JUDGMENT
Amareshwar Sahay, J.
Page 0851
1. The Central Government Industrial Tribunal No. 1, Dhanbad, by a common award dated 16/01/1992 disposed of two reference cases, i.e. Reference Case No. 32/1989 and Reference Case No. 35/1989. The Reference Case No. 32/1989 arose out of the dispute referred by the Central Government Under Section 10(1)(d) of the Industrial Dispute Act, 1947, whereby the following dispute was referred to the Central Government Industrial Tribunal for adjudication:
Whether the Action of the Management of Sudamdih Colliery of M/s BCCL in denying employment to Shri karma Rout and 21 others with effect from 09/07/1977 is justified? If not, to what relief the concerned workmen are entitled?
Page 0852
2. The Reference Case No. 35/1989 arose out of the dispute referred to the Central Government Industrial Tribunal No. 1. Dhanbad under Section 10(10(d) of the Industrial Dispute Act 1947, whereby the following dispute was referred for adjudication:
Whether the action of the management of Sudamdih Area of M/s BCCL in denying employment to Sh. Bhagwat Singh and 3 others, viz. Shri Sapan, Karan Sahi and Shanti Thakur, who were engaged as sump clearing mazdoors is justified? If not, to what reliefs are the workmen entitled?
3. The Central Government Industrial Tribunal by the aforesaid award directed the Management to reinstate the workmen with 75% of the back wages and passed the following direction in Reference Case No. 32/1989. The operative part of the order is quoted hereinbelow:
The action of the management of Sudamdih Colliery of M/s BCCL in denying employment to Shri Karma Rout and 21 others, as mentioned above, with effect from 09/07/1977 is not justified. The Management is directed to reinstate them in service within one month from the date of publication of the awards and to pay them wages as per N.C.W.A. and 75% of back wages from the date of reference (16.03.1989) till they are allowed to resume duty.
4. By the said award the following direction was made by the Central Government Industrial Tribunal in Reference Case No. 35/1989:
The action of the Management of Sudamdih Area of N/s BCCL in denying employment to S/Shri Sapan Banerjee, karan Sahi and Shanti Thakur is not justified. The management is directed to reinstate them in service within one month from the date of publication of the award and to pay them wages as per N.C.W.A. and 75% of back wages from the date of reference (20.03.1989) till they are allowed to resume their duties.
The workmen were directed to report for duties within one month from the dale of publication of the award.
5. The common award of both the aforesaid two reference cases were challenged before this Court in its writ jurisdiction by filing two separate writ applications being CWJC No. 856/1993 (R) (arising out of Reference Case No. 32/1989) and CWJC No. 859/1993 (R) (arising out of Reference Case No. 35/1989), by the Management of Sudamdih Colliery.
6. This Court heard both the writ applications together and by a common judgment dated 10/08/1998 dismissed both the writ applications and the Management was directed to reinstate the workmen covered by Reference Case No. 32/1989 and 35/1989 within six weeks from the date of the Judgment and to pay the back wages as directed in the said judgment.
7. The management, thereafter, preferred two Letters Patent Appeals against the said judgment of the learned Single Judge being LPA No. 424/1998 and 425/1998. The Division Bench of this Court by a common judgment dated 17/05/1999 dismissed both the Letters Patent Appeals. The management, thereafter, filed two Special Leave Petitions before the Supreme Court and after the Special Leave was granted the same were registered as Civil Appeal No. 1902/2000 and Civil Appeal Nom 1903/2000 before the Supreme Court.
Page 0853
8. The Supreme Court by its judgment dated 16th January 2006 held as follows:
It appears that the Tribunal and the High Court did not consider the factual position in the background of the legal position as noted above. Of course at the point of time when the matter was decided Air India’s case (supra) held the field. But, in view of the pronouncement of the Constitution Bench in Steel Authority’s case (supra) the matter needs to be re-examined by the High Court. Though it was submitted by Mr. Upadhyay that there is a finding bout the appellant having adopted a camouflage, there is no definite finding by the Tribunal and/or the High Court in this regard. Mere reference to certain observations of this Court would not suffice without examination of the factual position. Additionally, the effect of omitting the names of the claimants whose cause was being espoused by the Union has not been considered by the High Court in the proper perspective. Similar is the position regarding purported settlement. In these peculiar circumstances, it would be appropriate for the learned Single judge of the High Court to re-consider the matter. Accordingly, the matter is remitted to the high Court so that learned Single Judge can consider the matter afresh taking into account the principles set out above and consider their applicability to the background facts on the issues raised by the appellant. As the matter is pending since long, learned Chief Justice of the High Court is requested to allot the matter to a learned Single Judge who shall make an effort to dispose of the matter afresh within a period of six months from the date the matter is allotted by the learned Chief Justice.
The appeals are allowed to the aforesaid extent without any order as to costs.
9. In the above background, it is relevant to notice the facts of the aforesaid two reference cases:
Facts of Reference Case No. 32 of 1989
As disclosed in the written statement, the case of the Management of Sudamdih Colliery of M/S B.C.C.L. is that the reference is not maintainable since the relationship of employer and employee between the Management and the persons involved in the dispute does not exists and the demand of sponsoring union is over stale.
According to the Management, the work relating to Sump cleaning in Sudamdih Project in the year 1976-77 was awarded to a Contractor namely Bhagwan Singh, which was subsequently discontinued. According to the BCCL, the principal employer was not bilged to provide employment to any of the ex-worker of the ex-contractor. The Union namely United Coal Workers Union, took up the case of those workers of the ex-contractor. There was a negotiation between the Management and the Union and then it was agreed that those workmen who had put in more than 190 days of attendance during a year would be entertained as Badli piece rated miners. It was found that only one workman fulfilled the requirement of 190 days of attendance in the said year, i.e. in 1976. There was further negotiation between the Management and United Coal Workers Union and it was agreed that those persons who had put in highest attendance of 190 days during 1976 would be provided employment as Badli piece rated miners. Page 0854 Accordingly, seven persons became eligible for being entertained as Badli miners/loaders. The persons whose names were mentioned in the reference were not eligible for being provided employment as Badli miners/loaders and, therefore, they were not legitimately entitled to claim employment under the Management and the Management was also not obliged to provide an employment. Therefore, the question of denying employment to those persons did not arise. Further case of the Management is that the Union namely Rashtriya Colliery Mazdoor Sangh by a separate dispute which was referred to the Tribunal was registered as Reference Case No. 35/1989 in which the dispute of only three persons were raised to be working under the aforesaid ex-Contractor.
10. On the other hand the case of the concerned workmen is that the concerned workmen is that they were working at Sudamdih Colliery in the incline mine as Sump cleaning Mazdoors continuously for several years. Their jobs were directly connected with the production of coal, which was of a permanent nature of job and the concerned workmen used to work under the direct supervision, control and guidance of the Management. The management used to provide them tools and equipments necessary for performance of their duties. The job of Sump cleaning was in fact loading and unloading of slack/dust coal in underground mine which was prohibited category of job as declared by the appropriate Government by Notification issued under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970. The further case of the workmen was that the Management in order to deprive the workmen of their legitimate wages as per the Coal Work Wage Agreement engaged an intermediary only to make payment to them through him. An accident-occurred in the mine on 09/07/1977 and all the workers were stopped from work. As a result of the said accident two Sump cleaning Mazdoors died and the management not only paid them compensation under the Workmen’s Compensation but also provided employment to their dependants. This clearly goes to show that they were the employees of the management. The further case of the concerned workmen was that the management thereafter in connivance with particular union made a deal for providing employment to 16 sump cleaning Mazdoors without any basis or norms for such selection ignoring the claim of the concerned workmen. The action of the management in denying employment to them is illegal and unjustified and was discriminatory.
Facts of Reference Case No. 35/1989
The facts in the present reference case are exactly the same to that of reference case No. 32/1989 with only difference that the name of the concerned workmen ias different. In the present reference the dispute was raised with regard to Bhagwat Singh, Sri Sapan, Sri Karan Sahi and Shanti Thakur. The case of the management as well as of the workmen are exactly the same as that in reference case No. 32/1989.
11. On the basis of the evidence on record the Tribunal held as follows:
(i) The Contractors were engaging more than 20 workers and, therefore, it was essential for them to have valid license and the principal employer, i.e. the management should obtain a certificate of registration as per Contract Labour Page 0855 (Regulation & Abolition) Act. The workmen engaged by the contractor working for the principal employer, who had no valid certificate of registration under Section 7 of the Contract Labour (Regulation & Abolition) Act, would be workmen engaged by the principal employer itself.
(ii) Cleaning of Sump was a continuous process in a running mine and, as such, the job of the concerned workmen, who were engaged in cleaning of Sump were of permanent nature of job and was an integral part of the mining operation.
(iii) The workmen engaged in the job of Sump cleaning were rendering services for the management and they were directly under the control and supervision of the management. The concerned workmen were the real workmen of the principal employer, i.e. the management.
(iv) The workmen were the real workers of the management and they were stopped from the duties with effect from 09/07/1977 consequent upon the accident in the colliery, which claimed lives of two workmen.
12. Consequently, as already noticed above, the Tribunal directed the management to reinstate the concerned workmen in service with effect from the date of reference and to pay them wages as per NCWA and 75 percent of back wages from the date of reference.
13. Challenging the award of the tribunal, it has been submitted on behalf of the writ petitioners that there is no finding in the entire award that the engagement of contractor in Sump cleaning job is prohibited category of work in which the contractor, workers cannot be engaged on account of issuance of notification under Section 10(1) of the Contract Labour (Regulation and Abolition) Act. It is further submitted by the writ petitioner that since the engagement of contractor was not prohibited in law and, therefore, the writ petitioner was not debarred from engaging a’ contractor. The finding of the tribunal is that the contractor had no license or registration and, therefore, it would deemed that the workers employed by the contractor were of the principle employer, was not correct in view of the judgment in the case of “Dena Nath and Ors. v. National Fertilisers Ltd. and Ors. “. It is further submitted that so far as the question of camouflage is concerned the same has to be specifically pleaded and proved as has been held in the case of “Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh and Ors. ” following the decision of the Constitution Bench of the Supreme Court in the case, of “SAIL v. National Union Water Front Workers ” but in the present case the same was not done. According to the writ petitioner since there was no finding by the Tribunal that the job was of prohibited category by issuance of notification under Section 10(1) of the Contract Labour (Regulation & Abolition) Act and the camouflage was neither pleaded nor proved and, therefore, the finding of the tribunal that the engagement of contractor was camouflage was illegal and bad. It was next contended on behalf of the writ petitioner that the dispute itself was stale and, therefore, consequently the reference and the award were bad in law on the ground of delay and latches. It is said that the contractor workers were stopped from work on 09/07/1977, and the discussions were held which ultimately ended in an agreement/ settlement in the form of record note of discussions being Exhibit M-3 dated 13/10/1978 and Exhibit M-4 dated 10/04/1980. Therefore, although the agreement Page 0856 as arrived in the year 1930 but the industrial dispute was raised and the reference was order in the year 1989, i.e. after 9 long years or after 12 years from the date contractor workers were stopped from working, i.e. 09/07/1977 and, therefore, in view of the decision of the Supreme Court in the case of “Haryana State Land Development Bank v. Neelam ” the reference itself was bad in law.
Lastly, it was contended that in view of the recent judgment of the Supreme Court in the case, of “Secretary. State of Karnataka v. Uma Devi there is no scope of regularization/employment of contractor workers or persons entering through back doors like contractor workers, the present workmen. Accordingly, it is submitted that the impugned award liable to be set aside.
14. On the other hand on behalf of the respondents it is submitted that the Supreme Court has remanded the matter to this Court on limited points, i.e. firstly, regarding the omission of the mime of the workmen in the order of reference. Secondly, purported settlement and thirdly, delay in raising the dispute. It is submitted that there was no settlements between the management and the union. The record notice of discussions-cannot be termed as settlement. Regarding second point it is submitted that in reference case No. 35/1989, the names of four concerned workmen are there and in reference case No. 32/1989 the terms of reference regarding Karma Raul and 21 others the name of 21 others were not annexed with the order of reference. The dispute was raised before the ALC (C), Dhanbad, which was marked as Ext.-W6 the names of the concerned workers were also mentioned in the written statement submitted by the workmen. So far as the last point is concerned it is submitted that no limitation is prescribed for raising the dispute under Section 10 of the Industrial Dispute Act and no reference can be rejected on the ground of delay. It is further submitted that the award of the tribunal is based on appreciation of evidence and facts and, as such, there is no scope to interfere with the award. The findings of the tribunal are absolutely based on the evidence on record, which is not liable to be interfered with by this Court in its writ jurisdiction.
15. In order to test the submission of the learned Counsel for the parties, it is necessary to notice the decision of the Apex Court on the aforesaid points advanced by both the parties.
In the case of “Steel Authority of India Limited v. National Union Water Front Workers the Apex Court has held that by definition the term “contract labour” is a species of workman. Where a workman is hired in or in connection with the work of an establishment by the principal employer through a contractor, he merely acts as an agent so there will be master and servant relationship between the principal employer and the workman But where a workman is hired in or in connection with the work of an establishment by a contractor, either because he has undertaken to produce a given result for the establishment or because he supplies workmen for any work of the establishment, a question night arise whether the contractor is a mere camouflage, if the answer is in the affirmative, the workman will be in fact an employee of the principal employer; but if the answer is in the negative, the workman will be a Contract labour.
Page 0857
16. In the said decision, the Supreme Court has further held as follows:
The word “workman” is defined in wide terms. It is a generic term of which contract labour is a species. It is true that a combined reading of the terms “establishment” and “workman” shows that a workman engaged in an establishment would have direct relationship with the principal employer as a servant of master. But what is true of a workman could not be correct of contract labour. The circumstances under which contract labour could be treated as direct workman of the principal employer have been held to be only the following ones:
(i) where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract labour working in the establishment of the principal employer were held, in fact and in reality, the employees of the principal employer himself Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited, and
(ii) where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed of the services of a contractor and the court held that the contract labour would indeed be the employees of the principal employer.
17. So far as the grounds of delay and latches as argued on behalf of the petitioner is concerned, the Supreme Court in the case of “Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Limited and Anr. ” has held that the provision of Article 137 of the Limitation Act. 1963 are not applicable to the proceedings under the Industrial Disputes Act. The relief under the Act cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as matter of fact by showing the real prejudice and not as merely hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour court of board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding illegal retrenchment/termination or dismissal.
18. While dealing with the case of Haryana State Land Development Bank v. Neelam (supra) the Supreme Court after considering the Ajaib Singh’s case held that although the court cannot import a period of limitation when the statute does not prescribes the same, as was observed in Ajaib Singh’s case but it does not mean that irrespective of the facts and circumstances of the each case, the stale claim must be entertained by the appropriate Government while making a reference or in a case where such reference is made the workman would be entitled to relief at the hands of the labour court.
19. So far as the question with regard to settlement being sham and camouflage is concerned, the Supreme Court in the case of “Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh and Ors” (supra) has held as under:
The Union in the writ petition alleged ” that the labour contract was a sham and the Corporation specifically denied it but the High Court did not go into this question and did not record a finding that the labour contract in the present Page 0858 case was a sham or a camouflage considering the material on record; even otherwise, this being a serious and disputed fact the High Court could not have appropriately adjudicated on the issue exercising jurisdiction under Article 226. The High Court proceeded to conclude that the labour contract was not genuine and the workers of the Union were employees of the Corporation because the Corporation and the contractors had not complied with the provisions of the CLRA Act. A conclusion that the contract was a sham or it was only a camouflage cannot be arrived at as a matter of law for non-compliance with the provisions of the CLRA Act but a finding must be recorded based cm evidence, particularly when disputed, by an industrial adjudicator.
20. Now coming back to the facts of the present case, so far as the issue relating to issue of camouflage is concerned, on careful consideration of the impugned award, I find that there is no specific finding by the Tribunal on the aforesaid point. It appears from the impugned award that without discussing the materials on the record the Tribunal has observed that the engagement of contractor was camouflage.
21. In view of the direction of the Supreme Court, I have examined and scrutinized the evidences led by the parties before the Tribunal. After going through the evidences of MW-1 to MW-4 as well us the documents, which were marked as Ext. M-1 to M-9/1 as also the statement of the witnesses, examined on behalf of the workmen, i.e. WW-1 to WW-3 and the documents adduced in evidence on behalf of the workmen as Ext. W-1 to W-6, I find from the evidence that it was established that the contractor was engaged in the year 1976-77 and thereafter, his engagement was discontinued and no workman was engaged in permanent and prohibited category of job: From the materials on record, I find that the plea of camouflage was not even specifically pleaded nor the learned tribunal gave any specific finding on the said point on the basis of the materials of record.
22. In my view, this finding does not appear to be correct on the basis of the materials on record. I am supported in my view by the decision of the Supreme Court in the case of “Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh and Ors ”
23. It further appears from the record that after the workmen were stopped from work from 09/07/1977, discussions were held and then an agreement in the form of record note of discussions being Ext. M-3 dated 13/10/1978 and Ext. M-4 dated 10/04/1980 was prepared. Therefore, it is apparent that the said agreement was arrived at in the year 1980 but the dispute was raised and referred after nine long years, i.e. in the year 1989 or even after 12 years, from the date the concerned workmen were stopped from work on 09/07/1977. Therefore, on the basis of the decision of the Supreme Court in the case of “Haryana Stale Land Development Bank v. Neelam reported in (2005) 6 SCC 91″ it cannot be said that the industrial dispute was raised within a reasonable time.
24. I further, find that the Tribunal has failed to take into consideration that there was an agreement or settlement with the United Coal Workers Union on 10/04/1980 by which the 16 persons were found eligible vide Ext. M-4 and no evidence was led by the Union to establish the fact that the concerned workmen worked continuously and completed 240 days. Mere oral evidence or affidavit in this regard that the Page 0859 concerned workmen have worked for 240 days is not sufficient because it has to be substantiated by the relevant attendance register, wage register etc. As a matter of fact the Union failed to discharge its onus in proving that the concerned workmen worked for even 190 days.
25. In view of the discussions and findings above, in my view, the impugned award cannot be sustained in law. Accordingly, both these writ applications are allowed and the impugned award passed by the Industrial Tribunal in Reference Case No. 32/1989 and Reference Case No. 35/1989 is hereby set aside.
In the facts and circumstances of the case there shall be no order as to cost.