CIVIL WRIT JURISDICTION CASE No. 616 of 1999 (R)
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In the matter of an application under Article 226 of the
Constitution of India.
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Oshiar Prasad ... ... Petitioner
-V e r s u s-
1. Presiding Officer, Central Government Industrial Tribunal No. 2,
Dhanbad
2. The Employers in relation to the Management of Sudamdih Coal
Washery of M/s.Bharat Coking Coal Ltd., Dhanbad … Respondents.
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For the Petitioner : – Mr. P. K. Sinha, Sr. Advocate
& M/s. Rajeev Ranjan and Abhay Kr. Mishra, Advocates.
For the Respondents : -Mr. Anoop Kumar Mehta, Advocate.
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P R E S E N T: –
THE HON’BLE MR. JUSTICE D.G.R. PATNAIK.
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C.A.V. On: – 13/08/2009 Delivered On: – 03/09/2009
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D.G.R. Patnaik, J. The petitioner Oshiar Prasad has filed this writ application in
representative capacity, challenging the Award dated 21.12.1998, passed under
Reference Case No. 75 of 1995 (Annexure-10), by the Presiding Officer, Central
Government Industrial Tribunal No. 2, Dhanbad, whereby and where under a
Reference has been answered against the concerned workmen.
2. The dispute which arose on account of the refusal of the
Respondent-Management, to concede to the demand of the workmen for their
absorption in service under the Respondent-Management, was referred to the
Tribunal by the Central Government by its order dated 04.05.1995, for
adjudication in the following terms: –
“Whether the action of the management of
Sudamdih Coal Washery of M/s. Bharat Coking
Coal Ltd., Sudamdih Colliery, District-Dhanbad are
justified in not absorbing Ainuel Haq and 15 others
(as in the list annexed) as their regular employees?
If not, to what reliefs are the said workman
entitled?”
3. For better appreciation of the issues involved in this case, a brief
statement of the background facts would be necessary: –
For the purposes of construction of a
Washery on Turnkey Basis, the Management
floated a Tender on 24.07.1974.
The work was finally given by the
Management to a Contractor namely, M/s. McNelly,
Bharat Engineering Company Ltd., under an
Agreement executed on 29.01.1976 by and between
the Contractor and the Respondent-Management.
The work, required to be executed by
the Contractor included preparation of the complete
[2] [C.W.J.C. No. 616 of 1999 (R) ]
design of the Washery, Supply of materials required
for construction of plant, building, installation of
machinery and also construction of the structures in
the process of erection and construction of
Washery.
The terms of Contract also included
that the contractor was to engage his own workmen,
pay them their wages, bonus and other monetary
benefits and also to retrench them after completion
of the job.
Pursuant to the contract, the
Contractor, by recruiting its own workmen,
commenced the execution of the job entrusted to it.
The present group of workmen are admittedly those
workmen, who were employed by the Contractor
and inducted in its service in the year 1977.
The construction of Washery was
completed by the contractor in December, 1979.
After completion of the Civil construction work,
installation of conveyor machineries, both electrical
and mechanical, there was no further requirement of
any Mazdoors, Helpers, Fitters, Masons and other
incidental workers, therefore, the Contractor
terminated the services of such workers, after
offering them retrenchment compensation, notice
pay etc. as per the provisions of Section 25 F and
the relevant provisions of the Industrial Disputes
Act.
However, out of the several
workmen, who were engaged by the Contractor, and
after retrenching a majority of them, the Contractor
had retained the services of about 39 workmen, who
were employed as skilled workers, for running and
maintenance of the Washery. The Respondent-
Management undertook the responsibility of
retaining the 39 skilled workmen from January,
1980 under their control and supervision and paid
their wages.
After retaining their services for
about 1 year, the Management terminated the
services of the 39 employees in January, 1981.
[3] [C.W.J.C. No. 616 of 1999 (R) ]
Being aggrieved by the order of their
termination and claiming that since they were the
employees of the Respondent-B.C.C.L., the 39
workmen whose services were terminated, raised a
dispute demanding their absorption by way of
regularization in service under the Respondent-
B.C.C.L.
The industrial dispute, thus raised by
the 39 workmen, was referred by the Central
Government for adjudication to the Central
Government Industrial Tribunal No. 3, vide
Reference Case No. 58 of 1981.
Though the Management contested
the claim of the workmen, the Industrial Tribunal
by its Award dated 03.03.1983, directed that the 39
workmen be absorbed by the B.C.C.L. as regular
employees with full back wages.
In compliance with the directions
contained in the Award, the Management of the
B.C.C.L. had regularized/absorbed all the 39
workmen.
During this time, and prior to the
date of the Award of the Industrial Tribunal in
respect of the dispute concerning the 39 workmen,
some of the earlier retrenched employees, including
one Shambhu Singh and four others apprehending
termination of their services by the Contractor, filed
a Title Suit in the court of the Munsif 02nd,
Dhanbad vide Title Suit No. 51 of 1980, for a
declaration that they are entitled to continue in
service even after taking of charge by the B.C.C.L.
from the Contractor.
A prayer for permanent injunction
restraining the Contractor from retrenching or
terminating their services were made for, but the
same was not granted by the civil court.
It was only at the conclusion of the
trial in the Title Suit, that by decreeing the suit in
favour of the five workmen/plaintiffs, the learned
Munsif by his decree dated 27.05.1983, declared
[4] [C.W.J.C. No. 616 of 1999 (R) ]
that the plaintiffs were entitled to continue in
service under the Bharat Coking Coal Ltd.
Rule of permanent injunction
restraining defendants from retrenching or
terminating the services of the plaintiffs was also
issued against the B.C.C.L.
Being aggrieved by the judgment
and decree, passed by the learned Munsif, the
Management of B.C.C.L. filed a Title Appeal No.
71 of 1983 before the appellate court.
The Appeal was however, dismissed
on 16.12.1986 affirming the decree passed by the
trial court.
However, the Management of
B.C.C.L. succeeded in the Second Appeal preferred
by them against the judgments of the appellate court
and the trial court before this Court.
By order dated-05.03.1993, the
judgment and decree under Appeal, was set aside
and the suit as filed by the plaintiffs/workmen was
also dismissed as not maintainable.
Against the judgment in the second
appeal, the plaintiffs-workmen approached the
Supreme Court by filing S.L.P. (C) No. 4495 of
1994, corresponding to Civil Appeal No. 8403 of
1994.
By order dated 14.11.1994, the
Supreme Court dismissed the Civil Appeal with a
liberty to the appellants to move the appropriate
Government for reference.
It was in the background of the
aforesaid circumstances that the dispute was
referred to the Central Government in respect of not
only the five workmen/plaintiffs who had filed the
Title Suit, but also in respect of similarly situated
other workmen including the present petitioners and
the dispute so raised, was referred to the Industrial
Tribunal for adjudication in terms mentioned
hereinabove.
4. Both parties were allowed to adduce their evidences before the
Tribunal.
[5] [C.W.J.C. No. 616 of 1999 (R) ]
5. The evidences adduced on behalf of the workmen in support of
their claim, included documentary evidences in the nature of the I.D. cards
purportedly issued under the signatures of the Project Officer of the Respondent-
Management. Other evidence sought to be relied upon, were the evidences
adduced in the proceeding before the civil court in which some of the witnesses
examined on behalf of the Management had purportedly made some admissions
in support of the case of the workmen, Registers maintained for underground
colliery workers pertaining to the issuance of Head lamps and similar other
documents, besides the oral evidences of the witnesses.
6. The Management in its turn, had relied upon the Agreement and
the terms and conditions contained therein, executed by and between the
Management and the Contractor, which was adduced in evidence and the oral and
documentary evidences, to confirm that after completion of the work of
construction of the Washery, the Contractor had handed over the same to the
B.C.C.L.-Management in December, 1979, whereafter the Washery was
commissioned.
7. After considering the evidences on record and taking special note
of the certain admissions made by the witnesses adduced on behalf of the
workmen, the Tribunal recorded its finding that there was no relationship of
employer and employee between the workmen and the Respondent-Management
of B.C.C.L. at any point of time, and that the workmen were not entitled to any of
the reliefs as claimed by them against the Respondent-B.C.C.L.
8. Heard Mr. P. K. Sinha, learned senior counsel for the petitioner
and Mr. Anoop Kr. Mehta, learned counsel for the Respondents.
9. Assailing the impugned judgment, learned counsel for the
petitioner would pursue the following grounds: –
(i) The findings of the Tribunal are perverse
and against the weight of evidences on record. The
Tribunal has erred in failing to appreciate the oral
evidences of the witnesses adduced on behalf of the
workmen, which otherwise confirm that the
workmen were though employed initially by the
Contractor but their services was not of a permanent
nature and after completion of the construction of
the Washery, and handing over of the Washery to
the B.C.C.L.-Management, these workmen
continued to remain in employment under the direct
supervision and control of the B.C.C.L.-
Management for more than two months after
handing over of the Washery.
[6] [C.W.J.C. No. 616 of 1999 (R) ] (ii) The learned court below had failed to
appreciate that the services of these workmen were
engaged under the direct supervision of the Officers
of the B.C.C.L.-Management including the Project
Officer and moreover, the Identity cards and the
head lamps were issued to these workmen by the
Management.
(iii) The Tribunal has also erred in failing to
consider that the Management had deliberately
failed to produce the Form B Register, which is a
mandatory Register to be maintained by the
Management in respect of the Colliery workers and
in which the names of the present set of workmen
also finds a mention. This document, according to
the learned counsel, would have confirmed beyond
all controversy that the services of the workmen
were under the direct supervision and control of the
B.C.C.L.-Management.
(iv) The Tribunal has further erred in ignoring
the decision on merits arrived at in the Title Suit by
the Munsif as well as the decision arrived at by the
appellate court.
Learned counsel argues in this context that
the evidences adduced on behalf of the workmen in
the civil suit, and those of the witnesses of the
Management also, had clearly admitted that the
services of the workmen was under the direct
control and supervision of the principal employer,
namely, the Respondent-B.C.C.L., confirming
thereby a direct relationship between the workmen
and the B.C.C.L.-Management. Learned counsel
argues that the Tribunal could not have totally
brushed aside and ignored such evidences which
were recorded in the civil suit.
(v) The Tribunal had gone beyond the scope of
reference by deciding an entirely different issue that
the relationship of employer and the employee
between the concerned workmen and the B.C.C.L.
did not exist, although such issue was beyond the
scope of the terms of reference and that the findings
recorded by the learned Munsif in the Title Suit
[7] [C.W.J.C. No. 616 of 1999 (R) ]
have a binding force under the law, which cannot be
ignored by the Tribunal..
(vi) That the Contractor was not made a party
either by the Management or by the Tribunal and as
such, in absence of the Contractor, the decision on
the issue of relationship of employer and the
employee was illegal and perverse.
(vii) The Tribunal had also ignored the fact that
some of the workmen were though initially
employed by the Contractor but their services, were
absorbed by the B.C.C.L.-Management.
10. Mr. A. K. Mehta, learned counsel for the Respondents while
controverting the grounds advanced by the counsel for the petitioner would
submit inter alia, the following arguments: –
(i) The very reference of the purported dispute
was incorrect in as much as no industrial dispute
was ever raised and as such, the proceeding before
the Tribunal could not have been initiated or
maintained.
(ii) The findings of the Tribunal on the issue
relating to the relationship of employer and
employee between the concerned workmen and the
Respondent-Management is based on the evidences
on record and more particularly on the admission of
the witnesses of the workmen themselves that the
appointment letters to all such workmen was given
only by the concerned Contractor and no such letter
of appointment was given to any of the concerned
workmen by the management of the B.C.C.L. Such
inference was rightly drawn by the Tribunal on the
basis of the admitted facts that the services of these
workmen were engaged by the Contractor for a
limited period till the completion of the construction
of the Washery and other essential jobs and their
services were never contemplated therefore in the
nature of the permanent employment. Furthermore,
the services of the concerned workmen were
terminated by way of retrenchment by the
Contractor after payment of the Retrenchment
compensation and notice pay to each one of them.
[8] [C.W.J.C. No. 616 of 1999 (R) ] (iii) The case of 39 workmen, whose services
were absorbed by the B.C.C.L. Management, albeit
in pursuance to the directions contained in the
Award of the Tribunal in the earlier Reference Case
No. 58 of 1991 stands on a totally different footing
in as much as the services of the 39 skilled
workmen continued to be taken by the B.C.C.L. –
Management for a period of more than six months
and they were paid their wages by the B.C.C.L.
Management. The same facts do not apply to the
cases of the concerned workmen in the present
dispute.
(iv) The demand of the Form B Register is
totally irrelevant. The Sudamdih Coal Washery
being a Factory, registered under the Factories Act,
1948 and having been granted a license under the
Factory Act, do require to maintain a Register
containing names of all such workmen employed
under the Underground Collieries. Such workmen
be the direct employees of the B.C.C.L.-
Management or employee of the Contractor, a list
of the names of such workmen working in the
Colliery has to be maintained under the statutory
provisions. Such Register does not necessarily
indicate that the workmen named in the Registers,
are invariably the workmen employed by the
Management.
Even otherwise, in absence of any demand
from the workmen for production of any such
document, it was not obligatory on the part of the
Tribunal to order for production of such documents
and in absence of any such claim or order, no
adverse inference can be drawn for the non-
production of such documents, even under the
provisions of Section 114 (iii) (g) of the Evidence
Act.
(v) The claim of the workmen that they had
continued to work for more than 240 days, in itself,
would not entitle them for regularization/absorption.
This issue has been well decided by the Supreme
Court in several cases including the case of Ganga
[9] [C.W.J.C. No. 616 of 1999 (R) ]
Dhar Pillai-versus-Siemens Ltd. reported in (2007)
1 SCC 533 and also in the case of Hindustan
Aeronautics Ltd.-versus-Dan Bahadur Singh
reported in (2007) 6 SCC 207.
(vi) It is a misconceived statement that the oral
and documentary evidences recorded in the civil
suit and the findings of the civil court, recorded in
Title Suit No. 51 of 1979 of 1980-81 is binding
upon the Tribunal. In the Appeal preferred by the
Management, against the judgment and decree
passed by the civil court, the Division Bench of this
Court had categorically held that the civil court had
no jurisdiction to entertain or adjudicate upon the
dispute raised by the plaintiff in the suit. Such
findings have been upheld by the Supreme Court in
the S.L.P./Civil Appeal and it was also declared that
the civil court had no jurisdiction and the decrees
passed by it had no force of law and cannot be held
binding upon the Tribunal.
11. Having heard the learned counsel for the parties and having gone
through the Award of the Tribunal, I find force in the arguments advanced by the
learned counsel for the Respondents-Management.
The findings of the Tribunal as it would appear are based
on the following admitted facts: –
(a) That the B.C.C.L.-Management had
appointed the Contractor to construct the Washery
at the Sudamdih Colliery on Turnkey Basis. The
work was to be completed within the stipulated
time. There was no prohibition imposed by the
Central Government by the Notification restraining
the Respondents-Management from getting
executed its work through the Contractors under the
provisions of Contract Labour (Regulation and
Abolition) Act, 1970.
(b) Under the terms of agreement, executed by
and between the Contractor and the Management, it
was for the Contractor to engage his own workers
for the execution of the job and to pay them not
only their wages but also Bonus and other monetary
benefits to which they may be entitled during the
course of their employment under the Contractor.
[ 10 ] [C.W.J.C. No. 616 of 1999 (R) ]
(c) The engagement of the workmen was
therefore, only for the purposes of execution of the
job during the course of their employment under the
Contractor.
(d) As per the terms of Agreement, the work
was to be executed within the stipulated
specifications and approved designs etc. under the
supervision of the officials of the Management.
(e) That the letters of appointment was issued to
the concerned workmen by the Contractor and not
by the B.C.C.L.-Management. The work entrusted
to the Contractor took about three years for
completion and after construction of the Washery
and the installation of the Machines, the same was
handed over to the B.C.C.L.-Management, since the
services of the workmen was no more required,
such workmen, except 39 skilled workers were
retrenched by the Contractor after payment of
Retrenchment compensation and notice pay.
12. The logical inferences from these admitted facts, which was
reflected even from the evidences adduced, as rightly drawn by the Tribunal, is
that the concerned workmen were never appointed by the B.C.C.L.-Management
nor were their services directly taken by the B.C.C.L.-Management as long as
they remained in employment. The services of these workmen were engaged
exclusively by the Contractor and it was to continue only till the execution of the
Contract work and it was not therefore, of a permanent nature. The further
inference, which was legitimately drawn by the Industrial Tribunal was that there
was no relationship of employer and employee between the Management-
B.C.C.L. and the workmen, at any point of time and therefore, the workmen
cannot legitimately claim for their absorption/regularization under the B.C.C.L.-
Management. The refusal of the Management to accept the demand of the
workmen for their regularization/absorption was essentially on the ground that
they were never appointed or employed by the B.C.C.L.-Management and that
they were basically the employees of the Contractor. In the light of the terms of
reference, under which the Tribunal was called upon to decide upon the dispute as
to whether the refusal of the B.C.C.L.-Management to absorb the concerned
workmen as its regular employees was justified or not, necessarily implies the
issue as to whether there was any existing relationship of employer and employee
between the B.C.C.L.-Management and the concerned workmen. It cannot,
therefore, be said that the decision by the Tribunal on this issue is beyond the
scope of the terms of reference.
[ 11 ] [C.W.J.C. No. 616 of 1999 (R) ]
13. As regards the petitioner’s contention that the impugned Award
suffers from perversity on account of the omission of the Tribunal to advert to the
evidences recorded in the civil suit and to the findings recorded by the civil court,
the grievance of the petitioner, is totally misconceived in this regard. Admittedly,
on the same dispute raised by a Section of the workmen, a Division Bench of this
Court, while referring to the judgment and the decree, passed by the civil court,
had categorically held that in the nature of the dispute raised, the civil court had
no jurisdiction to adjudicate upon such dispute. This finding was confirmed by the
Supreme Court in the civil appeal preferred by the aggrieved workmen. While
dismissing the appeal, the Supreme Court had given a liberty to the
appellants/workmen to refer their dispute to the Government for the purposes of
raising an industrial dispute for adjudication by the Industrial Tribunal. Since, it
has been held by the High Court as well as by the apex Court that the civil court
had no jurisdiction, it follows that the decrees passed by the civil court, having no
jurisdiction, has no force of law.
In the case of Rajasthan SRTC and Another-versus-Ugma
Ram Choudhary reported in (2006) 1 SCC 61, the Supreme Court has held that
once it is held that civil court has no jurisdiction, the consequences must follow.
It further follows that no materials including the evidences
collected during the trial of the civil suit, can have any bearing or the same can be
looked into, even for any collateral purposes. The Tribunal was therefore, not
bound by either the decree passed by the civil court, nor was it obliged to look
into the materials including the evidences collected by the civil court in course of
the trial of the suit, for which it had no jurisdiction.
14. The claim of discrimination between the present workmen and 39
other workmen, whose services were absorbed, also appears to be misconceived.
15. From the facts as stated above, the absorption of 39 workmen who
were though engaged initially by the Contractor but whose services were later,
taken over by the Respondent-Management was made pursuant to the Award
declared by the Tribunal in the earlier Reference case. The case of the concerned
workmen in the present case, cannot be equated, therefore, with the case of the 39
other workmen.
16. As regards the contention of the petitioner that in absence of the
production of the Form B Register, adverse inference ought to have been taken by
the Respondent-Management, such argument also appears to be misconceived.
17. The Form B Register as required to be maintained, under the
mandatory provisions of the Factory Act, is for the purpose of maintaining a list
of all such workers employed in the Colliery, be they workers, directly appointed
by the Management or appointed by the Contractor. Furthermore, as pointed out
by the learned counsel for the Respondents, neither did the workmen claim for
production of the Form B Register by the Management nor was any order passed
[ 12 ] [C.W.J.C. No. 616 of 1999 (R) ]
by the Tribunal calling upon the Management to produce such Register, and as
such, the mere non-production of the Form B Register by the Management, in
itself, would not be sufficient to draw any adverse inference against the
Management.
18. As regards the claim of the concerned workmen that in course of
their employment, they had completed more than 240 days in a year and they had
rendered their services under the direct control and supervision of the Officers of
the B.C.C.L.-Management, also appears to be misconceived.
In the case of GangaDhar Pillai (Supra) and earlier in the
case of Manager, Reserve Bank of India,Bangalore-versus-S.Mani and Others
reported in (2005) 5 SCC 100, the Supreme Court has held that 240 days of
continuous service does not by itself give rise to a claim of permanence nor does
it entitle the employee concerned to claim regularization and/or permanent status.
19. From the facts stated, the services of the concerned workmen was
engaged only for the purposes of executing the job undertaken by the Contractor
and were not to continue after completion of the job. The nature of the
employment of the concerned workmen, therefore, was never considered to be on
permanent basis. Rather, the period of employment of the workmen, being only
co-extensive with the period of work undertaken by the Contractor, such
employment was only on temporary basis. As has been observed by the Supreme
Court in the case of GangaDhar Pillai (Supra) that only because an employee has
been engaged as a casual or temporary employee or that he had been employed
for a number of years, the same by itself may not lead to the conclusion that such
appointment was made by way of conferring him the status of permanent
employee.
20. Having considered the findings recorded by the Tribunal in its
Award and the reasons assigned thereto, I do not find any perversity or
impropriety in the findings of the Tribunal as declared in its impugned Award, nor
do I find any reason to interfere with the same.
21 For the above reasons, I do not find any merit in this writ
application. Accordingly, the same is dismissed.
(D.G.R. Patnaik, J.)
Jharkhand High Court, Ranchi
Dated – The 3rd September, 2009
A.F.R./APK