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CASE NO.: Appeal (civil)  1324 of 2008

PETITIONER: Management, The Assistant Salt Commissioner

RESPONDENT: Secretary, Central Salt Mazdoor Union

DATE OF JUDGMENT: 15/02/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.25869 of 2004)

S.B. Sinha, J.

1.      Leave granted. 2.      Assistant Salt Commissioner, the appellant herein, is responsible for  monitoring production and supply of salt within his jurisdiction.  Salt  Commission is attached to the Department of Industrial Policy and  Promotion (Salt Desk), Ministry of Commerce and Industry. 3.      The Parliament enacted Central Excise and Salt Act, 1944 (the Act) to  consolidate and amend the law relating to central duties of excise and to salt.  4.      Chapter V of the said Act provides for special provisions relating to  salt.  Salt manufacture etc. is dealt with in Chapter VI of the Central Excise  Rules, 1944.  Rule 102 prohibits manufacture of salt except under a licence.   Such a licence is to be granted by the Collector within the meaning of the  provisions of the said Act.        Rules 129 and 130 of the said Rules read as under:   Rule 129. Licensees to maintain in good order  roads, channels, reservoirs, etc.\027The licensee at  each salt factory shall be bound, at his own  expense, to construct and maintain within the  limits of the factory in good repair to the  satisfaction of the Collector all roads and all  channels, reservoirs, embankments, drying  grounds, platforms and other works used or  intended to be used for the manufacture and  storage of salt, and also any works wherever  situated for the protection of the factory from  inundation or for the supply of brine. Rule 130. When works may be undertaken by  Central Excise Department.\027If the licensee fails  to execute the works specified in rule 129, or, with  the sanction of the Central Government, whenever  it appears desirable that any such work should be  undertaken by the Central Excise Department, the  Collector may cause such works to be executed  and may recover the cost thereof, in such  proportions as may deem fit, from the licensees.\024

5.      Respondents were said to have been appointed by the holders of  licences granted under the said Act.  They were refused regular appointment  by the Assistant Salt Commissioner, Tuticorin, whereupon an industrial  dispute was raised.  The appropriate Government made the following  reference to the Labour Court for its adjudication : \023Is the Assistant Salt Commissioner, Tuticorin  justified in refusing regular employment to the 12

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workmen (list enclosed) on the ground that they  are employed to maintain salt platform mazdoor on  behalf of the licensees and their appointment is  made by the department only for the purpose of  annual estimates?  If not to what relief the  concerned workmen are entitled to?\024

6.      According to the respondents, as they had been appointed by Assistant  Salt Commissioner and have been working as Platform Mazdoor for a period  ranging from 10 to 30 years and furthermore as they had completed more  than 240 days\022 work in a year, they should have been regularized in service.        Before the Labour Court, inter alia, a contention was raised that the  Platform Mazdoors were engaged on daily wages on behalf of the salt  licensees as per Rules 121, 129 and 130 of the Rules and the amount of  wages paid to them is recovered from the licensees by way of special cess.        It was stated that the said method was adopted when the platform and  drying grounds were being used jointly by a number of licensees.        Before the learned Labour Court, however, no evidence was adduced  on behalf of the appellant.        In its order, the learned Labour Court held : 1)      Admittedly, respondents have been working in the Salt  Department. 2)      They were appointed several decades back and have been  working directly under the Department. 3)      Disciplinary proceedings are initiated by the Departmental  Officials. 4)      They have been given housing facilities as also earned leave  facilities by the Department.         On the said premise, it was held that they are the workmen employed  by the Department itself.   7.      A writ petition was preferred thereagainst and a learned Single Judge  of the High Court dismissed the same stating : \023Apart from those particulars, one Arulamandam  one of the workmen was examined as W.W.1.  He  asserted before the labour court that these workers  have been appointed several decades ago and are  working directly under the control and supervision  of salt Department.  It is further seen from his  evidence that they have been provided with  housing facility, served leave benefits etc.   Through w.w.1 Ex.W.1 to W.27 were marked,  which clearly prove the claim of the workmen.   Admittedly, the management had not let in oral or  documentary evidence in support of their stand  taken in their counter statement.  It is also brought  to my notice that, Ex.W3 proceedings dated  20.12.1991 of the Deputy Salt Commissioner,  Madras addressed to the Secretary, Central Salt  Mazdoor Union, which clearly shows that all the  workmen are eligible to leave benefits.  The oral  evidence of w.w.1 and the abundant documentary  evidence produced on the side of the workman  prove their case said in the absence of any other  contra evidence on the side of the management, I  am of the view that the Labour Court has fully  justified in passing an award regularizing their  service as claimed.  In the absence of any other  material before this Court, I do not find any good  reasons to interfere with the award of the Labour  Court.  Consequently, the writ petition fails and the  same is dismissed.  No costs.\024

8.      An intra court appeal preferred thereagainst has also been dismissed

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by the impugned judgment, stating : \023From the materials on records, we find that the  Industrial Dispute has been raised in the year 1992.   Having regard to the peculiar facts and  circumstances of the case, we are of the opinion  that even though direction regarding to the extent  that regularization is correct, such direction is to be  modified to the extent that regularization should be  given effect to from January 1992 and on that  basis, necessary benefits shall be conferred on all  the twelve persons concerned.\024

9.      Mr. Radhakrishnan, learned senior counsel appearing on behalf of  the appellant, submitted : (1)     the industrial dispute raised by the workmen was not maintainable  as the matter relating to service of a Central Government employee  is required to be adjudicated before the Central Administrative  Tribunal constituted under the Administrative Tribunals Act, 1985.   (2)     Appellants having been performing a statutory duty, the impugned  order is illegal.   (3)     The Commission is not an industry and they having been no  sanctioned post, the impugned judgment cannot be sustained. 10.     Mr. Jitendra Sharma, learned senior counsel appearing on behalf of  the respondent, on the other hand, submitted : (1)     that the question in relation to the jurisdiction of the Industrial  Court having never been raised, the same should not be permitted  to be raised for the first time before this Court;  (2)     A finding of fact having been arrived at by the learned Labour  Court that there exists a relationship of \021employer and employee\022  between the appellant and the respondents, interference therewith  by this Court is not warranted; and (3)     In any event, as out of the twelve workmen, six have already  attained the age of superannuation, this Court may not exercise its  discretionary jurisdiction under Section 136 of the Constitution Of  India.   10.     Matter pertaining to grant of licence and terms and conditions  therefor are governed by a statute.  Rule 129 imposes an obligation on the  licensee, inter alia, to maintain the salt platform.  Only in the event, the  same is not properly maintained, the appellant can take over the work for  such period as it may deem fit and proper.  No statutory provision has  been placed before us to show that the appellant had the jurisdiction in a  case of the present nature, namely, to supervise salt platforms and drying  grounds for a large number of licensees together and charge a special  cess therefor. 11.     We do not know as to whether such an arrangement was made with  an approval of the Commissionerate of Salt.  Being creatures of the  statute, they were required to act within the four corners thereof and not  de hors the same. 12.     We are, thus, of the opinion that the appellant has exceeded to its  jurisdiction in arriving at the aforementioned arrangements.  Neither the  Central Excise and Salt Act, 1944 nor the Rules framed thereunder  empower the Assistant Salt Commissioner to take such a step. 13.     We furthermore fail to understand as to on what basis, if the stand  of the appellant is correct, the workmen have been granted housing  facilities or earned leave, etc. 14.     It is really a matter of grave concern that the authorities of the  Central Government are becoming law unto themselves.  We do not  mean to say that there was any lack of bona fide on the part of the said  officer but what we mean is that all activities of the authorities of the  Central Government must have a statutory backing and the impugned  action is beyond the scope thereof.        We furthermore do not appreciate as to why, even in a case of this  nature, no evidence was adduced.  The least which would be done was to  point out before the Labour Court that the licensees and the Department

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have entered into a mutual arrangement.  It was expected that at least to  the said extent, some evidence would be brought before the Labour  Court.  Some witnesses should have been examined to establish that a  policy decision have been taken in that behalf within the statutory  framework. 15.     Evidently, there is no sanctioned post.  Before making appointment  of the respondents, the provisions of Articles 14 and 16 have not been  complied with.  We do not even know whether the Employment  Exchange was notified in regard to the purported vacancies or not.        Regularisation does not mean permanency.  In Secretary, State of  Karnataka & Ors. v. Uma Devi & Ors. [(2006) 4 SCC 1], any  appointment made de hors the rules, has been held to be illegal by a  Constitution Bench of this Court. 16.     We find from the award that a mention was made about a scheme  of regularization from 1973, but neither the same was placed before us  nor Mr. Sharma placed any reliance upon it.  If there existed such a  scheme, the same was required to be framed within the constitutional  framework and in particular the equality clauses as enshrined under  Articles 14 and 16 of the Constitution of India should have been  complied with.        This, however, would not mean that the Central Government  would refuse to provide for the bare minimum wages to its workmen.   The workmen were not told as to on whose behalf the Central  Government was working.  They were not only appointed, disciplinary  actions were taken against some of them.  Applying the relevant tests for  determining the relationship of employer and employee, a finding of fact  has been arrived at that such a relationship existed.        The said finding being pure finding of fact is binding on us.  The  question must, therefore, be posed as to what would be the consequences  therefor. 17.     If regularization means permanency, the workmen cannot be made  permanent.  For filling up the permanent posts, the posts must be created  at the first instance.  They must be sanctioned.  Terms and conditions  must be laid down by making Rules in terms of the proviso appended to  Article 309 of the Constitution of India or by reason of an executive  order made under Article 177 thereof by the Central Government.   18.     We would assume that the industrial tribunal had no jurisdiction to  decide such a question after enactment of Administrative Tribunal Act,  1985. But such a contention had never been raised.  The matter remained  pending before the Labour Court for a long time.  We, therefore, should  not permit the appellant to raise such a contention before us for the first  time.   19.     However, it must be borne in mind that the Central Government  cannot be held to be bound by an act of one of its officers.  In terms of  the Rules, the job of a licensee could be taken over directly under Rule  130 of the Rules and not beyond the same.  When a statutory action is  performed, it is trite, it must be done in the manner laid down under the  statute or not at all.  All actions of the statutory authorities must be  confined within the four corners of the statute.  If the appellant was not  authorized under the statute to take recourse to Rule 130 of the Rules for  the purposes as mentioned in the written statement before the Labour  Court, the said action itself must be held to be a nullity.  In such a  situation and particularly in view of the fact that in making recruitments  of the respondents, the equality clauses contained in Articles 14 and 16  were not complied with, the respondents cannot derive any benefit  therefrom.   20.     We, in the peculiar facts and circumstances of the case, would,  therefore, direct : 1.      The remaining six workmen should be conferred all benefits which  have been conferred to those who have since superannuated.  2.      If no benefit had been conferred upon the retired employees, the  Central Government shall, by way of compensation, pay a sum of  Rs.1,00,000/- to each of the workman. 3.      The services of such respondents who are still working shall not be  terminated except in accordance with law.

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4.      The Commissionerate of Central Excise would issue necessary  directions to all Assistant Salt Commissioners in regard to their  performance of statutory duties in terms of Rules 121, 129 and 130  of the Rules. 5.      The workmen must be paid the minimum wages fixed therefor.   6.      Appellant shall, subject to any statutory interdict may fix fair  wages for the remaining six workmen. 21.     The award passed by the Labour Court is set aside. Appeal is  allowed subject to the aforementioned directions with costs quantified to  Rs.10,000/- (Rupees ten thousand only).