.P.OOZHIYAR SANGAM Vs. STATE EXPRESS TRANSPORT CORPN. LTD., (2006 III LLJ 245)
5. A.N.E. ORKERS UNION Vs. PLANTERS' ASSN. OF T.N. 2002 (4) L.L.N.530
6. W.A.No.2560 to 2579 of 2002, dated 18.4.2009
7. W.A.No.18272 of 2011 dated 23.1.2012
8. W.A.No.823 of 2012 dated 25.4.2012
9. W.P.No.27517 of 2009 dated 30.9.2011
10.W.P.No.17623 of 1997 dated 29.1.2007.
27. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available and on considering the decisions cited supra, this Court is of the considered view that there are certain factual and legal issues, which had arisen for the consideration of this Court, in the present writ petitions. However, such issues could be gone into by the Tribunal concerned, by way of the adjudication proceedings. The question as to whether the fifth and sixth respondents had altered the service condition of the employees concerned, without issuing a prior notice, under Section 9A of the Industrial Disputes Act, 1947, is to be gone into by the Tribunal, as it is a factual issue, that would depend on the existence of the necessary evidence.
28. In respect of the writ petition, in W.P.No.30157 of 2011, it is open to the petitioner Union to seek its relief before the Tribunal concerned, before which the matter is pending adjudication. With regard to the writ petition in W.P.No.28352 of 2011, the first respondent Government is directed to refer the dispute for adjudication, by an appropriate Tribunal, within a period of three months from the date of receipt of a copy of this order. On such reference being made, the Tribunal concerned may adjudicate upon the issues arising for consideration and pass appropriate orders thereon, as expeditiously as possible. In the meanwhile, the fifth and the sixth respondents are directed to keep the differential amounts, relating to the encashment of the earned leave, due to the employees concerned, who are the members of the petitioner unions, in appropriate fixed deposits, in a Nationalised Bank till the issues are decided by the appropriate Tribunal. The writ petitions are ordered accordingly. No costs.
3.8.2012 INDEX : YES/NO INTERNET : YES/NO To: 1. The Secretary Government of India Ministry of Labour and Employment New Delhi 2. Assistant Labour Commissioner (Central-I) Office of Deputy Chief Commissioner (Central) 26, Haddows Road Chennai 600 006 3. Government of Tamil Nadu Rep. by its Secretary Labour and Employment Department Fort St. George Chennai 600 009 4. Labour Officer-I Vellore 5. Deputy Commissioner of Labour Office of Deputy Commissioner of Labour Abdul Salam 3rd Street, Khaja Nagar Trichy - 20 M.JAICHANDREN J., lan Writ Petition Nos.28352 and 30157 of 2011 3.8.2012