JUDGMENT
R.K. Merathia, J.
1. The petitioner has challenged the award dated 17.8.1997 passed by the Central Government Industrial Tribunal No. 1, Dhanbad (respondent no. 1) in Reference No. 45 of 1993, holding that the demand of the Union to departmentalise and treat eighteen Tyndal Mazdoors etc., whose names appear in the annexure, as regular workmen on the rolls of the Colliery is justified and directing the management to reinstate and regularise/departmentalise the concerned workmen as permanent Tyndal of the management with effect from 1.7.1990 with at least 30% of full back wages.
2. The following dispute was referred for adjudication to the Tribunal:
Whether the demand of Janta Mazdoor Sangh that the management of Moonidih Project of M/s. BCCL, P.O. Moonidih, Dist. Dhanbad should departmentalise and treat as regular workmen on the rolls of the colliery, 18 Tyndal Mazdoors etc., whose names appear in the Annexure, is justified? If not, to what reliefs are these Tyndal Mazdoor etc. entitled?
ANNEXURE
1. Shri Mewa Singh 2. Shri Sikhdeo Singh
3. Shri Balbir Singh 4. Shri Kapor Malhotra
5. Shri Biru Singh 6. Shri A.K. Jha
7. Shri Amar Singh 8. Shri Bajeed Singh
9. Shri Jasvant Singh 10. Shri Hoshiar Singh
11. Shri Ajay Kumar Jha 12. Shri Fulmindar Singh
13. Shri Ajay Kumar Jha 14. Shri Kuldip Singh
15. Shri Inderjit Singh 16. Shri Ajit Singh
17. Shri Naresh Singh 18. Vakul Singh.
3. The case of the Union in short was that the workmen were employed by the management in various permanent and perennial natures of jobs since 1986. They claimed regularisation but the management stopped them from work after the dispute was raised by the Union. Engagement of the contractor “M/S. New Jhang Transport” was a camouflage. Under NCWA III and IV it was agreed that the Industry shall not employ labour through contractor or engage contractor’s labour on jobs of permanent and perennial nature and also that the jobs of permanent and perennial nature which were being done departmentally will continue to be done by regular labour.
4. In support of its claim, the Union examined the contractor Mewa Singh as WW.1 who inter-alia stated that he established the firm M/S. New Jhang Transport as the management had asked him that it will facilitate easy payment.
5. The case of the management, inter-alia, was that no notification was issued under Section 10 of the Contract Labour (Regulation and Abolition) Act (hereinafter referred to as “the Act”) prohibiting engagement of contractor for the works in question done by the said contractor. The jobs were of short duration of about 8 to 10 days.
6. In support of if s case, MW. 1 was examined on behalf of the management who stated inter-alia that the workers were the employees of the contractor. The work of one cycle stand, 2-3 cow catchers and dismantling one building was only done within three years. The Workmen did not work regularly.
7. Mr. Anoop Kumr Mehta, appearing for the management referred to Section 10 of the Act and submitted that there was no notification prohibiting such work through contractor and, therefore, the management was entitled to engage the contractor for such work and thus there is no question of any camouflage. He further submitted that Mewa Singh, WW-1 himself was the proprietor of the said firm and in order to get himself inducted in the services of the Company, he gave false evidence. He submitted that if his evidence is accepted, he becomes party to the contravention of the Act which is punishable under Section 23 thereof. He further submitted that as per Rule 78(C) of the Contract Labour (Regulation & Abolition) Rules, 1971, officers of the management were obliged to counter sign the bills submitted by the contractor and, therefore, such counter signatures will not make the workmen the employees of the management. He further submitted that NCWA relied by the Union has not been brought on record by it and, in any event, there is no violation of the same, inasmuch as the aforesaid jobs done by the workmen concerned were not perennial in nature. He further submitted that in view of the judgment of Range Forest Officer v. S.T. Hadimani , the union/workmen had to prove the facts for establishing violation of Section 25F of the Industrial Disputes Act. He further submitted that the judgment of Air India Statutory Corporation v. United Labour Union has been overruled by a judgment of Steel Authority of India Ltd. v. National Union Waterfront Workers which will apply in this case as the award was stayed in the present writ petition by order dated 17.3.1999 on the condition of grant of benefits under Section 17B of the Industrial Disputes Act. He lastly submitted that in any event, the tribunal could not have directed the management to regularise the concerned workmen. 8. Mr. S. Srivastava, appearing for the Union referring to para-14 of the award, submitted that the tribunal has recorded the findings in favour of the Union. He then referred to paragraph 12 of the judgment Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan (2005) 3 SCC 193 and submitted that this Court may not interfere with the finding of facts recorded by the tribunal as the same are not perverse and not illegal.
9. In my opinion, the award cannot be sustained. After recording the cases and arguments of the parties, the tribunal has jumped to the conclusion that the demand of the Union for regularisation of the workmen was justified. In paragraph 14 of the award, the tribunal has simply recorded the arguments made on behalf of the union. The conclusions of the tribunal are not based on materials on record. It has come in evidence that during the period in question of three years, only one cow shed and 2-3 cow catchers were made and one building was demolished. It has also come in evidence that the concerned workmen were not working regularly and the works assigned to the contractor were completed within a short duration. I agree that the evidence of WW-1 cannot be relied. The tribunal has also not considered the case of the management that there was no notification under Section 10 of the Act. Moreover, the award has been passed on the basis of the judgment of Air India Statutory Corporation (Supra) which is now overruled (vide paragraph-125). There is no finding about the facts attracting violation of Section 25F of the Industrial Disputes Act which was to be proved by the union in view of the judgment of Range Officer (Supra). National Coal Wage Agreements (NCWA) relied by the union has not been brought on record. Even if it’s content, referred in the pleading of the union is accepted, it does not support the case of the union, as the works in question were not of perennial nature.
The observations of the tribunal in paragraph 18 are also beyond the pleadings and the evidences.
The case of the Workmen of Bhurkunda Colliery 2006 (2) JLJR 80 (S.C.) relied by Mr. Srivastava is of no help to him. In that case the dispute was regarding the alleged discrimination in employment/ regularisation of the Casual workers of Repair and Maintenance Section of the Colliery, who were working under the Management.
In the absence of any notification under Section 10 of the Act, it cannot be said that the management was not entitled to engage contract labours for the works in question and that the contractor was engaged as a camouflage. In any view of the matter, the award cannot be sustained in law.
10. In the result, this writ petition is allowed, the impugned award is set aside and the demand of the union is held unjustified. However, there will be no order as to costs.