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2018 DIGILAW 705 (MP)

Prism Cement Limited v. Union of India

2018-08-16

NANDITA DUBEY

body2018
JUDGMENT : 1. With the consent of learned counsel for the parties, heard finally. 2. This petition under Article 226 of the Constitution of India is filed, challenging the notices dated 15.05.2017, issued by respondent No.2, Labour Commissioner and dated 30.06.0217 and 07.07.2017 by respondent No.3, Assistant Labour Commissioner (Central). 3. It is an admitted fact that respondent No.4/Union, filed an application/representation before the Labour Commissioner, State of M.P., Indore vide Annexure P-1 dated 01.05.2017 and before Assistant Labour Commissioner (Central), Jabalpur dated 22.06.2017 and 03.07.2017, claiming overtime wages to the Security Guards employed in the petitioner company. 4. Shri Kuldeep Bhargava, learned counsel for the petitioner submits that the notice dated 15.05.2017, issued by respondent No.2 and notices dated 30.06.2017 and 07.07.2017, issued by respondent No.3 are without jurisdiction and bad in law. It is stated that the Security Guards do not fall within the definition of workman under Section 2(s) of the I.D. Act, hence the respondents No.2 and 3 have no authority to issue notice under the said Act. Reliance is placed on AIR 1985 SC 760 A Steel Industrials Kerala Ltd. Vs. Capt. S.M. Rebello & others, (2016) 10 SCC 329 Lanco Anpara Power Ltd. Vs. State of UP & Ors. and (2002) 2 MPLJ 242 Hindustan Antibiotics Ltd. Vs. Hindustan Antibiotics Workers Union & others. 5. Shri Devesh Bhojne, learned counsel appearing for respondents No.1 and 3 submits that the petition is premature and baseless, as the petitioner is only called to submit his comments with documents. However, this petition has been filed without raising objection or filing the comments and as such no prejudice is caused to the petitioner by issuance of notices. It is submitted that the petitioner has prayed for quashing the conciliation orders, however, no conciliation was initiated and misleading this court, interim order has been obtained by the petitioner. Learned counsel further submits that the answering respondents is a competent authority to take cognizance under the I.D. Act, 1947, in relation to the petitioner company in view of the circular dated 15.01.2014 (Annexure R-1), wherein it is mentioned that in case of any complaint/industrial dispute received from the workmen/union/association working/operating in cement industry, all Dy.CLCs(C)/RLCs(C)/ALCs(C) are requested to intervene in the complaint/industrial dispute without fail. Learned counsel has placed reliance on Shri Yovan, India Cements Vs. Learned counsel has placed reliance on Shri Yovan, India Cements Vs. Management of India Cements Ltd. AIR 1994 SC 558 , Workmen of Bagalkot Udyog Ltd., Bagalkot Vs. Bagalkot Udyog Ltd. and others (2001) ILJ 621 Karnataka and Ultratech Cement Limited Vs. Industrial Tribunal-cum-Labour Court, wherein it is held that in view of notification No. SO 757(E) dated 08.11.1977, issued by Government of India, both the Central Government and State Governments are appropriate government under the I.D. Act in respect to cement industry. 6. Per contra, Shri Sheetal Tiwari, Panel Lawyer on behalf of respondent No.2/State contended that petition filed by the petitioner is premature and misconceived. It is submitted that vide Annexure P-1, overtime for the period from 01.04.2016 to 31.03.2017 has been claimed. The answering respondent has proceeded under the Payment of Wages Act, 1936, for which respondent No.2 is the only appropriate and competent authority as per Section 2(i) and 24 of the Act of 1936. Referring to various provisions of the 1936 Act, it is urged that petitioner/company is an establishment and duty bound to make payment to its employees and Labour Commissioner, M.P., is the appropriate authority and have jurisdiction to proceed against the petitioner/company. It is further submitted that the petition is premature as the petitioner/employer is only called to submit documents and his explanation and as such no prejudice has been caused to the petitioner as no adverse order has been passed. 7. Shri Uttam Maheshwari, learned counsel for respondent No.4, Union of employees submitted that the petition is premature and filed with an intention to delay the proceedings, hence, not maintainable. It is submitted that respondents No.2 and 3 have only issued notices to the petitioner/company, instead of submitting its objection before the concerned authority, the instant petition has been filed, which deserves to be dismissed at threshold. It is submitted that provisions of Factories Act, 1948, Payment of Wages Act 1936 and I.D. Act, 1947 are applicable to the petitioner/company. Hence, both the authorities have separate jurisdiction to entertain the complaint filed by the answering respondent. 8. I have heard the learned counsel for the parties and perused the record. 9. Admittedly, the petitioner/company has been declared a controlled industry engaged in the production and manufacturing of cement. Respondent No.4 has raised grievance in respect of payment of overtime of the persons employed as Security Guards in the establishment of petitioner/company. 8. I have heard the learned counsel for the parties and perused the record. 9. Admittedly, the petitioner/company has been declared a controlled industry engaged in the production and manufacturing of cement. Respondent No.4 has raised grievance in respect of payment of overtime of the persons employed as Security Guards in the establishment of petitioner/company. As per notification dated 08.11.1977, referred in the case of Shri Yovan, India Cements (supra) and Ultratech Cement Limited (supra) both the Central government and the State Governments have concurrent jurisdiction in relation to the cement industry under the I.D. Act 1947. The notice (Annexure P-2) is issued under the Payment of Wages Act and as per Section 2(i), the appropriate authority is State Government, I therefore, find no merit in the contention of learned counsel for the petitioner on the point of jurisdiction and the same is rejected. 10. In Shri Yovan, India Cements (supra), the Supreme Court has held :- “The Government of India had issued notification No. SO 757(E) dated 8.11.1977 wherein it is stated that under Section 2(a) of the Industrial Disputes Act, 1947, the Central Government has specified (for the purpose of the said sub clause) the controlled authority engaged in the manufacture and production of cement, which has been declared controlled industry under Section 2 of the Industrial (Development and Regulation) Act, 1951. By virtue of the aforesaid notification, the Central Government becomes “appropriate Government” under the Industrial Disputes Act, 1947, in respect of cement industry. A true coy of the aforesaid notification dated 8.11.1977 is annexed herewith as Annexure R-1. Subsequently, another notification was published in the Gazette of India Extraordinary dated 8.12.1977 wherein the government of India exercise its power under Section 39 of the Industrial Disputes Act, 1947, it was notified that the powers exercisable by Government of India under the Industrial Disputes Act, 1947, in relation to cement industry shall also be exercisable by the State Governments, except in the case of mines and quarries forming part of the cement industry where the Central Government alone has jurisdiction. Thus both the Central government and State Governments have concurrent the jurisdiction in relation to cement industry under the Industrial Disputes Act, 1947, except in the case of mines and quarries forming part of the cement industry.” 11. Thus both the Central government and State Governments have concurrent the jurisdiction in relation to cement industry under the Industrial Disputes Act, 1947, except in the case of mines and quarries forming part of the cement industry.” 11. In Ultratech Cement Limited (supra), the Supreme Court has held :- “In case of controlled industry the appropriate government is the Central Government. The cement industry is a controlled industry. Section 2-a(i) vests exclusive jurisdiction in the Central Government in relation to Industrial dispute arising from employment in various sectors mentioned therein including Controlled Industry. Thus, in so far as cement industry is concerned, Central Government is the appropriate Government which is competent to deal with the matters arising out of Industrial Disputes Act. However, section 39 of the Act vests residuary power in the Central Government to delegate the powers vested in the Central Government to the State Governments by way of a General or Special Order with reference to the controlled industry or other industries mentioned therein. In exercise of such power Central Government issued notification in S.O.826(E) dated 08.11.1977 published in the Gazette on 08.12.1977 delegating power to State Government with reference to Cement industry. By virtue of this notification the power as exercisable by the Central Government under Section 2(a)(i) is now vested in the State Government in so far as cement industry is concerned. 12. The contention that the contract Security Guards are not workman has been raised by the petitioner in another writ petition No. 8320/2017 filed by the Union of employees, wherein a co-ordinate Bench of this Court has observed that the parties are at logger heads on the question whether employees fall within the definition of 'Workmen' and for this purpose, evidence is required to be adduced and directed the appropriate authority to refer the dispute about classification of Security Guards for adjudication to appropriate Tribunal. 13. In (2010) 15 SCC 215 Coca Cola India Inc. Vs. Additional Commissioner of Income Tax and others, the Supreme Court has held that where fundamental facts are to be established, matter could not be decided by way of writ petition. 14. What is pertinent to note is that the petitioner has rushed to this Court on receiving the notices issued by respondents No.2 and 3, whereby it was called to furnish details and explanation. 14. What is pertinent to note is that the petitioner has rushed to this Court on receiving the notices issued by respondents No.2 and 3, whereby it was called to furnish details and explanation. Ordinarily, a writ petition would not lie against a show cause notice for the reason that it does not give rise to any cause of action. As calling explanation is not an adverse order, which affects the right of the petitioner/company, hence no interference is called for at this stage of issuance of notice. Resultantly, this writ petition is dismissed.