Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 550 (ORI)

Birla Tyres Workers Union v. State of Odisha

2017-05-09

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition has been filed under Article 226 of the Constitution of India, preferred by M/s. Birla Tyres Workers Union wherein the order of reference passed by the appropriate Government, i.e. Labour and Employment Department, Government of Orissa through its Under Secretary to Government, has been assailed. 2. The brief facts of the case is that some workers at the time of their confirmation by the Management since were not fitted as against the post they are entitled to nor the wages applicable to the said group of workers, approached this Court vide O.J.C. No.16128 of 1998 which was disposed of vide order dtd.4.9.2009 directing the Labour Commissioner, Bhubaneswar to cause an enquiry into the allegation made by the petitioners and pass necessary order in accordance with law. The authority, in pursuance to the order passed by this court, has conducted an enquiry and submitted a report with respect to the dispute in question but the appropriate Government, instead of making reference of the dispute, made a reference which was not the subject matter of the dispute vide its order dtd.15.4.2010 and as such they being aggrieved have not appeared before the Tribunal and therefore the Tribunal has passed an order on 08.11.2010 in I.D. Case No.16 of 2010 stating therein that due to non-appearance of the workmen in spite of registered notice having been issued to them, which seems that they are no more interested to contest the proceeding, hence the reference has not been answered and accordingly direction has been issued to inform the Government. 3. Learned counsel appearing for the workmen – Union has submitted that the real dispute is regarding applicability of fitment as per the wage revision as per the tripartite settlement dtd.07.05.1995 implemented with effect from 10.01.1998 with respect to such provisionary workmen who were engaged with effect from 10.01.1997 and confirmed in grade W-II with effect from 10.1.1998 but instead of making reference to that effect the reference has been made by the appropriate Government presuming the dispute regarding entitlement of wage revision as per tripartite settlement dtd.7.5.1995 with effect from 10.01.1998. Learned counsel, by putting reliance upon the enquiry report submitted by the authority in compliance of the order passed in O.J.C. No.16128 of 1998, has submitted that the enquiry report pertains to the entitlement of the provisionary workmen for their fitment under the wage revision of the settlement dtd.3.9.1998 which would be evident from the enquiry report submitted by the District Labour Authority but the Government, in complete deviation from the dispute originally raised by the workman, has only referred the dispute regarding the wage revision in pursuance to the tripartite settlement dtd.03.09.1998, hence this writ petition has been filed. He further submits that he has informed to the Labour Court regarding pendency of the writ petition and in spite of the same the Labour Court has proceeded with the matter and passed order on 08.11.2010 wherein the workmen have not put their appearance since they were not at all concerned with the reference made by the Appropriate Government. 4. While on the other hand, learned counsel appearing for the opposite party – management has vehemently opposed the prayer made by the learned counsel appearing for the workmen by submitting that the workmen have never appeared before the Industrial Tribunal and in absence thereof the Industrial Tribunal was compelled to pass an order on 08.11.2010 hence at this stage the reference may not be interfered with. He further submits that the reference which has been made by the appropriate government was in consonance with the order passed by this court in O.J.C. No.16128 of 1998 and as such it cannot be said that the reference has wrongly been made by the appropriate Government. He further submits that if the reference was incorrect then it should have been questioned at the thresh-hold. 5. We have heard the learned counsels for the parties and perused the documents available on record. The admitted position in this case is that the petitioner is the representative of workmen working under the Management. They are provisionary workmen. A tripartite settlement was arrived at on 03.09.1998 relating to the settlement having been arrived at in between the parties regarding the wage dispute implemented with effect from 10.01.1998. The workmen, namely, Dipankar Bardhan and 118 others who are being represented by the petitioner – Union are provisionary workmen having been engaged prior to coming into effect the tripartite settlement on 10.1.1998. The workmen, namely, Dipankar Bardhan and 118 others who are being represented by the petitioner – Union are provisionary workmen having been engaged prior to coming into effect the tripartite settlement on 10.1.1998. The predicament of the members of the petitioner – union, namely, Dipankar Bardhan and 118 others is as to whether they will be entitled to get the wages at par with the workmen working by way of a confirmed workman in pursuance to the tripartite settlement dtd.03.09.1998 or not? The grievance having not been redressed, they have preferred a writ petition before this court being O.J.C. No.16128 of 1998 and this court, while disposing of the writ petition, has directed the Labour Authority to cause an enquiry and thereafter an enquiry report was submitted. We, after going through the enquiry report, have found that the workmen who are being represented by the petitioner – Union in the instant writ petition or before the Labour authority were the workmen having been engaged as provisionary workmen with effect from 10.1.1997 and confirmed in grade W-II with effect from 10.1.1998. Their sole grievance before the Labour Authority was to fit them in the wage revision treating them as confirmed workmen in grade W-II by giving the revision of wage in pursuance to the tripartite settlement dtd.3.9.1998, this aspect of the matter we have gathered from the enquiry report at paragraph 5 which is being reflected herein below:- “5. The workmen/petitioners were selected as probationary workmen w.e.f. 10.1.1998 and confirmed in Grade W-II w.e.f. 10.1.1998. The settlement of 1992 and 1995 is no way applicable to those workmen since these two settlement of 1992 and 1995 are on revision of scale of pay and they joined as probationary in the year 1997. This agreement are not applicable to them.” The said enquiry report was submitted before the appropriate Government and thereafter the appropriate Government has come out with an order on 15.4.2010 making the reference to the extent as follows:- “Whether the workman Sri Dipankar Bardhan & 118 others (as per Annexure) are entitled for Wage revision as per the tripartite settlement dtd.07.05.1995 (Annexure) w.e.f. 10.1.1998? If so, what should be the details?” The petitioner, immediately after knowing about the terms of reference, has approached this court by filing this writ petition on 14.7.2010 on the ground that the reference which has been made by the appropriate Government is not the actual dispute of the workmen who are being represented by the petitioner union since the reference has been made regarding the entitlement for wage revision as per the tripartite settlement dtd.7.5.1995 w.e.f. 10.1.1998 and according to the learned counsel for the petitioner - Union, since the workmen in question have already been confirmed w.e.f. 10.1.1998, hence they will be entitled for the wage revision in pursuance to the tripartite settlement dtd.07.05.1995 implemented with effect from 10.1.1998 but their main grievance is regarding their fitment in the wage revision in pursuance to the tripartite settlement dtd.7.5.1995 from the date when they have been selected as provisionary workmen i.e. with effect from 10.1.1997. Learned counsel for the management, however, has submitted that the pleading made in the earlier writ petition is not in consonance with the submission which now the petitioner is advancing before this court and according to him, whatever reference has been made that is in pursuance to the pleading made by the workmen before this court in O.J.C. No.16128 of 1998. 6. 6. We, on appreciation of the factual aspects, are of the considered view that merely on the ground of pleading made in the writ petition, the real dispute which has been raised by the parties before the enquiry officer cannot be thrown out since the enquiry officer who has conducted an enquiry pursuant to the order passed by this court and from perusal of which we found that there is no dispute regarding the wage revision of the confirmed employee in grade W-II with effect from 10.1.1998 since the wage revision has been made effective with effect from 10.1.1998 as per the tripartite settlement dtd.7.9.1995, as such they cannot raise the dispute of a subject which they are already entitled to get, hence according to us, the enquiry officer, while dealing with the issue, since has stated at paragraph 5 of the enquiry report as quoted above, i.e. regarding the entitlement of their fitment in the wage revision with effect from 10.1.1997, the period when they have been inducted as provisionary workmen, ought to have been taken into consideration by the appropriate Government at the time of making reference. 7. Learned counsel for the management has further submitted that the Labour Court has already passed an order on 08.11.2010 whereby and where under the reference has not been answered since the workmen have not put their appearance for leading evidence, accordingly due information was directed to be furnished to the Government. The statute is very explicit and clear that the reference which is being made by the appropriate Government in exercise of power conferred U/s.10 of the I.D. Act, 1947 if answered U/s.17 of the I.D. Act, 1947 by the Labour Court or the Tribunal, as the case may be, then only it will be said to be an award in the eye of law and thereafter it is to be forwarded before the appropriate Government for its publication in the gazette notification under the provision of Section 17(A) of the I.D. Act, 1947, as such the order dtd.08.11.2010 cannot be said to be an award in the eye of law. 8. 8. We are of the considered view that since the real dispute has not been made the subject matter of the reference, the workmen has immediately challenged the terms of the reference before this court by way of instant writ petition which was pending for adjudication and even if the order has been passed by the Labour Court on 8.11.2010, the real dispute if not be directed to be adjudicated, the workmen will be subjected to miscarriage of justice since the appropriate Government while making the reference ought to have applied its mind by going through the enquiry report submitted by the labour authority, but the reference has been made in a mechanical way without going into the real dispute of the workmen, hence merely on account of the order passed by the tribunal on 08.11.2010 the workmen cannot be denied the right to adjudicate their dispute. 9. Since we are dealing with the subject matter of industrial dispute which is a beneficial legislation for upliftment of the workmen so that they may not be subjected to unfair labour practice and exploitation in the hands of the Management, hence considering the prime object of the statute, and considering the factual aspect as we have gone through the enquiry report, are of the considered view that the reference made vide order dtd.15.4.2010 is not in pursuance to the dispute raised by the workmen herein, hence the order dtd.15.4.2010 (Annexure-8) is not sustainable in the eye of law, accordingly quashed. 10. In the result the writ petition is allowed remitting the matter before the appropriate Government to make proper reference of the dispute of the workmen in question and further direct to take decision in this regard within stipulated period, preferably within period of four weeks from the date of receipt of copy of this order. With these observations and directions the writ petition stands disposed of.