IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.447 /2001 Reserved on: 5.11.2008 Decided on:14.11.2008 The Managing Director, Himachal Pradesh Forest Corporation Limited and another. …Petitioners. Versus The Himachal Pradesh Forest Corporation Limited Rosin and Turpentine Factory Workers Union. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. no For the petitioners : Mr. B.M. Chauhan, Advocate. For the Respondent : Mr. T.S. Chauhan, Advocate. Rajiv Sharma, J. This petition is directed against the award dated 15.11.2000 passed by the Himachal Pradesh Labour Court, Shimla in reference No. 21/1995. The State Government has made the following reference to the Labour Court: 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 “Whether the demands raised by the General Secretary, H.P. Rosin and Turpentine Workers’ Union, Bilaspur with (1) Managing Director, H.P. State Forest Corporation and (2) General Manager, H.P. Rosin and Turpentine Factory, Bilaspur vide demand notice dated 12.6.1993 (Copy enclosed) are legal and justified? “If yes, which of the demands and from which date, the workers are entitled to the benefit of these demands?” In sequel to the reference made by the State Government, the respondent workers union (hereinafter referred to as ‘the union’ for convenience sake) filed the statement of claim. It was primarily contended in the statement of claim that the workmen were entitled to receipt such allowances and dearness allowances as per the orders of the Ministry of Railways issued for their workshop staff from time to time and the senior workers were drawing low pay scales vis-à-vis the junior workers and the seniority list of the workers be finalized according to the rules. The Corporation be directed to upgrade the posts in the ratio of 10% per post per year. No deduction and recovery be effected from the retiral benefits of the workmen. The disparity in the pay scales be removed between the terms and conditions of the workers and the supervisory staff of the Rosin and Turpentine factories and field and official staff of the corporation. The post of Factory Manager be filled up. Forty vacant posts be also filled up and the daily wagers be regularized, who had been working since 1986 and 1989. Besides this, they have prayed for production bonus. The petitioners (hereinafter referred to as the management) filed a detailed reply to the statement of claim. The management had admitted that the factory staff for the purpose of pay had been linked with the workers of Railway Workshop, Jagadhari on the basis of agreement entered into with them. As far as the issue of up-gradation of the posts was concerned, the following averment has been made: 3 “The detailed orders of up-gradation of workers as done by Railways has not been supplied by the workers and same can only be commented upon after detailed study and if need be the matter shall have to be placed before the Board of Directors/Service Committee of the Corporation.” The management has stated that as far as the recoveries/deductions are concerned, no recovery was being effected from the retiral benefits of the workers now. The demand of Punjab Scale was not considered genuine. As far as the regularization of daily wagers is concerned, the following averment has been made: “The daily wage workers who have completed ten years of service will be considered for regularization on the availability of posts in accordance with the instructions issued by H.P. Govt. However, the Shops & Commercial Establishment Act is not applicable in the factories and they cannot be granted any benefit under this act.” The union had filed detailed rejoinder to the reply filed by the management. The Labour Court on the basis of the oral as well as documentary evidence placed on record, answered, the reference partially in favour of the members of the union. They were held entitled to up- gradation as per the instructions issued by the Railway Ministry from time to time and they were also held entitled for the regularization. The Labour Court has also directed that the management will not make any deductions from the retiral benefits of the workers unless due opportunity is given to the worker. These directions were to be complied with by the management within three months from the date of the award. Mr. B.M. Chauhan has strenuously contended that the award dated 15.11.2000 is not sustainable. He contended that all the demands of the workmen had already been met by the management on the basis of various orders issued from time to time. He also contended that as far the issue of up-gradation of the posts is concerned, the same has been duly 4 considered and the necessary directions were issued by the management from time to time. He further contended that no deductions are being made from the retiral benefits of the workmen. As far as the regularization of the workmen is concerned, he has submitted that it can only be subject to the availability of the posts and approval of the posts by the Finance Department. Mr. T.S. Chauhan appearing on behalf of the union has supported the award dated 15.11.2000. I have heard the learned counsel for the parties and perused the record carefully. Mr. Kashmiri Lal has appeared as PW-1. He has tendered Ex.PA to Ex.PU in evidence. Sh. R.P. Sharma has appeared as RW-1. The learned counsel for the parties have primarily advanced their arguments on three issues as noticed above, namely, (i) up-gradation of posts as per the instructions issued by the Railway Ministry; (ii) whether the deductions could be made from the retiral benefits of the workmen and (iii) whether the daily wagers are entitled to regularization or not. The Labour Court on the basis of the instructions, to which this Court will advert later on, had come to a conclusion that the up-gradation of the posts should be carried out. The issue of up-gradation has been dealt with in Exts. PH, PK, PL, PM, PN, PO and PQ, respectively. It will be apt at this stage to refer to Ex. PH, which is at page 53 of the record. It is dated 13.11.1982. The relevant extract of Annexure PH reads thus: “The question of re-classification of artisan staff in the Railways had been under consideration of the Railway Workers Classification Tribunal for quite some time. It is the Tribunal, which included representatives of the two recognized Labour Federations, could not come to an agreed conclusion, the Ministry of Railways appointed a Joint Committee consisting of officials of the Ministry of Railways on the one hand and representatives from the All India 5 Railwaymen’s Federation and National Federation of Indian Railwaymen on the other, for the purpose of suggesting a measure of relief to un-skilled and semi-skilled categories. The Joint Committee’s proposals to reclassify some of the existing unskilled and semi-skilled jobs on the Railways have since been accepted by the Government. 2. The Ministry of Railways have accordingly decided as under: i. Traders presently designated as semi-skilled as indicated in the attached list-I & II should be re- classified as skilled in grade Rs. 260-400. ii. 60% of the existing un-skilled artisan strength in Production Units and Workshops (all departments) should be allotted the semi-skilled grade (Rs. 210-290) and designated as Khalasi-Helper. iii. 50% of the existing strength in un-skilled artisan categories in the Open Line Establishments (as applicable) should be allotted the semi-skilled grade (Rs. 210-290) and designated as Khalasi-Helper. iv. Fixation of pay in respect of staff re-classified as per (i), (ii) and (iii) above, should be done on proforma basis w.e.f. 1.8.78. v. Lump sum arrears will be payable for the period from 1.4.80 to 31.12.1981 in respect of staff re-classified from semi-skilled to skilled at Rs. 20/-/- p.m. subject to a ceiling of Rs. 400/- and in the case of staff promoted from un-skilled to semi-skilled grade, the lump sum payable will be @ Rs. 10/- per month, subject to a ceiling of Rs. 200/-. The arrears amount in payable for the actual months during which an employee was on duty. Even if an employee was on duty for a day during a month, full month will count for admissibility. Periods of LAP and LUP will be considered on duty for this purpose. vi. The Higher fixation on the basis of the above re- classification will be currently effective from 1.1.1982. vii. Employees, who retired/resigned prior to 1.1.82 the date from which the higher fixation would be effective and would be covered under these orders, will be entitled to proforma fixation from 1.8.1978 for the purpose of their pension and post-retirement benefits. 6 These employees will also be eligible for Pro-rata, lump sum payments for the period they were in service after 1.4.1990, subject to the ceiling amounts already mentioned. viii. The initial allotment of semi-skilled grade to the un- skilled staff and skilled grade to semi-skilled staff in terms of these orders will be on the basis of seniority- cum-suitability without the eligible staff being subjected to any further trade test. ix. There will be no change in status quo in regard to skilled and semi-skilled grades, which are not specifically covered by these orders. These traders will continue to remain in the existing classification/scale of semi-skilled, artisan or non- skilled, as the case may be. 3. While upgrading unskilled trades to semi-skilled grade under these orders, those who assist skilled artisan staff either by working directly alongwith them or help them in the upkeep of the upgraded of the material, securing stores, cleaning of components etc. should be upgraded to the semi- skilled job as Khalasi-Helpers within the percentages laid down. Even after such up-gradation these staff will continue to perform unskilled functions of simple manual work like loading and up-loading, sweeping of floors and transportation of material etc. in their respective trades. These guidelines should be borne in mind while upgrading ay un-skilled trade to semi-skilled grade under these orders. 4. In the skilled trades as mentioned in the enclosed list No.1 for which there is no corresponding semi-skilled trade, if BTM posts in semi-skilled grade have been crated in such trades by the Railways/Production Units as working posts and not as Trainee posts, in terms of Board’s letter No.I (NG) 58/GEP/15 dated 26.5.1965 they will be upgraded to skilled grade under these orders. Similarly, those BTM posts in semi-skilled grade created on the Railways/Production units in these skilled trades where there are corresponding semi- skilled grade already existing, will be correctly designated after re-classification in accordance with the work performed. 5. While re-classifying semi-skilled posts to skilled grade as per list I & II, the Railways may also re-classify such semi- skilled trades which are listed in Colo.4 of List I and Colo.2 of 7 List No.II, since the Railways follow different designations in respect of these trades, provided the standard trade test syllabus as applicable to the designation given under Col.2 of List No.1 and Col. 3 of List No. II are applied in these cases also. 6. Since a large number of semi-skilled trades are proposed for re-classification to the skilled grade, to ensure that semi-skilled staff continue to be available as feeder category for skilled jobs, from out of the total strength of Khallasi-Helpers in the semi-skilled grade of Rs. 210-290, after up-gradation, a certain reserve number of posts of Khallasi-Helpers, equal to 5% of the skilled artisan staff (including HSK II and HSK I) in the relevant trade Group, should be treated as trainee posts and designated as Basic Trade man, to provide for horizontal movement from Khallasi- Helper posts to Trainee Reserve posts and to act as a feeder category in a multi-trade crafts culture by ensuring proper training and mix of experience. The senior most among the semi-skilled Khallasi-Helpers, who are due for promotion to skilled grade, should be posted against these BTM posts (which will be functional posts and not merely trainee posts). Before final promotion to the skilled grade, this new category of Basic Trademan will have to be given an opportunity and experience of work in specific trades where they are to be absorbed. For the allocation of the trainee posts in the various trades, cognate trade would be banded together in a broad spectrum, a few examples of which are given below. (i) Blacksmith, Spring Smith and Spring Maker, strike (Smith), Angle Iron Smith, Forege-smith, Hammer man. Forging Machine Operator, Power Hammer Operator, Drop Stamper, Bolt, Nut and Rivet Making Machine Operator. (ii) Trimmer, Sewing Machine Operator, Cobbler, Mochi, Tarpauline or Tent Repairer, Pouch Maker, Belt Man. (iii) Driller (fixed Spindle), Driller (Multiple Spindle) Grinder (Precision), Machinist (Boring) Broaching, Milling, Planing, Shaping and Slitting), Punch Machine Operator, Screwing Machine Operator, shearing Machine Operator, Tool Grinder, Turner, Power Press Operator and Dresser (Emery wheel). 8 (iv) Gupolaman, Gupolaman-incharge, Moulder, Moulding Machinee Operator, Milton Metal Carrier, Fettler, Core Maker. (v) Dolly man, Rivetter, Rivetter (Wagon). (vi) Painter, Painter (Bruag gabd), Liner Sign Writer, Polisher (French), Polisher (Rough). (vii) Cabinet Maker, Carpenter, Coaching builder, Log Maker, Machinist (Wood), Pattern Checker, Pattern Maker, Planer, Sew Doctor, Saw Machine, Saw Sharpener, Timber Marker. Note : The above list is only illustrative and not exhaustive. The Railways are free to evolve more groups of cognate trades for this purpose, depending on local conditions. 7. The Board’s intention is that instead of a Khallasi Helper being allotted one specific trade, which he is due for promotion he will be allotted to a group of similar and allied trade so that he has an opportunity to learn and pick up the trades in that Group. His further promotion to one of the Trades is that Group will be on the basis of the Trade Test prescribed for the particular trade for which he has developed an aptitude and skill. Similarly, promotion of unskilled staff to semi-skilled grade as Khallasi-Helper will be only after passing the requisite trade test and not on the basis of the seniority alone. (Separate instructions will follow in regard to Trade Tests in semi-skilled categories for future promotions). 8. Even though the designation ‘Khalasi-Helper’ is assigned to semi-skilled or trades as a consequence of these re-classification, the Ministry of Railways desire to observe that Khalasi-Helper should be called upon to work independently and carry out all the jobs in emergencies etc. which normally a skilled worker would do. Khalasi-Helper associated with skilled workers will have to make contribution to production and out-turn alongwith the skilled workers as the two will from a team. 9. After re-classification of un-skilled and semi-skilled artisans on the above lines, the Board’s extant orders stipulating distribution of unskilled, semi-skilled posts in the ratio of 40:10:50 will cease to be in force, in all cases where they are currently applicable. 9 10. Before upgradation of the un-skilled posts to the semi-skilled grade in terms of these orders is implemented, all establishments, engaging artisan staff including RDSO should act-apart (in the case of Production Units and Workshops) and 5% (in the case of Sheds and Depots and all other Open Line establishments including RDSO) of the total unskilled (Class IV) sanctioned posts and earmark the same for surrender gradually. The cute would be applicable on the net authorized strengths for recognized workloads after weeding out surplus/supernumerary posts which have so far been identified due to closure of Steam loco sheds etc. to the extent that vacancies are already available within these percentages, these should be frozen and surrendered immediately. The balance posts should be surrendered progressively by transferring the juniormost employees to other establishment against vacancies available. In case, however, such staff cannot be absorbed immediately due to non-availability of vacancies, the posts should be surrendered as and when they become vacant by normal onstage and attrition. It will be the responsibility of the Additional General Manager (Exp.Control) in consultation with the F&CAO to ensure implementation of this part of the orders regarding surrender of posts and submit a status report to the Board by 31.3.83. In the context of enforcing those orders regarding surrender of posts in un-skilled (Class IV) grade, the Board have decided that there will be a total ban on recruitment of casual labour and substitutes. 11. Any requirement of additional funds on account of implementation of the aforesaid orders should be quickly assessed and appropriately reflected s separate factor in the Revised Estimates for the current year and the Budget, Estimates for 1983-84. 12. The Ministry of Railways desire that these orders should be implemented expeditiously and payment of lump sum arrears arranged within three months from the date of issue of these orders. 13. This issues with the concurrence of Finance Directorate and has the sanction of the President. 14. Kindly acknowledge receipt of this letter. 15. Hindi version will follow.” 10 In sequel to Ex. PH dated 13.11.1982, the Committee was constituted by the management to determine the equation of semi-skilled members of the factory with that of semi-skilled member in Railways Workshop by way of duties and responsibilities attached to these categories. The committee was required to submit its recommendations by 15.7.1986. The committee was directed to be constituted vide Ex.PL dated 23.6.1986. The proceedings of the meeting submitted vide order dated 10.7.1986 are Ex. PM. Thereafter the matter was listed before the service committee. The agenda for the consideration of the service committee was discussed under subject ‘demands of the factory workers’. The proceedings i.e. Ex. PM were directed to be placed before Financial Commissioner-cum-Secretary (Forest). Thereafter vide Ex. PO dated 20.10.1986, the demands of the factory workers were accepted. These are the relevant exhibits. It is evident from the contents of Ex. PO that 60% of the existing unskilled workers were to be made semi-skilled in the pay scale of Rs. 210-290 and 100% were to be upgraded in the skilled workers in the pay scale of Rs. 260-400. The comparison of the members of the union with the workers of the Railways Workshop, Jagadhari was not disputed as also noticed by the Labour Court in the award, however, Mr. B.M. Chauhan has submitted that on the basis of Ex. PO, the up- gradation was done and the directions issued by the Labour Court to the contrary are not sustainable. Mr. T.S. Chauhan has refuted this submission of Mr. B.M. Chauhan and has strenuously argued that this direction though issued was not followed in letter and spirit. He has drawn the attention of the Court to the statement of RW-1 Sh. R.P. Sharma. He has admitted that the management had not given any up-gradation to the workers though the management had given the promotion. 11 What emerges from the facts enumerated hereinabove is that the orders were issued by the Ministry of Railways on 13.11.1982/7.12.1982 pursuant to which a committee was constituted by the corporation on 23.6.1986. The classification was done as per Ex. PM. The matter was placed before the service committee as is evident from Ex. PN. Once the entire exercise has been undertaken by the management it was not open to it to deny the actual benefits to the workers. The respondents have admitted that the up-gradation was not done, however, the promotions were made. In view of the discussion made hereinabove, the direction issued by the Labour Court to follow the instructions issued by the Ministry of Railways qua up-gradation of the posts cannot be faulted with. Since the management has constituted the committee and accepted the recommendations, it was bound to carry out consequential orders in letter and spirit to redress the grievances of the members of the union. Now, the Court will advert to the second issue, i.e. whether the deductions could be made from the retiral benefits of the workmen or not? RW-1 R.P. Sharma has admitted in his cross-examination that no notice whatsoever was issued to the workmen before the deductions were made from their retiral benefits. It is settled law that any order which has civil consequences must be passed in conformity with the principles of natural justice. Mr. B.M. Chauhan has vehemently argued that no recoveries are being effected now. The Court is of the opinion that no deductions could be effected from the retiral benefits of the persons, who already stand retired. The management is bound to refund the same to them with interest @ 9% per annum. Moreover, the members of the union had worked against the higher posts and are entitled to retain the salary. The third direction, which has been issued by the Labour Court, is regarding the regularization of the daily wagers. In the reply, as noticed 12 above, the case of the management is that the daily wagers, who had completed ten years of service, will be considered for regularization on the availability of the posts in accordance with the instructions issued by the Government of Himachal Pradesh. The instructions issued by the State Government have also been placed on record by the union. In view of this categorical undertaking given in the reply by the management, the directions of the Labour Court to regularize the services of the daily wagers as per the instructions of the State Government warrant no interference. The scope of interference under Articles 226/227 of the Constitution of India in interfering with the findings of fact recorded by the Labour Court is very limited. It can only be challenged if the findings recorded of the fact are perverse or if the same are not based on legal evidence. Consequently in view of the aforesaid reasoning, there is no merit in the writ petition and the same is dismissed. There will, however, be no order as to costs. 14.11.2008 (Rajiv Sharma ), J. *awasthi*