====================================================== 1. Sushil Kumar Srivastava, S/o Late Brijnandan Prasad Srivastava, R/o Vill.- Lauria, Distt v. 1. The St
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10960 of 2010 ====================================================== 1. Sushil Kumar Srivastava, S/o Late Brijnandan Prasad Srivastava, R/o Vill.- Lauria, Distt.- West Champaran. 2. Hulash Gope, S/o Late Bijli Ahir, R/o Vill.- Parsauna, P.S.- Lauria, Distt.- West Champaran. 3. Chandrabhushan Prasad, S/o Kariman Sah, R/o Vill.- Turhapatti, P.S.- Chanpatia, Distt.- West Champaran. 4. Nand Kishore Tiwari, S/o Kanhaiya Tiwari, R/o Vill.- Jawaharipur, P.S.- Lauria, Distt.- West Champaran. .... .... Petitioners Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2. The Secretary, Department of Sugarcane Development, Govt. of Bihar. 3. The Deputy Secretary, Industry (Cane Development Department) Govt. of Bihar, Patna. 4. S.B.I. Caps, Financial Advisor, Department of Sugarcane Development, Govt. of Bihar, Patna. 5. The Cane Commissioner, Cane Industries Department, Govt. of Bihar, Patna. 6. The Collector, West Champaran, Bettiah. 7. The Managing Director, Bihar State Sugar Corporation Ltd., New Secretariat, Patna. 8. Deputy Labour Commissioner, Commissioner, Muzaffarpur. Office of the Deputy Labour 9. Excise Superintendent, West Champaran, Bettiah. 10. Magistrate-In-Charge-Cum-Block Agriculture Officer, Lauria Distillery, Distt.- West Champaran.
Legal Reasoning
.... .... Respondents ====================================================== For the petitioners : M/s Prabhakar Dwivedi and Sanjay Kr. Pandey, Advocates. For the State : Mr. P. K. Verma, AAG-5 with Dr. Mankeshwar Tiwari, AC to AAG-5 For respondent no.7 : Mr. Gyan Shankar, Advocate. ======================================================
Decision
P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 20 08-01-2013 Heard learned counsel for the petitioners, learned counsel for the State of Bihar and its authorities as well as learned counsel for the Bihar State Sugar Corporation Limited. 2. This writ petition has been filed by the petitioners Patna High Court CWJC No.10960 of 2010 (20) dt.08-01-2013 2 challenging order dated 17.02.2010 by which the respondent- Cane Commissioner, Bihar directed that the pay/wages/arrears as well as other statutory benefits like bonus, provident fund etc. of the employees of Louria Distillery would be paid by the S.K.G. Sugar Limited and not by the State of Bihar or Bihar State Sugar Corporation Limited. The petitioners also seek direction to the respondents authorities of the State to make payment of arrears of their wages and other benefits along with interests. 3. Learned counsel for the respondent-State of Bihar and learned counsel for the respondent-Bihar State Sugar Corporation Limited vehemently oppose the contentions of learned counsel for the petitioners, but from the facts and circumstances of this case it is quite apparent that an exactly similar matter has been decided by a Bench of this court vide order dated 13.12.2012 passed in CWJC No.15934 of 2007 in which also employees of Louria Distillery were the petitioners and the State of Bihar and its authorities were the respondents. 4. In the said decision the Hon’ble Court has observed and found as follows:- the stand “Counsel for the petitioners thereafter submits that declaration of lock out on 31.5.2002 is not in dispute. But he has a serious objection and dispute about the interpretation which is sought to be given by them as to the significance of the lock out as well as its fall out. The lock out could have been declared by the erstwhile management. But declaration of lock out by itself does the State and taken by Patna High Court CWJC No.10960 of 2010 (20) dt.08-01-2013 3 not bring to an end the master servant relationship between an employer and employees/ workmen. Lock out by its very nature and definition in the Industrial Disputes Act is temporary in nature and lock out by itself can never severe the management and the workmen. By resorting to lock from working out temporarily. It could be legal or illegal lock out but that by itself is not an indicator that it is final bye bye from the management side to the workmen. the workers were prevented the relationship of Counsel has reasons to submit so because of the age old wisdom of the Hon’ble Supreme Court on such issue which still occupies the field. A judgment rendered in the case of Lakshmi Devi Sugar Mills Limited v. Ram Sarup and others, reported in AIR 1957 SC 82, is still an authority on the proposition. The Hon‟ble Apex Court in the said judgment had this to say in the following paragraph: “13. We agree with the reasoning adopted in the above cases and are of opinion that a lockout is neither an alteration to the prejudice of the workmen of the conditions of service applicable to them within the meaning of cl. (a) nor a discharge or punishment whether by dismissal or otherwise of the workmen within the meaning of cl. (b) of S.33 of the Industrial Disputes Act, 1947, or S.22 of the Industrial Disputes (Appellate Tribunal) Act 1950, and that therefore, no permission of the Conciliation Officer, Board or Tribunal as the case may be is necessary to be obtained before a lockout can be declared. If the lockout is legal, no question can at all arise. If, on the other hand, the lockout is illegal, a remedy is provided in S.26 of the Industrial Disputes Act, 1947. The employees affected by a lockout would in any event be entitled to refer the industrial dispute arising between themselves and the employer for adjudication by adopting the proper procedure in regard thereto.” Yet another decision on which reliance has been placed is the case of Feroz Din and others v. State of West Bengal, reported in AIR 1960 SC 363. The relevant paragraphs are reproduced below: “17. The Act therefore treats strikes and lock- outs on the same basis; it treats one as the counterpart of the other. A strike is a weapon of the workers while a lock-out that of the employer. A strike does not, of course, contemplate the severance of the relation of Patna High Court CWJC No.10960 of 2010 (20) dt.08-01-2013 4 employer and employed; it would be strange in these circumstances if a lockout did so.” 21. It, therefore, seems to us that the words "refusal by an employer to continue to employ any number of persons employed by him" in S. 2(1) do not include the discharge of an employee. We feel no difficulty in taking this view, for it does not seem to us that the words "refusal to continue to employ" in S., 2(1) plainly include a discharge. These words have to be read with the rest of the definition and also the word lock-out. The other parts of the definition contemplate no severance of the relation of employer and employed. The word "lockout" as stated in the Presidency Jute Mills Co's. case, 1952 Lab AC 62, in its dictionary sense means refusal on the part of an employer to furnish work to his operatives except on conditions to be accepted by the latter collectively. Therefore, in our opinion, the rules of interpretation do not prevent us from giving to the words used in the definition the meaning "a refusal by the employer to allow any number of persons employed by him to attend to their duties without effecting a termination of service", as was done in the Presidency Jute Mills Co.'s case, 1951 Lab AC 62, which would avoid one part of the Act coming in conflict with another.” If this the law of the land then the Court will have to repel the argument of the State that since there was a lock out by previous management which was never lifted after vesting so they have no obligation to the workers of the Distillery. The matter will have to be decided within the parameters of the facts and the principles of law which has emerged therefrom. After the decision of the Hon’ble Supreme Court in the case of Shri Krishna Gyanoday Sugar Mill (supra) as well as the decisions which have been relied and quoted above, the vesting of the Distillery Unit in the State is absolute. But it by no means can mean that the workers would not be an integral part of the vesting, more so when there is no resistance on the part of the State that there was an obligation created by the take over with regard to the Sugar Mill workers. The dichotomous situation or interpretation sought to be created by the State in regard to the present petitioners, who are workers of the Distillery Unit, is not understood by the Court. In my opinion, there is no distinction in the status of the workmen of the Sugar Patna High Court CWJC No.10960 of 2010 (20) dt.08-01-2013 5 Mills vis- a- vis the workmen of the Distillery. If this distinction has been created by the State, it surely violates Articles 14 and 16 of the Constitution of India. The distinction also further does not meet the rational or the objective of creating a class amongst a class. Even if the factum of lock out on 31.5.2002 is accepted including the fact that on the date of take over on 18.2.2003, the workers were not performing their duties as the Distillery was closed but taking cue from the observations made by the Hon‟ble Apex Court with regard to the meaning of „lock out’ or fall out thereof, it is clear that a lock out is neither alteration of conditions of service nor it is discharge or dismissal by virtue of the said lock out. The master servant relationship stood its ground. It has been beautifully put by the Apex Court that a strike is a weapon of the workers while a lock out that of the employer but even if the lock out is held to be legal, the master servant relation does not end in any manner. Since the State has not been able to place any reliance on any decision of any court expressing a divergent opinion on proposition or principle which has been laid down in the two decisions of the Apex Court with regard to lock out then learned counsel for the petitioners is correct in asserting that the State cannot shake off its liability so far as workmen of the Distillery is concerned. They are an integral part of the vesting in the State and the State has further created a hostile and discriminatory atmosphere by treating one set of workmen to have a legal right to be given a golden handshake whereas similarly and identically placed workmen of the Distillery are treated as a different class. The Court is not impressed by the stand of the State that since the State Cabinet did not provide for any Exit Plan for the Distillery workers they have no obligation to meet and they cannot be extended any benefit vis- a- vis the workers of the Sugar Mills as it is totally misplaced and dehors the law. The decision, conduct or policy of the State smacks of arbitrariness or irrationality. Therefore, the writ application is allowed with a clear direction upon the Chief Secretary, the respondents, especially Government of Bihar that he has a duty to put in place an Exit Policy even for the workers of the Distillery Unit within a period of three months from the date of Patna High Court CWJC No.10960 of 2010 (20) dt.08-01-2013 6 production/ communication of a copy of this order, in favour of the Distillery workers i.e. the petitioners, at par with the Exit Settlement Plan, which was put in place for the Sugar Mill workers and provide benefits accordingly. the Preamble of This Court has to remind the State authorities the Constitution has not that undergone any change in so many years despite several amendments to the Constitution and we still to be a sovereign, socialist, secular continue democratic republic and the State is bound to secure Justice, social, economic and political as well as equality of status and opportunity. The Court is also tempted to quote from the observation of the Hon‟ble Supreme Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation, reported in 2010 (3) SCC 192. “21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty- bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that: “10. …The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State.” “30. Of late, there has been a visible shift in the courts‟ approach in dealing with the cases involving the interpretation of social welfare legislations. The attractive mantras of globalization and liberalization are fast becoming the raison d’etre of the judicial process and an impression has been created that the longer sympathetic constitutional courts are no Patna High Court CWJC No.10960 of 2010 (20) dt.08-01-2013 7 is in that this Court towards the plight of industrial and unorganized workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by three decades. The stock plea raised by the public employer in such cases initial employment/ engagement of the workman/ employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood.” the “31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the „Constitution remain illusory. Therefore, the approach the the courts must be compatible with of constitutional philosophy of which the directive principles of State policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer- public or private.” 5. In the aforesaid facts and circumstances, this writ petition is also allowed with the same directive to the State as has been given in the above decision. Harish/- (S.N. Hussain, J)