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2019 DIGILAW 290 (GAU)

Mineral Oil Workers Union v. Union of India

2019-03-05

N.KOTISWAR SINGH

body2019
ORDER : N. KOTISWAR SINGH, J. 1. Heard Mr. B. Das, learned senior counsel assisted by Mr. K.M. Haloi, learned counsel for the petitioner-Union. Also heard Mr. S.N. Sarma, learned Senior Counsel assisted by Mr. N.K. Kalita, learned counsel for the respondent No. 2 and Mr. S.S. Roy, learned CGC for union respondent. 2. The present petition has been filed against the award dated 06.09.2018, passed by the Central Govt. Industrial Tribunal-cum-Labour Court, Guwahati, Assam in Reference Case No. 20 of 2012, by which the learned Labour Court, upon consideration of the reference made by the appropriate Government vide order dated 02.05.2012 made the award by holding that the action of the management of the Indian Oil Corporation (Assam Oil Division) [IOC(AOD)], Digboi, respondent No. 2 in proposing change of working hours and weekly off vide notice dated 06.12.2010, was not illegal and unjustified. 3. Only certain relevant facts may be adverted to decide the issue raised in this petition. 4. The petitioner Union is a registered trade union having registration No. TUR-7 having its registered office at R.G. Road Tiniali, Digboi, P.O. Digboi, Tinsukia espousing the cause of certain workers of the Indian Oil Corporation (Assam Oil Division). 5. The Assam Oil Division of the Indian Oil Corporation was originally a British Company under the name and style of Assam Oil Company Limited which was acquired by the Government of India under an Act of Parliament called as 'The Burmah Oil Company [Acquisition of Shares of Oil India Limited and of the Undertakings in India of Assam Oil Company Limited and the Burmah Oil Company (India Trading) Limited] Act, 1981' which acquisition took place on 14.10.1981 and after the acquisition, the Assam Oil Company Limited became a part of the Indian Oil Corporation under a separate Division called Assam Oil Division. In terms of the aforesaid Act of the Parliament, the service conditions of the employees of the then Assam Oil Company Limited were governed by Section 11 of the aforesaid Act, which provides that the service conditions of those employees of the Assam Oil Company Limited at the time of acquisition were not to be disturbed. Thus their service conditions were protected under Section 11 of the aforesaid Act. 6. Thus their service conditions were protected under Section 11 of the aforesaid Act. 6. It is not in dispute that the members of the petitioner Union though appointed under the Assam Oil Division of the Indian Oil Corporation were appointed after the acquisition in the year 1981 and as such, they do not have this protection as provided under Section 11 of the aforesaid Act. It is also not in dispute that some employees working under the Assam Oil Division, more particularly, in the operational area were working only for 42 hours per week (6 days work with 2 days off) in continuation of the earlier practice of the employees working in that particular area of operation who were appointed prior to the acquisition in 1981 referred to above. 7. It is also not in dispute that amongst the non-ministerial employees except for these workmen represented by the petitioner Union, the other workmen were asking for 48 hours per week with one day weekly off for which they are paid an additional 10% basic pay as special allowance. 8. The Management, respondent No. 2 in order to bring uniformity in working hours of the non-ministerial employees sought to make 48 hours per week work schedule with one day weekly off with 10% basic pay as special allowance for all non-ministerial employees and accordingly issued a notice on 06.12.2010 under Section 9-A of the Industrial Disputes Act, 1947 which was resisted by the petitioner union resulting in a dispute which was referred for reconciliation before the Conciliation Officer which resulted in failure. Thereupon the appropriate Government referred the dispute before the Central Government Industrial Tribunal for adjudication. 9. It is also not in dispute that before the notice was issued by the Management on 06.12.2010, the majority Union at the relevant time, namely, the AOC Labour Union had entered into an Agreement with the Management i.e. respondent No. 2 on 9.1.2007 with the following terms of Agreement, "Terms of Agreement After protracted discussions, both the Management and the Union agreed to adopt per week work schedule followed in other Units of IOCL i.e. 48 hours per week work schedule for all FBA workers as mentioned above and 36¼ hrs. per week work schedule for all ministerial staff. per week work schedule for all ministerial staff. It has also been agreed as under: 48 hours work schedule shall be adopted for all the FBA workmen as mentioned in the annexure I. Further rationalization of the working hours of the ministerial staff from existing 37½ hrs. per week work schedule to 36¼ hrs. per week work schedule to fall in line with other IOC Units as per the timings shown in the Annexure II. 21 days notice as required under the law will be issued. Agreement on the issue i.e. change in weekly work schedule and office timing will be made in conciliation with RLC (C) Guwahati. Further it is agreed that consequent to adoption/implementation of the revised working hours/timings as agreed to above, if any inconvenience is experienced affecting the functioning of any particular department/Section, further review/change, if necessary will be done in consultation with the Union. Signed this on 9th day of January, 2007 at Digboi" The aforesaid Agreement was entered into as a consequence of conciliation proceeding. Because of the aforesaid Agreement all the workers employed in the Indian Oil Corporation including in the Assam Oil Division were bound by the same in view of Section 18 and 19 of the Industrial Disputes Act, 1947. 10. It seems, though such an Agreement was arrived at on 09.01.2007, for some reasons the same could not be given effect to in its entirety and some of the workers more particularly, represented by the present Petitioner Union continued to work for 42 hours per week as mentioned above, because of which, the Management issued the notice on 06.12.2010 under Rule 34 of the Industrial Disputes (Central) Rules, 1957 by invoking the provisions of Section 9-A of the Industrial Disputes Act, 1947 by giving the notice of the intention of the Management to effect change of the working hours w.e.f. 1.1.2011 in the conditions of service applicable to the workmen as mentioned in the said notice by stipulating the working hours as 48 hours per week (6 days work with 1 day off) within IOC by abandoning the earlier working hours of 42 hour per week. The said notice dated 06.12.2010 was naturally resisted by the present petitioner Union upon which the industrial dispute arose, which led to a conciliation proceeding and on failure of the conciliation proceeding, resulted in the reference being made by the competent Government to the Central Government Industrial Tribunal cum Labour Court at Guwahati. The said reference reads as follows: "Whether the action of the management of IOC (AOD), Digboi, in proposing change in the working hours and weekly off, vide their notice ERS. 3/29(WH)- 704 dated 6.12.2010, is legal and justified? What relief the workmen are entitled to?" It is upon the aforesaid reference that the Industrial Tribunal cum Labour Court made the Award on 06.09.2018, which has been challenged before this Court in this petition. 11. The case of the petitioner Union before the Tribunal as well before this Court may be briefly as follows. It is case of the petitioner Union that before the said reference, workmen belonging to the petitioner Union had been working 42 hours per week (6 days working and 2 days off) which working schedule had been followed even before the Assam Oil Corporation was acquired by the Govt. in 1981 and it continued thereafter also. It was also admitted by the petitioner Union that the other working schedule of 48 hours per week (6 days working and 1 day off) was also being followed for which the workmen were being given 10% of basic pay as special allowance. The plea of the petitioner Union is that they are not availing the said 10% special allowance and are forgoing the same as they are working only 42 hours per week and they would be content with the lesser remuneration in lieu of more working hour. 12. It has been contended that this practice of allowing 42 hours per week had been followed since the time before the Assam Oil company Limited was acquired and merged with Indian Oil Corporation in the year 1981 and has continued even after its acquisition and merger with the Indian Oil Corporation and as such, the proposed action of the Management to convert the working hours uniformly to 48 hours per week is not only illegal and but also not justified. 13. 13. On the other hand, the plea of the Management is that though the aforesaid working schedule of 42 hours per week had been in vogue in the Assam Oil Division even before its acquisition in 1981 and thereafter, the said working schedule was applicable only to those workers who were working in the Assam Oil Company Limited at the time of acquisition and as protected under Section 11 of the aforesaid Acquisition Act of 1981, the said working schedule was allowed to be followed. However, since the said working schedule was confined to those workmen who were already in employment at the time of acquisition and not to those workmen who were subsequently appointed in the IOC (AOD), such workmen do not have any vested or accrued right to continue with the said working schedule of 42 hours per week. It has been also submitted that some of these workmen who were appointed after 1981 were also allowed to follow this work-schedule, in order not to disturb the earlier schedule being followed, though they did not have any vested right to that work schedule. According to the Management, all those workmen who are appointed in the Indian Oil Corporation whether in the IOD or any other Division, are under obligation to work as decided by the Management, except those who were appointed before the acquisition of the Assam Oil Corporation. 14. It has been submitted that in the present case, the decision of the Management to stipulate working hours of 48 hours per week was decided after there has been an agreement with the majority of the workers as represented by the AOC Labour Union in 2007 with the Management as mentioned above and as such, the present stipulation by the Management is justified. 15. It has been submitted by the Management that apart from certain sections of the workmen under the Assam Oil Division of the Indian Oil Corporation, there is no other workmen who are rendering 42 hours per week and all the remaining workmen are rendering 48 hours per week with the benefit of 10% special allowance. 15. It has been submitted by the Management that apart from certain sections of the workmen under the Assam Oil Division of the Indian Oil Corporation, there is no other workmen who are rendering 42 hours per week and all the remaining workmen are rendering 48 hours per week with the benefit of 10% special allowance. Accordingly, it is the stand of the Management that by enforcing uniform working hour to 48 hours per week with one (1) day weekly off and 10% special allowance cutting across various Divisions and the sectors of the OIC Limited, more so, in terms of the agreement arrived in 2007, the said action on the part of the Management is not only legal but also justified. 16. The Tribunal after hearing the parties and considering the evidences, both oral and written, and the other relevant evidences before it, came to the conclusion that the action of the Management of IOC (AOD) Digboi in proposing the change of working hours vide notice dated 06.12.2010 was not illegal and not unjustified and accordingly, made the Award on 06.09.2018. 17. The aforesaid Award has been challenged before this Court primarily on the ground that the reference made to the Tribunal was to ascertain as to whether the action of the Management in proposing the said change in the working hours was legal and justified. 18. According to the petitioner, the Tribunal had merely given a finding that it is legal. It has been contended that proper consideration of the term of reference, would indicate that the Tribunal was required to decide also whether such proposal on the part of the Management was also justified. 19. It has been submitted by learned senior counsel for the petitioner Union that apart from a cursory remark in the concluding portion of the Award that the said action of the Management was not illegal and unjustified, there is no discussion or consideration of this aspect as to whether such proposed action of the Management was justified or not. 20. It has been also submitted that it has been specifically pleaded before the Tribunal as well as before this Court that the aforesaid action of the Management was not justified. Yet, the Tribunal failed to consider this aspect and failed to give proper reasons as to how the said action of the Management was justified. 20. It has been also submitted that it has been specifically pleaded before the Tribunal as well as before this Court that the aforesaid action of the Management was not justified. Yet, the Tribunal failed to consider this aspect and failed to give proper reasons as to how the said action of the Management was justified. In the present case, the Tribunal had given a finding as mentioned in para No. 9 of the award that the proposed action of the Management was valid. However, there is no consideration or reasoned finding by the Tribunal that it was also justified. Accordingly, it has been submitted that the matter requires to be remanded to the Tribunal for consideration as to whether the aforesaid proposed action of the Management was justified or not, even if Tribunal had held it was legal since the reference made to the Tribunal was to find out whether such proposed action of the Management was both legal and justified. 21. In response, Mr. S.N. Sarma, learned senior Counsel for the Management/respondent No. 2 has submitted that the scope of this Court in interfering of the Award is very limited. It is only when the finding arrived at by the Tribunal is perverse or arbitrary or shocking that this Court in exercise of jurisdiction under Article 226 of the Constitution would be entitled to interfere with any award made by the Tribunal. 22. It has been also submitted by the learned senior counsel for the respondent 2 that this is a plea raised by the petitioners very belatedly though there may be some reference in the pleadings. The petitioner Association had never taken it seriously to justify their claim with necessary evidence and documents to show that the said proposal of the Management was not justified. In this regard Mr. S.N. Sarma, learned senior counsel for respondent No. 2 has drawn attention of this Court to the deposition of Mr. Nagen Chandra Chutia, the Secretary of the Petitioner Union, who had stated in his cross-examination before the Tribunal that as per Section 9-A of the Industrial Disputes Act, the Management can change the condition of service by giving 21 days prior notice and it was not a matter of force. He deposed that the Management by serving notice to the employees wanted to change the working hours and not by applying force. He deposed that the Management by serving notice to the employees wanted to change the working hours and not by applying force. Accordingly, it has been submitted that no attempt was made by the Management to compel the employees to work for 48 hours per week. It has been contended that if there was no compulsion from the Management to the workmen to work for 48 hours per week, and if it is found to be valid and legal, the question of the same being unjustified does not arise. 23. It has been submitted by learned senior counsel for the Management also that the aforesaid notice was issued pursuant to an agreement arrived at with the majority of the workmen represented by the AOC, through the recognized Union in 2007 as mentioned above, which was binding upon all the remaining workmen including the members of the present petitioner Union. 24. It has also been submitted that in fact no notice was required to be served, for effecting the aforesaid change in working hours. It has been submitted that Section 9A of the Industrial Disputes Act provides that where the change in working hours is effected pursuant to any settlement or award, no notice as contemplated under Section 9-A would be necessary. However, the authorities in their wisdom did serve the notice which, however, was resisted by the workmen belonging to the petitioner Union resulting in the industrial dispute and the proceeding before the Tribunal. Accordingly, it has been submitted that there is no merit in this petition and the petition is liable to be dismissed. 25. After having heard the learned counsel for the parties and considering the materials on record, this Court finds force with the submission advanced by the learned senior counsel for the Management. 26. This Court has gone through the Award made by the learned Tribunal on 06.09.2018. The learned Tribunal after considering the evidences on record, gave a finding in para No. 9 of the Award about the legality of the proposal made by the Management, which can be summarised as follows: (i) The IOC had the right to bring in change in service condition within the prescribed provision of law of the land. The learned Tribunal after considering the evidences on record, gave a finding in para No. 9 of the Award about the legality of the proposal made by the Management, which can be summarised as follows: (i) The IOC had the right to bring in change in service condition within the prescribed provision of law of the land. (ii) From the evidence, adduced by the Management, it is apparent that the main intention of the Management for issuance of notice under Section 9-A of the Industrial Disputes Act, 1947 was for implementing uniform working hours of the workmen in terms of the Memorandum of Settlement dated 09.01.2007. (iii) The materials on record also reveal that the said notice under Section 9-A of the Industrial Disputes Act was issued only after arriving at an agreement with the majority Union/recognized Union and the proposal of the Management to make 48 hours working per week for all non-ministerial staff is not in violation of the law of the land. (iv) Though IOC (AOD) is a separate division under IOCL and pay scale, service conditions of all employees are determined by the IOCL, the proposed uniformisation of the working hours of the non-ministerial staff of the Company does not seem to be in violation of the prescribed maximum working hours. 27. Accordingly, the learned Tribunal concluded that the said proposal by the Management to increase the working hours uniformly to 48 hours per week was valid and legal and thereafter, it was held by the Tribunal that it was not illegal and unjustified. 28. True, the reference made to the Tribunal was to ascertain as to whether the proposed action of the Management was both legal and justified. To that extent, the submission advanced on the part of the petitioner Union that the Tribunal had an obligation to make a finding that the said proposed action of the Management was both legal and justified, needs to be addressed. 29. It is also true that an action may be legal but may not justified under particular facts and circumstances of the case and as such, whether a valid action would be also unjustified or not, would, depend on the facts and circumstances of the particular case. Normally, an act which is valid would be deemed to be justified, though, not necessarily so. under certain facts and circumstances. 30. Normally, an act which is valid would be deemed to be justified, though, not necessarily so. under certain facts and circumstances. 30. Therefore, in the present case, the issue raised by the petitioner Union as to whether the said proposed action of the Management even if it is held to be valid, was also justified or not, was an issue that was to be considered by the Tribunal. However, as observed above, the finding about the justness of this particular act would depend on the facts as available before the Tribunal. 31. Therefore, this Court has proceeded to examine whether the petitioners had adduced any evidence to the effect that the said action of the proposed Management was unjustified under the facts and circumstances of the case. It may be observed that the proposed change in the working hours was resisted by the petitioner - Union that it was not valid and not justified. Therefore, these petitioner had the obligation to show that it was unjustified. This Court is not holding that the onus was entirely on the petitioner to show that it was unjustified. However, the fact remains that the action of the Management was held to be legal. Normally, as observed above, a valid action would be deemed to be also justified, unless contrary is shown. To that extent, onus would be on the petitioner to show that a valid action is otherwise unjustified. 32. In this regard, this Court has gone through the pleadings as well as the records made available before this Court to ascertain whether such materials and evidences were adduced by the petitioner which would indicate that the decision of the Management was unjust. Unfortunately, this Court is not able to find such material or evidence to support the contention of the petitioner Union that the said decision of the Management was not justified. 33. Though, it can still be considered that making a person work contrary to his consent and in breach of a long followed practice of working to work for 42 hours per week may seem to be unjustified. In the present case, what this Court notices is that the said decision of the Management was not arrived at unilaterally which would have obviously rendered such decision of the Management unjustified. In the present case, what this Court notices is that the said decision of the Management was not arrived at unilaterally which would have obviously rendered such decision of the Management unjustified. What this Court finds is that the said proposal of the Management was based on an Agreement arrived at by the Management with the majority of the workmen represented by the recognised Union. To that extent, it cannot be said that such proposal of the Management would be unjustified. 34. Therefore, the workmen belonging to the petitioner Union cannot take the plea that such decision was against their consent or against the long held practice, in view of above fact that the majority of the workmen have also agreed to the uniform working hours of 48 hours per week. 35. In view of the above, this Court does not find merit in the submission advanced by the petitioner that the Tribunal had failed to consider that the action of the Management was justified. Of course, the Tribunal did not elaborately discuss on the justness of the action of the Management. Yet, in absence of any evidence before the Tribunal to indicate the unjustness of the decision of the Management which was to be adduced by the petitioner. the Tribunal could not be faulted with the failure to consider this issue. Nothing has been brought to the notice of this Court of existence of any material on record which could have led to the inference that the action of the Management was unjustified and which the Tribunal had ignored. If such materials are on record, perhaps, this Court could have remanded the matter to the Tribunal. However, since, no such materials are available, it would be a futile exercise to remand the matter to the Tribunal. 36. In view of above, this Court does not find merit in the present petition and accordingly, the same is dismissed. The impugned Award needs no interference from the end of this Court. Parties are to bear their own costs.