Supreme Court of India

Duncans Industries Ltd vs State Of U.P. & Ors on 3

December, 1999
-Bench: [Link], [Link]

SUBJECT:- LAW OF PROPERTY

SUBMITTED TO:- LJ SCHOOL OF LAW

SUBMITTED BY:- SHRADDHA BAROT

Sunil Ambwani. J.-
Heard Sri J.N. Tiwari, Senior Advocate assisted by Sri S. Chatterjee for Duncans
Industries Limited, the petitioners; and Sri K.P. Agarwal, Senior Advocate assisted by
Ms. Bushra Marium for I.E.L.N Supervisors Association-respondents.
2. In the writ petition No. 12468 of 2002, the Duncans' Industries Limited have prayed
for quashing the Award dated 29-4-1999 (published on 7-1-2002, by Industrial
Tribunal-Ill, U.P. Kanpur) in Adjudication Case No. 11/1988. By this award, the
Tribunal has returned the finding, that the concerned employees are workmen within
the meaning of industrial disputes act 1947 and that the decision of the employers to
retire them at the age of 58 years as against the workmen in pursuance of the
Registered Settlement entered into between the employers and the workmen at 60
years, is not legal and proper, and thus the claimants are entitled to retirement at the
age of 60 years after January, 1999.
3. From the submissions made by the parties, only two issues arise to be considered
in this writ petition, namely whether the claimants are workmen are within the meaning
of u.p. industrial disputes act 1947 and whether they are entitled to the retirement at
the age of 60 years in pursuance of the registered settlement with the Union of the
workmen, dated 7-2-1978.
4. Before proceedings to decide these questions, the objections with regard to
publication of the award require consideration. The industrial dispute, giving rise to
these proceedings at the instance Deputy Superintendents/Supervisors, was referred
for adjudication as Adjudication Case No. 11/1988. Sri Pushkar Kumar Sharma,
Presiding Officer of the Tribunal gave an award and sent the same for publication to
the State Government on 30-7-1999, under section-6 of the u.p. industrial disputes
act 1947. Before its publication, the employers filed an application before the Tribunal
with a prayer that the matter be re-heard. It is alleged that on this application, the
Tribunal called back the award on 30-7-1999 and the parties were noticed for
rehearing. The Tribunal heard both the parties and resubmitted the award to the State
Government, on 16-6-2000. This award, it is alleged, was not published. It is
contended that the adjudication proceedings are treated to be pending till 30 days after
publication, when the award becomes effective, and that on submitting the award the
Tribunal does not become functus officio. It has power to amend, cancel and withdraw
the award. Relying upon judgment in Grindleys Bank, 1981 (42) FLR 88 and the Full
Bench judgment of this Court in Badri Prasad Hari Prasad, 1984 (48) FLR 315. it is
submitted by Sri J. N. Tiwari that the Tribunal did not become fauctus officio even after
submitting the award to the State Government for publication.
5. Shri J.N. Tiwari submits that the award was recalled and was resubmitted on 16-6-
2000 and thus the earlier award dated 30-7-1999 did not come into existence. The
State Government as such committed gross illegality in publishing the award dated
24-9-1999 on 8-1-2002. It is contended that the award dated 24-9-1999 is non-existing
award and that the State Government had no jurisdiction to publish it under Section 6
of the Act.
6. Sri K.P. Agarwal, Senior Counsel appearing for I.E.L. Supervisors Association
submits that once the dispute has been referred to the Labour Court or the Industrial
Tribunal, the dispute is to be decided expeditiously and as soon as it is practical. On
the conclusion, the award is submitted to the State Government. The award is not
made in open Court. It is to be published within 30 days from the date of receipt and
become enforceable 30 days after the date of its publication under Section 6, of the
Act. The award is put on the notice board of the Tribunal and a copy is sent to the
contesting parties. In the present case, the award was sent by the Tribunal to the State
Government on 30-7-1999. It was not published by the State Government. The Labour
Commissioner is the Special Secretary of the State Government and that the
submission of the award to the Labour Commissioner is the submission to the State
Government. The Writ Petition No. 39403/1999 was filed by the I.E.L. Superintendents
Association with a prayer to direct the Industrial Tribunal III, U.P, Kanpur to again
submit the award which was earlier submitted under despatch No. 314 dated 30-7-
1999 and to recall the award in Adjudication Case No. 11/1988 and to publish the
same in the manner as provided under Section 6(3) of the Act. Sri K.P. Agarwal fairly
states that this writ petition after publication of the award which is under challenge by
the employer has become infructuous.
7. The employees later on came to know that the award was returned back by the
Special Secretary. section 6(4) of the u.p. industrial disputes act 1947 permits the
State Government to remit the award for reconsideration and to publish it after it has
been received back after reconsideration. In the present case, according to Sri K.P.
Agarwal, Senior Counsel, the State Government did not pass any order for remitting
the award for reconsideration. Section 6 (6) only permits correction of any clerical and
arithmetic error in the award and errors arising from any incidental head and official
and whenever any correction is made, a copy of the order is to be sent to the State
Government and the provisions of publication are to apply mutatis mutandis. The
award becomes enforceable 30 days after its publication. The proviso to Section 6
states that the State Government may, if it is of the opinion, that it is expedient on
public grounds affecting National and State economy, or social justice, may not publish
the whole or any part of the award, and make a declaration to that effect by the
notification in the official gazette and place it Within 90 days. In this case at no point
of time, the State Government was of the opinion that the award should not be
published and no such declaration was made in the official gazette.
8. Sri K.P. Agarwal submits that there is no provision in the Act to recall an award and
to rehear the matter, after the employers have come to know that the award is against
them. The Tribunal proceeded with the hearing of the case despite the protests made
by the I.E.L. Supervisors Association. The writ Petition No. 32788/2000 was filed for
restraining the State Government to publish the fresh award and to quash all
consequential proceedings from 29-4-1999 up to 16-6-2000. In this writ petition notices
were issued. This writ petition, has also become infructuous.
9. The writ Petition No. 44848/2000 is by Duncan Industries Limited with the prayers
to quash reference order dated 30-9-2000 of the State Government, and for a writ of
mandamus commanding the State Government to publish the award given by
Industrial Tribunal-3, U.P. Kanpur in Adjudication Case No. 11 of 1988, submitted on
20-6-2000 for publication. The Writ Petition No. 53016 of 2000 is by I.E.L. Supervisors
Association with a prayer to respondent Nos. 1 and 2 to summon the records and to
quash the order of reference dated 30-9-2000 and for a further relief to respondent
No. 1 not to proceed with the hearing of the industrial dispute pursuant to the order of
reference dated 30-9-2000. These two writ petitions arise out of a reference made by
the State Government on 30-9-2000 to the Industrial Tribunal Lucknow. This reference
is almost the same, which was decided by award dated 29-4-1999. The second
reference appears to have been made by the State Government, to expedite the
adjudication of the dispute. The proceedings on this second reference dated 30-9-
2000 were stayed by this Court by interim order dated 18-10-2000.
10. Sri J.N. Tiwari, the Counsel for Duncans Industries Limited submits that the award
dated 24-4-1999 sent by Industrial Tribunal-Ill, U.P. Kanpur, for publication on 30-7-
1999 to the State Government was recalled by the Tribunal for rehearing and that after
rehearing of afresh award was sent for publication on 16-6-2000, which has not been
published and instead the award dated 29-4-1999, which has not an award, as it was
recalled, and does not bear the signatures of the Presiding Officer has been published.
It is stated that the award dated 29-4-1999 is not signed and in fact a photostat copy
has been published whereas the award dated 16-6-2000 is duly signed and is in
possession of the State Government.
11. The section 6 (4) of the u.p. industrial disputes act 1947, (in short the
act) provides that the State Government may before publication of an award of a
Labour Court or Tribunal under sub-section 3, remit the award for reconsideration of
the adjudicating authority, and that the award shall, after reconsideration submit its
award to the State Government, and the State Government shall publish the award in
the manner provided in sub-section 3. In B.B. Rajvanshi v. State of U.P. (1988) 2
SCC 415, the Supreme Court declared sub-section (4) of section 6 to be violative
as article 14 of the constitution of india as it conferred uncontrolled and unguided
power on the State Government to remit an award of Labour Court or Tribunal for
reconsideration, and thereby to cancel or annul the award. sub-section (4) of section
6 was consequently amended to cure the defect by which it was declared to be
violative of article 14 of constitution of india. the amending u.p. act no. 3 of
1991 came into effect on 13-8-1990. The amended section 6 of the u.p. industrial
disputes act 1947 is quoted as belows;
"6. Awards and action to be taken thereon.-(1) Where an industrial dispute has been
referred to a Labour Court or Tribunal for adjudication, it shall hold its proceedings
expeditiously and shall as soon as it is practicable on the conclusion thereof, submit its
award to the State Government."
(2) The award of a Labour Court or Tribunal Shall be in writing and shall be signed by
its Presiding Officer.-
"(2-A) An award in an industrial dispute relating to the discharge or dismissal of a workman
may direct the setting aside of the discharge or dismissal and reinstatement of the
workman on such terms and conditions if any, as the authority making the award may
think fit, or granting such other relief to the workman, including the substitution of any
lesser punishment for discharge or dismissal, as the circumstances of the case may
require."
(3) Subject to the provisions of sub-section (4) every arbitration award and the award
of a Labour Court or Tribunal, shall, within a period or thirty days from the date of its
receipt by the State Government be published in such manner as the State
Government thinks fit.
(4) Before publication of an award of a Labour Court or Tribunal under sub-section (3),
if the State Government is of the opinion that,
(a) the adjudicating authority has unreasonably refused permission to any party to
adduce evidence; or
(b) any party was prevented by any other sufficient cause, from adducing evidence; or
(c) new and important material fact or evidence has come to notice, which after the
exercise of due diligence, was not within the knowledge of, or could not be produced
by, the party at the time when the award was made; or
(d) the award is likely to disturb the industrial peace; or
(e) the award is likely to affect prejudicially the national or State economy; or
(f) the award is likely to interfere with the principles of social justice; or
(g) the award has left undetermined any of the matters referred for adjudication, or
where it determines any manner not referred for adjudication and such matter cannot
be separated without affecting the determination of the matters referred; or
(h) the award is so indefinite as to be incapable of being enforced; or
(i) illegality of the award is apparent upon the fact of it, it may, after giving the parties
reasonable opportunity of being heard, for reasons to be recorded, remit the award for
reconsideration of the adjudicating authority, and that authority shall, after
reconsideration, submit its award to the State Government, and the State Government
shall publish the award in the manner provided in sub-section (3)
(5) Subject to the provision of Section 6-A, an award published under sub-section (3)
shall be final and shall not be called in question in any Court in any manner
whatsoever.
"(6) A Labour Court, Tribunal or Arbitrator may either of its own motion or on the
application of any party to the dispute, correct any clerical or arithmetical mistakes in the
award, or errors arising there in from any accidental slip or omission; wherever any
correction is made as aforesaid, a copy of the order shall be sent to the State Government
and the provision of this Act; relating to the publication of an award shall mutatis mutandis
apply thereto."
12. The scheme of Section 6 of the act as amended by U.P. Act No. 3 of 1991 provides
that the Labour Court, Tribunal or Arbitrator under sub-section (6) of section 6, may
either of their own motion or on an application of a party correct any clerical and
arithmetic mistake in the award or errors arising therein from any accidental slip or
omission. The conditions for remitting the award for reconsideration have been set out
in the amended sub-section 4. The power as such, to remit the award, except in cases
of ex-parte decision or for correction of any clerical or arithmetic mistake, or error, is
only with the State Government and this power can be exercised after giving the
parties reasonable opportunity of being heard and after recording reasons.
13. In the present case the Duncans Industries Limited has neither pleaded nor placed
on record any order of the State Government, for remitting the dispute back to the
Industrial Tribunal after the Tribunal had forwarded its award for publication on 30-7-
1999. The employers have not set up any case, that the award was remitted on the
grounds set out in sub-section (4) of section 6 of the Act. The State Government
was not empowered to remit the award for reconsideration before the Industrial
Tribunal unless opportunity was given to both the disputants and reasons were given
for such remittance. Hence the proceedings in Adjudication Case No. 11 of 1988 after
the alleged reopening of the matter were wholly without jurisdiction and that the fresh
award was a nullity. The State Government as such did not commit any illegality, in
publishing the Award dated 24-4-1999 on 8-1-2002. Further proceedings pursuant to
reference dated 30-9-2000 were stayed by this Court in Writ Petition No. 44848/2000
filed by Duncans Industries Limited. It appears that the State Government referred to
same dispute to the Industrial Tribunal at Lucknow vide reference order dated 30-9-
2000 and that at the relevant time the same dispute appears to be pending of before
the Industrial Tribunal-Ill at Kanpur and Industrial Tribunal at Lucknow. In Writ Petition
No. 53016/2000 filed by I.E.L. Supervisors Association by an order dated 18-12-2000,
the proceedings before the Lucknow Tribunal were stayed. I have already discussed
and held that remittance of the matter back to the Industrial Tribunal-Ill at Kanpur was
illegal and violative of the Section 6(4) of the Act. For the same reasons, I find that the
reference dated 30-9-2000 of the same dispute to the Industrial Tribunal at Lucknow
also cannot be sustained and thus, the Writ Petition No. 53016/2000 for closing the
reference order dated 30-9-2000 to the Industrial Tribunal at Lucknow is allowed and
the second reference dated 30-9-2000, declared to be illegal and is hereby set aside.
14. The Industrial Tribunal allowed both the parties to lead evidence, an recorded
finding that these posts were earlier called Technical Supervisors and Office
Supervisors. The name of the post in Grade-A was changed as Office Supervisor and
the same post was designated as Deputy Superintendent. The service conditions of
the workmen were regulated by the Standing Orders and that according to the
establishment, the working conditions of Deputy Superintendent were regulated by
'Record Note of the Discussions'. After considering the nature of duties and
responsibility in great detail in the light of oral and documentary evidence, the Tribunal
found that the workmen concerned in the department are primarily discharging
technical work and are also carrying out the duties involving writing work such as
preparation of log book. In filling up the details of the duties of the workmen and
production, the Deputy Superintendents/Superintendents under the directions of the
Departmental Manager are not carrying out any managerial, administrative or
supervisory duties. Essentially the nature of their duties concern with the process of
production. Relying upon various decisions cited before the Tribunal it was held that
the disputes in workmen have not been conferred any managerial, administrative or
supervisory powers.
15. Sri J.N. Tiwari submits that Deputy Superintendents/Supervisors are not workmen.
He has relied upon the definition of workmen under section 2(z) of the u.p. industrial
disputes act 1947 and the exception clause in sub-section (iv) which states as
follows :
"2(z) (iv) Who being employed in a supervisory capacity draws wages exceeding 500/-per
men sum are exercises, either by the nature of the duties attached to the offices, or by
reason of the power vested in him, functions mainly of a managerial nature."
"He submits that the principles laid down by the Supreme Court to be followed in deciding
are whether the person, is employed for a supervisory capacity is that if a person is mainly
doing supervisory work but incidentally are for a construction of a time also does same
clerical work"
. "He has relied upon, Anand Bazar Patrika Private Limited v. Workmen, 1969 (2) LLJ 676,
followed in Burmah Shell Oil and Storage Company Limited v. Workmen, 1971 SC
922 and Management of Heavy Engineering Corporation Limited v. Presiding Officer,
Labour Court, 1997(1) LBSER 44 (SC): 1997 (75) FLR 349 and also S.K. Maini v. Carona
Sahu Company Limited, 1994 (64) FLR 1101. These cases lay down that the nature or
work and not the designation is the dominant purpose for which the person is employed
and the duty allotted to him and his control over the work of others or the relevant factor.
If he can check the work of others and directs the faults to be revoked, grant leave and
permit person to leave the work at any time, indent and summon or the material from the
stores distribution workmen and assigns duties, he performs supervisory duties."
"16. In the present case, the Tribunal has discussed the evidence in great details, which
is not necessary to be reiterated, and has held that the disputant workmen were primarily
engaged in technical work. The preparation of log book, requisitions from stores, are not
carried out by them independently, and they are not authorized to do so without the
permission of the Manager. The paper work done by these persons is routine and does
not involve any decision making and exercise of independent authority. They are not
granting any leave and or only forwarding the applications. The employers have not been
able to demonstrate any illegality, material irregularity, or non-consideration of any
evidence in recording these findings. Employers could not place on record any such fact,
which may authorize the petitioner to do managerial and supervisory functions."
"17. In T.P Srivastava v. M/S National Tobacco Co. Of India Limited., AIR 1991 SC 2294,
the Supreme Court found that salesmen in the company were not workmen as their duties
involved' suggestions, the wages and means to improve sales study of the type and status
of the public to whom the product must reach and to suggest about the publicity the market
advertisement, which involved imaginative and creative mind. In Management of May
and Beker (India) Limited v. Their Workmen, AIR 1967 SC 678, It was held as follows;"
" What was of importance was the nature of his duties. If the nature of the duties is manual
or clerical then the person must be held to be a workman. On the other hand if manual or
clerical work is only a small part of the duties of the person concerned and incidental to
his main work which is not manual or clerical, then such a person would not be a workman.
It has. therefore, to be seen in each case from the nature of the duties whether a person
employed is a workman or not, under the definition of that word as it existed before the
amendment of 1956."
"We find from the nature of the duties assigned to Mukerjee that his main work was that
of canvassing and any clerical or manual work that he had to do was incidental to his main
work of canvassing and could not take more than small fraction of the time for which he
had to work."
"18. The employers in the present case have not established and I do not find any such
evidence which was not considered by the Tribunal in arriving at the finding that primarily
and substantially the duties of the disputant workmen were not managerial or supervisory
in nature."
19. Sri J.N. Tiwari submits that the service conditions of the disputant-workmen were
regulated by 'Record Note of Discussions' which according to him was an agreement
with Deputy Superintendents and Supervisors and thus the agreement with the union
of workmen dated 7-2-1978 effective from 1-9-1977, providing that the retirement age
for such employees, who are medically and physically fit shall be 60 years, is not
applicable to Deputy Superintendent/Supervisors. The 'Record Note of Discussions' is
not a settlement entered into between with the workmen as defined under Section 2
(t) and 6-B of the Act, read with Rule 26 of the Industrial Disputes Act. The disputants
were not excluded from the definition of the workmen as they are neither employed in
supervisory capacity nor their duties attached to their office or by reason of the powers
vested in them is of managerial natural. Any settlement, as such, which has been
arrived in accordance with the procedure set out in section 6-b read with rule 26 is
binding upon of the workmen whether they were parties to such settlement or not. The
retirement age of the disputants workmen as such is regulated by the registered
agreement dated 7-2-1978. In Tata Chemicals Ltd. v. The Workmen, it was held by
supreme Court that the settlement arrived at in the course of Conciliation proceedings
is binding not only on the parties to the industrial dispute but also on other persons, to
which the dispute relate.
20. For the reasons given as aforesaid Writ Petition No. 53016 of 2000 is allowed and
the reference dated 30-9-2000 is quashed. All other writ petitions are dismissed. The
award dated 29-4-1999 in adjudication case No. 11/1988 given by Industrial Tribunal-
Ill, U.P. Kanpur and published 7-1-2002 is except No. 53016 of 2000 upheld.
Petition dismissed.