1. Heard Sri P.C. Jain, Advocate for the petitioner and Sri Mishra for respondent No.2 the contesting workman.
2. This writ petition was earlier dismissed on the ground of laches vide judgement dated 11.08.2008 (by Hon'ble Rakesh Tiwari, J.), whereagaisnt an appeal was filed before the Apex Court being Civil Appeal No. 2324 of 2009. The appeal has been allowed vide judgment dated 06.04.2009 and the Apex Court passed following order:
"On the facts and circumstances of the case, we are of the opinion that delay in filing the writ petition should have been condoned by the High Court. Accordingly, we set aside the impugned judgment and order and condone the delay of 75 days in filing the writ petition before the High Court. The writ petition shall stand restored on the file of the High Court, which shall now be decided on merits as expeditiously as possible.
The appeal is allowed. No order as to costs."
3. This is how the matter has come up again before this Court. Since pleadings are complete, as requested by learned counsel for the parties I proceed to hear and decide the matter finally under the Rules of the Court, at this stage.
4. The petitioner Agra Jal Sansthan aggrieved by the order dated 22nd February, 2008 passed by Labour Court, U.P., Agra in purported exercise of power under Section 11-C of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "1947 Act" read with Section 13-A of Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to "1946 Act") has preferred this writ petition under Article 226 of the Constitution of India seeking writ of certiorari for quashing the same. The Labour Court, by means of the impugned order, has declared that the workman is "Electrician" and entitled for the pay scale for the said post.
5. The basic contention advanced on behalf of the petitioner is that the impugned order is wholly without jurisdiction, inasmuch as, Section 11-C of 1947 Act does not empower the Labour Court to make a declaration with respect to the status of a workman considering oral and documentary evidence since that is beyond the scope of Section 11-C and is permissible only when a reference for adjudication is made under Section 4-A of Act 1947.
6. The brief facts set up by the petitioner in the writ petition are as under:
7. The petitioner is a local body constituted under Section 18 of U.P. Water Supply and Sewerage Act, 1975 (hereinafter referred to as "1975 Act"). It is engaged to discharge public functions as enshrined under Section 24 of 1975 Act in the city area of Agra. In the exigency of discharge of its functions, it used to employ staff in various manner. Respondent No.2 Sri Raghuvir Singh was engaged on daily wage basis. Later on he was selected through a Selection Committee and regularized on the post of Khalasi/Beldar in the pay scale of 2550-3200 by order dated 23rd October, 2000 passed by the General Manager, Jal Sansthan, Agra, placed on probation of one year.
8. After almost one year and eleven months respondent No.2 moved an application purported to be under Section 11-C of 1947 Act read with Section 13-A of 1946 Act stating that he was engaged without issuing any letter of appointment as 'Wireman' in August, 1986 and was paid wages of skilled labour on daily basis. Agra Jal Sansthan (hereinafter referred to as "AJS") is an "industry" and therefore is an "Industrial Establishment" under Payment of Wages Act, 1936 (hereinafter referred to as "1936 Act"). It is governed by 1946 Act. AJS has not framed its own Standing Orders though it was obligatory upon it to frame such Standing Orders. So long as Standing order are not framed, Model Standing Orders are applicable to AJS in view of Section 12-A of 1946 Act. Under Model Standing Orders, the workers are categorized as permanent, probationer, officiating, temporary and apprentice. Respondent No.2 being skilled category workman was discharging duties of permanent nature. He was neither a casual nor apprentice but a permanent electrician hence entitled to be treated as permanent "Electrician/Wireman" since beginning and cannot be reverted to a post on which he was never appointed.
9. He, therefore, sought interpretation on two aspects -:
(i) Categorization of respondent No.2-workman
(ii) Whether he can be reverted to a post lower than his initial appointed post in violation of principles of natural justice.
10. The application was contested by the petitioner stating that the two questions raised by respondent No.2 did not arise in the facts and circumstances of the case. In any case the application did not lie within the purview of Section 11-C of 1947 Act. 1946 Act is not applicable to AJS. Application is without jurisdiction. It was also pleaded that respondent No.2 being an employee of AJS is governed by statutory rules framed under Nagar Mahapalika Adhiniyam, 1959, which continued to apply to the employees of AJS under Act, 1975 and therefore, can not claim something over and above or otherwise than the said statutory regulations. He was initially employed as daily wage Class-IV employee and has been regularized on a Class IV post. He had never raised any objection. Therefore, he is estopped by the principle of acquiescence to raise such a dispute. The post of Electrician/Wireman is a Class-III post on which the respondent no.2 was never appointed. AJS also refers to Government Order dated 22.10.1988 whereby it had clarified to the Presidents of Jal Sansthans constituted at Kanpur, Agra, Varanasi, Allahabad, Lucknow, Garhwal, Kumaun and Jhansi that so long as statutory provision in respect to non-centralized employees of Jal Sansthans are framed and finalized, they would continue to be governed by the provisions made under U.P. Nagar Maha Palika Act, 1916 (hereinafter referred to 'Act, 1916') and 1959 Act and the rules and regulations framed thereunder, as the case may be.
11. The respondent no.1 however, by means of impugned order has held that respondent workman has discharged functions of Electrician/Wireman since 1986 and never functioned as Khalasi/Beldar therefore, he could not have been absorbed as Khalasi/Beldar. He is held to be an "Electrician" and entitled for pay scale prescribed therefor.
12. The respondent no.2 has filed a detailed counter affidavit reiterating almost what he has said in the application filed under Section 11-C of 1947 Act before respondent no.1. It is pleaded that impugned order is supported by evidence on record, therefore, warrants no interference and the writ petition deserves to be dismissed. It is said that the petitioner employer being an authority of State Government cannot adopt unfair labour practice and arbitrariness. No employee can be kept daily wage employee for a period of 14 years and that is how petitioner has illegally continued respondent no.2 as a daily wage employee paying less wages which was wholly illegal and constitute 'Unfair Labour Practice'. Referring to Government Order dated 30.5.1978, it is said that provisions of 1946 Act have been made applicable to all the Water Works Establishment wherein ten or more workmen are employed or were employed on any day of the preceding twelve months. Similar declaration is made in notification dated 23.1.1985 (Annexure No.B-2 to the counter affidavit). He also placed on record order sheet containing proceedings before respondent no.1 showing in particular that after exchange of pleadings on 15.1.2005, the employer were directed to produce "original license" and "attendance register for the period 1986 till the date of filing application". He has filed certain other documents in order to support his claim that during the course he was engaged as daily wage employee, he was required to perform duties of Electrician and even after regularization, he has been required to perform duties of 'Electrician'.
13. The short questions up for consideration in this matter "whether the impugned order comes within the ambit of Section 11-C of 1947 Act read with Section 13-A of 1946 Act" and "whether Model Standing Orders are applicable to the employees of AJS".
14. Section 11-C of 1947 Act confers power upon the Labour Court to decide a question relating to interpretation and application of the Standing Order certified under 1946 Act. Section 11-C reads as under:-
"11-C. Interpretation, etc. of standing orders.- If any question arises as to the application or interpretation of a standing order certified under the Industrial Employment (Standing Orders) Act, 1946, any employer or workman may refer the question to any one of the Labour Courts specified for the disposal of such proceeding by the State Government by notification in the Official Gazette, and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties."
15. Section 13-A of 1946 Act is pari materia to Section 11-C of 1947 Act except minor differences, having no bearing on the matter. It reads as under:-
"13A. Interpretation, etc. of standing orders.- If any question arises as to the application or interpretation of a standing order certified under this Act, any employer or workman or a trade union or other representative body of the workmen may refer the question to any one of the Labour Courts constituted under the Industrial Disputes Act, 1947 (14 of 1947), and specified for the disposal of such proceeding by the appropriate Government by notification in the Official Gazette, and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties."
16. The object of Section 13-A of 1946 Act is not to provide a forum for deciding industrial disputes. It only provides a procedure by which Labour Court may decide doubtful questions relating to conditions of employment and interpretation of Standing Orders. Such a summery procedure protect the workman from an otherwise long procedure of raising industrial dispute, waiting till the Government makes reference and thereafter have adjudication before the Labour Court or Industrial Tribunal, as the case may be. Where some ambiguity exists about the interpretation of Standing Order or conditions of service, the object is that the matter may not reach to the stage of resulting an industrial dispute affecting the entire industry in general but on a mere application by a workman such conflict may be resolved by the Labour Court. Section 11-C of 1947 Act is not wider than Section 13-A of 1946 Act. The two provisions cannot be resorted to when there is an industrial dispute as such. These provisions cannot be taken shelter as a pretext to settle an industrial dispute itself. This Court in Lord Krishna Sugar Mills Vs. Labour Court, 1962(1) LLJ 678 also expressed a similar view and observed that there is nothing in the section to show that under it an industrial dispute can be decided.
17. The scope and ambit of Section 11-C of 1947 Act came up for consideration before the Apex Court in U.P.S.R.T.C. Vs. U.P. Rajya Sadak Parivahan Karamchari Union (2007) 10 SCC 758. The union of employees filed an application under Section 11-C of 1947 Act read with 13-A of 1946 Act praying for declaration that 15 persons, who were appointed on contract basis as Driver and Conductor, may be declared as regular substantive workmen of the Corporation and be given all benefits and facilities of regular employees. This application was allowed by Labour Court after considering the two provisions under which the application was made. The Apex Court in paras 10, 11, 12 and 13 of the judgment said:
"10. In our opinion, the power of the Labour Court under Section 11-C of the UP Industrial Disputes Act or under Section 13A of the Industrial Employment (Standing Orders) Act 1946 is much narrower than the power of the Labour Court on a reference under Section 10 of the Industrial Disputes Act which corresponds to Section 4-K of the U.P. Industrial Disputes Act.
11. In our opinion, the Labour Court could not have granted the relief it granted by the order dated 19.9.2001, as that could only have been granted on a regular reference under Section 4-K of the U.P. Industrial Disputes Act or under Section 10 of the Industrial Disputes Act.
12. A perusal of the order of the Labour Court dated 19.9.2001 shows that it has not referred to any standing order of the appellant. On the other hand, paragraph 3 of the said order refers to Rule 2 of the 1981 Regulations which clearly provides that the Regulations do not apply to employees engaged on contract basis. In our opinion, the Labour Court cannot amend the Regulations while hearing an application under Section 11-C of the Industrial Disputes Act.
13. As already stated above, the scope of Section 11-C is limited to decide a question arising out of an application or interpretation of a standing order and the Labour Court cannot go beyond the scope of Section 11-C of the U.P. Industrial Disputes Act.
18. The above observations are squarely applicable to the case in hand since the application filed by the workman in the present case also has made a similar prayer as was in the case before the Apex Court.
19. Again a similar question came up in Triveni Engineering and Industries Ltd. Vs. Jaswant Singh & Another (2010) 9 SCC 151, wherein the Court held that power with respect to applicability and interpretation of Standing Orders is a kind of summary proceedings. It does not empower the authority concerned to admit evidence and decide an issue of substantial nature not connected with sheer interpretation of an Standing Orders. The Court was confronted with a question whether a person is a "workman" within the meaning of 1947 Act. The Court said that this is a matter to be decided by competent Court after allowing parties to lead evidence. The Court only then can appreciate the material on record including oral evidence and thereafter a decision would be rendered and issues can be determined. This has nothing to do with the application and interpretation of Standing Order for deciding the question whether a person is workman or not. The Court would also examine the nature of job performed by the person concerned, duties and responsibility vest in him and other such relevant material. It can not be said to be an ancillary issue to that of the applicability and interpretation of the an Standing Order.
20. The Apex Court in Triveni Engineering (supra) in para 16 said:
"Whether or not a person is a workman is a matter that relates primarily to facts and circumstances of the case. The same has nothing to do with the application and interpretation of the Standing Orders. What needs to be examined and looked into for deciding the aforesaid issue is the nature of job performed by the concerned person, duties and responsibilities vested on him and other such relevant material. In order considered opinion, the Division Bench of the High Court committed a mistake in determining the said issue as an ancillary to that of the applicability and interpretation of the Standing Order.
21. To my mind, same is the position in the case in hand. No specific Standing Order could be pointed out by learned counsel for respondent no.2 of which interpretation or application is required to be answered by respondent no.1. What he claims is that though he was employed on daily wage basis in 1986 but such employment was contrary to Model Standing Orders. His employment was in skilled category. He was required to perform duties of Electrician which is of permanent nature since beginning, therefore, he is a permanent Electrician. His engagement and appointment as Khalasi/Beldar on 23.10.2000 amounts to unfair labour practice and contrary to law. In these circumstances and in a chequered way, he required Labour Court to decide classification of respondent no.2 workman and whether he can be reverted to a post lower than the one to which he was appointed. Neither any issue of application of Model Standing Order by respondent no.2 nor interpretation of any Standing Order was raised. Admitting the nature of his appointment made initially, he challenged the same being unfair labour practice and contrary to law. This challenge could not have been adjudicated unless the order dated 23.10.2000 whereby respondent no.2 was appointed on regular basis as Khalasi/Beldar is held to be illegal or without any substantial effect. No such declaration was sought nor could have been sought under an application invoking jurisdiction under Section 11-C of 1947 Act. Similarly, question of reversion to lower post does not arise inasmuch as initially respondent no.2 was admittedly a daily wage employee and thereafter on regular basis, after his selection by Selection Committee, he was appointed as Beldar/Khalasi in the pay scale of 2550-3200. It is not the case of respondent no.2 that he did not appear before Selection Committee and did not accept the letter of appointment dated 23.10.2000. The regular appointment changed his status from "daily wage" to "probationer" which is a higher status conferring some kind of security with respect to tenure and better conditions of service. To challenge an order of appointment, question of categorization under clause III of Model Standing Order cannot be invoked. It does not apply at all.
22. Learned counsel appearing for respondent no.2 despite repeated query could not tell as to how such an application would lie under clause 3 of Model Standing order or that Clause 3 of model standing order would apply in such a case. Reference to this provision appear to be only to give a cloak to the application of respondent No.2 as involving interpretation of the Standing Order though in effect it challenges the correctness of order dated 23.10.2000 which could not have been possible or permissible by filing an application under Section 11-C of 1947 Act. Moreover, in the garb of deciding a pure question of law i.e. applicability or interpretation of Standing Order, respondent No.1 had usurped substantive power of adjudication of rights of the parties involving a substantive status issue where oral and documentary evidence was needed. This has been done in the case in hand. The evidence has been recorded and thereafter matter has been decided by respondent No.1 as if it was deciding regular industrial dispute referred to under Section 4-K of 1947 Act though it was not. The respondent No.1, therefore, has completely misdirected itself and has gone wholly without jurisdiction in passing the impugned order.
23. The matter does not rest here itself. The necessary ancillary question which also need to be answered at this stage whether Model Standing Orders as well as 1946 Act itself could be applicable to the employees of Jal Sansthan, Agra. Prior to the enactment of 1975 Act, the rights, duties and obligation relating to water supply and sewerage in the city, were being looked after by Jal Kal Department of Agra Nagar Mahapalika now Nagar Nigam (hereinafter referred to as "ANN") constituted under 1959 Act. Chapter 10 and 11 of 1959 Act governs with the matter relating to drain, drainage and water supply in the area for which a Municipal Corporation/Nagar Mahapalika/Nagar Nigam is constituted. The duties and obligations which are obligatory and discretionary relating to water supply and sewerage amongst others are also detailed in Section 114 and 115 of 1959 Act.
24. In respect to the employees of Nagar Mahapalika, statutory rules were framed in exercise of powers under Section 106, 109, 110, 113 and sub section (1) of Section 540 of 1959 Act titled as U.P. Nagar Mahapalika Sewa Niyamawali, 1962. It may be relevant to state at this stage that Section 113 of 1959 Act confers rule framing power upon Government for the purposes of carrying into effect the provisions of Chapter IV and include the following subjects:
(2) Without prejudice to the generality of the foregoing powers such rules may provide for-
(a) the method of recruitment, and qualification of persons to be appointed to the posts created in connexion with the affairs of the Mahapalika ;
(b) the designation and grade of posts of officers, staff and other servants created under clause (v) of sub-section (1) of Section 106 ;
(c) the appointment of persons in temporary or officiating capacity ;
(d) the salaries, emoluments and other allowances of persons appointed to the aforesaid posts ;
(e) the leave, punishment, including dismissal and removal, appeal and other discipinary matters and other conditions of service of the officers, staff and other servants of the Mahapalika ;
(f) specification of officers as Head of Department of the Mahapalika;
25. The aforesaid rules were published in U.P. Gazette dated 22nd December, 1962. After the promulgation of 1975 Act, the power of creation of post and appointment of employees in Jal Sansthan has been conferred upon the Jal Sansthan with previous approval of the State Government vide Section 27, which read as under:
Creation of posts and appointment of employees.-(1) The Jal Sansthan may, with the previous approval of the State Government, create such posts of officers and other employees and with such designation as it considers necessary for the efficient performance of its functions.
(2) The appointments to the posts, referred to in sub-section (1), shall be made by the Jal Sansthan on such terms and conditions as it thinks fit:
Provided that the appointment on which posts as the State Government may, by rules framed under Section 27-A or by general or special order, specify shall be made and the terms and conditions of appointment on such posts shall be determined with the approval of the Government.
(3) Subject to general control and directions of the Chairman, the supervision and control over all employees of the Jal Sansthan shall be vested in the General Manager."
26. Section 100 of 1975 Act when repeals certain provisions and amendment in respect to NMP refers to Section 114, 115 and Chapters X, XI, XIX, XXIII and XXV and says that powers, duties and functions assigned under the said provision shall stand conferred upon Jal Sansthan. It does not talk of Chapter IV and the statutory Rules framed thereunder. Therefore so long as the rules and regulations are not framed under 1975 Act, those framed under the relevant statute under the old enactment i.e. Act 1959 continued to apply to the concerned Jal Sansthan which has been created with the particular notified area under Section 18(1) of the Act.
27. Section 13-B of Act, 1946 provides that nothing in the Act shall apply to an industrial establishment in so far as the workmen employed therein are persons to whom rules and regulations that may be notified in this behalf by the appropriate Government in the Official Gazette apply. Section 13B reads as under:
"13B. Act not to apply to certain industrial establishment.- Nothing in this Act shall apply to an industrial establishment in so far as the workmen employed therein are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Services) Rules, Revised Leave Rules, Civil Service Regulations Civilians in Defence Service (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."
28. The workman concerned is governed by the statutory rules, which are published in the Official Gazette by State of U.P., therefore nothing is in the Act, 1946 would apply to ASJ and hence question of interpretation etc. under Section 13A of 1946 Act referring to Model Standing Orders would not arise at all. This defence was taken by Jal Sansthan before Labour Court that the employees of Jal Sansthan are governed by the statutory rules but the Labour Court has not appreciated and considered this aspect of the matter, which goes to the very root of the matter involving the very jurisdiction under the relevant provisions in which the application was filed. He has therefore committed a patent error apparent on the face of record vitiating the order impugned in the writ petition.
29. The legal issues therefore are answered in favour of the petitioner that the application under Section 11-C of 1947 Act was not maintainable and the order passed by Labour Court, impugned in this writ petition, is wholly without jurisdiction. However, this does not mean that in every case this Court is bound to set aside the order impugned in the writ petition. The fact that workman was engaged in 1986 and benefits to which he was entitled, the Labour Court found that had not been given to him causing unfair labour practice and further the fact that he is already over 50 years of age is enjoying the benefit of the order of the Labour Court which has resulted in substantial justice, under Article 226 of the Constitution of India, this Court can always decline to interfere with an order even if on legal aspect it is illegal.
30. In Champalal Binani Vs. The Commissioner of Income Tax West Bengal and others AIR 1970 SC 645 the Apex Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."
31. In Durga Prasad Vs. The Chief Controller of Imports and Exports & others, AIR 1970 SC 769 (para 7) and in Bombay Municipal Corporation for Greater Bombay vs. Advance Builders (India) Pvt. Ltd. AIR 1972 SC 793 (para 13) it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.
32. It would be appropriate to refer at this stage the view expressed by the Apex Court in Municipal Board, Pratabgarh and another Vs. Mahendra Singh Chawla and others 1982(3) SCC 331 wherein it was held:
"........this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its prestine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136"
33. What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in our view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the fact and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival of another illegal order, the Court would be justified in refusing to interfere.
34. In Employees' State Insurance Corporation & ors Vs. Jardine Henderson Staff Association and others AIR 2006 SC 2767 the Apex Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment the Court clearly held that the High Court under Article 226 and the Apex Court under Article 136 read with 142 of the Constitution has the power to mould the relief in the facts of the case.
35. In Ramnik Lal N. Bhutta and another vs. Vs. State of Maharashtra, AIR 1997 SC 1236, the Apex Court observed:
" The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point." (Para 10)
36. In State of H.P.Vs. Raja Mahendra Pal & others (1999) 4 SCC 43 in para 6 of the judgment the Apex Court held :
"............It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article............"
37. Similarly, in Director of Settlement Vs. M.R. Apparao (2002) 4 SCC 638 in para 17 the Apex Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.
38. Therefore, while deciding the legal issues involved in this matter, as I have answered herein above, I do not find in the interest of justice to interfere with the order impugned in the writ petition. The writ petition is accordingly dismissed.
Order dated:26.05.2011 KA