Writ Appeal No. 1495 of 2023 (Kerala High Court)

W.A.No.1495 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA,** ## **1945** ## **WA NO. 1495 OF 2023** **AGAINST THE JUDGMENT WP(C)No.7736/2023 OF HIGH COURT OF** ## **KERALA** ## **APPELLANTS:** 1 KMML TITANIUM COMPLEX EMPLOYEES UNION REPRESENTED BY ITS GENERAL SECRETARY S. SANTHOSH REGISTER NO 02 04 2006 KMML MS UNIT KOVILTHOTTAM CHAVARA KOLLAM, PIN - 691583 2 ANU A JUNIOR TECHNICIAN (DIESEL MECHANIC) THE KERALA MINERALS AND METALS LIMITED MS UNIT, KOVILTHOTTAM, CHAVARA, KOLLAM, PIN - 691583 BY ADV A.ARUNA ## **RESPONDENTS:** 1 STATE OF KERALA SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 W.A.No.1495 of 2023 2 - 2 KERALA MINERALS AND METALS LIMITED REPRESENTED BY THE MANAGING DIRECTOR, KERALA MINERALS AND METALS LTD., SANKARAMANGALAM, CHAVARA, KOLLAM, PIN - 691583 - 3 MANAGING DIRECTOR KERALA MINERALS AND METALS LTD., SANKARAMANGALAM, CHAVARA, KOLLAM, PIN - 691583 - 4 GENERAL MANAGER (MS/TSP & HR/EDP) KERALA MINERALS AND METALS LTD., SANKARAMANGALAM, CHAVARA, KOLLAM, PIN - 691583 - 5 JOINT GENERAL MANAGER (P & A) I/C, KERALA MINERALS AND METALS LTD., SANKARAMANGALAM, CHAVARA, KOLLAM, PIN - 691583 - 6 MANAGER (P & A) I/C KERALA MINERALS AND METALS LTD., MINERAL SEPARATION UNIT, KOVVILTHOTTAM, CHAVARA, KOLLAM, PIN - 691583 - 7 HEAD OF UNIT (F/MS) KERALA MINERALS AND METALS LTD., MINERAL SEPARATION UNIT, KOVVILTHOTTAM, CHAVARA, KOLLAM, PIN - 691583 BY ADVS. LATHA ANAND S.VISHNU (ARIKKATTIL)(K/986/2012) ## **OTHER PRESENT:** ## SRI.B.UNNIKRISHNA KAIMAL-SR.GP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2023, THE COURT ON 07.12.2023 DELIVERED THE FOLLOWING:- W.A.No.1495 of 2023 3 ## **ANU SIVARAMAN, J. & C.JAYACHANDRAN, J.** **= = = = = = = = = = = = = = = = = = = W.A.No.1495 of 2023** **= = = = = = = = = = = = = = = = = = = Dated this the 7th day of December, 2023** ## **JUDGMENT** ## **Anu Sivaraman J.** - 1.The question which arises for consideration in this writ appeal is whether the statutory mandate for payment of overtime wages under Section 33 of the Mines Act, 1952 and Rule 60 of the Mines Rules, 1955 can be diluted by a settlement entered into between the trade union of the workmen and the management of the respondent company. 2. The learned counsel for the appellant places reliance on the decisions of the Apex Court in **Bharatiya Kamgar Karmachari Mahasangh v. M/s.Jet Airways Ltd.** [AIR 2023 SC 3596] and **R.Rita Bella v. State of Kerala and others** [2015 (1) KLT 691] and **Shive Shankar Singh and others v.** W.A.No.1495 of 2023 4 **Union of India and others** [2018 (158) FLR 101] in support of the said contention. The decision in **M/s.Godrej Sara Lee Ltd. v. The Excise & Taxation Officer-cum-Assessing Authority and others** [AIR 2023 SC 781] is also relied on to contend that where the controversy is a purely legal one and does not involve disputed questions of fact, but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the plea of an alternative remedy being available. Further, on the basis of the decision of the Apex Court in **D.S.Nakara and others v.Union of India** [ AIR 1983 SC 130], it is contended that even a portion of Exhibit P3 or P4 which are the settlement and the Government Order accepting the same can be challenged as being arbitrary and unconstitutional and that the court would therefore have to consider the question whether the portion challenged is legally valid. It is further contended that the decisions relied on by the respondents, that is, **Arce Polymers Private Limited v. Alphine Pharmaceuticals Private Limited and Ors.** [AIR 2022 SC 545], is not relevant to the facts of the case, since there is no waiver of rights in the W.A.No.1495 of 2023 5 current case and the settlement had been entered into with the specific dissent of the appellants. 3.The learned counsel appearing for the respondents in the appeal, on the other hand, contends that the law is clear on the point that it is only in the case of legislation which prohibits the contracting out of the terms of the same that the settlement entered into between the management and the unions could be successfully challenged on the ground of being against statutory provisions. Reliance is placed on the judgment of the Apex Court in **Arce Polymers Private Limited v. Alphine Pharmaceuticals Private Limited and** **Ors.** [AIR 2022 SC 545] to contend that where a person or a group of persons intentionally relinquish a known right by entering into an agreement against such right, they cannot later contend that such waiver would not affect them. Relying on the precedents on the point, the Apex Court held that if a party gives up the advantage that could be taken of a particular position in law, it cannot later be permitted to change and turn around so as to avail of that advantage. It W.A.No.1495 of 2023 6 was held that the rule will not apply when there is a prohibition against contracting out of the statute or where the waiver would be contrary to public policy. Further a person cannot waive a right of a third person. 4. In the instant case, it is the specific case of the respondents that the Mines Act does not have any provision that prohibits the contracting out of the terms of the Act or the Rules made thereunder. It is submitted that where the union representing all the employees of the establishment take an informed decision to enter into a settlement among themselves, which may amount to contracting out of the conditions provided by a statute, there could be no successful challenge by one of the unions, which is the party to the agreement, and an employee, who is bound by the terms of the agreement. Further, it is contended that a dissent noted before or after signing of the agreement is of absolutely no consequence, since the Union had, as a matter of fact, been a signatory to the agreement and can challenge the settlement only by recourse to due process of law, as provided under the I.D.Act. Further, it is contended W.A.No.1495 of 2023 7 that since the Union has a case that they have a grievance as against Exhibit P4, the learned single Judge has reserved the liberty of the Union to approach the Government with a proper representation pointing out their grievances, if any, as against Exhibit P4 and that was the only recourse that could have been granted in the facts of the instant case. 5.We have considered the contentions advanced. Section 33 of the Mines Act reads as follows:- “33.Extra wages for overtime (1) Where in a mine a person works above ground for more than nine hours in any day, or works below ground for more than eight hours in any day or works for more than forty-eight hours in any week whether above ground or below ground, he shall in respect of such overtime work be entitled to wages at the rate of twice his ordinary rate of wages, the period of overtime work being calculated on a daily basis or weekly basis, whichever is more favourable to him. (2) Where any person employed in a mine is paid on piece rate basis, the time-rate shall be taken as equivalent to the daily average of his full-time earnings for the days on which he actually worked during the week immediately preceding the week in which overtime work has been done exclusive of any overtime, and such time-rate shall be deemed to be the W.A.No.1495 of 2023 8 ordinary rate of wages of such person: Provided that if such person has not worked in the preceding week on the same or identical job, the time-rate shall be based on the average for the days, he has worked in the same week excluding the over-time or on the daily average of his earnings in any preceding week, whichever is higher. “ - 6.Rule 60 of the Mines Rules, which is relied on by the appellants reads as follows:- “Extra wages for overtime- - (1) For the purpose of section 33, overtime shall be paid at the end of each wage-period. (2) In calculating overtime on any day, a fraction of an hour less than 30 minutes shall be ignored and a fraction of 30 minutes or more shall be counted as one hour. (3) In calculating the ordinary rate of wages or earnings in the case of a person paid by the month, the daily wages shall be 1/26th of his monthly rate of wages, and in the case of any other person it shall be the ordinary rate of his daily wages or earnings as the case may be.” 7. The learned counsel for the appellants contends that in the light of the specific provisions of the Mines Act and the Mines Rules, the provision contained in Exhibit P3 and P4 to the effect that overtime wages will be calculated on the basis of 30 W.A.No.1495 of 2023 9 days (30 x 8 hours) wages as Basic pay+ DA to be effective from 1.1.2022, is completely illegal being against the provisions of the Mines Act and Rules. However, we notice that Exhibit P3 is a settlement which is admittedly entered into between the Management and the Unions, including the appellant Union. The appellant Union does not challenge the settlement as such. Their only contention is that they had inserted a dissenting note in the settlement as to the calculation of the overtime wages. It is contended that the acceptance of the settlement, without considering the dissent of the appellant Union, in Ext.P4 Government Order vitiates the same. 8. However, on a consideration of the facts of the case, we notice that there is no provision in the Mines Act prohibiting the contracting out of the provisions of the Act. We notice that such provisions are present in many enactments, including Section 25 of the Minimum Wages Act, Section 23 of the Payment of Wages Act and Section 17 of the Employees Compensation Act. It was, therefore, open to the Unions to W.A.No.1495 of 2023 10 have contracted out of the provisions of the Mines Act and the Rules made thereunder. This specifically is what they have proceeded to. We also notice that the appellant Union was also a signatory to the settlement and are enjoying all the other benefits conferred by the settlement. In that sense, they cannot be said to be aggrieved by the settlement. Their complaint is only with regard to one of the terms of the settlement, which they have admittedly entered into, even if it was with a dissent. This Court, considering a challenge under Article 226 of the Constitution of India, could not be justified in setting aside a term of settlement entered into between the Management and Union, especially in a writ petition where none of the other Unions have been made a party. The proper course open to the respondents, therefore, is to raise their complaint before the Government which has accepted the settlement by Exhibit P4. This was what the learned single Judge has required the appellants to do. In the facts and circumstances of the instant case, we are of the opinion that the grounds of challenge raised against the W.A.No.1495 of 2023 11 judgment of the learned single Judge are devoid of merits. The appeal fails and the same is accordingly dismissed. sd/- **Anu Sivaraman, Judge** sd/- **C.Jayachandran, Judge** sj6/11