Karnataka High Court
Rajashree Cement General Workers And ... vs The Management Of M/S Ultratech Cement ... on 13 July, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABUR AGI BEN CH
DATE D THIS THE 13 T H DA Y O F JULY 2022
PRESENT
TH E H ON 'BLE MR.JUS T IC E S RE EN IVA S H ARIS H K UMAR
AN D
THE HON'BLE MR.JU ST ICE S.RA CHAIAH
WR IT APPEAL N o.200010/2022 (L-RES)
Be tw ee n:
Ra jashree Ce me nt Ge nera l
Workers & Staf f Union
Adithy a Nagar, Malakhed Ro ad
Se dam Taluk a,
Ka labur agi Dist rict -585 292
Re pre sente d by it s General Secretary
...Ap pe ll a nt
(By S ri P .Vi l ask um ar, Sen ior C o un se l fo r
S ri Nite s h P adiy al an d
S ri Sid daram B Wad i , Advo cat e)
An d:
1. T he Ma nage ment o f
M /s. U ltratech C em ent Limite d
(U nit: R aj as hre e C eme nt W orkers)
A Co mpany incorpor ate d unde r th e
C om panies Act 1956, hav ing its
R egis te red Off ic e at "B " w ing
II Floo r, Ahura C entre
M ahakali Caves R oa d, A ndhe ri ( East)
M umbai-4 00 093 and
A Ce ment Manufac turing U nit
K no wn as "Raj ashree C ement Wo rks"
A dit hy a Na ga r, Malakhed Ro ad
S eda m T aluk
K alab urag i Dist rict -58 5 292
R epresent ed he re in by it s
2
S enio r Vice Pres ide nt
S ri. Ge ra rd D. Red erick s
2. T he Addition al L ab o ur C om miss ione r
& A pp ellat e A ut horit y
unde r the I ndus trial E mploy ment
(S ta ndin g Or ders) A ct 19 46
K armik a Bhav an, B anne rgh at ta Ro ad
B angaluru-5 60 0 29
... Respond en ts
(By S ri P rade ep S S aw kar,
S ri S.R.K am al ch aran and
S ri A.M.P ati l Ko l ku r, Adv o cat e, f or R 1 ;
S ri Vi ran ag oud a M Bi rad ar, AGA , for R 2 )
This Writ App eal is filed u nder S ection 4 of the
Karnataka High Court Ac t, p raying to allow the ap p eal
and set asid e th e o rder of lea rned Single Judge,
pas sed in W.P.No.204077/2018 dated 16.03.2021 and
order for restoring the ord er passed by the comp etent
autho rity und er the Ind ustrial Employment Standing
Ord ers Act as well as Appellate Autho rity ie.,
respond ent No.2 enhancing the ag e o f retirem ent from
58 years to 60 years, with all co nsequen tial b enefits.
etc,.
This W rit Ap peal h aving b een heard and reserved
on 20.06 .2022 and coming on fo r pronouncement this
day, SREEN IVAS HARISH KUMAR J., d elivered the
follow ing:
3
JUDGMENT
The order dated 16.3.2021 in Writ Petition No. 204077/2018 is assailed in this Writ Appeal. The appellant is the Trade Union of the Workers of the first respondent company which is involved in manufacture of cement. The second respondent is the Additional Labour Commissioner.
2. The factual background for this wr it appeal being filed is as follows :
There are about 278 workmen in the skilled and unskilled category working in the first respondent industrial unit. The first respondent and the appellant used to enter into bi-partite settlements for regulating the service conditions of the workmen. Industrial establishmen ts may adopt Model Standing Orders ('MSO' for short) issued by Government of Karnataka or it may have its own Standing Orders certified by the Certifying Officer in accordance with the provisions of 4 Industrial Employment (Standing Orders) Act, 1946 (for short 'the Act'). The first respondent had its own Standing Orders certified by the Certifying Officer. The earlier settlement between the appellant and the first respondent which had been certified by the Certifying Officer prescr ibed 55 years as the age of retirement of the workmen of the fir st respondent. The last bi-partite settlement was entered into between the appellant and the first respondent on 26.10.2016. Before this settlement came into existence, the appellant placed before the first respondent a charter of demands, one of which related to retirement age.
The demand was to increase the age of retirement from 58 to 60 years. After discussion, the appellant and the first respondent arrived at a settlement on 26.10.2016; the fir st respondent accepted certain demands and it was agreed between the parties that all other disputes/demands raised in the char ter but not 5 covered under the settlement should be deemed to have been dropped. It was also agreed that the demands wh ich were dropped would not be raised or re-negotiated during the period of operation of the settlement, which was operational for a period of five years fr om 1.6.2016 to 31.5.2021. This settlement was certified by the Certifying Officer. The demand for increasing th e age of retirement was thus dropped and therefore the age of retirement continued to be 58 years. This being the background, the Government of Karnataka amended the MSO by issuing a notification dated 27.3.2017 and thereby increased the age of retirement to 60 years from 58 years. Pursuant to this notification the appellant submitted an application to the Deputy Labour Commissioner and Certifying Officer, Kalaburagi region, on 13.5.2017 for modifying clause 23.2 of the Certified Standing Orders ('CSO' for short) by increasing the retirement age from 58 to 60 years. 6 The Deputy Labour Commissioner notified the first respondent of this representation and then the first respondent appeared and filed detailed statemen t of objections. According to the first respondent, the Deputy Labour Commissioner- cum-Certifying Officer did not conduct any enquiry and passed an order on 31.10.2017 modifying clause 23.2 of CSO for increasing the age of retirement of the workmen from 58 to 60 years. Aggrieved by this order, the first respondent preferred an appeal to the Additional Labour Commissioner who too, by his order dated 10.10.2018, dismissed the appeal. Challenging the order of Additional Labour Commissioner, the first respondent preferred Writ Petition No. 204077/2018 before th is cour t and the said writ petition being allowed, this Writ Appeal has been preferred.
3. The learned single Judge formulated the following four points for discussion : 7
"1. What is the effect of Model Standing Orders, and to whom it would apply to?
2. In the event of there being a settlement between the employer and the Trade Union, on which basis the Certifying Standing Orders are amended, would Model Standing Orders be applicable to the establishment?
3. Can any of the parties claim the benefit of the Model Standing Orders contrary to the agreemen t arrived at during the course of Settlement, as contained in the amended certified standing orders?
4. What order?
4. On point No.(1), the learned single Judge has held that MSO wou ld apply only when CSO is not in operation. Delving on point No. (2), it is held that the MSO could be tailored by an establishment and if a certificate is obtained to that effect, CSO would become applicable to the establishment. Over a period of time if there 8 takes place various se ttlements between the employer and the trade union, such settlement should be incorporated in the CSO and again certified. If settlement is not incorporated in the CSO the earlier CSO would operate. Therefore MSO is not applicable whenever CSO comes into existence on the basis of a settlement between the employer and the trade union and in case amendment is brought to CSO based on any further settlement. Regarding point No. (3), it is the finding of the learned single Judge that when there is a negotiated settlement, neither the employer nor the trade union can claim to the con trary let alone on the basis of the amendment to the MSO which has come into being subsequent to CSO. Only if CSO is not in force, amendment to MSO could be made applicable to the industry or the establishment. The learned single Judge has followed the judgment of the Supreme Court in the case of Barauni Refinery Pragathisheel 9 Shramik Parishad v. Indian Oil Corporation [AIR 1990 SC 1801] and Kennametal India v. Kennametal Indian Employees Association [(2011) 4 LLJ 163].
5. We heard the argument of Sri P.Vilaskumar, learned senior counse l appearing for Sri Nitesh Padiyal and Sri Siddaram B Wadi, learned counsel for the appellant, Sri Pradeep S Sawkar for respondent No.1 and Sri Viranagouda M Biradar, Additional Government Advocate, for respondent No.2.
6. It was the argument of Sr i Vilaskumar that the retirement age of the workmen was 58 years earlier. Though there was a settlement between the appellant and the first respondent in regard to retirement age, the Government of Karnataka brought an amendment to the Model Stand ing Orders increasing the age of retirement to 60 years. This was the reason for the appellant 10 approaching the Certifying Authority to amend the CSO relating to retirement age in order to bring it on par with the MSO.
7. He argued that Section 10 of the Act provides for modification of CSO. The Certifying Officer accepted the representation given by the appellant for amending the CSO. His order discloses reasons. The appellate authority also rejected the appeal filed by the first respondent challenging the order of the CSO. The order in the appeal became final. Both the authorities noticed that amendment to CSO was necessary to maintain uniformity and fairness in regard to retirement age in all the industrial establishments. He argued that CSO can still be amended even though it was brought into existence after settlement between the management and the trade union. In support of his argument he placed reliance on the judgment of the co-ordinate Bench of this court in the case of Management of Federal Mogul 11 Goetze India Private Limited v. Additional Labour Commissioner and Others [W.A.No.2771/2019 decided on 25.2.2021]. He submitted that in the said decision there was a settlement between the management and the workmen, yet the co-ordinate Bench held that the Certifying Officer could direct amendment to be brought to CSO. Further, in regard to this decision he submitted that the management approached the Supreme Court by filing SLP (C) Nos. 6794-6796/2021. It was dismissed confirming the judgment. The management sought review of dismissing the SLP and it was also dismissed. Therefore Sri Vilas Kumar submitted that the decision of the coordinate Bench of this court is squarely applicable to the facts of the instant case and in this view the judgment of the learned single Judge is to be set aside.
8. Sri Pradeep Sawkar argued that it was agreed between the appellant and the first 12 respondent that the settlement given into effect from 1.6.2016 was to be in force for a period of five years. The retirement age of the workmen earlier was 55 years. On 20.9.2000, a memorandum of settlement was entered into between the appellant and the first respondent, and at that time the retirement age was increased from 55 to 58 years. This memorandum was given into effect from 1.1.2000. The stipulation as to retirement age being 58 years continued even in the memorandum of settlement dated 13.1.2012. Then in the fresh Charter of Demands given by the appellant on 9.5.2016, i.e., before the exp iry of the memorandum of settlement dated 13.1.2012, there was a demand for increasing the retirement age from 58 to 60 years. In the discussion that took place on the fresh Charter of Demands, the demand for increasing the age of retirement was rejected as the management did not agree for increasing the retirement age, and that the other 13 demands of the appellant were accepted. Clause (7) of the settlement clearly states that all other demands raised in the Charter of Demands which are not covered in the settlement shall be deemed to be dropped and shall not be raised during operation of the settlement. As per clause (8), the appellant agreed that they would not raise any further demand or dispute during the period of operation of settlement. In this regard he argued that the appellant is bound by the settlement which was to be in force for five years with effect from 1.6.2016. Section 10 of the Act is not applicable because of agreement between the appellant and the first respondent. Placing reliance on the judgment of the Supreme Court in the case of Barauni Refinery (supra), Sri Pradeep Sawkar argued that the Supreme Court has clearly held that the settlement between the management and the workmen has a binding nature and that the workmen cannot seek 14 modification of the settlement for increasing the retirement age. In support of his argument, he also referred to a judgment of the Division Bench of this court in the case of M.C.Raju vs Executive Director (W.A.No.2733/1982) and of the learned single Judge in the case of Kennametal (supra). He submitted th at the writ appeal is therefore devoid of merits and it should be dismissed.
9. Now the question that needs to be answered is, whether CSO can be mod ified or amended during the time of its prevalence as agreed between the parties.
10. Before answering the question, given a look at the structure of the Act, according to Section 3, an industrial estab lishment must submit to the Certifying Officer a draft of standing orders proposed to be adopted with in six months from the day the Act be comes applicable to it and the CSO, 15 so far as is practicable , must be in conformity with the MSO. Then Section 4 sets out the conditions to be satisfied for certification of CSO and the duty of the Certifying Officer to adjudicate upon the fairness and reasonableness of CSO. Section 5 deals with procedure of certification of CSO. Section 10 is significant in the sense that once standing orders are certified, they cannot be modified until for a period of six months from the date the standing orders came into force or of last modification. But if the stand ing orders are to be modified even before six months, there must be agreement between the parties, otherwise not.
11. Now in the case on hand, the CSO, con sequent to settlement between the first respondent and the appellan t, was given in to effect from 01.06.2016 to be in force for five years. That means the appellant and the first respondent mutually agreed for 5 years duration, but the Government of Karnataka amended MSO in 16 the interregnum. Therefore the appellant wanted CSO to be amended in order to increase the retirement age to 60 years, as it benefitted the workmen.
12. Sri Pradeep Sawkar has relied upon the judgment of the Supreme Court in BARAUNI REFINERY PRAGATISHEEL SHRAMIK PARISHAD AND ORS., VS. INDIAN OIL CORPORATION LTD., AND OR S. [AIR 1990 SC 1801], where the facts are almost akin to the case on hand. The Supreme Court held that the settlement arrived at between the emp loyer and the workmen outside con ciliation proceedings is binding between the parties, and the agreement brought about in the process of conciliation proceedings has extended application, it binds not only the parties to the agreement, but also all others, who are summoned to appear in the conciliation proceedings and all persons employed in the establishment or part of 17 establishment, as the case may be. Observing so, the Supreme Court further held:
8. ................... Therefore, a settlement arrived at in the course of conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent it departs from the ordinary law of contract. The object obviously is to uphold the sanctity of settlemen ts reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. There is an underlying assumption that a settlement reached with the help of the Conciliation Officer must be fair and reasonable and can, therefore, safely be made bindin g not only on the workmen belonging to the Union signing the settlement but also on others. That is why a settlement arrived at in the course of conciliation proceedings is put on par with an award made by an adjudicatory 18 authority. The High Court was, therefore, right in coming to the conclusion that the settlement dated 4th August, 1983 was binding on all the workmen of the Barauni Refinery including the members of Petroleum and Chemical Mazdoor Union.
13. In the instant case, the agreement was for a period of five years, and probably it might not have taken place in the presence of Conciliation Officer. The facts placed before court do not make it clear, any how the agreement was between the first respondent and the appellant, and they were bound by it. Once the management and the workmen reach a settlement either in the presence of the Conciliation Officer or excluding him, the settlement binds the parties. It is not the case of the appellant that there was a stipulation in the agreement that they agreed for modification of CSO, even before 5 years, or 6 months as envisaged in Section 10(1) of the Act. Therefore, the appellant cou ld not have moved the 19 Certifying Officer within the agreement period when the Government of Karnataka brought an amendment to MSO in the year 2017 increasing the age of retir ement from 58 years to 60 years.
14. The appellant's counsel has heavily relied upon the judgment of the Co-ordinate Bench of this Court in Management of Federal Mogul Goetze India Pvt. Ltd., (Supra) in support of his case. On facts, it can be distinguished. There, CSO did not contain a stipulation as to retirement age. Therefore the Co-ordinate Bench did not accept the contention of the Management based on Barauni Refinery Pragatisheel Shramik Parishad and ors., (supra). The Supreme Court might have dismissed the Special Leave Petition preferred by the Managemen t in the case of Federal Mogul Goetze India Pvt. Ltd., bu t it does not help the appellant in the instant case because of slight variance in facts. 20
15. We may usefully place reliance on another judgment of the Supreme Court in the case of BHARAT PETROLEUM CORPORATION LIMITED V. MAHARASHTR A GENERAL KAMGAR UNION AND OTHERS [(1999)1 SCC 626], where the Supreme Court has dealt with binding nature of CSO in a different situation. it is held:
22. After certifying the Standing Orders or the Draft Amendments, the Certifying Officer is required to send copies of the Certified Standing Orders, authenticated in the prescribed manner, to the employer as also to the Trade Union or other prescribed representatives of the workmen. On ce the Standing Orders are certified, they constitute the condition of service binding upon the management and the employees who are already in employment or who may be employed after certification as was laid down by this Court in Sudhir Chandra Sarkar vs. Tata iron and Steel Co. Ltd., wherein reliance was placed on an earlier decision in Agra Electric Supply Co. Ltd. vs. Alladin, in 21 which also it was laid down that the Certified Standing Orders bind all those in employment at the time of ser vice as well as those who are appointed thereafter, (see also: Workmen Firestone Trye and Rubber Co. of India (P) Ltd. and Glaxo Laboratories (I) Ltd. vs. Presiding Officer, Labour Court, Meerut.
16. Sri Vilas Kumar argued another point that the retirement age in the surrounding industrial establishments was increased to 60 years, and therefore retaining the retirement age at 58 years in the first respondent establishment amounted to giving unfair treatment to the workmen. It appears so, but what is to be noted here is that the first respondent is one out of 19 cement manufacturing plants under the same management. In all the plants, as argued by Sri Pradeep S Sawkar, if the retirement age is fixed at 58 years, the same pattern must be maintained, giving upward revision in retirement age in one industrial unit may lead to unrest among workmen 22 in other units and this is how equality is to be maintained even though the other industrial establishments have adopted a different retirement age.
17. With this discussion, as we find no good reason to entertain the appeal, we dismiss the appeal.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Ckl/KMV