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2007 DIGILAW 1625 (ALL)

Union of India v. Opium Factory Labours Union

2007-05-25

SUNIL AMBWANI

body2007
Judgment Per SUNIL AMBWANI, J. Heard Shri A.K. Singh, learned counsel for petitioners and Shri Y.M. Zaidi, for respondent. 2. By this writ petition, the Union of India through its Secretary, Ministry of Finance, New Delhi and General Manager, Government Opium and Alkaloid Works, Ghazipur, have prayed for a direction to quash an order dated October 10, 2005 passed by Regional Labour Commissioner (Central), Kanpur by which a requisition certificate in Form II in compliance with the order dated October 3, 2005 of this Court in W.P. No. 64221/2005 as per Section 33-C(1)of the I.D. Act, 1947 is to be enforced for recovery of the amount as per settlement dated April 20, 1998 and EGIT Award No. 11/1978 in favour of 40 casual labourers. The requisition certificate in Form-II seeks to recover Rs. 7,80,120/- as per settlement dated April 20, 1998 in favour of 40 causal labours. The Sub-Divisional Magistrate has directed the Branch Manager, State Bank of India, Ghazipur to attach the account of the petitioners in pursuance to the recovery certificate giving rise to this writ petition. 3. Shri A.K. Singh learned counsel for petitioners submits that the respondent-union filed a writ petition which was allowed directing the appellant to engage the members of the petitioner-union as casual worker and to pay their dues. The Division Bench in Special Appeal No. 743/2002 by its judgment dated January 29, 2003, relying upon Rajasthan State: Road Transport Corporation and another v. Krishna Kant, AIR 1995 SC 1715 : (1995) 5 SCC 75 : (1995) 2 MLJ 48 : 1995-II-LLJ-728 set aside the judgment and directed the workmen to seek their remedies by industrial: adjudication. 4. The respondent-union filed application on February 17, 2003 before the Assistant Labour Commissioner, Allahabad for implementing the settlement arrived at between the management of Opium Factory Labours Union also moved an application before the Central Government, Industrial Tribunal, Kanpur on April 10, 2003, for asking the petitioners to pay the amount under the settlement to the 40 workmen. In its reply, the General Manager submitted to the Assistant Labour Commissioner, on September 29,2003 that the 40 workers were paid as per the terms and conditions of the ministrys letters dated January 17, 1997 and May 7, 1999. In its reply, the General Manager submitted to the Assistant Labour Commissioner, on September 29,2003 that the 40 workers were paid as per the terms and conditions of the ministrys letters dated January 17, 1997 and May 7, 1999. The Regional Labour Commissioner advised the General Manager of the Opium and Alkaloid Works-Ghazipur on March 18, 2005 to pay the amount and or to show cause within 15 days as to why certificate should not be issued to the Collector under Section 33-C(1) of the I..D. Act, 1947. The General Manager submitted its reply on which an order was made by the officer of the 5 Assistant Labour Commissioner (Central) on November 27, 2003 to implement clause-4 of the settlement in letter and spirit. 5. While referring to the settlement dated April 20, 1998 arrived at between the management and the union, the Assistant Labour Commissioner considered the reply that the proposal for implementation has been sent to the higher authorities for approval. The clause-4 of the settlement clearly stated "providing the employment to the 40 daily wages (casual workers) should be appointed as casual workers in view of large work load in the Opium season. Chief Controller of Factories approval should be taken immediately. The management agreed to the proposal of the Union." The office of the Regional Labour Commissioner thereafter passed an order on July 11, 2005 informing the petitioner No.2 that he would like to visit Ghazipur factory on July 21, 2005 to intervene into the dispute. On August 3,2005 in ajoint meeting between the General Manager, Opium and Alkaloid Works Ghazipur, the Manager of the Factory, the Advisory of the Union, Sub Divisional Magistrate Sadar, Ghazipur and Additional Labour Commissioner, Allahabad, it was agreed that the General Manager will take up the matter with senior officers, Special C.C.F. to settle the long pending disputes and communicate the decision of C.C.F. to Regional Labour Commissioner, Kanpur within one week. It appears that instead of giving specific reply with regard to the decision of the C.C.F., a letter was sent by the General Manager, Government Opium and Alkaloid Factory on August 11,2004 that clause-4 of the settlement dated April 20, 1998 has been fully complied/implemented with by the Management and in this regard the letter dated December 19, 2003 was submitted to the Regional Labour Commissioner, Kanpur. The Manager again intimated to the Regional Labour Commissioner on December 19, 2003 that the workers were engaged after taking their written consent to be appointed as daily wage workers and therefore the question of claim of these workers for any higher wages is not justified. It was submitted that these workers were employed for 90 days during 1999 season out that did not entitled them for regular appointment and reiterated with c1ause-4 of the settlement has been implemented. On June 28, 2000 the General Secretary, Ministry of Finance informed Commissioner and Directorate of B .E.C. that daily wages cannot be given temporary status for appointment of vacancies. It is in these circumstances the recovery was initiated. 6. Shri A.K. Singh states that the award has been implemented and that seasonal workers, engaged only for a short period, are not entitled to temporary status. He submits that there was no industrial adjudication and that the order under Section 33-C(1) of the I.D. Act, 1947 is wholly without jurisdiction. The factory cannot treat the casual seasonal labourers as temporary hands for payment of wages. 7. The petitioners have not denied that there was a settlement between the management and the union registered with Assistant Labour Commissioner, Allahabad on April 20, 1998. It was signed by Shri Prem Chandra representing management and Shri Bal Roop Sharma representing workmen. The settlement proceeded a notice of strike No.1 0/1998 dated March 19, 1998 w.ef April 10, 1998 with 12 demands. The Assistant Regional Commissioner called both the parties for discussion/conciliation on April 9, 1998 and that the union agreed to defer the proposed strike and agreed to resolve the issue through mutual discussions and that on April 20, 1998 the following terms and settlements were entered between them and was verified by Assistant Labour Commissioner, Allahabad. "Terms of retirement. 1. Payment of minimum wages to the daily wages workers as per CATs judgment in case No. 11/1978. The management agreed to send the proposal to implement the award in true spirit for payment of minimum wages. 2. Consideration of casual workers having technical certificate for the technical post in the case of Sh. Subhash Chandra Prajapati, Sh. Dharam Dev Yadav and Sh. Ravindra. The management assured that they will be 5 considered whenever vacancies arise. 3. Payment of Hazard allowance to casual and seasonal workers. 2. Consideration of casual workers having technical certificate for the technical post in the case of Sh. Subhash Chandra Prajapati, Sh. Dharam Dev Yadav and Sh. Ravindra. The management assured that they will be 5 considered whenever vacancies arise. 3. Payment of Hazard allowance to casual and seasonal workers. The management informed that the issue will be taken up with the appropriate Authority immediately. 4. Providing the employment to the 40 daily wages casual workers should be appointed as casual workers in view of large work load in the Opium Season. C.C.F., Approval should be taken immediately. The management agreed to the proposal of the Union. Both the parties agreed to resolve the other issues mutually. The parties shall submit implementation/ compliance report by 15.5.1998. Representing management Representing workman Sd/- Sd/- (Prem Chandra) (Bal Roop Sharma) Witnesses Before 1. Sd/- illegible 2. Sd/- Illegible (G.P.V.L.N. Rao) Asstt. Labour Commissioner, Allahabad." 8. Clause-4 of the settlement clearly provides that the employment to 40 daily wages (casual workers) should be appointed as casual workers in view of large work load in the opium season, Chief Controller of Factories approval should be taken immediately. 9. The management has not implemented clause-4 of the settlement entered in conciliation proceedings before the Assistant Labour Commissioner for nine years. Learned counsel for petitioner contends that the matter required approval of the higher authorities. The response made to the Assistant Labour Commissioner, Central in the letters dated December 19, 1993 and August 11,2004 shows that the stand taken by the petitioners was not clear. In the letter dated December 19,2003, the Manager, Government Opium and Alkaloid Works Undertakings, Ghazipur stated on his own that these workers were employed for 90 days during 1999 season and that they are not entitled to regular employment. It was further stated in this letter that Ministry vide their letter F. No. 66012/5/96 CM. In the letter dated December 19,2003, the Manager, Government Opium and Alkaloid Works Undertakings, Ghazipur stated on his own that these workers were employed for 90 days during 1999 season and that they are not entitled to regular employment. It was further stated in this letter that Ministry vide their letter F. No. 66012/5/96 CM. dated July 25, 1990 and May 7,1999 addressed to the Chief Controller of Factories, Gwalior had conveyed their approval to engage 40 workers for specific job of scraping, cleaning and washing of vats and trays for a period not exceeding three months and also the Chief Controller of Factories Gwalior vide his letter F. No. 11/15/3Estt/3097 dated September 12, 1995 (copy enclosed) has permitted to engage the said 40 number of persons on contract basis after completing the required formalities at the rate fixed by the District Collector of State Government. The said workers were engaged after getting their written consent to be appointed as daily wage workers, therefore the question of claim of these workers for the higher wages does not arise and hence not justified. The officer of said job does not confer on them any right to have a: continuous or regular appointment under any rules what so ever not does it entitled them for higher wages. In this regard the petitioner relies upon a copy of O.M.F. No. 490 14/2/86Estt/(C) of D.O.P.T. Dated June 7, 1988 states that: contention of Asstt. Labour Commissioner that the said 40 workers were not given appointment as per approval of the Ministry/Chief Controller of Factories in para 6 of his letter is not based on facts. 10. It is apparent that the petitioners are still relying upon the letter of Chief Controller of Factories, Gwalior dated September 12, 1996 whereas the settlement was entitled on April 20, 1998 and that vide letter dated May 7, 1999 addressed to Chief Controller of Factories, Gwalior had conveyed their approval to engage 40 workers for specific job scrapping, cleaning and washing plats and trays for a period not exceeding three months. This letter was in response to the letter of the Chief Controller of Factories dated September 12, 1996 and not to the approval for settlement dated April 20, 1998. This letter was in response to the letter of the Chief Controller of Factories dated September 12, 1996 and not to the approval for settlement dated April 20, 1998. In fact, there is no pleadings nor anything suggests on record that after the settlement 4 dated April 20, 1998 the management requested for approval of Chief Controller of Factories for engaging 40 daily wagers as casual workers. 11. It is in these circumstances that the order was made by the Regional Labour Commissioner (C) Kanpur under Section 33-C (1) of I.D. Act, 1947 to recover the wages of these 40 casual labourers for the petitioner. 12. A perusal of the record shows that after the settlement a letter was sent by the General Manager, Government Opium Alkaloid Works, Ghazipur to Chief Controller, Government Opium and Alkaloid Factories, New Delhi for payment of minimum wages with financial Implications of Rs. 4,53,040.00/- with his opinion that it will be difficult to pay the daily wagers as casual workers. The Government of India, in response to the letter of Chief Controller of Factories dated April 22, 1999, wrote to him conveying approval of the Government for engagement of 40 casual workers for a period not exceeding three months subject to the condition that employment of casual workers may be considered on merits and only those workers may be employed whose number of working days in a particular year does not reach the limit whereby they get entitled for being appointed on regular basis and as such approved the engagement of 40 casual workers for three months in a year without recognising their appointment of regular basis. The management of the Government Opium and alkaloid Works, Ghazipur, however, did not extend this benefit to these workmen and have still allowed to them to continue on daily wages basis. 13. I do not find any error in the order passed by the Assistant Labour Commissioner (Central), Allahabad under Section 33-C(1) of I.D. Act, 1947 for implementation of the settlement which was approved by the Central Government.. The Chief Controller, Government Opium and Alkaloid Factories has failed to implement clause-4 of the settlement giving rise to the proceedings under Section 33-C(1) of the I.D. Act, 1947 and the order of the Assistant Labour Commissioner to pass the order. 14. The quantum of the amount in the recovery certificate has not been denied. The Chief Controller, Government Opium and Alkaloid Factories has failed to implement clause-4 of the settlement giving rise to the proceedings under Section 33-C(1) of the I.D. Act, 1947 and the order of the Assistant Labour Commissioner to pass the order. 14. The quantum of the amount in the recovery certificate has not been denied. The writ petition is dismissed.