Management of Vishnu Sugar Mills Limited, Harkhua, District Saran, Bihar v. Their Workmen Represented by Chini Mill Mazdoor Union, Harkhua, Dist. Saran, Bihar

Wanchoo J. higher post was created in the Stores Department

because of the increase in work, Ramkrishna 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 prejudicll-lly affected.' It is also remarkable that after saying all that it could in favour of Ramkrishna Prasad the tribunal did not interfere with the arrange-ment 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 Babula! 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.

CIVIL APPELLATE JURISDICTION: Civil Appeal Their W orkinen 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 Buresh Aggarwal, for the respondents.

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. Wanshoo The appellant is a Sugar Mill in District 8aran in the State of Bihar. One Ramkrishna Prasad was appoint-ed as clerk in this mill in 1933. Gradually, he work"

ed his way up an:d 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 mensem. 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, 195,2, 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 Depart-ment would work as subordinate to Babula! Parekh.

On December 2, 1952, another order was passed by which Ramkrishna Prasad was ordered to hand over the keys of the stores to Babula! 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 th~.

Government of Bihar on May 9, .1956, in which the

following three matters were referred to the tribu- · nal:- Vishnu Sugar 1.. Whether the status of workman, Sri Ram-Mills Ltd. krishna Prasad, Store-keeper, and the nature of the

v.

Their Workmen job performed by him has been changed to his pre-

judice with the appointment of a separate store in-Wanchoo ]. charge;

2. Whether in view of the satisfactory perform-ance of duties of store-keeper for the last 20 years by the above-named workman, it was at all neces-sary to appoint a separate store in-charge over him with higher emoluments and whether Shri Ram-krishna Prasad is entitled to be appointed to the post of store in-charge; and

3. Whether the claim of ·the above-named work-man for promotion to higher grades has been over-looked 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 Babula! 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 Babula! Parekh was from the very beginning appointed as store in-charge.

The tribunal came to the conclusion after a consi-deration of the evidence produced that Babula! was first appointed as an ordinary clerk in the Stores Department and was subsequently made a store in-charge. 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 fnnction of the management and should not ordinarily be interfered with. But in spite of that it was of the view that. this was a fit rg6o case for interference ; but on other considerations which were not specified in the order by the tribunal Vishnu Suga, it held that it would not interfere with the arrange-Mills Ltd. v. ment made by the mill; it instead granted an incre-Thefr Workmen ment of Rs. 30 per month from the date of its order to Ramkrishna Prasad to meet the ends of justice. It Wanchoo is this order which is being challenged before us.

Two points have be.en 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 Ram-krishna Prasad was patently perverse and that there was no change in the status or emoluments of Ram-krishna Prasad by the creation of the new post and the employment of Babula! Parekh on it.

So far as the question of the. competence of the reference is concerned, we are of opinion that there is J 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 t language of s. 2(a)(i) of the .Industrial Disputes· Act,

1947, that before tl;i.at provision could apply to a con-trolled industry there must be a notification by the Central Government for the purposes of s. 2(a)(i) of the Industrial Disputes Act. Section 2(a)(i) is in these terms-

"' Appropriate Government' means in relatipn to any industrial dispute concerning any industry carried o:ri by or under the authority of the Central Government or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government, or in rela-tion 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 r960 Government fw the purposes ofs. 2(a)(i) with reference Vishnu Sugar to the sugar Industry is the Central Government. Mills Ltd. Reliance is placed on the words "concerning any such

v. - controlled industry as may be specified in this behalf Their Workmen by the Central Government" appearing in s. 2 (a)(i).

It is true that sugar is a controlled industry Wanchoo ]. under the Industries (Development and Regulation)

Act, 1951, but that in our opinion does not conclude the matter. In order that the appropriate govern-ment under s. 2(a)(i) may be the Central Government for a controlled industry, it is necessary that such con-trolled industry should be specified by the Central Government for the purposes of s. 2(a)(i). This in our opinion is obvious from the words "controlled indus-try as may be specified in this behalf by the Central Government" appearing in s. 2(a)(i). It is not enough that an industry should be a controlled industry to attract this provision of s. 2(a)(i); it is further neces-sary that it should be specified in this behalf, namely for the purposes of s. 2(a)(i), as a controlled industry by the Central Government, before the Central Government can become the appropriate government within the meaning of s. 2(a)(i). We may in this 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 that is the correct meaning of these words appearing in s. 2(a)(i), as already held in The Bijoy Cotton Mills Ltd. ('). 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 w hatso-ever so far as the status and emoluments of Ram-krishna Prasad were concerned by the creation of the new post and the appointment of Babula] Parekh on it, and that the tribunal was not justified in any case in granting an increment of Rs. 30 per mensem 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 Babula! Parekh who was first appointed as a clerk under him. This view of the tribunal in our opinion is patently erroneous. The z960 appointment order dated October 4, 1952, clearly Vishnu Sugar shows that Babula! Parekh was appointed as store in-Mills Ltd. charge from the very beginning at Rs. 180 per month. v. The tribunal referred to certain entries in the attend-Their Workmen ance register to hold that Babula! Parekh w0rked as clerk to begin with. It appears from the attendance Wanchoo register for the months of October, November and December that Babula! Parekh was marked present from October 7 to November 9. Thereafter from November II to the end of December he signed the attendance register. The statement of Chaudhari, 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 thif'!. It is, however, clear from this confusion that no importance can be attached to whether Babu-la! Parekh was marked present in the register or signed it. The real thing which determined the status of Babula! 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·sugges-tion was made to Chaudhari and the tribunal itself does not find so. It is clear therefore that the finding of the tribunal that Babula! Parekh was appointed as

clerk uuder Ramkrishna Prasad to begin with is patently perverse and it must be held that Babulal Vishnu Suga1' Parekh was from the very beginning working as store

Mills Ltd. in-charge. Now in so far as Ramkrishna Prasad was

v.

Their Workmen concerned his work and emoluments remained the

same after the appointment of Babulal Parekh. If a