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2010 DIGILAW 1269 (ALL)

NARAIN ENGINEERING WORKS v. INDUSTRIAL TRIBUNAL

2010-04-20

PRAKASH KRISHNA

body2010
JUDGMENT Hon’ble Prakash Krishna, J.—The present writ petition has been filed against the award of the Industrial Tribunal passed in adjudication case No. 10 of 1989 dated 5.9.1991 whereby the relief has been granted to Gudar, Panna Lal and Ram Ugrah by designating them as (1) Fitter, category skilled, (2) Pattern-maker, category skilled and (3) Shaperman, category skilled respectively. In respect of other labourers, their claim for fitment was rejected. Facts of the case may be noticed in brief. 2. The petitioner claims that it is a factory registered under the Factories Act and it is engaged in the manufacture of chaff cutters. Manufacturing process of chaff cutters has been described in paragraphs-4 and 5 of the writ petition. The petitioner claims that it is a very small Undertaking and is paying wages to their employees as per rates revised for Engineering Units employing below 50 employees under the Minimum Wages Act. A dispute under Section 4-K of U.P. Industrial Disputes Act was referred to the Industrial Tribunal to the following effect:- “Kya Sewayojko Dwara Parishisth Main Ullikhit Apne 31 Shramiko Ko Unke Naam Ke Samaksha Darshai Gai Shreni Ke Anusar Vibhajit Karte Huain Padnam Evam Vetan Diya Jana Chahiye ? Yadi Haan To Kin Anya Vivran Sahit?” 3. The Industrial Tribunal considered the case of each and every workman separately and reached to the conclusion that only three persons namely Gudar, Panna Lal and Ram Ugrah are entitled for the desired relief. 4. The learned counsel for the petitioner in support of the writ petition submits that the order of the Tribunal is bad as the jurisdiction of the Industrial Tribunal is limited and it cannot grant promotion to the workers. The matter of grant of promotion is managerial function. Sri Bhoopendra Nath Singh, learned counsel for the contesting respondent No. 2, on the other hand, submits that as a matter of fact, the present case is not a case of grant of promotion, but it is a case of fitment of wages. 5. Considered the respective submissions of the learned counsel for the parties and perused the record. 6. There appears to be no dispute between the parties with regard to limited jurisdiction of the Industrial Tribunal. The only point which falls for consideration is whether it is a case of grant of promotion to the workmen or it is a case of grant of fitment. 6. There appears to be no dispute between the parties with regard to limited jurisdiction of the Industrial Tribunal. The only point which falls for consideration is whether it is a case of grant of promotion to the workmen or it is a case of grant of fitment. Learned counsel for the petitioner is correct so far legal position is concerned that grant of promotion is a managerial function, there being no quarrel to the said proposition, but its applicability to the facts of the given case is a different aspect. 7. Coming to the facts of the present case, it may be noted that the Tribunal has considered evidence led by the parties with respect to the nature of employment and the work performed by each workman individually. The factory employs two full time Supervisors who constantly supervise the work. It is a small Engineering unit wherein chaff cutters are manufactured and moulding takes place only two or three times in a month. The Industrial Tribunal has found that Gudar is working as Fitter, Turner and Tapman. His main work is fitting of various parts which come out of the mould and then fitting of the whole machine. It may be noted that no attempt was made by the learned counsel for the petitioner to challenge the aforesaid findings of the Tribunal. The said findings are essentially findings of fact. On these findings, the Tribunal has rightly held that Gudar is entitled for wages as admissible to Fitter category, skilled labourer, there being no contrary material. The Tribunal has also found that Panna Lal repairs pattern and this is done by filling gaps in broken parts with ‘Masala’. It has found that pattern making and repairing work are special type of work which no body else can do and as such, Panna Lal is entitled for wages as admissible to a skilled labourer. Similarly, it has been found that Ram Ugrah is also a Shaperman doing work of special type which no body else amongst 25 workers can do. In this fact situation, the Tribunal decided the case on the basis of material on record. No infirmity, legal or factual, could be pointed out by the learned counsel for the petitioner in the findings recorded by the Tribunal. 8. In this fact situation, the Tribunal decided the case on the basis of material on record. No infirmity, legal or factual, could be pointed out by the learned counsel for the petitioner in the findings recorded by the Tribunal. 8. The only question which survives is as to whether on the basis of these findings, it is a case of ‘promotion’ or ‘fitment’. 9. Second Schedule to U.P. Industrial Disputes Act, 1947 provides matters within the jurisdiction of Industrial Tribunal. Item 7 relates to “Classification of grades”. Learned counsel for the contesting respondent submits that it is a case of classification of grades. As against this, learned counsel for the petitioner could not show either from the Standing Order or from any other material that it is a case of promotion. Looking to the nature of work performed by the workmen, the Industrial Tribunal classified the workmen in exercise of power conferred on it under Entry 7 of Second Schedule. 10. Learned counsel for the respondent No. 2 in support of the above contention has placed reliance upon the following cases : (1) Swadeshi Cotton Mills Ltd.Juhi, Kanpur v. Labour Court II, Kanpur and others, 1978 LIC (1) 437. (2) Workmen Employed by Hindustan Lever Ltd. v. Hindustan Lever Limited, AIR 1984 SC (II) 1683. (3) Paras Nath and others v. Union of India and others, 1990 (Supp) SCC 152. (4) N.T.C.U.P. Ltd. v. Presiding Officer, 1991 (62) FLR 583 . (5) Nagar Mahapalika, Gorakhpur v. Labour Court, Gorakhpur and others, 1997(75) FLR 147. (6) Laxminathan Cotton Mills, Kanpur v. Labour Court IV, Kanpur and others, 2002 (92) FLR 1221 . (7) U.P.S.R.T.C. v. Ramesh Kumar Yadav and others, (2005) 1 UPLBEC 247. 11. In the case of Nagar Mahapalika, Gorakhpur v. Labour Court, Gorakhpur and others (supra), this Court has held that giving of designation and wage scale itself, connotes creation of post. It has been held that Labour Court has every jurisdiction to direct fixation of pay of workmen in appropriate pay scale. 12. In the case of Paras Nath and others v. Union of India and others (supra), the Apex Court, on the basis of report submitted by the Central Government Industrial Tribunal cum Labour Court, recommended appropriate pay scale taking into consideration the nature of functions and duties of the workmen. 13. 12. In the case of Paras Nath and others v. Union of India and others (supra), the Apex Court, on the basis of report submitted by the Central Government Industrial Tribunal cum Labour Court, recommended appropriate pay scale taking into consideration the nature of functions and duties of the workmen. 13. In M/s. Laxminathan Cotton Mills, Kanpur v. Labour Court IV, Kanpur and others (supra), this Court dismissed the petition filed by the employer and confirmed the award made by the Labour Court awarding the designation to the workman concerned as that of Assistant Engineer. He was found performing duties similar as performed by Assistant Engineer in other department of employer. 14. More or less similar view has been taken in the case of U.P. State Road Transport Corporation v. Ramesh Kumar Yadav and others (supra) wherein the Labour Court found that the workman was discharging the duties of Assistant Store Keeper and ordered fitment as such of the workman. 15. In the case of Workmen employed by Hindustan Lever Ltd. v. Hindustan Lever Limited (supra), the Apex Court has held as follows : “10. In the hey-day of laissez faire and market economy, wage determination, hours of work, disciplinary measures including quantum of punishment, in short prescribing all enveloping conditions of service were the preserve of management, styled as managerial functions. This relic of the past is slowly withering away since the introduction of the Constitution ushering in socio-economic revolution through law. Most of the managerial functions in relation to work force have been swept away by legislative enactments enacted to give effect to Articles 38, 39 and 41 of the Constitution yet the Tribunal dug out from the debris of the past, the concept of managerial function and by a distorted construction of the language of the reference comprehended it in the concept of managerial function and denied to itself the jurisdiction to adjudicate it. In the process the Tribunal failed to take note of the development of law since the decision in Brooke Bond Case.” 16. Taking into consideration the above legal position and the fact that no attempt was made by the learned counsel for the petitioner either with the help of Standing Order or otherwise to show that the findings recorded by the Industrial Tribunal are in any manner perverse or illegal, no interference in the present petition is called for. Taking into consideration the above legal position and the fact that no attempt was made by the learned counsel for the petitioner either with the help of Standing Order or otherwise to show that the findings recorded by the Industrial Tribunal are in any manner perverse or illegal, no interference in the present petition is called for. It is not a case of promotion but is a case of grant of classification by grade, a matter within the jurisdiction of Industrial Tribunal, vide Second Schedule Entry 7. 17. No other point was pressed. 18. There is no merit in the writ petition. The writ petition is dismissed. 19. No order as to costs. —————