Orissa State Warehousing Corpn. Ltd.
Vs. Employees' Union  INSC 194 (29 March 1994)
Sawant, P.B. Sawant, P.B. Punchhi, M.M.
CITATION: 1994 SCC Supl. (2) 488
1.The Orissa State Warehousing Corporation
(Staff) Regulations, 1985 (the 'Regulations') govern the service conditions of
the employees working under the Corporation.
These regulations are made under Section 42 of
the Warehousing Corporation Act, 1962 with the previous sanction of the State
Government. We are concerned here with Regulation No. 3 which deals with
"Classification & Categories of Posts with Scale of Pay".
Sub-clause (1) of the said Regulations classifies the employees into different
grades from Grade-I to Grade-IV and also states their pay scales against each
of the grades. Sub-clause (2) thereof states that the scale of pay of different
grades of employees can be revised by the Board of Directors from time to time
as and when necessary. This Regulation was amended by the Orissa State
Warehousing Corporation (Amendment) Regulations, 1989 by inserting the
following sub-clause (3) after sub-clause (2)-- "except the employees
holding posts of Typists, Diarists, Stenographers, Drivers and engineering
personnel, other employees of the Corporation drawing same scales of pay in the
category of Grade-II or Grade-III or Grade-IV posts shall each constitute a
cadre. Their seniority in the respective cadre shall be fixed according to the
date of their regular appointment in the posts in the cadre. An employee
holding a post in a cadre can be transferred to other posts in that cadre by
way of interchange." 2.It appears that the Corporation had proposed the
said amendment without giving a notice to the employees. The employees,
however, learnt of the same and raised an industrial dispute in connection with
the said proposed amendment, and the matter was pending in conciliation.
However, during the pendency of the conciliation
proceedings, the aforesaid amendment was brought into force.
3.The employees challenged the amendment before
the High Court by way of a writ petition under Article 226 of the Constitution
on two grounds, namely, that the said amendment was in contravention of Section
9-A and also of Section 33 of the Industrial Disputes Act, 1947 (the 'Act').
The High Court by its impugned decision dealt with the challenge based on
Section 9-A of the Act and came to the conclusion that inasmuch as the
amendment related to Item 7 of Schedule 4 of the Act, it was hit by the
provisions of Section 9-A and hence a notice of change was necessary before the
amendment was effected. For coming to this conclusion, the High Court held that
the proposed change related to the "Classification and Grades". We
are afraid that the High Court has misconstrued the said amendment. We have already
quoted the amendment which shows that all that was sought to be done by it was
to constitute the employees holding posts other than those specifically
mentioned therein in the 490 category of Grades-II, III and IV, into a separate
cadre each and to make the employees holding the posts in the said cadre,
transferable to the other posts in the same cadre.
No new categories or grades were being created.
The High Court is, therefore, clearly wrong in its construction of the
amendment. We, therefore set aside the said findings.
4.However, the learned counsel appearing for the
respondent-Union contended that the High Court has not dealt with the other
objection to the said amendment based on Section 33 of the Act. We find much
force in this contention. Section 33(1)(a) reads as follows:
"33. Conditions of service, etc., to remain
unchanged under certain circumstances during pendency of proceedings.- (1)
During the pendency of any conciliation proceeding before a conciliation
officer or a Board of any proceeding before an arbitrator or a Labour Court or
Tribunal or National Tribunal in respect of an industrial dispute, no employer
shall,- (a)in regard to any matter connected with the dispute, alter, to the
prejudice of the workmen concerned in such dispute, the conditions of service
applicable to them immediately before the commencement of such proceeding; or
save with the express permission in writing of the authority before which the
proceeding is pending."
5.From the decision of the High Court, it is clear
that the amendment was brought into force while the conciliation proceedings in
respect of the said dispute, namely, the amendment to the regulation, was
pending. In this view of the matter, we are of the view that it was necessary
for the High Court to deal with this objection as well. Probably the High Court
did not deal with the said objection because it felt that it was unnecessary to
do so since it had already held that the amendment was hit by Section 9-A of
the Act. We, therefore, set aside the impugned decision and remand the matter
to the High Court for decision with regard to the challenge under Section 33 of
the Act. The parties are at liberty to file their additional pleadings before
the High Court on the said point. The order passed by this Court on 8-2-1993 would continue till the
disposal of the writ petition before the High Court. The appeals are allowed
accordingly with no order as to costs.