HIGH COURT OF ORISSA: CUTTACK W.P.(C). No.18088 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- M/s. Larsen & Toubro Ltd. … Petitioner. -Versus- State of Orissa & Others … Opp. Parties. For Petitioner : M/s. Durga P. Nanda, R.K. Kanungo, B.P. Panda & Mrs. S. Rath For Opp. Parties : Government Advocate ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Heard and disposed of on 01.11.2010 B.N.MAHAPATRA, J The petitioner assails legality of the order dated 12.10.2010 (Annexure-21) passed by opposite party No.4-District Labour Officer-cum- Returning Officer, Rourkela. In the said impugned order, it is held that the Advanced Trainees being “apprentice” as per clause 2(g) of the Certified Standing Orders of the company and having performed their jobs with regular workmen in shifts with E.S.I. & E.P.F. coverage under the respective Acts, are ‘workmen’ as defined under Section 2(s) of the Industrial Disputes Act, 1947 (for short ‘I.D. Act’) and thus fall within the ambit of “employee” as defined under Rule 3(c) of the Verification of Membership and Recognition of Trade Unions Rules, 1994 (for short “Rules, 1994”). Hence, their names are to find place in the certified list of employees. 2. Bereft of unnecessary details, the facts and circumstances giving rise to the present writ petition are that the petitioner is a limited company registered under the Companies Act, 1956 which has a heavy Engineering Industry at Kansbahal in the district of Sundargarh. Since 2003, with the approval of the Director of the Technical Education & Training, Orissa, Cuttack, the petitioner has implemented an Advanced Training Scheme in their factory for imparting training to the Apprentices, who have completed their apprenticeship in the factory of the petitioner. There are four number of Unions operating in the factory of the petitioner; they are Kansbahal Mazdoor Union, Regd. No.512/66, Kansbahal Shramik Sangha, Regd. No.643/70, Kansbahal Industrial Labour Association, Regd. No.41/RKL/93 and Kansbahal Labour Union, Regd. No.74/RKL/96. The verification of the membership of the registered Labour Unions operating in the factory of the petitioner is held in periodic intervals as per the provisions of the Rules, 1994. In the year 2009, the General Secretary of opposite party No.8- Kansbahal Shramik Sangha submitted an application before opposite party No.2-State Implementation and Evaluation Officer-cum-Labour Commissioner, Orissa, Bhuabeswar for verification of the membership and recognition of trade Union and to initiate the process of verification. On 16.06.2010, opposite party No.2 issued notification under Rule 11 of the 2 Rules 1994 by appointing opposite party No.4-Returning Officer to discharge the duties laid down under Rule-6 of the said Rules. The copies of the said notification were forwarded to four Unions operating in the Factory of the petitioner. In pursuance of the said notification, opposite party No.4-Returning Officer issued letter No.3477 dated 17.06.2010 to the petitioner asking him to submit five sets of certified list of employees of the petitioner’s industry with their details who were on rolls as on 16.06.2010. Pursuant to the letter dated 17.06.2010 issued by opposite party No.4- Returning Officer, the petitioner submitted the list of employees who were eligible to be included in the membership verification list and opposite party No.4-Returning Officer vide order dated 22.06.2010 displayed the same in the notice board of the office for general information and also invited suggestion/objection if any within ten days in order to finalize the list of workmen/voters. Opposite party No.5 filed its objection/suggestion on 03.07.2010 requesting the opposite party No.4-Returning Officer to include the names of the “Apprentice and Advanced Trainees” in the list of members/voters on the ground that they are “workmen” as per Section 2(s) of the I.D. Act. Basing on such objection/suggestion filed by opposite party No.5, the Returning Officer issued letter dated 08.07.2010 asking the petitioner to attend the hearing on the said objection on 16.07.2010. On receipt of the said letter dated 08.07.2010, the petitioner issued letter dated 12.07.2010 to O.P. No.4- the Returning Officer to reject the objection raised by O.P. No.5. The petitioner has also filed another letter dated 28.07.2010 3 before O.P. No.4 to reject the objections raised by O.P. No.5. In spite of the same, opposite party No.4-Returning Officer vide order dated 12.10.2010 (Annexure-21) had disposed of the objection /suggestion submitted by opposite party No.5-Kansbahal Labor Union by holding that Advanced Trainees/Apprentices are workmen within the ambit of “employee” as defined under Rule 3(c) of the Rules, 1994 and their names are to find place in the specified list for the purpose of verification of membership and recognition of trade Union. 3. Mr. D.P. Nanda, learned counsel appearing for the petitioner, submits that the impugned order dated 12.10.2010 passed by opposite party No.4-Returning Officer is perverse, arbitrary, illegal and violates all the provisions contained in Rule 13 of the Rules, 1994. It is submitted that the category of Trainees covered under the Apprentice Act, 1961 or any Training scheme recognized or sponsored by the Government are specifically excluded from the list of members as per ‘Note’ appended to Rule-13 of the Rules, 1994. The Advanced Trainees who were being imparted training for a fixed period of two years in the factory of the petitioner under the training scheme approved/recognized by the State Government cannot be treated as members/voters for the purpose of membership verification of Unions. It is submitted that in the previous Union membership verification in the factory of the petitioner, opposite party No.6-Kansbahal Industrial Labour Association had raised similar objection/complaint vide letter dated 08.10.2004 requesting for inclusion of 4 the names of the “Apprentices, Advanced Trainees and Temporary Employees” in the voter list. Opposite party No.6 had filed a writ petition bearing W.P.(C) No.12904 of 2004 before this Court. The said writ petition was disposed by this Court on 10.01.2006 with a direction to the Asst. Labour Commissioner, Rourkela to deal with the matter in accordance with the principles laid down in the case of Birla Tyres Employees Union, Balasore and others vs. Labour Commissioner-cum-Registrar of Trade Union-cum-State Implementation and Evaluation Officer, Orissa and others [W.P.(C) No.5911 of 2005] disposed of on 14.09.2005. Pursuant to the said direction of this Court, the Asst. Labour Commissioner, Rourkela, took a decision not to include the Apprentices/Advanced Trainees and Temporary Employees in the list of employees. The inclusion of the names of the Advanced Trainees attained finality vide order dated 10.01.2006 passed by this Court in W.P.(C) No.12904 of 2004 and earlier decision of the Returning Officer taken in the previous recognition process. The General Secretary of opposite party No.5 and opposite party No.6 is one and the same person. The claim made by opposite party No.5 through the General Secretary is barred by res judicata. Inclusion of the names of the Advanced Trainees in the list as members for verification defeats the very aim and object of the Rules, 1994, which specifically envisages a true representation of employees of the company. 4. The question that falls for consideration by this Court is whether the Advanced Trainees/Apprentices are workmen within the ambit 5 of employee as defined under Rule 3(c) of the Rules, 1994 and as such their names are to find place in the specified list of employees for the purpose of verification of Membership and Recognition of Trade Union. 5. According to the petitioner, the Advanced Trainees/Apprentices are not to be included in the certified list of the employees in view of the ‘NOTE’ appended to Sub-Rule (2) of Rule 13 of the Rules, 1994. The impugned order is also contrary to the principles laid down by this Court in W.P.(C) No.5911 of 2005 (Birla Tyres Employees Union case) and decision taken pursuant to this Court’s order dated 10.01.2006 passed in W.P.(C) No.12904 of 2004 by the previous opposite party No.4-Returning Officer who is higher in rank than the present Returning Officer. 6. The opposite party No.4-Returning Officer in his order assigned the following reasons in holding that the Advanced Trainees are to be included in the certified list of employees. (a) The Advanced Trainees are ‘Apprentice’ as per order 2(g) of the Certified Standing Order of the Company and performing jobs with regular workmen in shifts with E.S.I. and E.P.F. coverage under the respective Acts. (b) The term ‘workman’ as defined under Section 2(s) of the I.D. Act falls within the ambit of ‘Employees as defined under Rule 3(c) of the Rules, 1994 which includes apprentice. 7. The first reason given by opposite party No.4-Returning Officer in the impugned order is that the “Advanced Trainees” being “Apprentices” as 6 per clause 2(g) of the Certified Standing Orders of the Company and having performed their jobs with regular workmen in shifts with E.S.I. and E.P.F. coverage under the respective Acts are ‘workmen’ as defined under Section 2(s) of the I.D. Act and there is no challenge to this finding and observation of the opposite party No.4-Returning Officer in the entire writ petition. 8. Now, before examining the correctness of the second reason given by opposite party No.4 that the ‘workman’ as defined under Section 2(s) of the I.D. Act falls within the ambit of ‘Employee’ as defined under Rule 3(c) of the Rules, 1994 which includes apprentice, it is relevant to know what is contemplated in Rule 13 and Rule 3(c) of the Rules, 1994, Section 2(s) of the I.D. Act. They are reproduced hereunder: “Rule 13. Verification of membership — Verification of union membership may arise out of the following:— (1)(a) Any union having functioned as such in an industry at least for a period of one year from the date of registration may apply to the State implementation and Evaluation Officer for verification of membership for recognition o f Union. (b) Any recognized union or any other union functioning in an industry fulfilling the criteria of clause (a) of sub-rule (1) may apply to the State implementation and Evaluation Officer for verification of membership for recognition of the union before 90 days of the date of expiry of the period of recognition. (2) The employer may also apply for verification of membership of the unions functioning in the industry provided that members of unions have paid membership fees for the whole period of three calendar months immediately preceeding the calendar months in which the application, so made for recognition. Note— Such members do not belong to the category of trainees covered under the Apprentices Act, 7 1961 or any training scheme recognized or sponsored by the Government.” “Rule 3(c) “Employee” means a workman as defined in clause (s) of the Section 2 of the Industrial Disputes Act, 1947.” Section 2(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person — (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” A conjoint reading of Rule 3(c) of the Rules 1994 and Section 2(s) of the I.D. Act makes it clear that ‘Apprentices’ are employees as defined under Rule 3(c) of the Rules, 1994. Therefore, their names are to be included in the list of employees for the purpose of verification of Membership and Recognition of Trade Union under the Rules, 1994. 9. The next question that arises for consideration is whether the ‘Note’ appended to Sub-Rule (2) of Rule-13 of the Rules, 1994 shall prevail 8 over Rule -3(c) of the Rules, 1994 which is substantive in nature inasmuch as it provides that ‘employee’ means workman as defined under Section 2(s) of the I.D. Act. A ‘Note’ to a Rule has no binding effect. It indeed has a persuasive force (See Mary Oommen Vs. The Manager M.G.M. High School, Kurupampady, Kerala & Ors., AIR 1987 SC 1163) The apex Court in Tara Singh & Others vs. State of Rajasthan and others, AIR 1975 SC 1487, held that the real purpose of ‘Notes’ is that when the rules are silent the ‘Notes’ will fill up the gaps. In the present case, Rule 3(c) of the Rules, 1994 defines who is an employee. Under the said Rule ‘Employee’ means a ‘workman’ as defined in clause (s) of Section 2 of the I.D. Act, 1947 which includes Apprentices. Therefore, the ‘Note’ appended to Rule 13 which has no binding effect cannot prevail over Rule 3(c) of the Rules, 1994 which is substantive in nature. 10. The next ground of challenge to the impugned order is that a similar issue was raised in the previous writ petition bearing W.P.(C) No.12904 of 2004 (Annexure-9) and pursuant to the direction of this Court given in the said writ petition, opposite party No.4-Returning Officer took a decision that the Advanced Trainees/Apprentices are not to be included in the certified list of employee. Hence, the impugned order is bad in law. Perusal of the order of this Court dated 10.01.2006 passed under Annexure-9, does not reveal that any question of law has been decided 9 in that judgment. This Court has not decided that the Advanced Trainees/Apprentices are not eligible to be included in the certified list of employees for the purpose of verification of membership and recognition of Trade Union. While disposing of the said writ petition this Court vide its order dated 10.01.2006 directed opposite party No.4-Returning Officer to consider the objection of the petitioner to the extent as to whether any of its qualified members in terms of the Rules has not been reflected in the list furnished by the employer as on 08.10.2004 in accordance with the law and keeping in view the decision rendered in Birla Tyres Employees Union (supra). Pursuant to such direction, opposite party No.4-Returning Officer took a decision that the Advanced Trainees/Apprentices are not eligible to be included in the certified list of employees. 11. The provisions of Rule 3(c) of the Rules, 1994 and Section 2(s) of the I.D. Act, which are under consideration in the present case were neither referred to nor decided in the case of M/s Birla Tyres Employees’ Union, (supra), [W.P.(C) No.5911 of 2005] disposed of on 14.09.2005 and in Kansbahal Industrial Labour Association, Kansbahal, Sundargarh Vs. State of Orissa and others [W.P.(C) No.12904 of 2004] disposed of on 10.01.2006 on which reliance has been placed by the petitioner. Thus, the said two judgments could be regarded as having been passed by this Court in sub silentio insofar as Rule 3(c) of the Rules, 1994 and Section 2(s) of the I.D. Act are concerned. 10 12. At this juncture, it will be profitable to quote Sir John Salmond on Rule of sub-silentio: “A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favor; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio” The apex Court in State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. & Anr., (1991) 4 SCC 139 held as follows:- “41…..Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. “A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.” (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. the Court did not feel bound by earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. The bench held that, ‘precedents sub-silentio and without argument are of no moment’. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core 11 of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry it was observed, ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein’. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” The Bombay High Court in Yeshbai & Anr. Vs. Ganat Irappa Jangam & Anr., AIR 1975 Bombay 20 held as follows:- “27. Now, a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to and had not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. These are the commonest illustrations of decision being given per incuriam. In order that a case can be decided per incuriam, it is not enough that it was inadequately argued. It must have been decided in ignorance of the rule of law binding on the court, such as a statute… (See the observation in “Salmond on Jurisprudence”, Twelfth Edition, pages 150 and 169)” (Underlined for emphasis) (Also see Smt. Tulasi Panda Vs. State of Orissa & Ors., AIR 2000 Orissa 103). Therefore, in our view, the decisions in the above two cases upon which reliance placed by the petitioner’s counsel were arrived at sub- 12 silentio and accordingly the said decisions cannot be said to be the authority and binding. 13. In view of the above, we don’t find any infirmity or illegality in the impugned order (Annexure-21) passed by opposite party No.4-Returning Officer warranting any interference by this Court. 14. In the result, the writ petition is dismissed. No order as to costs. ……………………... B.N.Mahapatra, J. V.Gopala Gowda, C. J. I agree. …....……………….. Chief Justice 13 Orissa High Court, Cuttack Dated 1st November, 2010/sss/skj