JUDGMENT
M. Karpaga Vinayagam, C.J.
Page 0454
1. The Bharat Coking Coal Limited, the employer has filed this writ petition seeking for quashing the award of the Central Government Industrial Tribunal, dated 07.12.1993 passed in favour of the workmen, who are members of the Union, the respondent No. 2, by directing the management to regularize the workmen in Category I after holding that their job is permanent in nature.
2. The short facts, are as follows:
(i) The Rashtriya Colliery Mazdoor Union, the 2nd respondent herein, on behalf of the workmen, the members of the Union, sent a letter dated 06.09.1980 raising an industrial dispute before the Regional Labour Commissioner, Dhanbad raising the question of unjustified denial to regularize the workmen Upendra Kumar and 26 others sweeping, cleaning Mazdoors, who are working in the Company for number of years.
(ii) On the basis of the letter, after inquiry, the issue was referred by the Central Government to the Tribunal with the following issue:
Whether Shri Upendra Kumar and 26 other contract workers are workmen of the Bhagabandh Colliery of M/s. B.C.C.L. and whether the demand that these persons be regularized in the services of the said management is justified? If so, to what relief are these persons entitled?
Page 0455
(iii) By this reference, the workmen demanded from the Tribunal for a declaration that they are workmen of Bhagabandh Colliery of M/s. B.C.C.L. and also for direction of their regularization in the services of the Management.
(iv) On behalf of the workmen, five witnesses were examined and a number of documents have been exhibited.
(v) The management examined three witnesses on their side.
(vi) The case of the workmen is as follows:
i. The Company, B.C.C.L., is spread over a large surface area consisting of officers Banglow, Schools, Community Halls and other dwelling houses consisting of 1700 houses.
ii. These buildings are required to be cleaned, maintained on regular basis.
iii. The management has only 17 regular sweepers on its rolls, but only 9-10 regular workmen turned up.
iv. Due to this, there is huge accumulation of garbage and ash. Therefore, number of workmen have been engaged for cleaning and sweeping work through contractors.
v. They have worked for more than 240 days and though they were engaged through contractors, since they are in prohibited jobs as per the notification, they are entitled to be declared as permanent workers in the Company and as such they are to be regularized.
(vii) The case of the management is as follows:
i. The concerned workmen have never worked in any capacity directly under the management of the B.C.C.L. Hence there is no employer and employee relationship between them.
ii. The contract labourers were engaged to remove ash, garbage etc. The contractors engaged their own men.
iii. Removal of ash, garbage etc. from colliery premises is not prohibited as per the notification under Section 10(1) of the Contract Labour (Regulation and Abolition) Act.
iv. The Union through this Industrial Dispute is seeking regularization of job seekers through back door.
v. Therefore, they are not entitled for any declaration
(viii) After considering the materials, the Tribunal gave the following findings:
i. The documents produced on behalf of the workmen in Exhibit W-6, the payment sheet, to prove that they have been getting payment from the Company for long number of years cannot be considered to be genuine since under Section 21(3) of the Contract Labour (Regulation & Abolition) Act, 1970 the Contractor should disburse the amount only in the presence of the authorized representative of the principal employer and in the wage sheet, admittedly, the representative of the management has not signed. Therefore, it is held that all labourers worked under contractor engaged by the Company.
ii. All the workmen were doing the job of cleaning and sweeping. It comes within the prohibited category as per notification dated 08.12.1976 whereby the employment of the contract labour for sweeping, Page 0456 cleaning, dusting and watching of the building owned or occupied by the establishments was prohibited under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970. So even though management has been engaging the workmen through contractor as a contract labour, since the job is in prohibited category, the workmen are to be considered as permanent workers. Therefore, it is declared that they were the employees of the management.
iii. Though the workmen have not filed any document to show that they have been working or completed at least 240 days in a calendar year, since the job is continuous in nature, it must be presumed that they have completed more than 240 days in a calendar year, since they were doing permanent nature of work, they are to be treated to be permanent workers.
3. Assailing these reasonings, Mr. Anoop Kumar Mehta, Learned Counsel for the petitioner makes the following submission:
The main basis for declaration issued by the Tribunal is the notification issued under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, dated 08.12.1976 by which the engagement of the contract labourers in sweeping, cleaning etc. was prohibited and on that basis the Tribunal has held that since contract labourers cannot be engaged for a prohibited category of job, even though the workers were engaged through contractor, they have to be treated as employees of the management.
4. But the said notification has now been held to be invalid by the Supreme Court as Steel Authority of India Ltd. v. National Union Waterfront Workers. In view of the Supreme Court judgment, the finding by the Tribunal is wrong
5. The finding given by the Tribunal with regard to the engagement in the work for more than 240 days is also wrong since it is not on the basis of any evidence and it is only on the basis of presumption. Therefore, both the findings recorded by the Tribunal have to be set aside.
6. Mr. S.N. Das, Learned Counsel appearing for the respondents, though initially made his submissions in justification of the award of Tribunal, ultimately he admitted that in view of , the Constitutional Bench Judgment which declared the said notification bad finding of the Tribunal cannot be sustained.
7. We have heard the counsel for the parties. As admitted by the counsel for both the parties, the declaration given by the Tribunal in the award was only on the basis of the notification issued under Section 10(1) of the Act prohibiting engagement of contract labourers on sweeping, cleaning etc., namely, prohibited category of jobs. Only on the basis of the prohibition contained in the notification, Tribunal found that they were permanent workers, but, this notification has been held to be bad by the Supreme Court in (2001) 7 SCC 1. The relevant observations are as follows:
at page 62
(b) Inasmuch as the impugned notification issued by the Central Government on 9-12-1976 does not satisfy the aforesaid requirements of Section 10, it is quashed but we do so prospectively i.e. Page 0457 from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any tribunal or court including a High Court if it has otherwise attained finality and/or it has been implemented.
8. The above paragraph would indicate that the notification quashed only prospectively, but further gave a clarification stating the Supreme Court judgment will not apply to the award which has been given effect to in pursuance of the said notification or has attained finality. But, in this case the award has been passed on 07.12.1993, writ application has been filed on 26.04.1994 and the operation of the impugned award has been stayed by order No. 7 dated 24.11.1996. Therefore, the Supreme Court judgment would apply to the present case since the award of the Tribunal has not attained finality nor the same has been given effect to.
9. There is no dispute in the fact that the award has not been given effect to either by absorption or regularization of the concerned workmen on account of stay of implementation of the award dated 07.12.1993 passed by the Division Bench of this Court on 24.11.1996.
10. Admittedly, as per the order of reference, the claim of the concerned workmen who are contract labourers claiming for regularization only on the basis of notification and their claim is not now sustainable in view of the Constitutional Bench Judgment and the concerned workmen cannot be considered to have worked against the prohibited category. As correctly pointed out by the counsel for the petitioner, the Tribunal does not record any finding in its award that the contract awarded to the contractor was sham and mere camouflage and especially in the absence of any such findings, the award for regularization is unsustainable.
11. As indicated above, the Tribunal has merely recorded a finding that on the basis of the presumption that the concerned workmen have worked for more than 240 days without there being any evidence. Admittedly, the documents produced by the workmen were held to be not genuine by the Tribunal.
12. As held by the Supreme Court in Manager Reserve Bank of India v. S. Mani, the burden of proof is upon the workmen to prove that they worked for more than 240 days in a calendar year and the onus having not been discharged by leading cogent evidence by the workmen, the finding on the basis of presumption that they worked for 240 days is perverse.
13. Therefore, the award of the Tribunal suffers from the above said infirmities and consequently, the said award dated 07.12.1993 passed by the Central Government Industrial Tribunal is liable to be quashed and accordingly quashed.
This writ petition is, thus, allowed. There is no order as to costs.
D.K. Sinha, J.
14. I agree.