Allowed

Panyam Cements and Mibneral Industries v. The Honble Industrial Tribunal - II

Telangana HC22 Jan 2014WP/17486/2003

Case brief

AI extract

What is this about?

In a writ petition seeking certiorari, the High Court set aside an Industrial Tribunal award that granted an employee service up to 60 years. The Court held the employee, transferred to the Factory wing in 1985 and remaining there until retirement in 1998 at age 58, was governed by the Factory Standing Orders.

What did the court decide?

The writ petition was allowed; the Industrial Tribunal's award was set aside; the Industrial Dispute No.39 of 2001 was dismissed.

Panyam Cements and Mibneral Industries Vs… — Pension and Retirement Benefits | Telangana HC (2014)

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*** HON’BLE Dr. JUSTICE K.G.SHANKAR**

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+ Writ Petition No.17486 of 2003

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% 22-01-2014

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# Panyam Cements and Mineral Industries Ltd., Central Admn. Office, Plot No.50, Road No.4, Banjara Hills, Hyderabad, Rep. by Secretary; And 2 others

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… Petitioners

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Vs.

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$ The Hon’ble Industrial Tribunal-II,

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2^nd Floor, Chandra Vihar, M.J.Road, Hyderabad, Rep. by its Chairman; And 2 others

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… Respondents

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! Counsel for the petitioners: Sri D.Ravishankar Rao

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^ Counsel for Respondent No.1: None Counsel for Respondent No.2: Sri William Burra Counsel for Respondent No.3: Government Pleader for Labour

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<Gist :

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>Head Note:

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? Cases referred: Nil.

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HON’BLE Dr. JUSTICE K.G.SHANKAR

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Writ Petition No.17486 of 2003

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Date: 22-01-2014

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Between

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Panyam Cements and Mineral Industries Ltd., Central Admn. Office, Plot No.50, Road No.4, Banjara Hills, Hyderabad, Rep. by Secretary; and 2 others

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… Petitioners

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and

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The Hon’ble Industrial Tribunal-II, 2^nd Floor, Chandra Vihar, M.J.Road, Hyderabad, Rep. by its Chairman; and 2 others

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… Respondents

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HON’BLE Dr. JUSTICE K.G.SHANKAR

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Writ Petition No.17486 of 2003

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Order:

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M/s Panyam Cements and Mineral Industries Limited, Hyderabad (the Company, for short) has two Wings viz., the Factory Wing and the Limestone Mines Wing. They have their own separate Certified Standing Orders. The age of superannuation for the employees of the Factory under its Certified Standing Orders is completion of 58 years of age. The age of superannuation for the employees of the Limestone Mines is completion of 60 years of age under the Certified Standing Orders of the Quarries. The basic question is whether the

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2^nd respondent-employee is governed by the Standing Orders of the Factory or the Standing Orders of the Limestone Mines. The Industrial Tribunal-II, Hyderabad (the Tribunal, for short) ordered that the 2^nd respondent shall be entitled to service and allowances from 03-7-1998 till 02-7-2000. Assailing the same, this Writ of certiorari is laid.

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2. The 2^nd respondent was employed by the Company as a Trainee Geologist in the Limestone Mines/Quarries of the Company with effect from 29-4-1971. The training period of the 2^nd respondent was extended through orders dated 19-6-1972. He was placed on probation with effect from 01-8-1973 for a period of one year. Through orders dated 04-11-1974, the 2^nd respondent was confirmed as a Geological

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Assistant in the Limestone Mines. The 2^nd respondent thus was working in the Limestone Mines where the age of superannuation was completion of 60 years in accordance with the Certified Standing Orders for Mines and Quarries.

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3. The 2^nd respondent had to undertake fieldwork, collecting samples and testing the samples in the laboratories as a Geological Assistant. The 2^nd respondent would appear to have applied for sick leave for 3 days from 06-7-1981 till 08-7-1981. On 23-7-1981 and on 30-7-1981, the 2^nd respondent was directed to submit himself before the Medical Officer of the Company for medical examination since the sick leave of the 2^nd respondent was accompanied by a Medical Certificate from a Private Medical Practitioner. However, on 26-7-1981, the 2^nd respondent applied for leave on medical grounds once again producing a Medical Certificate from a Private Medical Practitioner. He also made yet another request on 10-8-1981 for sick leave.

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4. On 17-8-1981, a telegram would appear to have been sent by the Management informing the 2^nd respondent that the request for extension of leave was refused. The 2^nd respondent was directed to report to

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duty immediately. Nevertheless, on the very next day i.e. on 18-8-1981, the 2^nd respondent made a fresh request for sick leave.

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5. It is contended by the petitioners that the

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2^nd respondent subsequently made an oral request to transfer him to the Factory from Limestone Mines since he was irregular for duty from 06-7-1981 till 01-01-1983 without proper leave application. However, there is nothing in writing to show that the 2^nd respondent made such a request. Be that as it may, the 2^nd respondent was transferred by the Management to the Factory on 14-12-1985. The 2^nd respondent reported to duty at the Factory on 30-12-1985.

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6. The 2^nd respondent was subsequently transferred to Marketing Department through orders dated 04-3-1986. He reported to duty on the same day. Again, through orders dated 14-10-1989, he was transferred to Cost Accounts Department. While the 2^nd respondent had been working in the Factory, he was informed through a letter dated 28-5-1998 that he would attain superannuation on 02-7-1998 as he would complete 58 years of age and that he would accordingly retire on 02-7-1998. On 02-7-1998, the 2^nd respondent was retired from service.

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7. Subsequent to his retirement, the 2^nd respondent moved the Central Assistant Commissioner of Labour contending that his superannuation would be on completion of 60 years of age in accordance with the Certified Standing Orders of the Limestone Mines of the Company. The dispute was admitted for conciliation. As no amicable solution was reached in the conciliation, the Assistant Commissioner of Labour informed the Government of India about the failure of the conciliation. The Government of India deemed it inappropriate to refer the dispute to the Tribunal under Section 10 of the Industrial Disputes Act, 1947 (the Act, for short) and issued proceedings on 21-4-1999 that the Company followed the Standing Orders and retired the 2^nd respondent on attaining superannuation.

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8. The 2^nd respondent consequently filed an application before the Labour Court-I, Hyderabad under Section 2-A(2) of the Act. The dispute was registered as I.D.No.59 of 1999. Subsequently, the same was transferred to the Industrial Tribunal-II (1^st respondent) and was renumbered as I.D.39 of 2001. The 1^st respondent-Tribunal passed award on 04-4-2002 holding that the 2^nd respondent was an employee of Limestone Mines of the Company and that his superannuation would be on completion of 60 years of

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age. It consequently held that the 2^nd respondent was entitled to the service and allowances from 03-7-1998 till 02-7-2000 on which date the 2^nd respondent completed his 60 years of age. Assailing the same, the present writ petition is filed by the Company.

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9. The 1^st petitioner-Company attacked the award primarily on the ground that the application under Section 2-A(2) of the Act is not applicable. He submitted that Sections 2-A and 2A(2) of the Act would apply where an employee is discharged, dismissed, retrenched or otherwise terminated from service and that when an employee is superannuated, Section 2-A(2) of the Act would not apply.

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10. It may be noticed that the 2^nd respondent is contending that he should be superannuated after he completed 60 years of age and not after he completed 58 years of age and that the alleged superannuation would be termination of his services. The expression used in Section 2-A of the Act is “otherwise terminates”. I consider that this expression “otherwise terminates” engulfs in variety of cessation of employment whether it is by virtue of the dismissal, discharge etc., including superannuation. I therefore am unable to agree with the contention of the learned counsel for the 1^st petitionerCompany that the very reference was not maintainable

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and is liable to be rejected.

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11. The learned counsel for the 1^st petitionerCompany further contended that when Government of India passed orders on 21-4-1999 declining to refer the dispute to the Tribunal, the 2^nd respondent ought to have filed a writ petition to direct the Government of India to refer the dispute to the Tribunal for adjudication; and having failed to do so, the 2^nd respondent would not be entitled to raise a dispute under Section 2-A(2) of the Act. Indeed, it is curious for the 2^nd respondent not to approach this Court when Government of India declined to refer the dispute to the Tribunal. However, in view of Section 2-A(2) of the Act, the dispute, nevertheless, is liable for entertainment before the Tribunal. The objection of the learned counsel for the

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1^st petitioner-Company in this regard consequently is rejected.

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12. Regarding the merits of the case, it is submitted by the learned counsel for the petitioners that the 2^nd respondent worked in the Mines of the Company from 1971 till 1981 and in the Factory of the Company from 1985 till 1998 and that his period of service in the Factory is more than his period of service in the Mines. I am afraid that the length of service in the Factory and in the Mines cannot determine whether the

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2^nd respondent was an employee of the Factory or the Mines. Whether the 2^nd respondent was an employee of the Mines or the Factory of the Company at the time of the retirement decides whether the 2^nd respondent should retire after completing 58 years or after completing 60 years of age.

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13. The Tribunal referred to an unreported decision between an employee of the 1^st petitioner on the one side and the 1^st petitioner-Company on the other side where it would appear to have been held that the employees working in the Mines of the Company were covered by the Certified Standing Orders applicable to the Mine workers and that the age of superannuation was 60 years for them. The learned counsel for the 1^st petitioner-Company submitted that the unreported decision was in respect of a reference made by the Central Government and that it does not apply to the present case where the very entertainment of the dispute is under Section 2-A(2) of the Act was not correct.

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14. Where I had already held that the Industrial Court had jurisdiction under Section 2-A(2) of the Act, this contention is irrelevant. However, there is no dispute that for the employees of the Mines of the

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1^st petitioner-Company, the age of superannuation was

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60 years in accordance with the Certified Standing Orders. There is also no dispute that the age of superannuation for the employees of the Factory of the Company, the Certified Standing Orders provide 58 years as the age of superannuation. The question is whether the Certified Standing Orders of the Mines or the Certified Standing Orders of the Factory of the Company applies to the 2^nd respondent and not whether an employee of the Mines of the Company retires at the age of 60 years or 58 years. I therefore consider that this unreported decision relied upon by the learned Presiding Officer of the 1^st respondent-Tribunal has no relevance.

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15. The Tribunal referred to another decision where it would appear to have been held that a dispute relating to the date of birth of a workman for the purpose of superannuation would be an industrial dispute. The learned counsel for the petitioners once again tried to distinguish this decision on the ground that it was a decision made by the Court on a reference by the Central Government. I had already pointed out that this industrial dispute is maintainable under Section 2-A(2) of the Act. However, it may be noticed that this is not

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a case where the date of birth of the 2^nd respondent was in dispute. The dispute was with reference to the date of retirement of the 2^nd respondent. At any rate, the dispute certainly is an industrial dispute, which deserves to be

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adjudicated upon by the Tribunal.

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16. Regarding the main question whether the 2^nd respondent is an employee of the Factory or the Mines of the Company, where the 2^nd respondent was transferred to the Factory on 14-12-1985 and joined the Factory on 30-12-1985 and where the 2^nd respondent was subjected to transfers within the Factory and where the 2^nd respondent never questioned the same at any point of time, I am afraid that the 2^nd respondent shall be treated as an employee of the Factory. Apart from the petitioners treating the 2^nd respondent as an employee of the Factory, the 2^nd respondent would appear to have considered himself to be an employee of the Factory where he never questioned his transfer to the Factory or his subsequent transfers to Marketing Department and Cost Accounts Department. Thus, the 2^nd respondent was a member of the Factory as on the date of his retirement.

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17. If the 2^nd respondent had been shifted to the Factory from the Mines mala fide or at the fag end of his service in order to superannuate him at the age of 58 years, the 2^nd respondent could have questioned the same. The 2^nd respondent was transferred to the Factory in 1985 whereas he completed 58 years of age in 1998.

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Added to it, no mala fides were attributed to the petitioners for the transfer of the 2^nd respondent from the Mines to the Factory. Further, the petitioners justified the circumstances in which the 2^nd respondent was shifted from the Mines to the Factory viz., his persistent absent from duty on the ground of ill health.

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The 2^nd respondent therefore cannot claim that he was an employee of the Mines at this length of time.

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He was treated as an employee of the Factory and he indeed became an employee of the Factory when he was transferred to the Factory whether on his request or otherwise. Once the 2^nd respondent is considered to be an employee of the Factory, the date of superannuation as worked out by the petitioners as 02-7-1998 is correct. The retirement of the 2^nd respondent on superannuation consequently was correct and cannot be interfered with. The finding of the 1^st respondent-Tribunal is not sustainable and is accordingly set aside. The superannuation of the 2^nd respondent on 02-7-1998 having completed 58 years is found to be justified.

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18. Accordingly, the writ petition is allowed.

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The award of the 1^st respondent-Tribunal is set aside. I.D.No.39 of 2001 before the Tribunal is dismissed. The miscellaneous petitions pending, if any, shall stand closed. No costs.

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_____________________ Dr. K.G.SHANKAR, J.

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22^nd January, 2014. Ak

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Note:- L.R.Copy to be marked. (B/o) Ak

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HON’BLE Dr. JUSTICE K.G.SHANKAR

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177

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Writ Petition No.17486 of 2003

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22^nd January, 2014. (Ak)

Panyam Cements and Mibneral Industries v. The Honble Industrial Tribunal - II

Case brief

What is this about?

What did the court decide?

Panyam Cements and Mibneral Industries v. The Honble Industrial Tribunal - II

Case brief

What is this about?

What did the court decide?

What the court decided

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