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CASE NO.: Appeal (civil)  941 of 2006

PETITIONER: B.H.E.L & Anr.

RESPONDENT: B.K. Vijay & Ors.

DATE OF JUDGMENT: 02/02/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T (Arising out of SLP(C) No. 18305 of 2005)

S.B. SINHA, J:

       Leave granted.   

       The respondent herein is a Diploma Holder in Mechanical  Engineering.  He was appointed  as a Charge Man  in the year 1976  by the  appellant in its Jhansi Unit.  He had successfully completed his diploma  course in Industrial Safety from Central Labour Institute, Bombay in 1979- 80.  The said Jhansi Unit of the appellant is a factory within the meaning of  the provisions of the Factories Act, 1948 (hereinafter referred to as ’the  Act’).  Section 40B of the Act provides for employment of such number of  Safety Officers as may be specified in a factory wherein 1000 or more  workers are ordinarily employed.  Rules were framed by the State of Uttar  Pradesh in terms  of the provisions of the said Act known as U.P. Factories  (Safety Officers) Rules, 1984 (herein after referred to as ’the Rules’).  Rule 5  of the said Rules reads as under:   "Rule 5 \026 The Chief Safety Officer or the Safety Officer   in the case of factories where only one Safety Officer is  required to be appointed shall be given the status of a  departmental head or a senior executive in the factory and  he shall work directly under control of the Chief  Executive of the factory.  Every other Safety Officer shall  be given appropriate status corresponding  the status of an  officer holding a position next below other departmental  heads in the factory;  

Provided, that where any dispute arises as to the  status of a Safety Officer or Chief Safety Officer, the  case shall be referred to the State Government, whose  decision shall be final."

       The respondent was appointed as an Assistant Foreman (Safety).  He  was placed in SA II grade.  The said scale of pay was accepted by the  respondent without any demur whatsoever. A notification dated 02.01.1985  was issued by the State Government notifying the appellant as a Safety  Officer in the factory, for which a Safety Officer was required to be  appointed.  As the number of employees working in the said Unit was 1600,  indisputably only one Safety Officer was  required to be appointed.  The  respondent, who at the relevant time was working as an Assistant Foreman  was said to have been nominated to look after the safety provisions as  contained in the Act and the Rules , in addition, to his existing work.  He  was however, re-designated as Assistant Foreman (Safety).

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       The respondent was first promoted to the post of Foreman (Safety) in  the pay-scale of Rs. 965-1665 on 25.6.1986.  On a query made by the  Director of Factories, the appellant informed him that the respondent was  the in-charge of Safety in its factory being  in the pay-scale of Rs. 1965-52- 1225-55-1685 and had been enjoying an independent status.    

       A complaint petition came to be filed in the court of Chief Judicial  Magistrate, Jhansi by the Assistant Director,  Factories, Agra purported to  be in terms of Section 92 of the Act alleging violation of the provisions of  Section 40B thereof, read with Rules 4 and 5 of the Rules.  In the said  proceeding, the respondent did not intervene.  He was not examined as a  witness.  He, in fact, did not raise any grievance in the said proceeding  before the learned Chief Judicial Magistrate.  In fact, he had not raised any  grievance even before the authorities under the Factories Act.  Before the  learned Chief Judicial Magistrate, the contention raised on behalf of the  enforcing agency was that the respondent being a Safety Officer, should  have been given E1 (Executive) pay-scale being Rs.1100-60-1940/- in terms  of Rule 5.  The learned Chief Judicial Magistrate opined:

"Shri B.K. Vijay, Safety Officer in the factory was not  provided pay scale and status as per rule.  It is proved  from document exhibit A-4 which is personnel policy of  BHEL that in the BHEL separate grades have been  made for executive pay scale and non executive pay  scale in which the lowest officer has been provided Rs.  1100-60-1940 scale and in non executive grade  maximum pay scale of Foreman/Sr. Office Supdt./Sr.  Assistant Gr.I/Sr. Artisan II/Accountant 965-52-1225- 55-1665 and pay scale 880-42-964-48-1492 of  immediate junior Asstt. Foreman/OS/Sr. Artisan B2/Sr.  Assistant Gr.II/Sr. Accountant II has been provided."

       It was further held:  

"Evidence produced by prosecution proves beyond  doubt that during inspection Shri B.K. Vijay was neither  given pay scale of executive grade nor was given to him  status of departmental head or sr. executive under Rule  4 and 5."

        The said judgment, indisputably, has attained finality.  In the  meanwhile, the respondent was promoted  to the post of Sr. Safety Officer  in E2 grade  and further more promoted to the post of Deputy Manager  (Safety) in E-3 grade w.e.f. 25.6.2004.   

A reference was made to the State Government  pursuant to the  observations made by the learned Chief Judicial Magistrate.  The  Respondent also made representations on  6.5.2002, 23.5.2003 and  28.5.2002.  In his representation dated 27.4.2001 he prayed for fixation of  wage arrears and allowances stating :

"I was awarded following promotions, after my  appointment as Safety Officer (Asstt. Foreman- Non  Executive Cadre) w.e.f. 19.3.1985.  

Sl.  No. Designation (Status) w.e.f. (date

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Pay scale  Basic pay +  allowances  

1.

Foreman (E-3)

25.6.86 Rs.965-52- 1225-55- 1665 Rs. 1445 +  allow.

2.

Gen. Foreman (E-4)

25.8.92  

Rs. 2500- 120-4300 Rev. Rs.  4000-175- 4300

Rs. 3700 +  allow.  Rs. 5400 +  allow.  

3.

Safety Officer (E-1)  (Executive Cadre)  

15.6.95  

Rs. 2500- 120-4300  Rev. Rs.  4000-175- 4300

Rs. 3820 +  allow.  Rs. 5575 +  allow.  

4.

Sr. Executive  Officer (E-2)  (executive cadre)  

25.6.97

Rs. 4000- 200-5800- 250-8300 Rev. 12500- 500-18000

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Rs. 6550 +  allow.  Rs. 13000 +  allow.  

       He filed  a writ petition before the Allahabad High Court being Civil  Misc. Writ Petition No. 20571 of 2001 wherein he also did not contend that  he was entitled to E-6 grade.  He again in Civil Misc. Writ Petition No.  35123 of 2001 did not make any prayer that he should be given E-6 grade.   Only in Civil Writ Petition No. 34259 of 2002 he inter alia made  the  following prayer:  

"(I)    a writ, order or direction in the nature of certiorari  quashing  the order dated 8.7.02 passed by Principal  Secretary Labour U.P. State Government Lucknow  (Annexure-17);  (II)     a writ, order or direction in the nature of  mandamus directing the Respondents particularly  Respondent No. 2 and 3 to treat the petitioner as placed  in E-6 level of its employees as categorized by BHEL  itself w.e.f. 19.3.1985 and pay difference of pay and  other allowances together with increment and other  benefits including promotional benefits as had become  due to the petitioner from time to time."  

By reason of the impugned order the said prayers were granted.  The  appellant is, thus, before us.  

Mr. Gaurab  Banerjee, learned Senior Counsel appearing on behalf of  the appellant has drawn our attention to the  scales of pay payable for both  executive and non-executive grade of employees and submitted that if the  respondent herein is to be granted the pay-scale of E-6 w.e.f. 19.3.1985, and  furthermore if he is to be given  promotions to which he might have been  entitled to, his salary would be  more than the Chief Executive of the  Company.   

Mr. Bharat Sangal, learned counsel appearing on behalf of the  respondent, on the other hand, urged that in terms of rule 5 of the Rules, the  respondent became entitled to salary payable to a Sr. Executive.  As the  respondent was not earlier aware of the position that the company had  divided the executive cadre as Executive and Sr. Executive, he could not  make the said prayer earlier.  The learned counsel has also drawn our  attention to a supplementary counter affidavit filed by the appellant before  the High Court and  submitted that the appellant had no knowledge that the  scale of Sr. Executive was payable and thus no such claim could be raised.

 In the year 1985 the respondent was appointed as Assistant  Foreman.  Standard Executive Designations of the company are as under:  

Designation Salary Grade  Qualifying  Service for  Promotion 1. SUPUERVISORY  (TECHNICAL) \026 NON  EXECUTIVE SALARY  GRADE

a)

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Chargeman  SA I 5 years  b) Assistant Foreman  SAII 5 years  c) Foreman  SAIII 5 years  d) General Foreman  SAIV 5 years  e) Executive Foreman  SAV 4 years  f) Sr. Executive Foreman  SAVI  4 years  g) General Executive Foreman  SA VII 4 years  

2.

EXECUTIVE \026 Other than  Board Level  

h) Executive (earlier  Officer/Engineer) E1A  4 years from  SAIV under  10% quota.  i) Sr. Executive (earlier Sr.  Officer/Sr. Engineer)  E2  4 years  j) Dy. Manager  E3  3 years  K) Manager  E4  4 years  l) Sr. Manager  E5  3 years  m) Dy. General Manager  E6  3 years  n) Sr. Dy. General Manager  E6A

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3 years  o) Additional General Manager  E7  1 year  p) General Manager I/c/General  Manager  E8  3 years  q) Executive Director  E9  4 years

3.

TOP MANAGEMENT  POSTS (BOARD LEVEL)  

q) Director  

Presidential  appointees  selected on the  PSEB  recommendation  r) Chairman & Managing  Director  

Presidential  appointees  selected on the  PSEB  recommendation

       The respondent does not deny or dispute the scale of pay payable to  different grades of employees, as noticed hereinbefore, but stated that as  regard the  post of Sr. Engineer/Sr. Officer, the designation was amended  only for the purpose of this case.  The said contention of the respondents has  been denied and disputed.  It has not been disputed that he has been  appointed as Safety Officer on 25.6.1993. The post of Sr.  Engineer/Officer/Sr. Executive having a pay-scale of Rs. 13750-550- 18300/- replaced  w.e.f. 1.1.2000, and not during the pendency of this  special leave petition.   A Safety Officer is appointed for the purpose of  Factories Act only.  A  Safety Officer in terms of Rule 5 is merely  given the  status of  a departmental head or a Sr. Executive in the factory.  Such status  is conferred because he would be posted under the Chief Executive of the  factory and would report only to him.  As regards safety aspects, other  officers would be bound by his direction.   

In terms of the proviso appended to Rule 5, the decision of the State  Government, in any dispute raised as regards the status of the Safety  Officer, is to be final.  The respondent did  not raise such a dispute.  He  made representations only after the judgment was passed in the criminal  case.   In the criminal case the learned Chief Judicial Magistrate imposed a  fine of Rs. 500 on the persons who were accused therein.  Despite the  finding in the said criminal case, it was open to the appellant to contend  before the State Government that having regard to the facts and  circumstances of this case, the respondent  was not entitled to the  remunerations payable to Sr. Executive Officer.

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       In P. Ramanatha Aiyar’s Advance Law Lexicon, 3rd edition, Volume  4, at page 4469, the expression "status" has been defined as under:

"Status is a much discussed term which, according to the  best modern expositions, includes the sum total of a  man’s personal rights and duties (Salmond,  Jurisprudence 253, 257), or, to be verbally accurate, of  his capacity for rights and duties. (Holland,  Jurisprudence 88).

The status of a person means his personal legal condition  only so far as his personal rights and burdens are  concerned.  Dugganna v. Ganeshayya, AIR 1965 Mys  97, 101. [Indian Evidence Act (1 of 1872), S. 41]

In the language of jurisprudence status is a condition of  membership of a group of whicih powers and duties are  exclusively determined by law and not by agreement  between the parties concerned. (Roshan Lal v. Union,  1967 SLR 832)."

       The said expression has been defined in ’Black’s Law Dictionary’  meaning  "Standing; state or condition; social position.  The legal relation of  individual to rest of the community.  The rights, duties, capacities and  incapacities    which determine a person to a given class.  A legal personal  relationship, not temporary in its nature nor terminable at the mere will of  the parties, with  which third persons and the state are concerned."

       Only because a person is given a particular status,  the same would  not mean that his other terms and conditions of service would not be  governed by  contract of employment or other statute(s) operating in the  field.  We may notice that a three-Judge Bench of this Court in Indian  Petrochemicals Corporation Ltd. & Anr. v. Shramik Sena & Ors. [(1999) 6  SCC 439] observed as under:  

"We hold that the "workmen of a statutory  canteen  would be the workmen of the establishment for the  purpose  of the Factories Act only and not for all other  purposes."

       The High Court unfortunately did not consider the matter from the  aforementioned perspective.   

       The contention of the Respondent that the Appellant has admitted in  its rejoinder affidavit that not only he was to be given the status of E-6 grade  but also the salary payable therefor cannot be accepted.  The Appellant had  all along taken the stand that the remuneration payable to a senior executive  in the cadre of E-6 were not admissible to the Respondent.  The explanation  given by the Appellant in their reply to the counter-affidavit filed in this  court appears to be justified particularly in view of the fact that their stand  had all along been that the Respondent was not entitled to the salary payable  to the senior executive in E-6 grade.

Before us, however, Mr. Banerjee stated that the appellants have no  objection to grant the scale E-2 Grade to the Respondent w.e.f. 19.3.1985.   The High Court, however, wrongly proceeded on the basis that only because  the respondent is to be given the status of a Sr. Executive, he was entitled to  corresponding pay, allowances and other benefits.  It is one thing to say that  under the Act, a status is conferred for the purpose thereof  but it would be  another thing to say that pay, allowances and other benefits  are not to be  paid in terms of the contract of employment or the statute operating in the  field.  The promotion rules relied upon by the respondent as well as by the

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High Court clearly show that the cadre of Sr. Executive was for the purpose  of the promotion  rules.           Before a person in terms of the promotion rules  is promoted to the  post of Sr. Executive,  he must hold a post in the executive cadre having  salary payable to E-1 to E-5 grade.  We have furthermore noticed that so far  as  pay and other allowances are concerned the ’personnel manual’ itself  suggests that E-2 grade is a grade for Sr. Engineer/Sr. Officer/Sr. Executive.   The chart of ’standard executive designations’  in the company shows that  before a person is placed in the next higher grade he has to be in the next  below post for the number of years mentioned therein.  

Furthermore, promotion to the selection posts is not automatic.   Nobody has a right to  promotion,  particularly to the selection posts.  In  ordinary course the respondent was required to spend 43 years of time for  reaching E-6 grade.  He being in the grade of SA II in the year 1985, could  not have been granted the salary payable to the officer of the rank of Dy.  General Manager.  Everybody concerned including the officers of the State  proceeded on the said basis.   As noticed hereinbefore  even in the complaint  petition filed before criminal courts, the authorities under the Act merely  contended that the authorities of the appellant had violated rule 4 and 5 of  the Rules and thus punishable under Section 92 of the Factories Act only on  the premise that the respondent had not been given the salary of E-1 grade.            In Tarsem Singh & Anr. v. State of Punjab & Ors. [(1994) 5 SCC  392]  it was stated:  

"Promotion as understood under the service law  jurisprudence means advancement  in rank, grade or  both.           [See also  State of Rajasthan v. Fateh Chand Soni (1996) 1 SCC 562)]

       Promotion thus being not automatic, the High Court committed a  manifest error in issuing the impugned directions.           For the foregoing reasons, the impugned judgment cannot be  sustained.  However, it has been conceded that the Respondent may be  allowed to draw E-2 grade from 19.03.1985.  It is directed that the entire  amount paid to the Respondent pursuant to or in furtherance of the order of  the State Government or the High Court in E-1 grade shall be adjusted.  It  goes without saying that the salary etc. paid to him by the company for the  aforementioned period shall also be adjusted i.e. to say only the difference  of the amount payable to the Respondent herein shall be paid.  The appeal  is, therefore, allowed in part and to the extent mentioned herein before.            However, in the facts and circumstances of the case there shall be no  order as to cost.