S.B. Sinha, J. - (1.) LEAVE granted.
(2.) 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 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 : "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 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 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 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 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.
(3.) A 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 El (Executive) pay-scale being Rs. 1100-60-1940/- in terms of Rule 5. The learned Chief Judicial Magistrate opined : "Shri 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. ArtisanII/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 11 has been provided." It was further held : JUDGEMENT_85_SUPREME2_2006Html1.htm "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 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.;