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2019 DIGILAW 1306 (JHR)

Management of Bokaro Steel Plant, a Unit of Steel Authority of India Ltd. v. Workmen represented by Chikitsa Karamchari Sangh

2019-07-19

RAJESH KUMAR

body2019
JUDGMENT : 1. Heard counsels for the parties. 2. The present writ petition has been filed for quashing the award dated 23.06.2004 pronounced on 14.09.2004 in Reference Case No. 04 of 1993 by Presiding Officer, Industrial Tribunal, Ranchi, whereby the reference has been answered in favour of the workman. 3. From argument and pleading, it appears that Union has raised Industrial Dispute claiming that the service condition of workman has been changed by the employer in contravention of Section 9A of the Industrial Disputes Act, 1947. All workman had been appointed before year 1975. After giving promotion, their service condition had been changed in the year 1980 onwards. By this change, their leave and other benefits had been changed to the disadvantage of the workman. On failure of conciliation, the matter has been referred vide Reference Order No. 04 of 1993. The terms of reference is as follows:- “Whether to reduce the benefit of the workers in Annexure-I by the Management of Bokaro Steel Plant ignoring the provisions of company’s conduct Rules and Disciplines and Appeal Rules in the Company’s Standing Orders regarding leave and other benefits? If not, workers are entitled for what relief?” 4. Considering the evidence led by the parties such as service rule, standing order, pay slips, as well as the oral evidence, the finding has been recorded that the leave rules has been changed and this has caused disadvantage to the workman in violation of section 9A of the Industrial Disputes Act, 1947. On strength of such finding, reference has been answered in favour of the workmen. 5. Counsel for the petitioner-employer has argued that Section 9A does not prohibit change of service condition rather it regulates and can be changed by giving notice. As per mandate of Section 9A of the Industrial Disputes Act, 1947, service condition can be changed. 6. Further, it has been argued that the Standing Order has to be prepared as per the Industrial Employment (Standing Order/Orders) Act, 1946. The procedure has been prescribed under Section 3 onwards. The procedure itself suggests participation of Union and workmen is mandatory for preparation of Standing Order. Workmen as well as Union has been permitted to file objection. Even if after formulation of Standing Order, there is provision of appeal under Section 7 of Industrial Employment (Standing Order/Orders) Act, 1956. 7. The procedure has been prescribed under Section 3 onwards. The procedure itself suggests participation of Union and workmen is mandatory for preparation of Standing Order. Workmen as well as Union has been permitted to file objection. Even if after formulation of Standing Order, there is provision of appeal under Section 7 of Industrial Employment (Standing Order/Orders) Act, 1956. 7. Further, provision has been made under Section 10 for modification and Union and representative body has been permitted to raise objection to approach the concerned authority for modification. Thus, the procedure prescribed in the Industrial Employment (Standing Orders) Act, 1956 contemplates the participation of the Union which satisfies the requirement of Section 9A of the Industrial Disputes Act, 1947. Thus, the reason assigned by the Tribunal regarding non-compliance of mandatory requirement of notice under Section 9A of the Industrial Disputes Act, 1947 is not tenable and accordingly, prayer has been made for quashing of the impugned Award. 8. Per contra, counsel for the Union/Respondent has argued that it is trite that Industrial Dispute Act, 1947 will prevail over other legislation. Further relying upon Clause 44 of the Standing Order, the argument has been advanced that service rule applicable prior to implementation of the Standing Order has been saved. Further, it has been argued that placing workmen under the umbrella of the Standing Order by specific order and selectively is per se discriminative and being disadvantageous to the workman, is hit by Section 9A of the Industrial Disputes Act, 1947, because no notice has been given for change of service condition as contemplated under Section 9A of the Industrial Disputes Act, 1947. 9. It is admitted position that concerned workmen were employed prior to 1975. They were governed by the service rules which has been adopted by the management. Service rule applicable to the Central Government Employee has been adopted by the management. Finding has been recorded by the Tribunal comparing the service rule as well as Standing Order that the leave and other benefits were more beneficial under service rule and the same stands reduced under the Standing Order. This finding has been recorded by comparing the service rule as well Standing Order, pay slips and oral evidence led by the parties. Further, the concerned workman has been placed under the Standing Order by specific order not by applying the Standing Order universally to all employees. Selective application had been made. This finding has been recorded by comparing the service rule as well Standing Order, pay slips and oral evidence led by the parties. Further, the concerned workman has been placed under the Standing Order by specific order not by applying the Standing Order universally to all employees. Selective application had been made. Clause 44 of the Standing Order is quoted hereinbelow:- “44. Savings: Nothing contained in these Standing Orders shall operate in derogation of any law or to the prejudice of any right under written contract of service, settlement or award for the time being in force nor shall any agreement between the management and the workman prejudicially affect the rights of the workmen under these Standing Orders.” 10. Section 9A of the Industrial Disputes Act, 1947 is quoted hereinbelow:- “9A. No employer, who propose to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change. (a) Without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or (b) Within twenty-one days of giving such notice: Provided that no notice shall be required for effecting any such change. (a) Where the change is effected in pursuance of any [settlement or award]; or (b) Where the workman likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Service (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.]” 11. From mere perusal of above provisions, it is evident that service condition cannot be changed without giving notice which is mandatory. There is no dispute that the dispute is covered by the schedule as it has affected wages as well as leave rules. So far contention of the petitioner-employer that Standing Order will apply ipso facto to all employees gets negated by their own order as it has been extended in the case of the concerned workman by Specific Order that too selectively. 12. Further, Clause-44 saves the existing service rule. So far contention of the petitioner-employer that Standing Order will apply ipso facto to all employees gets negated by their own order as it has been extended in the case of the concerned workman by Specific Order that too selectively. 12. Further, Clause-44 saves the existing service rule. This factors has been well considered by the Tribunal and finding has been recorded on the basis of documentary as well as oral evidence that there is a change of service condition to the disadvantage of workman without complying the mandatory requirement of Section 9A of the Industrial Disputes Act, 1947. 13. It is trite that High Court under supervisory jurisdiction is only supposed to look into the jurisdictional error or perversity. In the present case there is no jurisdictional error. Finding has been recorded on the evidence rather sufficient evidence has been led by the parties. 14. In view of above discussion, this Court finds no infirmity in the present impugned award warranting interference. Accordingly, the present writ petition stands dismissed.