ORDER
Vikramaditya Prasad, J.
1. The question to be answered in this writ petition is whether the refusal of the reference by the Union of India as contained in Annexure-3 can be sustained in law.
2. The question aforesaid arose out of the facts that the Janta Mazdoor Sangh, a registered Trade Union, raised a dispute for regularization of the services of 29 of its members on the ground, as stated in the writ petition, that those workers were the members of that Union represented by Mewa Singh, a member of the said Union and they were performing the repairing and maintenance of the broken down machineries as also for transportation of parts of machineries and other materials from surface to underground and from underground to surface. For this purpose, they were issued Cap Lamps and their names were also entered in the Form ‘C Register. They had also worked for more than 240/190 days. They made representations for their regularization. Ultimately, conciliation was initiated, the notice of that was furnished to the respondent-management. The management, during conciliation, only admitted that Ashok Ram and some other workers were working since 1991, but denied the claim of other workers that they were working on regular and continuous basis against permanent and perennial nature of job. During the conciliation proceeding, the petitioner. Union had produced a large number of documents to show that these persons have been working continuously and the management had nothing to reply. The conciliation proceeding failed, the report was submitted thereof, whereas the Central Government was required to form an opinion with regard to the existence of a dispute but the Government passed the following order :–
Suchit Kiya Gaya Hai Ki Sambandhit Karmkaro Ko Barsh 1991 Se Barsh 1994 Ke Bich Kabhi Kabhar Akshmik Karya Ke Liye Matra Kuch Dino Ke Liye Rakha Gaya. Niyamitikaran Ka Koi Ad-hikar Unhone Arjit Nahin Kiya, Bibad Nisar Hai.
In support of the claim of the petitioner, the learned counsel appearing for the petitioner has relied upon a decision of this Court rendered in the case of Coal Mines Engineering Workers’ Association v. Union of India and Ors., reported in 2002 (1) JCR 441.
3. Counter affidavit has been filed in this case. Reliance has been placed by the learned counsel appearing for the respondents on a decision of the Apex Court rendered in the case of Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. reported in (2001) 17 SCC 1. The case made out by the respondents is that the petitioner-workers were the contract labourers and were employed only for about 15 days during the Rainy Season, when there was brake down in the underground mines, to remove and replace certain machineries. Those workers were represented by Mewa Singh and as such, the petitioners, having been employed as contract labourer only for that period of time, i.e., for 15 days, have got no right to claim a job and to be regularized. They denied all the claims of the petitioner and submitted further that the appropriate Government had not adjudicated the dispute but only formed an opinion for not referring the dispute for adjudication. The decision relied upon by the learned counsel appearing for the respondents, in my view, is not applicable to support the case of the respondents. Reliance was placed on the paragraph Nos. 125 and 160 of the said decision. Paragraph No. 125 is wholly irrelevant in the facts and circumstances of the case and the Paragraph No. 160 refers to a situation when there is a camouflaging in the name of the contract labourer, then it has been held that it is the management who will be deemed to be the principal employer. This is not the fact here because there is no case of camouflaging pleaded by the petitioner. Even in the entire counter-affidavit, the name of Mewa Singh was been taken as the worker, who was employed for the purpose of removing certain machineries from underground but regarding the rest of the workers, not a single word has been stated. Secondly, in the whole counter-affidavit it has not been stated that Mewa Singh was the Labour Contractor through whom other petitioners were employed. In this view of the matter, the individual case of other petitioners has been left unanswered by the respondents. The documents are there to prove or dispute whether or not the petitioner were, in fact, employed for 240 days, which is an averment made in the writ petition, which is sought to be disputed by the respondents. The petitioners were the members of the registered Trade Union and if they were the members of the registered Trade Union, then it is a matter to be examined whether, in fact, they were the contract labourers because if their status were of contract labourer, they were not expected to be the members of a particular registered Trade Union. In the aforesaid circumstances, there appears to be a dispute with regard to regularization of their services, which could be adjudicated only after examination of the relevant records and evidence by an appropriate forum. The appropriate Government has only to form an opinion. The opinion to be formed must rest on certain facts either in favour or against. It appears that the opinion has been formed, while passing the impugned order by the Central Government, only on the basis of what has been said by the management. The pleas taken by the petitioner with regard to the existence of documents, showing their presence for 240 days in employment, it appears, has been conveniently ignored, while forming the opinion.
4. In the aforesaid circumstances, the writ petition is allowed and the impugned order, Annexure-3, is quashed. The appropriate Government is directed to reconsider the matter and pass an appropriate order within a period of two months from the date of receipt/production of a copy of this order.