Salem Mavatta Kanima Niruvana Uzhiyar Sangam Rajaganapathy Nagar Mettur Dam 636 401 represented by its President K.Vijayan. .. Petitioner in W.P.No.20435 of 2003 Tamilnadu Kanima Niruvana Uzhiyar Sangam, rep. By its General Secretary V.P.Chinalan Ninaivagam Rajaganapthay Nagar Mettur Dam, Salem. .. Petitioner in W.P.No.30748 of 2007 vs.
1. The Union of India rep. By its Secretary to Government Ministry of Labour New Delhi 110 001. .. R.1 in both the WPs.
2. The Chairman-cum-Managing Director Tamil Nadu Minerals Ltd., Chepauk, Chennai 600 005. .. R.2 in both the WPs.
Writ petitions filed under
Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein.
For petitioner in : Mr.M.Muthupandian WP.No.20435/2003 For petitioner in : Mr.V.Ajay Khose WP.No.37484/2007 For 1st respondent : Mr.V.Ravi For R.2 in both the WPs. : Mrs.A.V.Bharathi ..
COMMON ORDER These writ petitions are filed by the Kanima Niruvana Uzhiyar Sangam. In W.P.No.20435 of 2003 filed by Salem Mavatta Kanima Niruvana Uzhiyar Sangam, the order of the Government of India is challenged, wherein the Government has refused to make any reference considering the conciliation failure report dated 20.11.2002 and having been prima facie satisfied that it is not a fit case for adjudication on the basis that the Union could not substantiate its demand.
2. In W.P.No.37484 of 2007, the Tamil Nadu Kanima Niruvana Uzhiyar Sangam has challenged the orders of the Government of India dated 16.2.2006 and 23.2.2006, in which the Government, after considering the conciliation failure report dated 27.9.2005 has taken a prima facie view that it is not a fit case for adjudication for the reason that the order of the State Government mentioned in the dispute is not applicable to the workers category since the wages of workers of Tamil Nadu Minerals Limited are determined through negotiated settlement and also on the basis that the Union could not substantiate its demand as the order of the State Government mentioned is applicable only to those drawing pay in the Government scale of pay of Rs.2550-3200.
3. In the first writ petition, it is the case of the petitioner Union that it has entered into a settlement with Tamil Nadu Minerals Limited (TAMIN) in 1988 under
section 12(3) of the Industrial Disputes Act,1947, regarding wages and other conditions of service. It is stated that the petitioner Union has demanded 25% bonus and ex-gratia to the employees of the second respondent for the year 2001-02 in the representation dated 26.9.2002. The petitioner Union has raised an industrial dispute before the Assistant Labour Commissioner(C), Chennai, who issued notice for conciliation under
section 12(2) of the Act. It is stated that the second respondent without making any payment, has informed that as per law it has paid 20% bonus to all its eligible employees. Since there was no settlement, the Conciliation Officer has sent failure report on 20.11.2002 to the first respondent and the first respondent has ultimately passed the impugned order refusing to refer the dispute for adjudication on the ground that the Union could not substantiate its demand.
4. The impugned order is challenged on the ground that it is for the Tribunal or the Labour Court which is entrusted with such function to decide the claim on merits, and such quasi-judicial function cannot be exercised by the Government while performing its administrative function.
5. In the counter affidavit filed by the second respondent it is stated that the impugned order has been passed by the Government within its powers under
section 12(5) of the Industrial Disputes Act,1947. It is stated that the settlement under
section 12(3) which was signed by the petitioner Union along with other Unions expired on 31.12.1990. It is stated that the petitioner Union demanded 25% bonus and ex-gratia payment for the year 2001-02 in the letter dated 26.9.2002. As per the Payment of Bonus Act, 1965, which is applicable to the second respondent, the second respondent sanctioned 20% of wages as bonus for the year 2001-02 to all of its eligible workers in accordance with the said Act and the amount has also been paid. In such circumstances, the employees who have received bonus as per the Payment of Bonus Act are not entitled for any further amount. The claim of any further amount as bonus is against law and therefore, there is nothing to adjudicate and it is, in those circumstances and also taking note of the failure report, the Government has passed the impugned order refusing to make reference on the basis that the claim of petitioner Union for further amount as bonus is opposed to the provisions of Payment of Bonus Act, 1965.
6. In W.P.No.37484 of 2007, it is the case of the Union which is stated to represent substantial workmen of the second respondent, TAMIN that the Government issued G.O.No.29 (Finance) dated 13.6.1991 relating to Voluntary Retirement Scheme (VRS) for Public Sector Undertakings, and it is stated that the second respondent is bound to follow the same. As per the said Scheme, if an employee has completed 40 years of age and 15 years of service, he is entitled to seek voluntary retirement. It is stated that the Government of Tamil Nadu has granted relaxation to the workmen employed in quarries in G.O.No.64, Industries Department, dated 19.5.1998, permitting the employees to go for Voluntary Retirement Scheme without reference to the age and total number of service.
7. It is stated that in G.O.158, Finance Department, dated 13.5.2002, Voluntary Retirement Scheme for Public Sector Undertakings under the control of the Government of Tamil Nadu was introduced, under which a minimum of Rs.1.5 lakhs for the persons received lowest pay was to be paid. It is stated that the second respondent, TAMIN has extended the benefit of the said G.O. to the staff and not to the employees in the quarries. On the request of the petitioner Union dated 01.10.2002, the second respondent by circular dated 11.05.2004, extended the benefit of the said G.O. to the workers of quarry from 22.04.2004, however, the second respondent restricted the guaranteed minimum from Rs.1.5 lakhs to Rs.1 lakh. Further, while G.O.158 has conferred the benefit to the clerical staff as on 30.7.2002, the second respondent extended the benefit to the workmen only from 22.2.2004. It was, in those circumstances, the petitioner has raised a dispute before the Assistant Commissioner of Labour, Shastry Bhavan by letter dated 2.8.2004. The Conciliation Officer has submitted his failure report, based on which the Government of India passed the impugned orders on 16.2.2006 and 23.2.2006, wherein it is stated that the G.O. of the State Government is not applicable to the worker category since the wages of workers in TAMIN are determined through negotiated settlement and the Union has not substantiated its demand as the order of the State Government is applicable only to those drawing pay in the time scale, Rs.2550-3200.
8. The impugned orders are challenged on the ground that the Government cannot adjudicate the issue since the same has to be done either by the Labour Court or by the Industrial Tribunal. It is also stated that the claim of the writ petitioner Union is that a discrimination has been shown to the workers of the second respondent in respect of payment of ex-gratia amount under Voluntary Retirement Scheme and again while extending the benefit under the Voluntary Retirement Scheme discrimination has been shown to other group of employees and that cannot be decided by the Government by adjudicating the issue. In respect of limiting the pay scale at Rs.2550-3200 is a matter to be adjudicated on evidence and the first respondent while performing the administrative functions of reference, cannot enter into the dispute as such.
9. In the counter affidavit filed by the second respondent it is stated that the second respondent submitted a proposal to the Government to introduce Voluntary Retirement Scheme for the workers and the Government passed G.O.Ms.(3D) No.64, Industries dated 19.5.1998 in respect of workers of TAMIN since they are drawing negotiated scale of wages as per the bilateral settlements. It is stated that under the G.O. all persons are eligible to avail the benefit of the Scheme irrespective of age and service, but in cases where persons are having less than one year of service, they are not eligible. Again the scheme has provided for unavailed leave with wages. It has also provided for full share of employer's contribution to the Provident Fund along with employees own share including interest, gratuity as per Rules/Act, one and half months wages for every completed year of service subject to a maximum of 36 months pay as ex-gratia payment or monthly emoluments at the time of retirement multiplied by balance months of service or Rs.1.00 lakh, whichever is less.
9(a). It is stated that there was no Voluntary Retirement Scheme for staff and Officers of TAMIN till 13.5.2002. It is stated that the minimum guaranteed payment of Rs.1.50 lakhs covers only the staff and officers drawing the scale of pay of Rs.2550/- and above and the workers category are not covered under G.O.158 dated 13.5.2002. It is stated that in order to give better benefit to workmen of TAMIN, based on the representation of the workers, the Government issued an amendment order on 22.04.2004, revising the ex-gratia norms which was implemented from 22.4.2004 as two months wages (pay + D.A.) for every completed year of service or wages for the number of years of service left or Rs.2 lakhs whichever is less subject to the guaranteed amount of Rs.1 lakh.
9(b). The second respondent has requested the Government to revise the minimum guaranteed amount of Rs.1.5 lakhs against Rs.1 lakh and also give effect to the amendment with effect from 13.05.2002. However, the Government issued an order on 17.9.2004, stating that the minimum guaranteed ex-gratia would cover the staff and officers drawing the pay scale of Rs.2550-3200 and above and the worker category is not covered in the Government Order. It was also clarified by the Government in respect of the minimum guaranteed amount for workers in public sector undertakings and the same is adopted in TAMIN workers. For the worker category in the second respondent the wages payable are determined based on negotiated wages settlement. It is stated that the first respondent Government has considered that prima facie there is no dispute for adjudication as the orders of the State Government are not applicable to the worker category and therefore, the impugned order came to be passed refusing to refer the dispute for adjudication.
10. It is the case of Mr.Muthu Pandian and Mr.V.Ajay Khose, learned counsel appearing for the petitioner Union in these cases that on the face of it, the issue involved is required to be decided on merit based on facts. While it is the case of the petitioner Union that the State Government G.O. applies also to the worker category in the second respondent, under the impugned order the first respondent has taken a decision by adjudication as if the workers are not entitled for the benefits and the Government has no authority under
section 12(5) of the Industrial Disputes Act while making reference for adjudication of the issue to decide the issue either on facts or on law and therefore, the impugned orders are liable to be set aside.
11. On the other hand, it is the contention of Mrs.A.V.Bharathi, learned counsel for the second respondent that on the factual matrix, when prima facie the Government Order passed by the State Government is not applicable to the workmen category, there is nothing wrong on the part of the first respondent Government in deciding that it is not a fit case for referring the issue for adjudication.
12. Mr.V.Ravi, learned Central Government Standing Counsel appearing for the first respondent would submit that within the powers of
section 12(5) of the Industrial Disputes Act, it is open to the Government to take a prima facie decision as to whether the matter has to be referred for adjudication. He would submit that in the presence of various Government Orders, such reference for adjudication would become futile and therefore, according to him, the power of the Government under
section 12(5) of the I.D. Act is a meaningful one and cannot be exercised for futile claim. He would rely upon various judgments of the Supreme Court as well as High Courts and submit that the claim of the petitioner is frivolous.
13. I have heard the learned counsel for the petitioner as well as the respondents and perused the records and given my anxious thoughts to the issue involved in these cases.
14. In respect of W.P.No.20435 of 2003, it is seen that the petitioner Union in its representation to the second respondent dated 26.9.2002 requested not only 25% of bonus but also incentives. In the representation submitted to the Assistant Labour Commissioner (Central) I, Shastri Bhavan, Chennai dated 18.11.2002 and during the course of conciliation proceedings pending before the Labour Commissioner, the Union has informed that the second respondent TAMIN has stated that 20% of bonus has been paid to the eligible workers and various amounts have been paid to others. However, the complaint of the Union is that it has not been furnished with the details. It is also seen in the said representation that the second respondent has taken a stand that the bonus could not be paid to those whose salary exceeded Rs.3,500/- per month. The Union has taken a stand that the Government of Tamil Nadu has issued orders in respect of Transport, Electricity, Civil Supplies Corporations, etc. that bonus to be paid to workers who are regulated by the wage settlement without reference to ceiling limit of Rs.3500/-. It is also the complaint that the workers of TAMIN are not paid salary on par with the Government servants but paid the wages based on settlement and other benefits given by the Government are not extended to them which is nothing but a discrimination. Therefore, it is clear that even though it is the case of the second respondent that 20% of bonus has been paid to eligible workers, it is the case of the petitioner Union that there cannot be a wage restriction for the purpose of payment of bonus and it is not correct to state that those who are receiving wages more than Rs.3500/- per month are not eligible for bonus. It is also seen in the conciliation failure report of the Labour Commissioner that the second respondent has not furnished any written comments but stated orally that 20% bonus has been paid.
15. On record, it is clear that it is not a case where there is no dispute about bonus under the Payment of Bonus Act, 1965. If there is no dispute about the bonus as per the said Act and if the Government is prima facie satisfied that the petitioner Union members are not entitled for bonus beyond the statutory limit, certainly, it can be said that the yardstick laid down by the Division Bench in M/s.Shaw Wallace & Co.Ltd. vs. State of Tamil Nadu [(1987) 1 LLJ 177] would apply wherein the principle was enunciated to the effect that when the claim is opposed to the provisions of the Act, the Government may refuse to make reference. However, in the present case, in respect of persons eligible to receive bonus the wages limit of Rs.3500/-per month is introduced, which is disputed by the members of the Union on the ground that when wages are paid to the workers on the basis of wage settlement, the Government of Tamil Nadu directed payment of uniform bonus. A dispute has also been raised that in other Corporations like, Transport Corporation for the workers to whom wages are paid on wages settlement, there is no ceiling limit in the payment of bonus. Therefore, a vital point of discrimination or arbitrary decision is being raised by the petitioner Union, which certainly requires adjudication by the Tribunal in the manner known to law. Therefore, there is no difficulty to conclude on the facts of the present case that the Government has attempted to adjudicate the issue which is not within its administrative function while exercising its powers under
section 12(5) of the Industrial Disputes Act. It is well settled that in a cases where the question of law has to be interpreted or in a case where factual assertions are to be made, it depends upon appreciation of evidence and adjudication, which is a process known to the Industrial Disputes Act and that cannot be done by the first respondent while performing administrative function by refusing to refer the issue for adjudication. Therefore, the plea of the petitioner Union has to be accepted and the impugned order of the first respondent is to be set aside with necessary directions.
16. Again, in respect of W.P.No.37484 of 2007, the issue involved, in my considered opinion, is that of mixed question of fact and law and the petitioner Union in fact claims a very valuable right under Voluntary Retirement Scheme and as per the Government Order claiming minimum guaranteed amount of Rs.1.5 lakhs for each of the workmen who opted for voluntary retirement irrespective of the fact whether such workers are covered by the settlement or not. The question of construction of G.O.Ms.No.158 is also raised. While it is the case of the second respondent that the benefit of the G.O. will be available only to the employees who are drawing salary above Rs.2550-3200, it is the case of the workmen that in case of workers who are covered by the settlement, such pay restriction is not applicable and the minimum guaranteed amount under the Voluntary Retirement Scheme has to be given to all who have opted the Scheme.
17. A reference to G.O.Ms.No.158, Finance Department, dated 13.5.2002 makes it clear that the Government has categorised the public sector undertakings into various categories, viz., (a) Undertakings which are financially sound which can sustain the Voluntary Retirement Scheme from the surplus resources, (b) State Public Sector undertakings which are not financially sound but growing concerns, which are categorised based on two conditions that (i) its net worth is 50% and (ii) Public Sector Undertakings which have incurred loss for three consecutive years, and (c) Undertakings which are financially not sound and proposed to be closed. It was, based on the said three categories of the State Public Sector Undertakings, ex-gratia amount has been paid. Even in cases where State Public Sector Undertakings are falling under the category, viz., Undertakings which are financially sound and proposed to be closed, an amount of Rs.2.50 lakhs or 30 days salary for every completed year of service and 10 days for the balance of service left till superannuation, whichever is less in respect of all employees is contemplated. In such circumstances, simply because the second respondent has taken a stand that its workmen are not entitled for the said payment, if their salary is Rs.2550/- and above it cannot be a ground for the first respondent Government in simply accepting the same and concluding that the Union has not substantiated its claim.
18. More curiously, under the impugned order dated 16.2.2006, the first respondent has relied upon the G.O. of the State Government to come to the conclusion that the workers of the second respondent whose wages are determined through negotiated wage settlement are not entitled for the benefit of Government Order even though there are some difficulties appear to exist on the face of it, factually. I am not expressing any opinion on merits of the case suffice it to say that the decision of the first respondent in refusing to refer the dispute for adjudication would certainly amounts to adjudication on the issue which is not within the purview of the first respondent Government while exercising its administrative function under
section 12(5) of the Act. The applicability or otherwise of the Order of State Government cannot be decided by the first respondent and it is a matter for adjudication and by applying the judgment of the Division Bench in M/s.Shaw Wallace Co., case [(1987) 1 LLJ 177], it cannot be held that the claim of the petitioner is patently frivolous and abuse of any provision of the Act and as observed by the Division Bench in the above said judgment, the impugned order certainly amounts to embarking on the adjudication of dispute.
In such circumstances, the writ petitions stand allowed and the impugned orders of the first respondent in both the cases are set aside with direction to the first respondent to refer the dispute to the concerned Labour Court or Industrial Tribunal based on the conciliation failure reports dated 20.11.2002, 27.9.2005 and 14.11.2005 respectively and such reference shall be made within a period of 30 days from the date of receipt of a copy of this order. No costs.