IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.06.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.3154 of 2011 AND CONNECTED MISCELLANEOUS PETITIONS. .. NLC Officers' Association rep. By its General Secretary E 47 Zakir Hussain Road Block 16, Neyveli 607 801. .. Petitioner vs. 1.Government of India Ministry of Coal rep. By its Joint Secretary No.321 A.1, A Wing, Shastri Bhavan New Delhi. 2.Neyveli Lignite Corporation Ltd., Dy.General Manager/P&A/IR Neyveli Township P.O.Neyveli 607 801. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records of the second respondent impugned notification Gr.No.CORP/P & A/IR/785/2011-1 dated 5.2.2011 and quash the same. For petitioner : Mr.N.G.R.Prasad for M/s.Row & Reddy For Respondents : Mr.M.Krishnan,C.G.S.C. for R.1 Mr.N.A.K. Sharma for R.2 .. ORDER The writ petitioner Association viz., NLC Officers’ Association has filed the present writ petition through its General Secretary, challenging the orders of the second respondent, Neyveli Lignite Corporation Ltd., dated 05.02.2011, by which the second respondent has issued a circular, modifying the working hours and https://hcservices.ecourts.gov.in/hcservices/ holidays for the executives working in general shift and administrative offices. 2. The second respondent is stated to have consisted about 4000 staff members out of whom, around 500 staff members working on the executive and administrative side are stated to be the members of the petitioner Association and the writ petition is filed on behalf of the members of the Association to set aside the circular issued by the second respondent, by which according to the petitioner Association, the service condition has been altered unilaterally, viz., the working hours which was 10 a.m. to 5 p.m. has been changed from 9 am to 5.30 pm and the number of holidays has been reduced from 16 to 9 with effect from 08.02.2011. a) A similar circular was issued by the second respondent on 24.01.2011 in respect of the workers, against which the workers have filed W.P.No.2412 of 2011, challenging the said circular and this Court has granted interim injunction on 01.02.2011 and thereafter, the second respondent Management has withdrawn the said Circular dated 24.01.2011. After withdrawal, the second respondent has issued the impugned circular dated 05.02.2011, by altering the working hours, with the result, the Members of the petitioner Association have to work for one hour thirty minutes more every day. b) According to the petitioner Association, the administrative office of the second respondent includes the production unit for which incentives are given higher than the units like, Mines which are not related to production. Since in respect of units dealing with the production, they are paid with higher incentives, increase of working hours from 9 am to 5.30 pm may not affect them. But, as far as the members of the petitioner Association are concerned, they are not related to production and they are not given incentives and hence, they cannot be directed to work more. c) In respect of the timings, it is stated that already the Committee appointed by the second respondent has gone into that and the second respondent on 12.05.2008, has requested the members of the petitioner Association to give their views and the petitioner Association has also offered their views, but the Committee’s decision is not known and unilaterally, the service conditions are changed. By the revised timings, the officers who had to report at 10 am should report by 9 am and leave by 5.30 pm. It is admitted that the second respondent has issued the notice under Section 9A of the Industrial Disputes Act,1947, but that will come into effect only after conciliation, settlement or adjudication and without following the said procedure, the same has been implemented. https://hcservices.ecourts.gov.in/hcservices/ 3. The impugned circular has been challenged in this writ petition on various grounds including that the same is contrary to law; that for 50 years, the officers have been attending the office from 10 am to 5 pm and enjoying the holidays for 16 days and the same has been taken out all of a sudden, and that the second respondent has issued a notice dated 24.01.2011, proposing to change the timings of both the workers and officers and when the workers went to Court and obtained injunction, the second respondent has withdrawn the circular and in respect of the workers the notice has been issued under Section 9A of the Industrial Disputes Act,1947 calling for objections, but in case of officers, such provision may not apply, however, the principles of natural justice would apply and the officers should have been heard before issuing such circular. It is stated that there are about 30 offices and some of the offices are relating to production units where higher incentives are being given and therefore they are asked to work from 9 am to 5.30 pm, but whereas in respect of offices working in non-production units, they are not given incentives and working from 10 am to 5 pm cannot be directed to work more and that the impugned notice increasing the working hours is illegal. 4. While the matter came up for admission, this Court has granted an order of injunction on 08.02.2011, which was subsequently extended on 28.02.2011. The second respondent, has filed an application to vacate the order of injunction along with the counter affidavit. In the counter affidavit it is stated that the impugned circular relates to change in working hours and permissible holidays of a particular category of executives and non-unionised supervisors of the second respondent Corporation and it is a matter of administrative policy. The executives and the non-unionised supervisors of the Corporation are not workmen governed by the Certified Standing Orders or by the Industrial Disputes Act,1947. (a) It is not necessary that in respect of them the working hours and permissible holidays must be the same and that requires periodical adjustment based on the functional need of the Corporation, which relates to various factors, like job responsibilities, climatic factors and reasonableness. Such a decision taken as a matter of policy based on various factors is not justiciable and there is no scope for interference under Article 226 of the Constitution of India and there is no right to the petitioner Association and any other members of the petitioner Association to challenge the same and the officers cannot claim the working hours and permissible holidays to remain the same. (b) The petitioner Association includes the Executives, non- unionised supervisors and workmen. Only some of the members of the petitioner Association are affected by the impugned circular, which relates to the executives working in general shift and administrative https://hcservices.ecourts.gov.in/hcservices/ offices. The petitioner Association has not stated as to who are all the members affected by the circular. Therefore, the writ petition filed by the Association is not maintainable. (c) It is also stated that as per the by-laws of the Association, the deponent of the affidavit is not permitted to institute legal proceedings except on authorization from the General Body of the Executive Committee. It is stated that the petitioner Association, in the letter dated 29.09.2010, has stated that the deponent of the affidavit, Thiru K.V.Srinivasan, Senior Manager (Finance) and General Secretary of NLC Officers Association is neither discharging the official duties and responsibilities to the expectation of the management, nor functioning as General Secretary to the members of the NLC Officers Association. (d) It is also stated that the NLC Officers Association decided to keep the post of General Secretary inoperative. It is stated that no individual of the executive category has expressed grievance against the Corporation’s circular dated 05.02.2011 and the purpose of filing of this writ petition is to create an industrial disharmony. In fact, there has been a large demand that the disparity of the working hours has to be rectified. The second respondent Corporation, as a Central Government Public Sector Undertaking engaged in mining operation, mining of lignite and generation of power, is a major supplier of the Southern States and it has 18090 employees with 3950 executives or non-unionised supervisors. (e) Out of 18,000 employees, even prior to the issuance of the impugned circular, over 15,000 employees some of the non-unionised supervisors and executives are working for 8 hours a day, only limited number of employees posted at administrative office and in general shift employees of all grades including workmen, non- unionised supervisors, executives were on reduced working hours. It was in those circumstances, the Corporation has decided, after considering the deliberations, to streamline and rationalize the working hours and issued the impugned circular. (f) In the case of workmen, a notice under Section 9A of the Industrial Disputes Act,1947 was issued on 05.02.2011 which was required and the proceedings are in progress. In respect of the non- unionised supervisors, though no one has challenged the concerned proceedings dated 05.02.2011, because of the injunction granted by this Court, since only 9 such employees are affected by such change, the implementation is kept in abeyance. It is stated that the second respondent Corporation has 3873 executives and 79 non-unionised supervisors making the total to 3952. Out of 3873 executives, the impugned circular affects only 2094 and the persons allegedly affected by the circular are well paid with excellent promotion https://hcservices.ecourts.gov.in/hcservices/ avenues including 40% DA as on 01.02.2011 and further 40% of their basic pay as common allowance, aggregating to not less than Rs.51,000/- per month and by way of revision, they were having the basic pay of Rs.28450/- per month. Such highly paid employees have decided to refuse to work extra hours. (g) It is stated that the Corporation has got large number of employees who have to work necessarily in the mines, power stations and field units and for them, rotational system of shift has been followed for 8 hours, inclusive of lunch break of 30 minutes. On the other hand, those who are working in the administrative office and in general shift were having a work schedule of 7 hours with half an hour break for lunch. The executives and non-unionised supervisors are transferable between the administrative office/mines/power stations/field (service) units, depending upon the requirement and vacancy. (h) Hence, there has been a disparity of working hours among various engineers and other bodies. After 2008, based on Justice Jagannatha Rao’s Committee report and the corresponding guidelines, the pay scale of the executives, non-unionised supervisors was steeply increased. A settlement under Section 12(3) of the Industrial Disputes Act,1947 has been arrived at on 04.09.2010 with effect from 01.01.2007. It is stated that as per the revised pay and allowance pattern, executives and non-unionised supervisors are entitled to performance related pay, which is arrived at based on various parameters, such as profit made by the company level/grade employees, over all rating performance, particularly of the individuals, etc., (i) Such performance related pay is ultimately arrived at as a percentage of the basic pay, which is uniform for the executives and non-unionised supervisors holding the same grade irrespective of the location of work, with the result the performance related pay of an executives engaged in mines/power stations, who had to work for 8 hours is the same with that of the executives engaged in the administrative office and general shift who were working for 7 hours with the privilege of increased holidays and this disparity was represented and in order to bring discipline, the impugned circular came to be issued. (j) The uniform hours of work, viz., 8 hours was welcomed by all and therefore, the grievance espoused by the petitioner Association is only minuscule of executives. On the other hand, it is the case of the second respondent that by filing writ petition, the petitioner Association wants to keep away the disparity, by which those who are working for 7 / 6½ hours are treated on par with the executives with an increased work schedule of 8 hours. https://hcservices.ecourts.gov.in/hcservices/ (k) It is stated that in respect of the field staff, who are working round the clock by shifts, there is no change and notice issued under Section 9A of the Industrial Disputes Act,1947 on 05.02.2011 does not relate to the said workers, however, for those who are working in the general shift it was reduced to 7/6½ hours. It was to streamline the working hours, the circular has been issued for 8 hours uniform work with 30 minutes break for lunch. (l) In respect of holidays, it is stated that the Corporation has got 3 types of holidays, viz., those who are working in the rotational shift timings were entitled only to 9 paid holidays with no restricted holidays; but those in Thermal Power Stations were entitled to 2 restricted holidays in a year, however, those who are working in Administrative offices and in the general shifts were entitled for 16 administrative holidays (including 9 paid holidays), second Saturdays and two restricted holidays in a year. (m) The difference between the paid holiday and administrative holiday is that, if the individual is required to attend office on a paid holiday, he/she becames entitled for double wages/salary for that day. While bringing uniformity, the practice of the administrative holidays has been discontinued and the uniformity has been achieved by providing 9 paid holidays in a year for all categories of employees. Although the total number of holidays has been reduced from 16 to 9 in the revised scheme, all holidays have been made as paid holidays, which is beneficial to the employees. Therefore, according to the second respondent, the writ petition is devoid of any merit on the ground of non-maintainability and impropriety of the deponent of the affidavit and that it is a policy decision and the petitioner Association cannot compare themselves with that of the workmen concerned in W.P.No.2412 of 2011 in respect of whom notice under Section 9A of the Industrial Disputes Act,1947 was issued, and that there has been no legitimate grievance on the part of the large number of executives. 5. It is the main contention of Mr.N.G.R.Prasad, learned counsel appearing for the petitioner Association that the Circular is unilateral and even though it comprises that the members of the petitioner Association are not entitled for notice under Section 9A of the Industrial Disputes Act,1947, at least a minimum requirement of compliance of the principles of natural justice should have been followed and the circular being unilateral in nature, is liable to be set aside by relying upon the judgment in Life Insurance Corporation of India vs. D.J.Bahadur and others (1981 (1) SCC 315). He would also place reliance on the judgment of the Division Bench in N.P.K.R.R.Co.operative Sugar Mills Cane Growers Association vs. Union of India (2010 (6) MLJ 251). https://hcservices.ecourts.gov.in/hcservices/ 6. On the other hand, Mr.N.A.K.Sharma, learned counsel appearing for the second respondent would submit that while the earlier circular dated 24.01.2011, which was meant to apply to all the employees/executives, came to be withdrawn after the workmen have approached this Court, in respect of the executives, the present impugned notification dated 05.02.2011 has been issued and in respect of workmen separate proceedings have been initiated by giving notice under Section 9A of the Industrial Disputes Act,1947. He would also refer to the contents of the counter affidavit filed by the second respondent to the effect that there has been a steep hike in the salary of the executives and while the workmen working in the Mines are deprived of various facilities, the executives have been given enormous facilities and in spite of that, when an administrative action/policy decision was taken, they have chosen to challenge the same, which is due to lack of bona fide. He would also submit that there is no locus standi for the petitioner to file an affidavit. The number of members of the petitioner Association are only 120 whereas, there are more than 853 persons in the executive side, who have not raised any objection and they are not workmen under Section 9 of the Industrial Disputes Act,1947 and he would rely upon the judgment in Tamil Nadu Education Department Ministerial and General Subordinate Services Association and others vs. State of Tamil Nadu and others (1980 (3) SCC 97); Shimnit Utsch India Private Ltd., and another vs. West Bengal Transport Infrastructure Development Corporation Ltd., and others ( 2010(6) SCC 303); Tamilaga Asiriyar Koottani rep. By the General Secretary V.Annamalai vs. The Government of Tamil Nadu and others ( 2005 Writ L.R. 389); Managing Director, Tamil Nadu Magnesite Ltd., vs. S.Manickam and others ( 2010(4)SCC 421 ); and Transport and Dock Workers Union and others vs. Mumbai Port Trust and another ( 2011 (2) SCC 575). 7. I have heard the learned counsel for the petitioner and the respondents and given my anxious thoughts to the issue involved in this case. 8. The impugned circular issued by the second respondent dated 05.02.2011, modifies the working hours and holidays for the executives working in general shift and administrative office. The contents of the said circular are as follows: Sl. No. Area/Department (General Shift) Revised Working Hours Holidays (Per annum) A Mines, MSS, CWS, Transport Department, Elec.Services & Commn. And Mechanical Services 8.00 am to 4.30 pm with ½ an hour lunch break from 12.00 noon to 12.30 pm i)2 Restricted Holidays. ii) 9 Paid Holidays. https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Area/Department (General Shift) Revised Working Hours Holidays (Per annum) B Thermal Power Stations, TA (Field & Site), PCS, CARD, Disposal, Marketing, Chemical Units, Pre-casting Yard and other Executives working in General shift. 8.30 am to 5.00 pm with ½ an hour lunch break from 12.30 pm to 1.00 pm i)2 Restricted Holidays. ii) 9 Paid Holidays. C All Executives working in Administrative Offices (10.00 Hrs. to 17.00 Hrs.), LA Department and Training Complex. 9.00 am to 5.30 pm with ½ an hour lunch break from 1.00 pm to 1.30 pm i)2 Restricted Holidays. ii) 9 Paid Holidays. Iii) Second Saturdays. 9. Similar circular was issued earlier on 24.01.2011, applicable to all employees working in general shift and that came to be withdrawn since the workers have objected to that as their right under Section 9-A of the Industrial Disputes Act,1947 was affected, and they required notice for alteration of the service conditions. It was, thereafter, the present circular has been issued only in respect of administrative offices. 10. In the light of the specific objection raised by the second respondent about the propriety of the deponent of the writ petition, viz., Mr.K.V.Srinivasan, as General Secretary of the petitioner Association, stating that the President of the petitioner Association, by a communication dated 29.09.2010, has disowned the conduct of Mr.K.V.Srinivasan, certainly it is the duty on the writ petitioner to repudiate, but the writ petitioner has not chosen to file any reply, repudiating the same. 11. Mr.V.Soundararajan, who is the President of the petitioner Association, has addressed a letter to the second respondent dated 29.09.2010, the contents of which are as follows: “Shri K.V.Srinivasan, Sr.Manager, Finance and General Secretary of NLC Officers Association (the deponent) appears to be neither discharging his official duties and responsibilities to the expectation of the Management nor functioning as General Secretary to the expectation of the members of the NLC Officers Association. Considering the circumstances and to upkeep the image and reputation of NLC Officers Association and also to safeguard the interests of the members and the Management, it has been decided to keep the General Secretary position of the NLC Officers https://hcservices.ecourts.gov.in/hcservices/ Association, as inoperative with immediate effect, till alternative arrangement is made.” 12. In the light of such letter by the President of the petitioner Association and in the absence of any repudiation and also on the specific ground raised in the counter affidavit, I am of the considered view that it is a question of propriety that is involved in the filing of the writ petition by the General Secretary of the petitioner Association. 13. That apart, as correctly submitted by the learned counsel appearing for the second respondent, even in the affidavit, the petitioner has not chosen to state as to how many number of administrative officers belonging to the petitioner Association as members are affected and in such circumstances, I am of the considered view that the preliminary objection raised by the second respondent has to be accepted. 14. It is not in dispute that even otherwise, the members of the petitioner Association are not workmen and therefore, for the purpose of alteration of service conditions, it is not necessary to follow the procedures as contemplated under the Industrial Disputes Act. On the specific stand of the second respondent that it is a matter of policy decision in respect of working hours, which is of no much disaster change, there is no question of hearing the petitioner Association, especially when no one of the members of the petitioner Association has ever raised any objection about the impugned circular. 15. The judgment in Life Insurance Corporation of India vs. D.J.Bahadur and others (1981 (1) SCC 315), especially para 46, on which reliance was placed by the learned counsel for the petitioner, which is as follows: " 46. It is inconceivable that any other alternative subsists. For instance, imagine a case where for 30 years an award or settlement might have given various benefits to employees and at the end of 30 years a notice terminating the settlement were given by the employer. Does industrial law absurdly condemn the parties to a reversion to what prevailed between them 30 years ago? If the employees were given Rs 100 as salary in 1947 and, thereafter, by awards and settlements the salary scale was raised to Rs 1000 could it be the management might, by unilateral yet disastrous action give notice under Section 19(2) or (6) terminating the settlement or award, tell the workers that they would be paid Rs 100 which was the original contract although in law that contract had been extinguished totally by a later contract of settlement or by force of an award? The https://hcservices.ecourts.gov.in/hcservices/ horrendous consequences of such an interpretation may best be left to imagination. Moreover, if industrial peace is the signature tune of industrial law, industrial violence would be the vicious shower of consequences if parties were relegated either to an ancient and obsolete contract or to a state of lawless hiatus. No canon of interpretation of statutes can compel the court to construe a statutory provision in this manner. We have, no doubt, that the precedents on the point, the principles of industrial law, the constitutional sympathy of Part IV and the sound rules of statutory construction converge to the same point that when a notice intimating termination of an award or settlement is issued the legal import is merely that the stage is set for fresh negotiations or industrial adjudication and until either effort ripens into a fresh set of conditions of service the previous award or settlement does regulate the relations between the employer and the employees. The court never holds justice as hostage with law as janitor ! Law, if at all, liberates justice through the judicial process. Fundamental error can be avoided only by remembering fundamental values." is certainly not applicable to the facts of the present case. That was a case, where settlement entered was sought to be terminated without notice to the parties. It was, in those circumstance, by applying the principles of natural justice, the Supreme Court has laid down the law. But, on the facts of the present case, especially taking note of the fact that almost all the Associations of the second respondent Corporation, such as, NLC Graduate Engineers Association, NLC Joint Action Council of Association, have decided to accept the decision of the second respondent, and in the circumstance that there appears to be a sharp difference even between the office bearers of the petitioner Association, I do not think that it is a fit case for this Court to interfere with the impugned circular. 16. The fact remains that similarly situated officers Associations have welcomed such decision. The second respondent has weighted