& Anr Vs. B.K. Vijay & Ors  Insc 55 (2 February 2006)
Sinha & P.K. Balasubramanyan
out of SLP(C) No. 18305 of 2005) S.B. SINHA, J:
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:
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;
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." 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
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.
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:
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 pay scale 880-42-964-48-1492 of immediate junior Asstt. Foreman/OS/Sr.
Artisan B2/Sr. Assistant Gr.II/Sr. Accountant II has been provided." It
was further held:
produced by prosecution proves beyond doubt that during inspection Shri B.K.
Vijay was neither given pay scale of executive grade nor was given to him
status of departmental head or sr. executive under Rule 4 and 5." The said
judgment, indisputably, has attained finality. In the meanwhile, the respondent
was promoted to the post of Sr. Safety Officer in E2 grade and further more
promoted to the post of Deputy Manager (Safety) in E-3 grade w.e.f. 25.6.2004.
reference was made to the State Government pursuant to the observations made by
the learned Chief Judicial Magistrate. The Respondent also made representations
on 6.5.2002, 23.5.2003 and 28.5.2002. In his representation dated 27.4.2001 he
prayed for fixation of wage arrears and allowances stating :
was awarded following promotions, after my appointment as Safety Officer (Asstt.
Foreman- Non Executive Cadre) w.e.f. 19.3.1985. Sl. No. Designation (Status) w.e.f.
(date Pay scale Basic pay + allowances
25.6.86 Rs.965-52- 1225-55- 1665 Rs. 1445 + allow.
(E-4) 25.8.92 Rs. 2500- 120-4300 Rev. Rs. 4000-175- 4300 Rs. 3700 + allow. Rs.
5400 + allow.
(E-1) (Executive Cadre) 15.6.95 Rs. 2500- 120-4300 Rev. Rs. 4000-175- 4300 Rs.
3820 + allow. Rs. 5575 + allow.
Officer (E-2) (executive cadre) 25.6.97 Rs. 4000- 200-5800- 250-8300 Rev.
12500- 500-18000 Rs. 6550 + allow. Rs. 13000 + allow.
filed a writ petition before the Allahabad High Court being Civil Misc. Writ
Petition No. 20571 of 2001 wherein he also did not contend that he was entitled
to E-6 grade. He again in Civil Misc. Writ Petition No. 35123 of 2001 did not
make any prayer that he should be given E-6 grade.
in Civil Writ Petition No. 34259 of 2002 he inter alia made the following
" a writ,
order or direction in the nature of certiorari quashing the order dated 8.7.02
passed by Principal
Secretary Labour U.P. State Government Lucknow (Annexure-17);
a writ, order or
direction in the nature of mandamus directing the Respondents particularly
Respondent No. 2 and 3 to treat the petitioner as placed in E-6 level of its
employees as categorized by BHEL itself w.e.f. 19.3.1985 and pay difference of
pay and other allowances together with increment and other benefits including
promotional benefits as had become due to the petitioner from time to
time." By reason of the impugned order the said prayers were granted. The
appellant is, thus, before us.
Banerjee, learned Senior Counsel appearing on behalf of the appellant has drawn
our attention to the scales of pay payable for both executive and non-executive
grade of employees and submitted that if the respondent herein is to be granted
the pay-scale of E-6 w.e.f. 19.3.1985, and furthermore if he is to be given
promotions to which he might have been entitled to, his salary would be more
than the Chief Executive of the Company.
Sangal, learned counsel appearing on behalf of the respondent, on the other
hand, urged that in terms of rule 5 of the Rules, the respondent became
entitled to salary payable to a Sr. Executive. As the respondent was not
earlier aware of the position that the company had divided the executive cadre
as Executive and Sr. Executive, he could not make the said prayer earlier. The
learned counsel has also drawn our attention to a supplementary counter
affidavit filed by the appellant before the High Court and submitted that the
appellant had no knowledge that the scale of Sr. Executive was payable and thus
no such claim could be raised.
year 1985 the respondent was appointed as Assistant Foreman. Standard Executive
Designations of the company are as under:
Salary Grade Qualifying Service for Promotion 1.
(TECHNICAL) NON EXECUTIVE SALARY GRADE
Chargeman SA I 5
Foreman SAII 5 years
Foreman SAIII 5
SAIV 5 years
Foreman SAV 4 years
Foreman SAVI 4 years
Executive Foreman SA VII 4 years 2.
EXECUTIVE Other than Board Level
(earlier Officer/Engineer) E1A 4 years from SAIV under 10% quota.
(earlier Sr. Officer/Sr. Engineer) E2 4 years
Dy. Manager E3 3
Manager E4 4
Sr. Manager E5 3
Manager E6 3 years
Sr. Dy. General
Manager E6A 3 years
General Manager E7 1 year
I/c/General Manager E8 3 years
Director E9 4 years 3.
MANAGEMENT POSTS (BOARD LEVEL)
Presidential appointees selected on the PSEB recommendation
Managing Director Presidential appointees selected on the PSEB recommendation
The respondent does not deny or dispute the scale of pay payable to different
grades of employees, as noticed hereinbefore, but stated that as regard the
post of Sr. Engineer/Sr. Officer, the designation was amended only for the
purpose of this case. The said contention of the respondents has been denied
and disputed. It has not been disputed that he has been appointed as Safety
Officer on 25.6.1993. The post of Sr. Engineer/Officer/Sr. Executive having a
pay-scale of Rs. 13750-550- 18300/- replaced w.e.f. 1.1.2000, and not during
the pendency of this special leave petition. A Safety Officer is appointed for
the purpose of Factories Act only. A Safety Officer in terms of Rule 5 is
merely given the status of a departmental head or a Sr. Executive in the factory.
Such status is conferred because he would be posted under the Chief Executive
of the factory and would report only to him. As regards safety aspects, other
officers would be bound by his direction.
terms of the proviso appended to Rule 5, the decision of the State Government,
in any dispute raised as regards the status of the Safety Officer, is to be
final. The respondent did not raise such a dispute. He made representations
only after the judgment was passed in the criminal case. In the criminal case
the learned Chief Judicial Magistrate imposed a fine of Rs. 500 on the persons
who were accused therein. Despite the finding in the said criminal case, it was
open to the appellant to contend before the State Government that having regard
to the facts and circumstances of this case, the respondent was not entitled to
the remunerations payable to Sr. Executive Officer.
In P. Ramanatha
Aiyar's Advance Law Lexicon, 3rd edition, Volume 4, at page 4469, the
expression "status" has been defined as under:
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).
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 whicih 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. We may notice that a three-Judge Bench of this Court in Indian
Petrochemicals Corporation Ltd. & Anr. v. Shramik Sena & Ors. [(1999) 6
SCC 439] observed as under:
hold that the "workmen of a statutory canteen would be the workmen of the
establishment for the purpose of the Factories Act only and not for all other
purposes." The High Court unfortunately did not consider the matter from
the aforementioned perspective.
contention of the Respondent that the Appellant has admitted in its rejoinder
affidavit that not only he was to be given the status of E-6 grade but also the
salary payable therefor cannot be accepted. The Appellant had all along taken
the stand that the remuneration payable to a senior executive in the cadre of
E-6 were not admissible to the Respondent. The explanation given by the
Appellant in their reply to the counter-affidavit filed in this court appears
to be justified particularly in view of the fact that their stand had all along
been that the Respondent was not entitled to the salary payable to the senior
executive in E-6 grade.
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.
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
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.
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.
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. In Tarsem Singh & Anr. v. State of Punjab & Ors. [(1994) 5 SCC 392] it
as understood under the service law jurisprudence means advancement in rank,
grade or both. [See also State of Rajasthan v. Fateh Chand Soni (1996) 1 SCC 562)] Promotion thus being not
automatic, the High Court committed a manifest error in issuing the impugned
the foregoing reasons, the impugned judgment cannot be sustained. However, it
has been conceded that the Respondent may be allowed to draw E-2 grade from
19.03.1985. It is directed that the entire amount paid to the Respondent
pursuant to or in furtherance of the order of the State Government or the High
Court in E-1 grade shall be adjusted. It goes without saying that the salary
etc. paid to him by the company for the aforementioned period shall also be
adjusted i.e. to say only the difference of the amount payable to the
Respondent herein shall be paid. The appeal is, therefore, allowed in part and
to the extent mentioned herein before.
However, in the facts and circumstances of the case there shall be no order as