B. H. E. L. vs B. K. Vijay - 2006 Supreme(SC) 89

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(SC) 89

2006(2) Supreme 85
Supreme Court of India
(From Allahabad High Court)
S.B. Sinha and P.K. Balasubramanyan, JJ.
B.H.E.L. & Anr. —Appellants
versus
B.K. Vijay & Ors. —Respondents
Civil Appeal No. 941 of 2006
(Arising out of SLP (C) No. 18305 of 2005)
Decided on 2-2-2006
Counsel for the Parties :
For the Appellants : G.K. Banerjee, Sr. Advocate, Saurav Aggarwal and Ms. Ruby Singh Ahuja, Advocates.
For the Respondents : Bharat Sangal, Ms. Sangeeta S. Panicker, R.R. Kumar and Samyadej Chatterji, Advocates.
For the State of U.P. : Pradeep Misra and S. Sherwani, Advocates.

Headnote:Factories Act, 1948—Sections 40B and 92—U.P. Factories (Safety Officers) Rules, 1984—Rules 4 and 5—Status of a Safety Officer—Claim of cadre of E-6 (Executive) grade—Respondent claimant is a Diploma Holder in Mechanical Engineering—He was appointed as a charge Man in the year 1976 by appellant—He had completed his diploma course in Industrial Safety from Central Labour Institute in 1979-80—Respondent was appointed as an Assistant Foreman (Safety) and was placed in SA II grade—He was nominated to look after the safety provisions, in addition to his existing work—Promotion of respondent to the post of Foreman (Safety) in the pay scale of Rs. 965-1665—Respondent was then made in-charge of Safety in appellant’s factory in pay scale of Rs. 1965-52-1225-55-1685 and had been enjoying an independent status—Complaint petition was filed by Assistant Director, factories alleging that respondent being a Safety Officer, should have been given E1 (Executive) pay-scale being Rs. 1100-60-1940/- in terms of Rule 5—It was held that respondent was neither given pay scale of executive grade nor was given status of departmental head or senior executive—This judgment has attained finality—Respondent was promoted to the post of Sr. Safety Officer in E2 grade and then to the post of Deputy Manager (Safety) in E-3 grade w.e.f. 25-6-2004—Respondent made representation wherein he prayed for fixation of wage arrears and allowances—Claim made that in terms of rule 5 of the Rules, respondent became entitled to salary payable to a Sr. Executive—Whether High Court was justified in allowing respondent’s claim—(No)—Respondent is to be allowed to draw E-2 grade from 19.3.1985.
       Held : Before us, however, Mr. Banerjee stated that the appellants have no objection to grant the scale E-2 Grade to the Respondent w.e.f. 19.3.1985. The High Court, however, wrongly proceeded on the basis that only because the respondent is to be given the status of a Sr. Executive, he was entitled to corresponding pay, allowances and other benefits. It is one thing to say that under the Act, a status is conferred for the purpose thereof but it would be another thing to say that pay, allowances and other benefits are not to be paid in terms of the contract of employment or the statute operating in the field. The promotion rules relied upon by the respondent as well as by the High Court clearly show that the cadre of Sr. Executive was for the purpose of the promotion rules. Before a person in terms of the promotion rules is promoted to the post of Sr. Executive, he must hold a post in the executive cadre having salary payable to E-1 to E-5 grade. We have furthermore noticed that so far as pay and other allowances are concerned the ‘personnel manual’ itself suggests that E-2 grade is a grade for Sr. Engineer/Sr. Officer/Sr. Executive. The chart of ‘standard executive designations’ in the company shows that before a person is placed in the next higher grade he has to be in the next below post for the number of years mentioned therein. Furthermore, promotion to the selection posts is not automatic. Nobody has a right to promotion, particularly to the selection posts. In ordinary course the respondent was required to spend 43 years of time for reaching E-6 grade. He being in the grade of SA II in the year 1985, could not have been granted the salary payable to the officer of the rank of Dy. General Manager. Everybody concerned including the officers of the State proceeded on the said basis. As noticed hereinbefore even in the complaint petition filed before criminal courts, the authorities under the Act merely contended that the authorities of the appellant had violated rule 4 and 5 of the Rules and thus punishable under Section 92 of the Factories Act only on the premise that the respondent had not been given the salary of E-1 grade. (Paras 20 to 22)
       Promotion thus being not automatic, the High Court committed a manifest error in issuing the impugned directions. (Para 24)
       (ii) Words and Phrases—Word ‘status’—Meaning.
       Held : In P. Ramanatha Aiyar’s Advance Law Lexicon, 3rd edition, Volume 4, at page 4469, the expression “status” has been defined as under:
       “Status is a much discussed term which, according to the best modern expositions, includes the sum total of a man’s personal rights and duties (Salmond, Jurisprudence 253, 257), or, to be verbally accurate, of his capacity for rights and duties. (Holland, Jurisprudence 88).
       The status of a person means his personal legal condition only so far as his personal rights and burdens are concerned. Dugganna v. Ganeshayya, AIR 1965 Mys 97,101. [Indian Evidence Act (1 of 1872), S. 41]
       In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. (Roshan Lal v. Union, 1967 SLR 832).”
       The said expression has been defined in ‘Black’s Law Dictionary’ meaning “Standing; state or condition; social position. The legal relation of individual to rest of the community. The rights, duties, capacities and incapacities which determine a person to a given class. A legal personal relationship, not temporary in its nature nor terminable at the mere will of the parties, with which third persons and the state are concerned.” Only because a person is given a particular status, the same would not mean that his other terms and conditions of service would not be governed by contract of employment or other statute(s) operating in the field. (Paras 15 to 17)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. The respondent herein is a Diploma Holder in Mechanical Engineering. He was appointed as a Charge Man in the year 1976 by the appellant in its Jhansi Unit. He had successfully completed his diploma course in Industrial Safety from Central Labour Institute, Bombay in 1979-80. The said Jhansi Unit of the appellant is a factory within the meaning of the provisions of the Factories Act, 1948 (hereinafter referred to as ‘the Act’). Section 40B of the Act provides for employment of such number of Safety Officers as may be specified in a factory wherein 1000 or more workers are ordinarily employed. Rules were framed by the State of Uttar Pradesh in terms of the provisions of the said Act known as U.P. Factories (Safety Officers) Rules, 1984 (herein after referred to as ‘the Rules’). Rule 5 of the said Rules reads as under :

“Rule 5- The Chief Safety Officer or the Safety Officer in the case of factories where only one Safety Officer is required to be appointed shall be given the status of a departmental head or a senior executive in the factory and he shall work directly under control of the Chief. Executive of the factory. Every other Safety Officer shall be given appropriate status corresponding the status of an officer holding a position next below other departmental heads in the factory;

Provided, that where any dispute arises as to the status of a Safety Officer or Chief Safety Officer, the case shall be referred to the State Government, whose decision shall be final.”

3. The respondent was appointed as an Assistant Foreman (Safety). He was placed in SA II grade. The said scale of pay was accepted by the respondent without any demur whatsoever. A notification dated 02.01.1985 was issued by the State Government notifying the appellant as a Safety Officer in the factory, for which a Safety Officer was required to be appointed. As the number of employees working in the said Unit was 1600, indisputably only one Safety Officer was required to be appointed. The respondent, who at the relevant time was working as an Assistant Foreman was said to have been nominated to look after the safety provisions as contained in the Act and the Rules, in addition, to his existing work. He was however, re-designated as Assistant Foreman (Safety).

4. The respondent was first promoted to the post of Foreman (Safety) in the pay-scale of Rs. 965-1665 on 25.6.1986. On a query made by the Director of Factories, the appellant informed him that the respondent was the in-charge of Safety in its factory being in the pay-scale of Rs. 1965-52-1225-55-1685 and had been enjoying an independent status.

5. A complaint petition came to be filed in the court of Chief Judicial Magistrate, Jhansi by the Assistant Director, Factories, Agra purported to be in terms of Section 92 of the Act alleging violation of the provisions of Section 40B thereof, read with Rules 4 and 5 of the Rules. In the said proceeding, the respondent did not intervene. He was not examined as a witness. He, in fact, did not raise any grievance in the said proceeding before the learned Chief Judicial Magistrate. In fact, he had not raised any grievance even before the authorities under the Factories Act. Before the learned Chief Judicial Magistrate, the contention raised on behalf of the enforcing agency was that the respondent being a Safety Officer, should have been given E1 (Executive) pay-scale being Rs. 1100-60-1940/- in terms of Rule 5. The learned Chief Judicial Magistrate opined :

“Shri B.K. Vijay, Safety Officer in the factory was not provided pay scale and status as per rule. It is proved from document exhibit A-4 which is personnel policy of BHEL that in the BHEL separate grades have been made for executive pay scale and non executive pay scale in which the lowest officer has been provided Rs. 1100-60-1940 scale and in non executive grade maximum pay scale of Foreman/Sr. Office Supdt./Sr. Assistant Gr.I/Sr. Artisan II/Accountant 965-52-1225-55-1665 and p

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2006 Supreme(SC) 89

Cases Referred (3)