@JUDGMENTTAG-ORDER
Honourable Mr. Justice N. Paul Vasanthakumar
1. This writ petition is filed by the Chennai Petroleum Officers Association (Registered Association) to quash the notice dated 6.9.2011 issued by the respondent, namely, Chennai Petroleum Corporation Limited.
2. The case of the petitioner-association are as follows:
(a) The respondent-Chennai Petroleum Corporation Limited is a Public Sector Undertaking owned by the Government of India, in which 750 officers are working and most of them are working in the plant area and administrative offices at Manali. The respondent-Corporation was established in the year 1969, which has got a plant at Manali, which employs about 1100 workers and 750 officers working in three shifts, besides a general shift;
|
Morning shift |
- 6.15 a.m. to 2.15 p.m. |
|
Evening shift |
- 2.15 p.m. to 10.15 p.m. |
|
Night shift |
- 10.15 p.m. to 6.15 a.m. |
The working pattern was six days a week with two days off and working hours of 42 hours per week. For general shift, the working hours are from 7.30 a.m. to 5.18 p.m. from Monday to Friday with two days weekly off.
(b) According to the petitioner-association, total working hours per week is 42 hours with six working days and two days off i.e. for those persons working in shifts and for the officers working in the general shift, it has been 41� hours per week i.e. five days working from Monday to Friday with two days weekly off.
(c) By the impugned order dated 6.9.2011, the respondent decided to increase the working hours of the officers, who are working in shifts, from 42 hours to 48 hours per week with one day weekly off as against two days off. Insofar as general shift is concerned, five days working from Monday to Friday with two days weekly off is to be changed to six days working from Monday to Saturday with one day off and a decision was taken to give effect to the timings from 1.10.2011.
(d) The contention of the petitioner-association is, the proposal to increase the weekly working hours by six hours by reducing weekly off from two days to one day is to be introduced adopting the working hours pattern of the Indian Oil Corporation (hereinafter referred to as "IOCL"), which is the holding company of the respondent Corporation. In 2001 itself, IOCL became the holding company of the respondent and the petitioner-association had been impressed upon the respondent not to change the working hours as there are difficulties in coming and attending the factory works at Manali, as there is no colony/quarters adjacent to the factory and all the employees/officers will have to come from far off places and normally they have to spend two hours for coming to the factory and two hours for going back to home from the factory.
(e) Petitioner states that on 6.9.2011, without any further discussion, the impugned order was passed unilaterally changing the working hours in the shift from 42 hours to 48 hours per week and reducing the weekly off from two days to one day and for general shift, the working hours was increased from 41 hours to 48 hours per week and reducing the weekly off from two days to one day. The said action of the respondent is challenged in this writ petition as arbitrary, unreasonable and violative of Article 21 of the Constitution of India, particularly affecting the health of the employees as they are working in polluted area.
3. The respondent has filed a counter affidavit contending as follows:
(i) Respondent is a Public Sector Undertaking, registered under the Companies Act, 1956 and incorporated in the year 1965 and it is doing business of refining crude oil. Until 1970, weekly working hours was 48 hours per week for rotating shift and general shift employees. It was reduced to 44 hours with effect from 1.1.1971. Subsequently, general shift workmen were required to work five days per week i.e., Monday to Friday cumulatively 44 weekly working hours with effect from 1.1.1979, which was further reduced to 41� hours per week for general shift employees and 42 hours per week for rotating shift employees with effect from 16.1.1992. The general shift employees work 5 days with 2 holidays in a cycle of 7 days, whereas the rotating shift employees work 6 days with 2 holidays in a cycle of 8 days.
(ii) The IOCL is a Government of India Undertaking transferred 51.89 shares and the respondent-company has become a subsidiary of IOCL. The Board of Directors of the respondent thereafter decided to align various business processes and HR related policies with that of IOCL, taking note of the interest of its employees as well as the growth of the respondent Undertaking.
(iii) Until the respondent became a subsidiary of IOCL, the officers of the respondent did not receive certain benefits similar to that of IOCL. As a part of alignment process, certain benefits were enhanced on par with IOCL officers, such as productivity-cum-energy savings scheme without ceiling on salary for the period 1997-2007, performance linked incentive without ceiling on salary for the period from 2002-2007, furniture and PC allowance, conveyance reimbursement, long service award, superannuation award, incentives for acquiring higher education etc.
(iv) The said benefits were extended to the officers to ensure parity with the IOCL employees. As regards the corresponding work obligations of officers, it is stated that IOCL has 8 refineries all over India other than the respondent and the general shift and rotating shift employees of those 8 refineries work for 6 days and 48 hours per week, which is on par with the impugned circular. IOCL also has two offices, namely, the Refinery Co-ordination Office and Southern Region Pipeline Installation Office within Manali plant of the respondent. Employees in these offices work for 48 hours per week unlike the employees of the respondent Corporation. Therefore, the management of the respondent considered it necessary to enhance the working hours of its employees and officers to 48 hours and the proposal was under consideration since 2004.
(v) After appraising the officers of the respondent at the meeting about the proposed increase in working hours, the impugned circular was issued on par with IOCL supervisory employees. The respondent has also decided to offer an additional benefit to the employees working for the increased duration in the form of 36 days "encashable compensatory off" to all its rotating shift and general shift supervisory employees, which is also available to the employees of IOCL, who work for 48 hours per week. Therefore, the members of the petitioner-association will earn additional income.
(vi) In the respondent-plant about 813 Supervisors and 967 Non-Supervisors are working. There is no violation of any statutory provision and 25 days notice was given before it was given effect to from 1.10.2011. IOCL has built colonies for its employees at locations which are far away from large cities and towns. The respondent has also built a township to accommodate its employees in its Cauvery Basin refinery because of lack of proper housing facility in that area. Insofar as Manali town is concerned, proper housing facilities are available in and around the Manali plant. Therefore, the respondent did not consider it necessary to establish a township and the employees are provided with housing loans after completing two years of service and CPCL employees are permitted to housing loan only after five years of service. Out of 1780 employees, 1010 employees have availed housing loans. Out of the remaining, 770 employees have not availed the housing loans and other 175 are not eligible due to non-completion of 2 years of service.
(vii) The employees are also reimbursing the conveyance expenses to enable them to travel to work place. The employees can also utilise company provided transport facility, if they do not intend to avail the conveyance reimbursement. It is the contention of the respondent that several benefits are being provided to the employees over and above that of IOCL. The decision was taken to rationalise the working hours in line with the provisions of the Factories Act, 1948 and the matter was discussed on several occasions with the petitioner-association since 2004.
4. The petitioner-association has filed a reply affidavit stating that the benefits conferred by the respondent is based on the Department of Public Enterprises, Government of India, and not with reference to IOCL, particularly when the respondent is also making profits. The respondent Corporation had its own working culture from 1965 and even after becoming subsidiary of IOCL in the year 2001, the increase of working hours and working days without providing a housing colony is causing great hardship and therefore the unilateral decision taken without a meaningful discussion is not valid.
5. Mr.N.G.R.Prasad, Learned Counsel for the petitioner submitted that from 1971 the working hours of the respondent-Corporation was reduced from 48 to 44 per week for all employees and from 16.1.1992 and it was further reduced to 42 hours per week and the proposal to increase the working hours to 48 hours was initiated in the year 2004 stating that the respondent intends to follow the working hours of IOCL employees. The said move was objected by the petitioner association by stating that the respondent Corporation cannot be compared to IOCL as the IOCL is having Township attached to their factory and the respondent Corporation is located in a highly polluted area and the officers and employees are to travel minimum four hours for travelling alone to reach the company and to return to their home daily. On the basis of the representation submitted the Ministry of Petroleum, Government of India on 10.2.2005 requested the respondent Corporation to examine the matter in detail, for which the respondent sent a reply stating that the respondent Corporation has initiated dialogue with the Officers'' Association, etc., and thereafter the proposal to enhance the working hours was not pursued and continued to follow 44 hours of working per week with two days weekly off as in the case of the workers. Insofar as the workers Union are concerned, settlement u/s 12(3) of the Industrial Disputes Act, 1947 was arrived at on 7.8.1992 and 24.9.1996 and stated that the working hours would be as per the mutually agreed terms of settlement and insofar as the officers are concerned, the respondent is unilaterally trying to increase the working hours, which was not the assurance given before the Ministry of Petroleum, Government of India.
6. The proposed action of the Government, according to the Learned Counsel, is in violation of International Labour Organisation''s decision taken in the Convention of the year 1935, which suggested to reduce the working hours of all forms of employment with 40 hours per week. Though the Government of India is not a signatory, under Article 51(c) of the Constitution of India there is an obligation on the part of the Government of India as well as the respondent Corporation, which is a Government of India Undertaking, to follow the resolution. Article 39A of the Constitution of India also directs that Health and Strength of the workers, men and women are to be protected. The Learned Counsel also submitted that in the impugned order no reason is stated and therefore the order is passed in an arbitrary manner and there is discrimination between the employees and officers regarding the working hours as the workers agreed under 12(3) settlement and insofar as the officers are concerned it was imposed unilaterally. Non-consideration of the issues raised by the petitioner association objecting the increase of working hours viz., Manali is a polluted area; no housing colony is available in Manali, etc., which are relevant issues, were not considered while taking the decision. Therefore the impugned order is to be set aside. The Learned Counsel also relied on the judgment of the Supreme Court reported in
7. Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for the respondent Corporation on the other hand submitted that the proposed increase is in terms of Factories Act, 1948 which empowers fixing of working hours as 48 hours per week insofar as the workers are concerned, the working hours were increased and there were discussions between the management and petitioner association and the management is entitled to increase the working hours even if there is no consensus reached. The respondent Corporation is complying with the statutory requirements, particularly in respect of the environment, safety and occupational health and the same is certified by the competent authority and IOCL is also having two officers within the Manali Plant premises, where the IOCL employees are working six days and 48 hours per week and almost all the officers of the petitioner association are working additionally for 28.30 hours per month, which is over and above the average 42 hours per week and they are claiming "extended compensation stay pay" for the additional time worked by the officers. The impugned increase of timings is also beneficial to the officers as each officer would additionally work for 24 hours per month and entitled to 36 days encashable compensatory off. The petitioner association having been heard earlier, the decision taken is by following the principles of natural justice and the management is entitled to fix the working hours by increase of working hours in the light of decision reported in
8. I have considered the rival submissions of the Learned Counsel appearing for the petitioner Association as well as learned Senior Counsel for the respondent Corporation.
9. The point arises for consideration in this writ petition is whether the increase of working hours from 42 to 48 hours per week with one day weekly off as against two days weekly off issued through the impugned circular is valid or not.
10. The petitioner association is having membership of 750. The working hours for its members from 1.1.1971 to 15.1.1992 was 44 hours per week and from 16.1.1992 till date the working hours is only 42 hours per week. A proposal to increase the working hours to 48 hours per week was initiated by the respondent Corporation in the year 2005. Prior to the said proposal, a meeting was held on 11.12.2004 and discussed about the necessity of implementation of 48 hours per week in terms of the recommendations of the Ministry, IOCL practice, etc., and in the said meeting petitioner association informed not to implement the change by stating that the service conditions in the respondent Corporation cannot be compared to IOCL Officers, among other things. On 12.1.2005 a written objection was submitted before the respondent by the petitioner association by raising three contentions viz., comparison cannot be made with IOCL Refineries as IOCL Refineries have a Township attached; IOCL employees spend lesser travelling time to-and-fro to attend their duties, whereas the employees of respondent Corporation spend additional two hours every day towards official travel; and the world class refineries abroad operates only for 40 hours per week and five working days in a week with high levels of productivity. Even several companies have shifted from six days week to five days week and the respondent Company is located in a polluted area creating severe occupational health hazards and strong displeasure was expressed in the report submitted before the respondent.
11. The respondent Corporation in its 234th meeting held on 24.1.2005 at Chennai passed a resolution to enhance the working hours as it is being followed in IOCL. The said proposal was for both the workers and officers. Additional compensation in the form of ''encashable special compensatory off'' was also decided. Enhancement of casual leave from 8 to 10 days per year and festival holidays from 10 to 12 days per year as being practised by IOCL was adopted. The Board further authorised the functional Director and the Managing Director to decide the departments to which such enhanced working hours would be applicable as well as the working hours schedules and the off days. The said proposal was again objected by the petitioner Association by submitting a representation on 28.1.2005 before the Chairman, Indian Oil Corporation Limited. On the basis of the report submitted on 12.1.2005 the Government of India, Ministry of Petroleum and Natural Gas in its communication dated 10.2.2005 requested remarks from the respondent after examining in detail the protest made by the petitioner association. On 12.3.2005 the respondent sent a reply to the Ministry of Petroleum and Natural Gas, New Delhi, stating certain reasons for increasing the working hours, which is in tune with the Factories Act, 1948 and justified its stand. In the said letter to the Ministry of Petroleum and Natural Gas, New Delhi, the respondent has stated as follows:
... we have initiated our dialogue with the various collectives, including the Officers'' Association. The Officers'' Association is being persuaded to understand and appreciate the rationale and the justification for the implementation of the 48 hours per week working schedule.
We will keep you informed of further developments in this matter.
The respondent kept quiet for over six years after the said communication given to the Central Government. On 5.8.2011 the petitioner Union again objected the proposed change before the respondent and the proposed increase of time was not implemented. On 9.8.2011 the respondent again reiterated that similar working hours with that of IOCL should be adopted. On 30.8.2011 the petitioner association sent a circular opposing the move. The impugned order was passed on 6.9.2011 without any further discussion with the petitioner association giving effect to the decision, from 1.10.2011.
12. The main grievance of the petitioner association is that even though the resolution was passed by the respondent Board in February 2005, the same was not implemented all these years and the objections raised by the petitioner association repeatedly has not been considered by the Board and an unilateral decision was taken through the impugned order giving direction to implement it from 1.10.2011 i.e, in violation of the principles of natural justice.
13. No reason is assigned in the impugned order stating as to why the objection raised by the petitioner association is not sustainable. The increase of working hours and reduction of weekly holidays is alteration of the service condition, which can be altered with discussion/negotiation, though there is no statutory bar like Section 9A of the Industrial Disputes Act, 1947. On perusal of the impugned order it is evident that except the change of timings, no reason is assigned. The said contention was answered by the learned Senior Counsel for the respondent stating that the resolution passed in February, 2005 contains reasons. The fact remains that the said resolution passed in the year 2005 was not implemented and no final decision was taken regarding the objections raised by the petitioner association like health hazard, travelling time, etc. An assurance was given to the Government of India to persuade the petitioner association before implementation and that the Ministry will be informed of further developments. From 1992 till date, the respondent is following 42 hours per week. Increase of working hours from 42 to 48 hours and reducing weekly off from two days to one day is definitely alteration of service condition. Hence before changing the same, the members of the petitioner association are bound to be heard in compliance of the principles of natural justice. No hearing was given before implementing the decision from 1.10.2011.
14. If civil rights are affected, hearing must be given to the persons likely to be affected, is the basic principle of natural justice. The said view is reiterated by the Honourable Supreme Court in the decision reported in AIR 2011 SC 2709 Kesar Enterprises Ltd. v. State of U.P.. The Supreme Court, placing reliance on the earlier judgments reported in
14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action, still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature....
Applying the said principle, I am of the view that the impugned order cannot be sustained and the respondent can very well convene a meeting and negotiate with the petitioner association to impress upon the members of the petitioner association to increase the working hours, etc., even though consensus is not required for increasing the working hours and for reduction of weekly holidays.
15. On the said limited ground the impugned order is set aside and the matter is remitted to the respondent to convene a meeting for discussion and proceed further in accordance with law. This order need not be construed as accepting the contentions of the petitioner association on merits.
The writ petition is disposed of accordingly. No costs. Connected miscellaneous petitions are closed.
