JUDGMENT
Vishnudeo Narayan, J.
1. Both these cases (LPA No. 24 of 1998 and MJC No. 107 of 2001) have been heard together and are being disposed of by this common judgment.
2. This appeal under clause 10 of the Letters Patent is directed against the judgment dated 12.12.1997 passed by a Bench of this Court in CWJC No. 2470 of 1992(R) whereby and whereunder the learned single Judge dismissed the said writ application. The writ petitioner appellant had filed CWJC No. 2470 of I992(R) for quashing the award dated 21.2.1992 passed by the Central Government Industrial Tribunal No. 1, Dhanbad in Reference Case No. 151/89.
3. By Order No. L-20012(200)/84-D III(A)IR (Coal-1) dated 19.10.1989 the Central Government in the Ministry of Labour in exercise of the powers conferred by clause (d) of Sub-section (1) and Sub-section (2A) of Section 10 of the Industrial Disputes Act. 1947 (in short ‘ID Act’) has referred the dispute for adjudication to the said Tribunal. The point of reference reads as under :
“Whether the action of the management of Fularitand Colliery of M/s. B.C.C.L., P.O. Nawagrah. District Dhanbad in stopping from employment the workmen whose names are given in annexure with effect from 19.12.1983 is justified? If not to what relief these workmen are entitled to.”
The learned Tribunal passed the award on 21.2.1992 answering the reference in favour of the workmen which reads as under :
“Action of the management of Fularitand Colliery of M/s. B.C.C.L. P.O. Nawagrah, District-Dhanbad in stopping from employment the concerned workmen whose names are given in annexure to the award with effect from 19.12.1983 is not justified. The management is directed to reinstate them in service with effect from 22.12.1983 and pay them backwagesless wages already paid, as available to stone cutters as per N-CWA within two months from the date of publication of award. The concerned workmen are also directed to report for duty within the space of time prescribed above.”
The petitioner appellant filed CWJC No. 2470 of 1992(R) for quashing the said award dated 21.2.1992, annexure-3 to the writ petition, passed by the said Tribunal. The said writ petition was dismissed vide judgment dated 12.12.1997.
4. The case of the writ petitioner appellant, in brief is that the workmen were not their employees and in regard to works of temporary nature, contractors were engaged on the basis of work orders and the contractors used to engage their own work force and completed the work assigned to them. The work force deployed by the contractors were paid by the contractors. The concerned workmen engaged by such contractors were not the employees of the writ petitioner appellant and after completion of the work orders such workers were not permitted to enter the mines.
5. The case of respondent No. 2, inter alia is that the workmen aforesaid were working in the job of stone cutting/coal cutting which is prohibited category of job and is of permanent as well as of perennial nature and they had worked under the direct control and supervision of the writ petitioner appellant who had been disbursing their wages through intermediaries. Their case further is that they were not the employees of the contractors but they were directly engaged by t he appellant management and despite the fact that they were performing the work of permanent nature such as of stone cutting and they were not being paid their full wages as per the requirement of the law and other requirements of law were not complied with in relation to their employment and ultimately the management stopped them from employment with effect from 19.12.1983.
6. It is pertinent to mention at the very outset that this appeal was admitted vide order dated 19.5.1998 on a limited question about payment of arrears with effect from 22.12.1983 till the date of the award. Thereafter the appellant preferred SLP (Civil) No. 14964 of 1998 before the Apex Court for modification and reconsideration of the order dated 19.5.1998 regarding the admission of this LPA on a limited point with regard to the payment of arrears and the said SLP (Civil) against the order dated 19.5.1998 was also dismissed vide order dated 18.9.1998 in limine.
7. Mr. Rohtagi, learned Additional Solicitor General appearing on behalf of appellant has made three fold submissions. His first submission is that the order dated 19.5.1998 regarding the appeal having been admitted on a limited question about payment of arrears of wages with effect from 22.12.1983 till the date of the award is fit to be recalled and appeal be heard regarding all the issues involved in the case in view of the fact that in spite of dismissal of the SLP (Civil) No. 14964 of 1998 by the Apex Court in limine without any reasons recorded therein, the principles of res judicata or merger have no application and this Court has jurisdiction to recall the order dated 19.5.1998. In support of his contention a decision of the Apex Court in the case of Kunhayammed and Ors. v. State of Kerala and Anr., (2000) 6 SCC 359, has been referred by him. It has also been submitted that in view of the law laid down by the Apex Court in the said case. Article 136 of the Constitution of India confers jurisdiction on the Apex Court of two types (i) granting Special Leave to Appeal and (ii) hearing the appeal and while hearing the petition for Special Leave to Appeal the Court is called upon to see whether the petitioner should be granted special leave or not and at that stage of hearing such petition, the Court is not exercising its appellate jurisdiction rather the Court is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal and at that stage the petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Apex Court which will depend on the fate of his petition for special leave as to whether he enters or not to that arena and if the petitioner seeking grant of leave to appeal is dismissed it would tantamount that no case for invoking the appellate jurisdiction of the Court has been made out and the said dismissal is not of the appeal but of the special leave petition. It has also been submitted that in this view of the matter neither the doctrine of merger nor Article 141 of the Constitution of India is attracted to such an order.
8. The second contention of Mr. Rohtagi, learned Senior Counsel for the appellant is that the impugned award of this case has not so far attained finality and/or it has been implemented which is very very manifest from the materials on record and for that respondent No. 2 has already initiated a contempt
proceeding. Referring the case of Steel Authority of India Limited v. National Union of Water Front Workers, (2001) 7 SCC 1, it has been submitted that the judgment of the Apex Court in Air India Case (reported in Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377, has been overruled prospectively with a declaration that any direction of Industrial adjudicator any Court including the High Court for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside or modified on the basis of the judgment in cases where such directions have been given effect to and it has become final. It has also been contended that in the present case the award has not at all attained finality and the same has not been implemented and there is no provision in the Contract Labour (Regulation and Abolition) Act. 1970 (in short ‘CLRA Act’) which provides for automatic absorption of contract labour on issuing a notification by the appropriate government under Sub-section 1 of Section 10. I.D. Act providing the employment to a contract labour force in any establishment and the principal employer cannot be called upon to order absorption of the contract labour working in the establishment concerned. Therefore, this Court is now required to examine the impact of the ratio of the Constitution Bench judgment in SAIL case on the unimplemented impugned award and the ratio of the Constitution Bench judgment aforesaid squarely applies to the impugned award for declaring it unsustainable and to be quashed.
9. Lastly it has been contended by Mr. Rohtagi learned senior counsel that as regards to the payment of the back wages as per direction of the impugned award, the BCCL has become a sick industrial company under the meaning of the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 (in short ‘SICA’) and an application has been made before the Board of Industrial and Financial Reconstruction (in short ‘BIFR’) New Delhi under Section 15(1) of the said Act for its registration and necessary follow up action and the application of the appellant has been registered as Case No. 502/2001. It has also been submitted by Mr. Rohtagi learned senior counsel that in view of the ratio of the SAIL’s case there cannot be automatic absorption of the 70 workforce
employed by the contractor as per the impugned award.
10. Mr. RS. Mazumdar, learned counsel for the respondent No. 2 has contended that the Tribunal by its award dated 21.2.1992 held that the concerned workmen are the employees of the appellant and stone cutting jobs in which the concerned workmen were employed were of prohibited category of job. It has also been submitted that the award has reached its finality as well as confirmed by judgment dated 12.12.1997 by a Bench of this Court in CWJC No. 2470 of 1992(R) and also confirmed by a Division Bench of this Court on 19.5.1998 in this LPA as it was admitted on a limited question only of back wages and the SLP (Civil) filed by the appellant against the said order stands dismissed by the Apex Court by order dated 18.9.1998. It has also been contended that the application of the appellant filed before the BIFR under the provisions of SICA stands rejected and it has been stated in the said order that being a PSU it is for the company or the promoter to ensure carrying out their legal obligations/responsibilities cast upon them by higher Court’s directions instead of seeking protection under SICA. Hence, Board would not extend benefit to allow the sacrosanct taw to be misused and that too by Government being a promoter. Hence the Board rejected the application of the company. Lastly, it has been submitted that the workmen were discharging the work of stone cutter which is under prohibited category of job as per 10(1) of the CLRA Act and the contractor has been interposed which is mere ruse/camouflage to evade compliance with various beneficial legislations so as to derive the workers of the benefit thereunder and in such a situation the concerned workmen will have to be treated as the employees of the appellant and there is no illegality in the judgment of the learned single Judge of this Court directing the appellant to regularise the service of the concerned workmen in its establishment. It has also been submitted that concerned workmen are equally entitled for back wages on their such reinstatement for the relevant period.
11. The Apex Court in the case of Kunhayaxnmed v. State of Kerala, (supra) has laid down the proposition of law which runs hereunder :
“44. To sum up, our conclusions are :
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 135 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine or merger can therefore be applied to the former and not to the latter.
(iv) An order perusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order i.e., gives reasons for refusing the grant of leave then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Courtwithin the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule 1 of Order 47. CPC.”
12. The writ petitioner appellant had filed CWJC No. 2470 of 1992(R) for quashing the impugned award dated 21.2.1992 of the Tribunal which was dismissed on 12.12.1997 by a Bench of this Court. The LPA Bench in 1998 passed a restricted order of admission vide order dated 19.5.1998. Vide this order the LPA was admitted only with respect to the question relating to the payment of back wages. In other words, the appeal of the appellant employer on the question of reinstatement as ordered by the Tribunal stood dismissed. Against this order of limited/ restricted admission the employer filed SLP (Civil) No. 14954 of 1998 before the Apex Court for modification and reconsideration of the order dated 19.5.1998 regarding order of limited/restricted admission which was also dismissed as per order dated 18.9.1998 in limine. In other words, therefore, the question relating to the reinstatement of the workmen has assumed finality, the LPA on this question having been dismissed and SLP challenging this order also was dismissed. In the background of these developments I haveto interpret the ratio of the SAIL case reported in (2001) 7 SCC 1. In paragraph 125 of this judgment the Apex Court has clearly held that Air India case has been overruled prospectively. There are actually six sub-paragraphs of paragraph 125 and for the purpose of proper adjudication I have to rely upon sub-paragraphs 2(b), 3. 4, 5 and 6 of paragraph 125 of the SAIL judgment which are quoted hereunder :
“………. ………. ……….
(2)(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. 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.
(3) Neither Section 10 of CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under Sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently, the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
(4) He overrule the judgment of this Court in Air India case prospectively and declare that any direction issued by any industrial adjudicator/any Court including the High Court, for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour
In regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment under a genuine contract or is a mere ruse/ camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process operation or other work of any establishment and wherein such process operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.”
The expression used in sub-paragraphs 2(b) and 4 is “attained finality and/or has been implemented” or “has been given effect to.”
13. The contention of Mr. Rohtagi is that by dismissal of the LPA on the question of reinstatement as a result of limited admission of the said LPA on the question of payment of backwages and the dismissal of the SLP by the Apex Court, even though the award may have assumed finality, yet because it has not been implemented or given effect to the doctrine of prospective application of SAIL judgment would not be attracted and the matter can be considered being pending in view of the ratio in the case of Kunhayammed v. State of Kerala (supra) and on that ground the SAIL judgment ran be applied and thus this Court should remand the matter to the Industrial Tribunal to take evidence and collect facts to find out whether in view of sub-paragraphs 5 and 6 of paragraph 125 of SAIL judgment the engagement of the contractors was a mere camouflage/ruse or sham transaction or the engagement of the contractor was a genuine act and, therefore, the employees of the contractor do not become the employees of the principal employer i.e., the appellant.
14. Apparently, the contention of Mr. Rohtagi does not appear to be well founded. The award of the Tribunal with respect to the reinstatement having assumed finality, the question in sub-paragraph 2(b) of paragraph 125 of the SAIL judgment is answered against the appellant because sub-paragraph 2(b) talks either assuming of finality or implementation because of expression used is “and/ or”. In sub-paragraph 4 of paragraph 125 of the SAIL judgment it is said “either given effect to or it has become final”. In so far as the question of giving effect to the award is concerned, after passing of the award the workmen did everything possible to have the award implemented and to give effect to the same. They came to this Court several times and they also started the prosecution of the appellant in terms of Section 29 of I.D. Act. 1947. The prosecution proceedings under Section 29 of the said Act are still pending. It is also relevant to mention here that this Court has also passed two orders dated 7.8.2000 and 26.7.2001. It is equally worth mentioning that the appellant preferred SLP No. 148/2001 and SLP No. 16620/2001 against both the orders aforesaid respectively which were dismissed as withdrawn. It appears from the order dated 26.7.2001 referred to above the appellant had approached the BIFR under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 and the BIFR also rejected the appellant’s prayer for stay and instead clearly directed that the appellant should implement the orders passed by the Court in this particular case.
15. In SLP filed in the Supreme Court against the order dated 26.7.2001, the appellant has mainly taken the ground relating to the identification of the workmen and submission of the same in prescribed format as per ratio of Raghunath Balmiki case (1999) 1 SCC 177 and such other difficulties being faced by them in implementation of the award. Only the last ground by way of a passing reference was with respect to the application of the ratio of the SAIL judgment. The two orders of this Court dated 7.8.2000 and 26.7.2001 clearly amount to give him direction for implementation of the award. Against both these orders the appellants went to the Apex Court and both the SLPs were dismissed as withdrawn. If the appellant constantly agitated the matter that this court should not have issued direction for implementation of the award and invited the Apex Court to interfere and it failed and did not succeed in its attempt because the Supreme Court did not interfere and SLPs were dismissed as withdrawn. In this view of the matter the two orders aforesaid of this Court cannot now be recalled. If the matter is pending before LPA Bench and aggrieved workmen could and may complain to the LPA Bench that despite the LPA Bench not having entertained the appeal with respect to the part of the award relating to the reinstatement and the employer is not implementing that part, this Court can be said to be well within jurisdiction to pass an order directing the implementation of the award. Nothing wrong can be said in this order. Viewed thus, the restricted admission order dated 19.5.1998 cannot be reopened.
16. The ratio of Kunhayammed case (supra) has no application in this case and there is no force in the contention of Mr. Rohtagi in respect thereof. There was a reference to the Tribunal regarding vesting of the land in the State of Kerala by virtue of the provision of The Kerala Private Forest (Vesting and Assignment) Act, 1971 and the Tribunal held that the land did not vest in the Government and the appeal preferred by the State of Kerala before the High Court of Kerala was also dismissed by an elaborate order. Since there was no provision of appeal, revision or review provided against the order of the High Court in the said Act the State of Kerala filed SLP under Article 136 of the Constitution and the Apex Court dismissed the said SLP. Thereafter by Amendment Act 36 of 1986 a provision was made in the said Act by incorporating Section 8(c) in the said Act with retrospective effect regarding the power of Government to file appeal or application for review in certain cases. Thereafter the State of Kerala filed an application for review before the High Court of Kerala seeking review of the order dated 17.12.1982 whereby the appeal preferred by the State of Kerala before the High Court of Kerala was dismissed. A preliminary objection by the respondent was raised as to the maintainability of the review petition which was heard and disposed of by the order dated 14.12.1995 by the High Court of Kerala overruling the preliminary objection as to the maintainability of the review petition and the review petition was posted for hearing on merits. Being aggrieved the petitioner Kunhayammed preferred this appeal before the Apex Court. The Apex Court in view of the specific provision as contained in annexure 8/c incorporated in the said Act with retrospective effect held that the order of the High Court of Kerala dated 17.12.1982 did not merge in the order dated 18.7.1983 passed by this Apex Court, so it is available to be reviewed by the High Court as the right of reviewing has been statutorily confirmed on the High Court as per the amended provision. Therefore, the ratio of the case of Kunhayammed has no application in this case before me.
17. Now comes the question of payment of backwages. The Tribunal has ordered that the workmen be reinstated with backwages with effect from 19.12.1983. This is year 2002. This means that about 20 years have since elapsed. During this period of 20 years it has not so far been established by the workmen as to what they have been doing, whether they have been gainfully employed or not or they have been sitting idle or not. In this view of the matter it is for consideration as to whether to set aside that part of the judgment in toto and restrict the reinstatement prospective or by way of one time settlement direct that the wages be paid to the workmen in one lump sum, say Rs. one lac per workman or some percentage, say 10. 15, 20 of the total amount of the wages because of all uncertainties attached to the factual aspect whether during this period they were gainfully employed or not.
18. In view of the aforesaid observations and findings and keepings in view allthe uncertainties attached to the factual aspect as to whether during this period of 20 years, the workmen were gainfully employed elsewhere or not, in our considered opinion, it shall be in conformity with the principles of natural justice and in the interest of both the parties if we, while upholding the reinstatement part of the impugned award, set aside that part of the impugned award and the impugned judgment of the learned single Judge which grants full backwages to the workmen. In our opinion, an amount of Rs. 50.000/- each for ail the ’70’ workmen would suffice and meet the ends of Justice.
In the result, therefore, while partly allowing this appeal, and upholding in entirety the reinstatement relief, as contained in the impugned award, the impugned award and the impugned judgment of the learned single Judge are set aside in so far as these grant the relief of payment of backwages. Instead, we direct that the appellant shall pay Rs. 50,000/- each as consolidated lump sum backwages by way of an one-time settlement payment to all the ’70’ workmen. This payment shall be made within two months from today. If this amount is not paid within the aforesaid period of two months, thereafter, it shall carry interest @ 12% per annum.
19. So far MJC No. 107 of 2001 is concerned, it appears from the materials on record that the Regional Labour Commissioner (Central), Dhanbad had already initiated prosecution in terms of Section 29 of I.D. Act against the management and two criminal cases bearing I.D. Case Nos. 385/ 99 and 390/99 have been initiated against the officials of the management and in this view of the matter the contempt petition itself being premature need not proceed any further and therefore deserves to be set aside.
20. In the result, this appeal is partly allowed to the extent indicated hereinabove. The application being MJC No. 107 of 2001 is disposed of. There will be no order as to costs.
V.K. Gupta, C.J.
21. I agree.