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PETITIONER: MANAGEMENT OF VISHNU SUGAR MILLS LIMITED,HARKHUA, DISTRICT

       Vs.

RESPONDENT: THEIR WORKMEN REPRESENTED BY CHINI MILL MAZDOOR UNION,HARKHU

DATE OF JUDGMENT: 09/03/1960

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B.

CITATION:  1960 AIR  812            1960 SCR  (3) 214

ACT: Industrial Dispute-Refercnce by State Government-Competence- Controlled  industry-"Appropriate Government,"  meaning  of- Industries  (Development  and Regulation) Act, 1951  (65  of 1951). -Industrial Disputes Act, 1947 (14 Of 1947), S. 2 (a) (i).

HEADNOTE: A dispute relating to a workman in the appellant sugar mill, situate  in  Bihar, was raised by the Workers  Union  and  a reference was made by the State Government.  Under s. 2  (a) (1)  of  the Industrial Disputes  Act,  1947,  "’Appropriate Government’  means  in relation to  any  industrial  dispute concerning any industry carried on by or under the authority of  the  Central  Government...... or  concerning  any  such controlled  industry as may be specified in this  behalf  by the  Central Government...... the Central Government ".  The question  was whether the State Government was competent  to make the reference, as sugar was a controlled industry under the Industries (Development and Regulation) Act, 1951. Held, that in order that the appropriate government under s. 2  (a) (1) of the Industrial Disputes Act, 1947, may be  the Central Government for a controlled industry it is necessary that  such  controlled industry should be specified  by  the Central   Government,   and  that  in  the  absence   of   a notification for the 215 purposes  of s. 2 (a) (1) of the Act, the  State  Government was competent to make the reference. The  Bijoy  Colton Mills Ltd. v. Their Workmen  and  Another [1960] 2 S.C.R. 982, followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 402 of 1958. Appeal  by  special leave from the Award dated  January  29, 1957,  of  the  Industrial  Tribunal,  Bihar,  at  Patna  in Reference No. 7 of 1956. Sukumar Ghose, for the appellant. M.   K.   Ramamurthi,   R.   K.  Garg,   A.   N.   Nag   and Suresh Aggarwal, for the respondents.

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S.   P. Varma, for the intervener (State of Bihar). 1960.  March 9. The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal by special leave against  the award of the Industrial Tribunal, Patna.  The appellant is a Sugar  Mill  in District Saran in the State of  Bihar.   One Ramkrishna  Prasad  was appointed as clerk in this  mill  in 1933.   Gradually, he worked his way up and was drawing  Rs. 140 per month in October 1952.  The mill created a new  post of store in-charge about that time as the work in the Stores Department  of the Mill had increased.  On October 4,  1952, Babulal  Parekh  was  appointed  to  this  new  post  on   a consolidated  salary  of Rs. 180 per menses.   A  letter  of appointment  was issued to him on that date and he was  told that  he  would be on probation for one year.  He  was  also asked by another letter to take charge immediately.  He took charge  on October 7, 1952.  On November 28, 1952, an  order was  passed by the mill distributing the duties between  the various clerks employed in the Stores Department and it  was stated  therein that all the staff of the Stores  Department would work as subordinate to Babulal Parekh.  On December 2, 1952,  another order was passed by which  Ramkrishna  Prasad was  ordered to hand over the keys of the stores to  Babulal Parekh.  Thereafter Ramkrishna Prasad made a  representation against his being made subordinate to the stores  in-charge. This representation was rejected.  A dispute was then raised by  the union and a reference was made by the Government  of Bihar on May 9, 1956, in which the 216 following three matters were referred to the tribunal:- 1.Whether  the status of workman, Sri Ramkrishna  Prasad, Store-keeper, and the nature of the job performed by him has been  changed  to his prejudice with the  appointment  of  a separate store in charge; 2.Whether  in  view of the  satisfactory  performance  of duties  of store-keeper for the last 20 years by the  above- named workman, it was at all necessary to appoint a separate store in-charge over him with higher emoluments and  whether Shri  Ramkrishna Prasad is entitled to be appointed  to  the post of store in-charge; and 3.Whether  the  claim  of  the  above-named  workman  for promotion  to  higher  grades has  been  overlooked  by  the management,  and if so, what relief the workman is  entitled to. When  the  matter  came up before  the  tribunal,  the  main contention on behalf of the mill was that it was exclusively the management function to decide its labour strength,  both qualitatively  and  quantitatively,  and  that  so  far   as Ramkrishna  Prasad was concerned his position had  not  been prejudicially affected by the creation of the new post of  a store  in-charge.  The workmen on the other  hand  contended that  Babulal  Parekh was first appointed as  a  mere  clerk under  Ramkrishna  Prasad to begin with and it was  only  on November  28,  1952, that he was promoted over the  head  of Ramkrishna  Prasad  as a store in-charge,  thus  superseding Ramkrishna   Prasad.    This  stand  of  the   workmen   was controverted  by  the  mill and its case  was  that  Babulal Parekh  was from the very beginning appointed as  store  in- charge. The tribunal came to the conclusion after a consideration of the evidence produced that Babulal was first appointed as an ordinary clerk in the Stores Department and was subsequently made a store incharge.  It held that this caused  reasonable heart  burning  to  Ramkrishna  Prasad.   The  tribunal  was conscious  of the principle that promotion to a higher  post was the exclusive function of the management and should  not

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ordinarily be interfered with.  But 217 in spite of that it was of the view that this was a fit case for interference; but on other considerations which were not specified in the order by the tribunal it held that it would not  interfere  with the arrangement made by  the  mill;  it instead  granted an increment of Rs. 30 per month  from  the date  of its order to Ramkrishna Prasad to meet the ends  of justice.  It is this order which is being challenged  before us. Two  points  have  been urged before us  on  behalf  of  the appellant.   In  the  first  place  it  is  urged  that  the reference was incompetent as sugar was a controlled industry and  only  the  Central  Government  could  have  made   the reference  and  not the State Government.  Secondly,  it  is urged  that the order of the tribunal granting an  increment of  Rs.  30  per month to  Ramkrishna  Prasad  was  patently perverse  and  that  there was no change in  the  status  or emoluments  of Ramkrishna Prasad by the creation of the  new post and the employment of Babulal Parekh on it. So far as the question of the competence of the reference is concerned, we are of opinion that there is no force in it, A similar  question was raised before this Court in The  Bijoy Cotton  Mills Ltd. v. Their Workmen and Another (1)  and  it was  held  there  on  the language  of  s.  2(a)(1)  of  the Industrial  Disputes Act, 1947, that before  that  provision could  apply  to  a  controlled industry  there  must  be  a notification  by the Central Government for the purposes  of s. 2(a)(1) of the Industrial Disputes Act.  Section  2(a)(1) is in these terms- "  I  Appropriate  Government’  means  in  relation  to  any industrial dispute concerning any industry carried on by  or under  the  authority  of the Central  Government  or  by  a railway  company or concerning any such controlled  industry as maybe specified in this behalf by the Central Government, or in relation to an industrial dispute concerning a banking or  an insurance company, a mine, an oil-field or  a,  major port, the Central Government.  " The argument is that as sugar is a controlled industry under the Schedule to the Industries (Development and  Regulation) Act, No. 65 of 1951, the appropriate (1)  [1960] 2 S.C.R- 982, 28 218 Government for the purposes of s. 2(a)(1) with reference  to the  sugar Industry is the Central Government.  Reliance  is placed  on  the  words  "  concerning  any  such  controlled industry  as may be specified in this behalf by the  Central Government  "  appearing in s. 2 (a)(1).  It  is  true  that sugar   is  a  controlled  industry  under  the   Industries (Development  and  Regulation) Act, 1951, but  that  in  our opinion  does  not conclude the matter.  In order  that  the appropriate  government under s. 2(a)(1) may be the  Central Government  for a controlled industry, it is necessary  that such controlled industry should be specified by the  Central Government  for  the purposes of s. 2(a)(1).   This  in  our opinion  is obvious from the words " controlled industry  as may be specified in this behalf by the Central Government  " appearing in s. 2(a)(1).  It is not enough that an  industry should be a controlled industry to attract this provision of s.  2(a)(1)  ;  it is further necessary that  it  should  be specified  in  this behalf, namely for the  purposes  of  s. 2(a)(1), as a controlled industry by the Central Government, before  the  Central Government can become  the  appropriate government within the meaning of s. 2(a)(1).  We may in this

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connection  refer to Firebricks and Potteries Ltd., etc.  v. Firebricks and Potteries Ltd.  Workers Union Ltd. (1)  where the same view has been taken.  We are of opinion that is the correct  meaning of these words appearing in s. 2(a)(1),  as already  held  in  The Bijoy Cotton Mills  Ltd.  (2)  .  The objection  that  the reference was not  competent  therefore fails. We next come to the contention raised on behalf of the  mill that there was in fact no prejudice whatsoever so far as the status and emoluments of Ramkrishna Prasad were concerned by the creation of the new post and the appointment of  Babulal Parekh on it, and that the tribunal was not justified in any case  in  granting  an increment of Rs.  30  per  menses  to Ramkrishna Prasad.  The main consideration which  influenced the  tribunal in passing the order which it did was that  in the view of the tribunal Ramkrishna Prasad was superseded by Babulal Parekh who was first appointed as a clerk under him. This view of (1) I.L.R. [1955] MYS. 546.  (2) [1960] 2 S.C.R. 982. 219 the  tribunal  in our opinion is  patently  erroneous.   The appointment order dated October 4, 1952, clearly shows  that Babulal  Parekh was appointed as store inches from the  very beginning  at Rs. 180 per month.  The tribunal  referred  to certain  entries  in the attendance register  to  hold  that Babulal  Parekh worked as clerk to begin with.   It  appears from  the  attendance register for the  months  of  October, November and December that Babulal Parekh was marked present from October 7 to November 9. Thereafter from November 11 to the end of December he signed the attendance register.   The statement  of Cbaudhari, Labour Welfare Officer of the  mill was that the practice in the mill was that officers used  to be  marked present in the attendance register  while  clerks used to sign it themselves.  The tribunal has concluded from the  fact  that  Babulal.  Parekh  signed  the  register  in November that he must have been a clerk to begin with.   The tribunal, however, completely overlooked that from October 7 to November 9, Babulal Parekh was marked present which would show that he was not a clerk.  The tribunal also  overlooked that  even  from  November 28 to the end  of  December  when Babulal  Parekh  admittedly was not a clerk  but  store  in- charge  he still signed the register, though he should  have been  marked present.  Chaudhari was unable to  explain  how this happened, but he was hardly the person to explain this. It is, however, clear from this confusion that no importance can be attached to whether Babulal Parekh was marked present in  the  register  or  signed  it.   The  real  thing  which determined the status of Babulal Parekh was the  appointment order dated October 4, 1952, which the tribunal has accepted as  correct.  A question was certainly put to  Chaudhari  at the  end of his cross-examination that he  had  manufactured the  statements put in by him only the night before  but  he denied it.  We cannot accept the suggestion on behalf of the respondents  that the appointment order was ante-dated,  for no  such suggestion was made to Chaudhari and  the  tribunal itself  does  not find so.  It is clear therefore  that  the finding of the tribunal that Babulal Parekh was appointed as 220 clerk  under  Ramkrishna Prasad to begin  with  is  patently perverse  and it must be held that Babulal Parekh  was  from the  very beginning working as store in-charge.  Now  in  so far  as  Ramkrishna  Prasad  was  concerned  his  work   and emoluments  remained  the  same  after  the  appointment  of Babulal Parekh.  If a higher post was created in the  Stores Department  because  of  the increase  in  work,  Ramkrishna

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Prasad could not claim promotion to it merely because he was working  as  a store-keeper before.  There is of  course  no question of supersession in this case and therefore there is no  reasonable cause for any heart burning.  As the  learned tribunal  itself points out, " promotion to higher post  was the exclusive function of the management " and if a new post is  created  and a new man appointed, as in  this  case,  it cannot  be said that Ramkrishna Prasad’s status was  in  any way  prejudicially  affected.  It is  also  remarkable  that after  saying  all  that it could in  favour  of  Ramkrishna Prasad  the tribunal did not interfere with the  arrangement made by the mill for reasons which were not specified by  it in  the order.  As such there was no reason for granting  an increment  of  Rs. 30 per mensem to Ramkrishna  Prasad,  for even  the workmen did not claim that he was entitled to  any compensation in the shape of an increment in his pay because of  the  appointment  of Babulal Parekh. The  order  of  the tribunal therefore is patently unsupportable and must be set aside.   We  therefore allow the appeal and  set  aside  the order  of  the tribunal and hold that no relief  is  due  to Ramkrishna Prasad.  In the circumstances we pass no order as to costs. Appeal allowed. 221