Orissa Synthetics Ltd. Employees Union vs The Presiding Officer Industrial ... on 8 November, 2017

[Cites 12, Cited by 11]

Orissa High Court

Orissa Synthetics Ltd. Employees Union vs The Presiding Officer Industrial ... on 8 November, 2017

2. The factual matrix of the case, as borne out from the record, is that Orissa Poly Fibre Limited, opposite party no.3 herein, is a company incorporated under the Companies Act, 1956. It runs a factory situated at Laxminagar, Baulpur in the district of Dhenkanal, which manufactures different synthetic yarns like Polyster Stappel Fibre (PSF), Polyster Oriented Yarn (POY) and Poly Ehaylen Chips (PET Chips), etc. The factory comprised of 37 departments, in which about 460 regular workmen had been working. Among the 37, electrical and mechanical were the two departments in which 40 and 50 number of employees respectively were working. Of the 33 workmen whose cause is being espoused by the petitioner union in the instant case, 24 belonged to the electrical department whereas 9 belonged to the mechanical department. 3 2.1 The management of opposite party no.3 was obliged under law, especially under the provisions of Factories Act, 1948 and Rules made thereunder, to provide safety equipments and appliances to the workmen of the factory, as also other safety measures inside the factory. For not providing the same, in the past, several accidents in the factory had occurred resulting in injuries to the workmen during course of their employment. Even though the workmen and the petitioner union had requested the management, on several occasions, to provide safety equipments and appliances to the workers discharging dangerous/hazardous operations, no heed was paid to the same. On the other hand, the workmen were compelled to work in dangerous operations, without providing safety appliances. When the concerned workmen showed their reluctance to perform the assigned unsafe work, without being supplied with protective and safety appliances, they were pressurized by the management and notices were given falsely alleging "refusal to work", "disobedience of the lawful orders of the superiors" and "not carrying the work entrusted to them".

2.2 The workmen gave reply justifying their conduct, but, without considering such explanation and without giving them reasonable opportunity of hearing, the punishment of loss of 4 wages for the period from 05.10.1994 to 14.10.1994 applying the principle of "no work no pay" was imposed, even though the workmen did attend their duties during the period in question. Consequently, an industrial dispute was raised and conciliation having been failed, the Government of Orissa in the Labour and Employment Department, in exercise of powers conferred under sub-section (5) of Section 12 read with clause (d) of sub-section (1) of Section 10 of the Industrial Disputes Act, 1947, by order dated 28.12.1995 referred the dispute for adjudication, which reads as follows:

"Whether 33 workmen as per enclosed list, engaged in the Electrical and mechanical maintenance Sections of Orissa Synthetics Ltd. renamed as J.K. Corporation, Baulpur, Dhenkanal are entitled to wages for the period of the alleged work stoppage from 05.10.1994 to 14.11.1994 ?"

The Industrial Tribunal, after due adjudication, relying upon the ratio decided in Bank of India v. T.S.Kelawala, 1990 LLR 313:

(1994) 4 SCC 744 came to found that during relevant period the concerned workers of the petitioner union refused to do the allotted job on the pretext of non-supply of safety appliances and, accordingly, by award dated 20.07.2002 held that they were not entitled to their wages for the period from 05.10.1994 to 14.10.1994. Hence this application.

3. Mr. S.K. Mishra, learned counsel appearing for the petitioner strenuously urged before this Court that learned Presiding Officer, while passing the impugned award, has, neither taken into consideration the provisions contained in Section 41-G of the Factories Act, 1948 read with Rule 62 of the Orissa Factories Rules, 1950, nor the documents which were marked as Ext. 6 (Annexure-4), Ext.7 (Annexure-3) and Ext.8 (Annexure-5), i.e., the inspection report of the Inspector of Factories and Boilors, the inspection report of the Electrical Inspector, and the report of the safety requirements for Electrical Department respectively. He further contended that the judgment of the apex Court in T.S.Kelawala (supra), on which reliance has been placed by the learned Presiding Officer, although supports the case of the workmen, has not been considered in proper perspective. Therefore, he seeks interference of this Court.

4. Mr. B.P. Tripathy, learned counsel appearing for opposite party no.3, on the other hand, stated that the provisions of the Factories Act, 1948 and the Orissa Factories Rules, 1950 have been followed scrupulously and as such the Industrial Tribunal has not committed any illegality or irregularity in passing the award impugned in the writ application. He justified the award by stating that the concerned workers of the Union, 6 having refused to do the allotted job on the pretext of non-supply of safety appliances, have been rightly denied the wages for the period in question by the impugned award, which does not warrant any interference by this Court in the present proceeding.

5. Mr. B.P. Tripathy, learned counsel appearing for opposite party no.3 sought for time to obtain instructions, as to whether, in the meantime, the company still exists or not. Since it is an old case of the year 2003, instead of granting adjournment, this Court in the interest of justice, equity and fair play thought it proper to proceed with the hearing and decide the matter after perusing the records, as it is a certiorari proceeding.

6. Having heard Mr. S.K. Mishra, learned counsel for the petitioner; Mr. B.P. Pradhan, learned Addl. Government Advocate for opposite parties no.1 and 2; and Mr. B.P. Tripathy, learned counsel for opposite party no.3 and after perusing the records, this Court disposed of the matter finally at the stage of admission.

7. Undisputedly, the petitioner Union is espousing the causes of its workers, who refused to do the allotted job on the pretext of non-supply of safety appliances and consequently denied their wages for the period from 05.10.1994 to 14.10.1994. Since the concerned workmen are/were working in the factory, 7 the provisions of the Factories Act, 1948 and Rules framed thereunder are applicable to them. Chapter IV of the Factories Act, 1948 deals with 'safety' whereas Chapter IVA deals with the provisions relating to "hazardous processes", and any contravention thereof is liable to "penalties", the procedure for which has been prescribed in Chapter X.

8. When the matter was referred to the Industrial Tribunal for adjudication, on being noticed, the statement of claim for the workmen was filed on 03.03.1997 before the Industrial Tribunal, wherein it was specifically pleaded in paragraph 14 as follows:

"14. That the management deliberately and willfully did not supply the safety appliances even though the safety appliances were available with the management. The safety appliances could be made available only on 15.10.1994 to the concerned workmen. Thereafter no allegation has been made by the management, with- regard to the refusal to work on the part of any workmen which itself shows the frivolity of the allegation made by the management against workmen".

In the written statement filed on behalf of the management on 02.12.1997 in paragraph (xiii) it was stated as follows:

"xiii) That as regards the averments made at paragraph 14 it may humbly be submitted that when the union could realize the gravity and ultimate consequences of the nuisance of refusal to do maintenance duties on the part of the maintenance workers, it wanted some face saving before advising the erring maintenance workers to 8 refrain from refusal to carry out the maintenance job. In such context it is not correct to state that on account of issuance of safety appliances the workers started attending to maintenance jobs allotted to them. The truth of the contentions of the management is patently underlying the statements made in this paragraph of the statement of claims. As a matter of fact, refusal to work could never have been justified on the ground of non-

supply of safety appliances. It is reiterated that the deduction/withholding of wages for refusal to work, is fully justified being supported by facts. It is not denied that the management deliberately and willfully did not supply the safety appliance even though the safety appliances were available with the management"

On the basis of the pleadings available on record, it is apparent that since the safety appliances were made available on 15.10.1994 to the concerned workmen, they resumed the work.

But for the period from 05.10.1994 to 14.10.1994, though they had discharged their duty, refused to do the hazardous job due to non-supply of the safety appliances. But, as has been already indicated, the tribunal has passed order by holding that the concerned workmen are not entitled to their wages for the period from 05.10.1994 to 14.10.1994.

9. Apart from the same, the report of initial inspection of the electrical installations of opposite party no.3 for the year 1992-93 submitted by the Deputy Electrical Inspector, Angul, pursuant to the inspection held on 14.05.1992, which has also been marked as Ext.7 (Annexure-3) before the Industrial Tribunal, specifically states in clasuse-8 as follows:

"(8) Every person working on electrical supply line and apparatus shall be provided with tools and safety devices such as gloves, rubber shoes, safety belts, helmets, line testers etc."

Similarly, the inspection report of the Inspector of Factories and Boilers, Dhenkanal Zone-II, who conducted the inspection on 06.10.1994, the report which has been marked as Ext.6 (Annexure-4), has pointed out various violations of the provisions of the Factories Act, 1948 and more specifically in Clause-6 and Clause-10 (ii), (xi), (xiv), (xvii) and (xviii) it has been stated as follows:

"06. Violation of Section 32 of the Factories Act, 1948 and Rules made thereunder.

The charging platform of P.T.A. is full of slippery P.T.A. powder. Fencing is provided only at the top side i.e. at about a metre height from floor. No foot-hold provided.

This place shall be kept clean and substantial foot-hold, bottom-rails in between foot-hold and Top-rail (fencing) be provided.

10 Violation of Rule 62 of Orissa Factories Rules, 1950 framed under Section 41 of the Factories Act, 1948.

xx xx xx

(ii) Sri Banamali Sethy an electricial (H.T. 'A' licence holder), was found to have not been provided with safety shoes with electrically insulated sole.

xx xx xx 10

(xi) Persons working in maintenance or hot polymer line shall be provided with aprons, gum boots, helmets, face shields, goggles etc. in order to protect them against splash of hot polymer as happened earlier.

xx xx xx

(xiv) The working platform in spinning section at 4 m level is hot. The workers working here shall be provided with safety shoes.

Also hand gloves, goggles, apron, face shield etc. shall be provided for the persons handling hot polymers (265o).

xx xx xx (xvii) No. P.P. equipment have been provided for Boiler Attendance and other workers working in Boiler house, Dow-vaporiser etc. (xviii) Provision of personal protective wears such as helmets, shoes, goggles, dust masks aprons, over alls, hand gloves, ear protectors etc. as appropriate in each work place shall be made and reported immediately."

The said document was also very much available before the Industrial Tribunal as Ext.6. The report of the safety requirement of Electrical Department, which has been marked as Ext.8 (Annexure-5), was also available before the Industrial Tribunal. None of these documents have been discussed by the Industrial Tribunal, while passing the impugned award.

10. From the aforementioned materials available on record, it is apparent that during inspection the Inspector of Factories and Boiler and Electrical Inspector had pointed out several deficiencies on 'safety', thereby violating the mandatory provisions of the Factories Act, 1948 and of Indian Electricity Act by the management. Though they had advised the management on several occasions to provide safety measures in order to avoid accident in the factory in question, but no action has been taken.

11. On 28.04.1994, an accident happened in the electrical department of the factory in which two of the concerned workmen, namely, L.K. Sahu and H.R. Mohanty were severely injured. It was on account of non-supply of safety appliances, as prescribed under Section 41G of the Factories Act, 1948 read with Rule 62 of the Orissa Factories Rules, 1950. A safety committee was constituted for the first time wherein three officers and a workman, namely, Bhimsen Maharana were the members. The committee had also recommended for supply of different safety appliances to the workmen. On perusal of the impugned award it appears that the Presiding Officer, Industrial Tribunal has not taken into consideration the above materials, which were very well available on the record, but relied upon a judgment of the apex Court in T.S. Kalewalla (supra). But, while relying upon such 12 judgment, the tribunal lost sight of the observations made in paragraphs 5 and 23, which are in favour of the workmen.

12. In R. v. Northumberland Compensation Appeal Tribunal exparte Shaw, (1952) 1 All ER 122 (CA), it was held that where the relief sought is certiorari and the Court is satisfied that there are grounds for quashing the decision, the Court has the power that in addition to the quashing of the decision, to remit the matter back to the authority or the tribunal concerned with a direction to reconsider it and reach a conclusion in accordance with the finding of the Court. It was held that the Court's power is not limited simply to finding whether the decision should be upheld or reversed, but it can remit the case to the proper authority to do what is right in the light of the findings.

13. In Rajagopala v. S.T.A. Tribunal, AIR 1964 SC 1573, the apex Court held that where, on the other hand, the order of the inferior tribunal itself is vitiated, say, for having acted upon an extraneous consideration, the order of remand should, ordinarily, be to the inferior tribunal so, that it may come to a fresh decision, taking out of account the extraneous consideration.

14. In view of the aforesaid facts and circumstances, we are of the considered view that the Presiding Officer, Industrial Tribunal has, while passing the impugned order, neither taken into consideration all the materials available on record, nor considered the judgment of the apex Court in T.S. Kalewall (supra) in its proper perspective. Therefore, we set aside the award dated 20.07.2002 passed by the learned Presiding Officer, Industrial Tribunal, Bhubaneswar in Industrial Dispute Case No. 142 of 1995 and remit the matter back to the said forum for proper adjudication in accordance with law by affording opportunity of hearing to the parties and dispose of the same as expeditiously as possible. Needless to say that, while affording opportunity, the Tribunal shall take into consideration only the materials already available on record and will not entertain any fresh material.

15. With the above observation and direction the writ application stands allowed.

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(VINEET SARAN) CHIEF JUSTICE ..................................

Orissa High Court, Cuttack
                                                      (DR. B.R. SARANGI)
The 8th November, 2017, GDS/Alok                            JUDGE

                               True Copy
                                           P.A.

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