Holding

The status granted under Rule 5 does not automatically confer entitlement to the pay, allowances, or promotion of a Senior Executive; remuneration is governed by the employment contract and the promotion rules, limiting the respondent to E‑2 grade with adjustments.

Summary

The respondent, B.K. Vijay, was appointed as a Safety Officer in BHEL's Jhansi factory and, although placed in the non‑executive SA‑II cadre, was given the status of a Senior Executive under Rule 5 of the U.P. Factories (Safety Officers) Rules, 1984. He filed a writ petition seeking to be treated as a Senior Executive in the E‑6 grade with the corresponding pay, allowances and promotional benefits; the Allahabad High Court granted the relief. On appeal, the Supreme Court examined whether the status conferred by Rule 5 automatically entitles the officer to the remuneration and benefits of a Senior Executive. The Court held that the status is only for reporting purposes and does not override the terms of the employment contract or the promotion rules, which require prior holding of executive grades (E‑1 to E‑5) before promotion to Senior Executive. Consequently, the respondent was not entitled to E‑6 pay; he may be granted the E‑2 grade retrospectively with appropriate adjustments. The appeal was partly allowed, setting aside the High Court’s order for E‑6 benefits.

Issues considered

Whether the status of Senior Executive conferred under Rule 5 of the U.P. Factories (Safety Officers) Rules, 1984 entitles a Safety Officer to the pay, allowances and promotional benefits of the E‑6 grade.
Whether the terms of employment and promotion rules, requiring prior service in executive grades, govern the remuneration of a Safety Officer despite the statutory status.
Interpretation of Sections 408 and 92 of the Factories Act, 1948 in relation to the appointment and remuneration of Safety Officers.

Legislation cited

Factories Act, 1948s. 408, s. 92

Subjects

Factories ActSafety Officerstatus of senior executivepromotion rulespay scalelabour lawindustrial employmentcontract of employment

Judgment

A B.H.E.L. AND ANR.
,.._
v.
B.K. VIJA Y AND ORS.

FEBRUARY 2, 2006

B [S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.]

labour laws:

Factories Act, 1948-Sections 408 and 92·-U.P. Factories (Safety
C Officers) Rule, 19114--Rule 5-Respondent appointed as Safety Officer in a
factory-Though placed in non-executive cadre, he was given enhanced
status of a Senior Executive in terms of Rule 5--Entitlement to corresponding
enhanced pay allowances and other benefits·--Held: Not entitled--Only
because Respondent was given a particular status, the same would not mean
D that his other terms and conditions of service would not be governed by
contract of employment or other slatute(s) operating in the field--Cadre of
Senior Executive was for purpose of the promotion rules-Before promotion
as Senior Executive, there was requirement of holding a post in the executive
cadre having salary payable to E-1 to E-5 grade-Promotion was not
automatic.
E
Words and Phrases-Expression "status "·-Meaning of

Respondent was appointed as Safety Officer in the Jhansi unit of
Appellant, a factory within the meaning of Factories Act, 1948. Though placed
in the non-executive cadre SA-II, he was given the enhanced status of a Senior
F Executive in terms of Rule 5 of the U.P. Factories (Safety Officers) Rules,
1984.

Respondent filed a writ petition praying that he be treated as a Senior
Executive placed in E-6 grade and be paid the difference of pay and other
G allowances together with increment and other benefits including promotional
benefits as had become due to him from time to time. High Court granted the
prayer.

In appeal to this Court, the question which arose for consideration is
whether as the Respondent was given the status of a Senior Executive in E-6
H 1066
B.H.E.L. v. B.K. VI.IA Y 1067
cadre, he was entitled to corresponding pay allowances and other benefits. A
Partly allowing the appeal, the Court

HELD: I. A Safety Officer is appointed for the purpose of Factories Act,
1948 only, and in terms of Rule 5 of the U.P. Factories (Safety Officers) Rules,
1984 he is merely given the status of a departmental he~d or a Sr. Executive B
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. (1074-B]

2.1. 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 C
by contract of employment or other statute(s) operating in the field. The High
Court unfortunately did not consider the matter from the aforementioned
perspective, and 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. (1075-B, D, F) D
2.2. 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. E
Executive was for the purpose of the promotion rules. (1075-G, H]

Indian Petrochemicals Corporation Ltd. & Anr. v. Shramik Sena and
Ors., (1999( 6 SCC 439, relied on.

P. Ramanatha Aiyar's Advance Law Lexicon, 3rd edition, Volume 4, page F
4469 and Black's Law Dictionary, referred to.

3.1. 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. The chart of'standard executive designations' in
the company shows that before a person is placed in the next higher grade he G
has to be in the next below post for the number of years mentioned therein.
(1075-H; 1076-A(

3.2. Furthermore, promotion to the selection posts is not automatic.
Nobody has a right to promotion, particular to the selection posts. In ordinary
course the Respondent was required to spend 43 years of time for reaching H
1068 SUPREME COURT REPORTS (2006] I S.C.R.

A 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. Even in the complaint petition filed before criminal courts,
the authorities under the Act merely contended that the authorities of the
B Appellant had violated Rules 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. Promotion thus being not automatic,
the High Court committed a manifest error in issuing tite impugned ..
directions. (1074-B, C, E(

C 3.3. However, it has been conceded that the Respondent may be allowed
to draw E-2 grade from the date of appointment 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. 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
D Respondent shall be paid. (1076-F, GI

Tarsem Singh and Anr. v. State of Punjab and Ors j 1994( 5 SCC 392
and State of Rajasthan v. Fateh Chand Soni, (199611 SCC 562, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 941 of2006.
E
From the Judgment and Order dated 27.5.2005 of the Allahabad High
Court in Civil Misc. Writ Petition No. 34259/2002.

G.K. Banerjee, Saurav Aggarwal and Ms. Ruby Singh Ahuja for the
Appellants.
F
Bharat Sangal, Ms. Sangeeta S. Panicker, R.R. Kumar and Samyadej
Chatterji for the Respondents.

Pradeep Misra and S. Sherwani for the State of U.P.

G The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted.

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
H Jhansi Unit. He had successfully completed his diploma course in Industrial
B.H.E.L. v. B.K. VIJAY [SINHA,J.] 1069
·• Safety from Central Labour Institute, Bombay in 1979-80. The said Jhansi Unit A
of the appellant is a factory within the meaning of the provisions of the
Factories Act, 1948 (hereinafter referred to as 'the Act'). Section 408 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 B
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 C
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 D
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 E
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 F
and the Rules, in addition, to his existing work. He was however, re-designated
as Assistant Foreman (Safety).

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 G
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.

A complaint petition came to be filed in the court of Chief Judicial
Magistrate, Jhansi by the Assistant Director, Factories, Agra purported to be H
1070 SUPREME COURT REPORTS [2006) I S.C.R.

A in tenns of Section 92 of the Act alleging violation of the provisions of .... _
Section 408 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 b'!fore the authorities under the Factories Act. Before the learned Chief
B Judicial Magistrate, the contention raised on behalf of the enforcing agency
was that the respondent being a Safety Officer, should have been given EI
(Executive) pay-scale being Rs.1100-60-1940/- in tenns of Rule 5. The learned
Chief Judicial Magistrate opined:

"Shri B.K. Vijay, Safety Officer in the factory was not provided pay
c 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
D 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 82/Sr. Assistant Gr. II/Sr. Accountant II has been
provided."

It was further held:
E
"Evidence 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 h~ad or sr. executive
under Rule 4 and 5."

F 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.

A reference was made to the State Government pursuant to the
G 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 27.4.200 I he prayed for fixation of wage arrears and
allowances stating :

"I was awarded following promotions, after my appointment as Safety
H
B.H.E.L. v. B.K. VIJA Y [SINHA, J.] 1071
i'"
Officer (Asstt. Foreman- Non Executive Cadre) w.e.f. 19.3.1985. A

Sf. Designation (Status) w.e.f (date Pay scale Basic pay
No. · allowances
I. Foreman (E-3) 25.6.86 Rs.965-52- Rs. 1445 +
1225-55-1665 allow.
B

2. Gen. Foreman (E-4) 25.8.92 Rs. 2500-120- Rs. 3700 +
4300 Rev. allow. Rs. 5400
Rs. 4000-175- +allow.
4300
c
3. Safety Officer (E-1) 15.6.95 Rs. 2500-120- Rs. 3820 +
(Executive Cadre) 4300 Rev. allow. Rs. 5575
Rs. 4000-175- +allow.
4300
D
4. Sr. Executive Officer 25.6.97 Rs. 4000-200- Rs. 6550 +
(E-2) (executive 5800-250- allow.
cadre) 8300 Rev. Rs. 13000 +
12500-500- allow.
18000
E
He filed a writ petition before the Allahabad High Court being Civil
Misc. Writ Petition No. 20571 of 200 I wherein he also did not contend that
he was entitled to E-6 grade. He again in Civil Misc. Writ Petition No. 35123
of 200 I did not make any prayer that he should be given E-6 grade. Only in
Civil Writ Petition No. 34259 of 2002 he inter alia made the following prayer: F
"(l) 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);

(II) a writ, order or direction in the nature of mandamus directing the G
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."
H
1072 SUPREME COURT REPORTS [2006] I S.C.R.

A By reason of the impugned order the said prayers were granted. The
appellant is, thus, before us.
--
Mr. Gaurab 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
B respondent herein is to be granted the pay-scale ofE-6 w.e.f. 19.3.1985, and
furthermore if he is to be given promotions to which he r. :ght have been
entitled to, his salary would be more than the Chief Executive of the Company.

Mr. Bharat 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
-
C 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
D appellant had no knowledge that the scale of Sr. Executive was payable and
thus no such claim could be raised.

In the year 1985 the respondent was appointed as Assistant Foreman.
Standard Executive Designations of the company are as under:
Designation Salary Grade Qualifying Service
E
for Promotion
I. SUPERVISORY
(TECHNICAL) - NON
EXECUTIVE SALARY
GRADE
F
(a) Chargeman SA I 5 years

(b) Assistant Foreman SAii 5 years

(c) Foreman SAIII 5 years

G (d) General Foreman SAIV 5 years
(e) Executive Foreman SA.V 4 years .
(t) Sr. Executive Foreman SA.VI 4 years
(g) General Executive Foreman SA VII 4 years
H
B.H.E.L. v. B.K. VIJA Y [SINHA, J.) 1073
2. EXECUTIVE-Other than A
Board Level
(h) Executive (earlier Officer/ EIA 4 years from
Engineer) SAIV under
10% quota.
(i) Sr. Executive (earlier Sr. B
Officer/Sr. Engineer) E2 4 years
G) Dy. Manager E3 3 years
-) (K) Manager El 4 years

0) Sr. Manager F5 3 years c
(m) Dy. General Manager f6 3 years

(n) Sr. Dy. General Manager E6A 3 years
(o) Additional General Manager E7 I year
D
(p)" General Manager Ile/General El 3 years
Manager

(q) Executive Director E9 4 years

3. TOP MANAGEMENT E
POSTS (BOARD LEVEL)
(q) Director Presidential
appointees
selected on the
" PSEB F
recommendation
(r) Chairman & Managing Presidential
Director appointees
selected on the
PSEB
G
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 H
1074 SUPREME COURT REPORTS [2006] I S.C.R.

A 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 Offo:er in tenns of Rule 5 is
merely given the status of a departmental head or a Sr. Executive in the
B 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.

In tenns of the proviso appended to Rule 5, the decision of the State
C 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
D 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:
E
"Status is a much discussed tenn which, according to the best modem
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).

F 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, IOI. [Indian Evidence Act (1 of
1872), s. 41]

In the language of jurisprudence status is a condition of membership
G of a group of whicih powers and duties are exclusively detennined 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
H individual to rest of the community. The rights, duties, capacities and
B.H.E.L. v. B.K. VIJA Y [SINHA . .J. I 1075

- 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."
A

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 B
notice that a three-Judge Bench of this Court in Indian. Petrochemicals
Corporation Ltd. & Anr. v. Shramik Sena and Ors., [1999] 6 SCC 439 observed
as under:

"We hold that the "workmen of a statutory canteen would be the
workmen of the establishment for the purpose of the Factories Act C

.. only and not for all other· purposes."

The High Court unfortunately did not consider the matter from the
aforementioned perspective.

The contention of the Respondent that the Appellant has admitted in D
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. Th/ 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 th is court E
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.
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 p
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. G
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 H
1076 SUPREME COURT REPORTS [2006) I S.C.R.

A 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.

B 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
C on the said ba3is. 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.
D In Tarsem Singh & Anr. v. State of Punjab & Ors., [1994] 5 SCC 392 it
was stated:

"Promotion as understood under the service law jurisprudence means
advancement in rank, grade or both.
E [See also State of Rajasthan v. Fateh Chand Soni, [1996] I SCC 562]
Promotion thus being not automatic, the High Court committed a manifest
error in issuing the impugned directions.

For the foregoing reasons, the impugned judgment cannot be sustained.
However, it has been conceded that the Respondent may be allowed to draw
F 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 iidjusted. 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
G 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 to cost.

H B.B.B. Appeal partly allowed.