{"id":125960,"date":"2009-07-01T00:00:00","date_gmt":"2009-06-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-b-c-c-l-vs-their-workmen-anr-on-1-july-2009"},"modified":"2017-04-03T18:03:25","modified_gmt":"2017-04-03T12:33:25","slug":"ms-b-c-c-l-vs-their-workmen-anr-on-1-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-b-c-c-l-vs-their-workmen-anr-on-1-july-2009","title":{"rendered":"M\/S.B.C.C.L. vs Their Workmen & Anr on 1 July, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
M\/S.B.C.C.L. vs Their Workmen & Anr on 1 July, 2009<\/div>\n
                                              1\n\n             IN THE HIGH COURT OF JHARKHAND AT RANCHI\n                       W.P. (L) No. 2952 of 2001\n\n             M\/s. Bharat Coking Coal Limited           ...        ...   Petitioner\n                                                  Versus\n             Their Workmen & Another                   ...        ...   Respondents\n\n             CORAM: HON'BLE MR.JUSTICE AJIT KUMAR SINHA\n\n             For the Petitioner:              Mr.   Anoop Kumar Mehta, Advocate,\n                                              Mr.   Amit Kumar Sinha, Advocate,\n             For the Respondents:             Mr.   R.S.Mazumdar, Advocate,\n                                              Mr.   P.A.S. Pati, Advocate,\n                                           ..........\n\n             C.A.V. on 25.06.2009                      Pronounced on      01. 07.2009.\n                                         ORDER\n06\/ 01.07.2009<\/pre>\n
             The present writ petition has been preferred for quashing
\n             the Award dated 13.3.2001 of the Central Government Industrial Tribunal
\n             No.1, at Dhanbad in Ref. No. 230\/94.\n<\/p>\n
             2.     The facts in brief are set out as under:-\n<\/p>\n
                    On 4.8.92, the Secretary of the Bihar Colliery Kamgar Union raised
\n             an industrial dispute alleging arbitrary stoppage of work of Shri Sohar
\n             Vishwakarma and others by the Management of Amlabad Colliery. It was
\n             stated that they were stopped from work from December, 1991 and they
\n             continued working since 1980. the Conciliation Officer vide its letter dated
\n             27.4.93 gave its reply that there was no workman named as Sohar
\n             Vishwakarma in the manpower roll of Amlabad Project \/ Mine and as such
\n             there was no question of stoppage of his work. It was also submitted that
\n             there was no employer-employee relationship and the named workman
\n             was actually employed by a contractor M\/s. Electro Mech Corporation who
\n             was engaged by the Management purely on contractual basis as and
\n             when required for temporary nature of job of repairing machineries. The
\n             said contractor was also engaged for installation and commissioning of
\n             Koepe Winder and for repairing of machineries etc. on contractual basis.
\n             The conciliation, however, failed and the appropriate Government by
\n             reasons of its order dated 31.8.1994 referred the dispute for adjudication
\n             to the Central Government Industrial Tribunal No. 1, at Dhanbad and the
\n             reference is quoted as under:-\n<\/p>\n
                    “Whether the demand of Bihar Colliery Kamgar Union that Sri Sohar
\n                    Vishwakarma and 9 others (as per list annexed) should be treated
\n                    as employees of Amlabad Colliery of M\/s. B.C.C.Ltd. is justified? Is
\n                    so, to what relief the persons concerned are entitled to?”<\/p><\/blockquote>\n
                    After considering the entire pleadings, evidence on record and the
\n             facts and the deposition of the witnesses the learned Tribunal vide its
\n                                 2<\/span><\/p>\n
impugned Award dated 13.3.2001 answered the reference in favour of the
\nUnion Respondent No. 1, directing absorption of the concerned persons as
\npermanent employees of M\/s B.C.C. Ltd., which is sought to be challenged
\nin the present writ petition.\n<\/p>\n
3.     The main contention raised by Sri Anup Kumar Mehta, the learned
\ncounsel for the petitioner is that the Tribunal has committed serious and
\napparent error of facts and law and the Award of the Tribunal was
\nperverse and liable to be set aside. It is further submitted on behalf of
\nthe petitioner that there was no employer-employee relationship and thus
\nthe direction for absorption was on the face of it illegal and unsustainable
\nsince the employee concerned were employed by the contractor M\/s.
\nElectro Mech Corporation, Asansol. It has further been submitted that
\nthere is already a permanent and surplus labour and the company is sick
\nand the enquiry in terms of Section 16(1) of the Sick Industrial Companies
\n(Special Provisions) Act is pending before BIFR and thus the Award of
\nabsorption \/ employment is liable to be set aside.\n<\/p>\n
4.     It has further been submitted that the Tribunal committed serious
\nerror of law in holding that the respondent workmen have completed
\nmore than 240 days in a calendar year and even assuming but not
\nadmitting they had completed 240 days in a calendar year, that by itself
\ndoes not give any right to be absorbed in view of the settled law. It has
\nfurther been contended by the learned counsel for the petitioner that the
\nworkmen have neither pleaded nor proved that the engagement of the
\ncontract is against the prohibited nature of job by issuing notification
\nunder Section 10(1) of the CLRA Act and no evidence was produced nor
\nany finding has been given that the contract was ruse, sham or a
\ncamouflage. No finding of fact has been recorded by the learned Tribunal
\nin its award. It has further been contended that even in the SAIL case
\nreported in (2001) 7 SCC pg.1 it was held that there cannot be any
\nautomatic absorption of contract labour engaged in a prohibited category
\nof job as laid down in para-125(5 & 6) by the Hon’ble Supreme Court,
\nunless the labour court\/Industrial Tribunal gives a finding that the contract
\nwas ruse, sham or camouflage.\n<\/p>\n
5.     The learned counsel for the petitioner has further referred to and
\nrelied upon a judgment reported in (2002) 4 SCC pg 609 to submit that it
\nis only the labour court who can return the finding on this issue as to
\nwhether the contract was sham or ruse or camouflage and in absence of
\nany finding the award is illegal.\n<\/p>\n
       He has also referred to and relied upon a case reported in (1992)
\n1 SCC pg 695 (Dinanath case) which has been reiterated by the
\n                                3<\/span><\/p>\n
Hon’ble Supreme Court in SAIL(Supra) judgment at para-96 to submit that
\nthe effect of non registration and lack of license will lead to prosecution as
\nprovided under Section 23 and 25 of the CLRA Act and the same has been
\nexplained in para-105 of the Constitution Bench Judgment in SAIL
\nmatter(Supra).\n<\/p>\n
6.      The learned counsel for the respondent has stated that the
\njudgment reported in (2006) 3 SCC p. 674 and 2006 (4) SCC pg 1
\napplies to service jurisprudence and not to labour\/industrial disputes. The
\nrespondents have further submitted that they have been performing
\npermanent nature of jobs under the control and supervision of the
\npetitioner Management. It has also been contended that the contract was
\nruse, sham and thus, a camouflage and thus, they were entitled to be
\nabsorbed as per the law laid down in 2001 (7) SCC pg. 1. The learned
\ncounsel for the respondent further submits that the work was perennial in
\nnature and the workman had completed 240 days of work in a calendar
\nyear.\n<\/p>\n
        The learned counsel for the respondent has further relied upon
\nparagraph-107 of the SAIL judgment which is quoted as under:\n<\/p>\n
             “107. An analysis of the cases, discussed above, shows that
\n             they fall in three classes: (i) where contract labour is engaged
\n             in or in connection with the work of an establishment and
\n             employment of contract labour is prohibited either because the
\n             industrial adjudicator\/court ordered abolition of contract
\n             labour or because the appropriate Government issued
\n             notification under Section 10(1) of the CLRA Act, no
\n             automatic absorption of the contract labour working in the
\n             establishment was ordered; (ii) where the contract was found
\n             to be a sham and nominal, rather a camouflage, in which case
\n             the contract labour working in the establishment of the
\n             principal employer were held, in fact and in reality, the
\n             employees of the principal employer himself. Indeed, such
\n             cases do not relate to abolition of contract labour but present
\n             instances wherein the Court pierced the veil and declared the
\n             correct position as a fact at the stage after employment of
\n             contract labour stood prohibited; (iii) where in discharge of a
\n             statutory obligation of maintaining a canteen in an
\n             establishment the principal employer availed the services of a
\n             contractor the courts have held that the contract labour would
\n             indeed be the employees of the principal employer”.\n<\/p><\/blockquote>\n
                                4<\/span><\/p>\n
7.    I have considered the rival submission, the pleadings and the case
\nlaws cited. Before dealing with the merits of the matter, it is relevant to
\nquote the relevant portion of the judgment of SAIL Case as reported in
\n(2001) 7 SCC pg. 1. The Constitution Bench of Hon’ble Supreme Court
\nin para-125, sub-para 3,4,5 & 6 has held as under:\n<\/p>\n
      “(3) Neither Section 10 of the CLRA Act nor any other provision in
\n      the Act, whether expressly or by necessary implication, provides for
\n      automatic absorption of contract labour on issuing a notification by
\n      the appropriate Government under sub-section (1) of Section 10,
\n      prohibiting employment of contract labour, in any process, operation
\n      or other work in any establishment. Consequently the principal
\n      employer cannot be required to order absorption of the contract
\n      labour working in the establishment concerned.\n<\/p><\/blockquote>\n
      (4) We overrule the judgment of this Court in Air India case
\n      prospectively and declare that any direction issued by any industrial
\n      adjudicator\/any court including the High Court, for absorption of
\n      contract labour following the judgment in Air India case shall hold
\n      good and that the same shall not be set aside, altered or modified on
\n      the basis of this judgment in cases where such a direction has been
\n      given effect to and it has become final.\n<\/p><\/blockquote>\n
      (5) On issuance of prohibition notification under Section 10(1) of the
\n      CLRA Act prohibiting employment of contract labour or otherwise,
\n      in an industrial dispute brought before it by any contract labour in
\n      regard to conditions of service, the industrial adjudicator will have to
\n      consider the question whether the contractor has been interposed
\n      either on the ground of having undertaken to produce any given
\n      result for the establishment or for supply of contract labour for work
\n      of the establishment under a genuine contract or is a mere
\n      ruse\/camouflage to evade compliance with various beneficial
\n      legislations so as to deprive the workers of the benefit thereunder. If
\n      the contract is found to be not genuine but a mere camouflage, the so-
\n      called contract labour will have to be treated as employees of the
\n      principal employer who shall be directed to regularise the services of
\n      the contract labour in the establishment concerned subject to the
\n      conditions as may be specified by it for that purpose in the light of
\n      para 6 hereunder.\n<\/p><\/blockquote>\n
      (6) If the contract is found to be genuine and prohibition notification
\n      under Section 10(1) of the CLRA Act in respect of the establishment
\n      concerned has been issued by the appropriate Government,
\n      prohibiting employment of contract labour in any process, operation
\n      or other work of any establishment and where in such process,
\n      operation or other work of the establishment the principal employer
\n      intends to employ regular workmen, he shall give preference to the
\n      erstwhile contract labour, if otherwise found suitable and, if
\n      necessary, by relaxing the condition as to maximum age
\n      appropriately, taking into consideration the age of the workers at the
\n      time of their initial employment by the contractor and also relaxing
\n      the condition as to academic qualifications other than technical
\n      qualifications.”\n<\/p><\/blockquote>\n
      And at para-126 it held as under:\n<\/p><\/blockquote>\n
      “126. We have used the expression “industrial adjudicator” by design
\n      as determination of the questions aforementioned requires enquiry
\n      into disputed questions of facts which cannot conveniently be made by
\n      High Courts in exercise of jurisdiction under Article 226 of the
\n      Constitution. Therefore, in such cases the appropriate authority to go
\n                                     5<\/span><\/p>\n
        into those issues will be the Industrial Tribunal\/Court whose
\n        determination will be amenable to judicial review.”\n<\/p><\/blockquote>\n
8.          It will be evident that the ratio of the Judgment as laid down in
\nsub-para 5 & 6 will apply to cases where there is issuance of prohibition
\nnotification under Section 10(1) of the CLRA Act. Likewise, the Hon’ble
\nSupreme Court also held at para-126 that the High Court cannot decide
\ndisputed questions which requires enquiry in exercise                   of       its writ
\njurisdiction under Article 226 of the Constitution of India and the
\nappropriate authority to decide will be the Industrial Tribunal\/labour Court
\nsince it will have to deal with the disputed facts and evidence to come to
\nthe conclusion as to whether the contract labour for work of the
\nestablishment      was     under     a   genuine      contract    or    is   a     mere
\nruse\/camouflage to evade compliance of various beneficial legislations so
\nas to deprive the workers of the benefit thereunder.                    Thus, it was
\nimperative and binding on the Industrial Tribunal\/Labour Court to give a
\nfinding based on evidence as to whether the contract was sham, ruse and
\nor a camouflage.\n<\/p>\n
        The aforesaid issue was also considered earlier in the case of
\nGujrat Electricity Board Vrs. Hind Mazdoor Sabha reported in
\n(1995) 5 SCC 27 at para-53 (ii) which has been reiterated by the
\nHon’ble Constitution Bench (Supra).\n<\/p>\n
9.      In a recent Judgment an identical issue came up for hearing in
\nNational      Thermal       Power        Corporation       &     Ors.    Vs.      Badri
\nSinghThakur reported in (2008) 9 SCC pg. 377 and the Hon’ble
\nSupreme Court after considering all the earlier judgments reiterated the
\nsame even in cases where no prohibition notification has been issued
\nunder Section 10 (1) of CLRA Act and while upholding the order of the
\nlearned Single Judge set aside the order passed by the Division Bench.
\nThe Hon’ble Supreme Court while reiterating the view taken by the SAIL
\nJudgment as well as Municipal Corp. of Greater Mumbai Judgment
\nreported in (2002) 4 SCC pg. 609 held at para-19 as under:\n<\/p>\n
     19. Now, we proceed to consider the validity and correctness of the
\n        impugned judgment and order in the light of judgment of the
\n        Constitution Bench in SAIL case. The High Court held that the work
\n        entrusted to the members of the Union continued to be basically the
\n        work of the Corporation itself of perennial nature; the Corporation
\n        has chosen to carry out the work under the so-called system of labour
\n        contract without complying with the provisions of the CLRA Act and
\n        as such the labour contract was a camouflage. We must state here
\n        itself that the Union in the writ petition alleged that the labour
\n                                   6<\/span><\/p>\n
       contract was a sham and the Corporation specifically denied it in its
\n       counter-affidavit but the High Court did not go into this question and
\n       did not record a finding that the labour contract in the present case
\n       was a sham or a camouflage considering the material on record; even
\n       otherwise, this being a serious and disputed fact in terms of the
\n       Constitution Bench judgment aforementioned, the High Court could
\n       not have appropriately adjudicated on the issue exercising
\n       jurisdiction under Article 226 of the Constitution. It appears to us
\n       that the High Court proceeded to conclude that the labour contract
\n       was not genuine and the workers of the Union were employees of the
\n       Corporation because the Corporation and the contractors did not
\n       comply with the provisions of the CLRA Act. Conclusion that the
\n       contract was a sham or it was only a camouflage cannot be arrived at
\n       as a matter of law for non-compliance with the provisions of the
\n       CLRA Act but a finding must be recorded based on evidence,
\n       particularly when disputed by an industrial adjudicator as laid down
\n       in various decisions of this Court including the Constitution Bench
\n       judgment in SAIL. The cases on which the High Court placed reliance
\n       were the cases where finding of fact was recorded by the Labour
\n       Courts on evidence.      ……………………………………\n<\/p><\/blockquote>\n
10.    Thus, it has been conclusively held in the aforesaid Judgment that
\nin both situations that is on issuance of prohibition notification under
\nSection 10 of CLRA Act and\/or of cases in which no notification of
\nprohibition has been issued that by itself cannot entitle or give a right to
\nthe workmen for automatic absorption. The reliance to para-107 of Steel
\nAuthority case by the learned counsel for the respondents is also
\nmisplaced since those are cases where notification under Section 10 of
\nCLRA Act was issued and it was found that the labour contract was a
\nsham or a camouflage. Even in these paragraphs it is reiterated that the
\nabsorption is not automatic but it is subject to the aforesaid situation and
\na finding has to be arrived at by the Industrial Court based on evidence.
\nOn perusal of the impugned award, I find that there is no finding with
\nregard to the fact that the contract was ruse, sham or a camouflage nor
\nany evidence has been rendered to substantiate it before the learned
\nTribunal.\n<\/p>\n
       In the instant case, neither there is any finding with regard to
\nnature of the contract and as to whether it was a camouflage or sham nor
\nthere is any pleading or finding that any prohibition notification was issued
\nunder Section 10(1) of the CLRA Act.\n<\/p>\n
11.    The learned Tribunal clearly erred in holding that in absence of
\nRegistration Certificate and non issuance of license under Section 7 and
\n                                 7<\/span><\/p>\n
12 of the CLRA Act will result in absorption\/regularization. The aforesaid
\nfinding of the Tribunal is an error of law. The Hon’ble Supreme Court in
\nSAIL (supra) case and in (2002) 4 SCC pg. 609 and (2006) 3 SCC pg.
\n674 has clearly held it to the contrary. It was also specifically held at
\npara-72 that in absence of Registration Certificate and License as required
\nunder Sections 7 & 12 of the CLRA Act with the respondent undertakings
\nand the contractor concerned respectively, the workmen concerned do not
\nbecome the direct employees and instead the remedy is provided by way
\nof prosecution under Sections 23 and 25 of the CLRA Act.\n<\/p>\n
12.    The learned Tribunal has further erred in holding that merely on
\ncompleting 240 days in a calendar year the workmen were entitled to be
\nabsorbed. This issue is no more res-integra and the law declared by the
\nHon’ble Supreme Court reported in (2006) 4 SCC pg 1                 (State of
\nKarnataka Vrs. Uma Devi’s Case) even though rendered by the
\nConstitution of India in service jurisprudence equally apply to industrial
\ndisputes and at para-39 while considering the case of the petitioner’s
\ncompany itself in Bhurkunda Colliery it was held that the court cannot
\ndirect absorption or regularization or make the worker permanent. The
\nsame view was also considered in (2007) 1 SCC pg. 533 in -Gangadhar
\nPillai Vrs. Siemens; (2007) 1 SCC 408-IDPL Vrs. Workmen; (2007) 6
\nSCC 207, HAL Vrs. Dan Bahadur.\n<\/p>\n
       In the aforesaid judgment it has been held that merely because the
\nworkmen have worked continuously for more than 240 days in a calendar
\nyear, no right of absorption\/ regularization follows.\n<\/p>\n
13.    The learned Tribunal further committed an error in holding that
\nsince the control and supervision was of the management and thus the
\nworkmen were entitled to absorption. In a recent judgment the Hon’ble
\nSupreme Court in International Airport Authority of India Vrs.
\nInternational Air Cargo Workers’ Union case (C.A. No. 2244 of
\n2002) held as under:\n<\/p>\n
              “Merely because the contract labour work is under the
\n              supervision of the officers of the principal employer, it cannot
\n              be taken as evidence of direct employment under the principal
\n              employer. Exercise of some control over the activities of
\n              contract labour while they discharge their duties as labourers,
\n              is inevitable and such exercise is not sufficient to hold that the
\n              contract labour will become the direct employees of the
\n              principal employer.”\n<\/p><\/blockquote>\n
14.    This court also had occasions to consider similar issues in 2004(1)
\nJLJR 227, 2004(1) JLJR 76 and 2004 (3) JCR 265 wherein on the
\n                                8<\/span><\/p>\n
pleading of the petitioner company with regard to surplus manpower and
\nalso the fact that the petitioner was registered with BIFR and sick
\ncompany this court while relying on SAID judgment it directed that the
\nworkmen therein will be given preference if otherwise found suitable by
\nrelaxing their age as and when regular vacancy and regular employment
\nof workmen takes place.\n<\/p>\n
15.     Considering the aforesaid facts and circumstances of the case, I
\nfind that the Award dated 13.3.2001 is erroneous, illegal and against the
\nsettled law as laid down by the Hon’ble Supreme Court. This writ petition
\nis accordingly allowed and the Award dated 13.3.2001 passed by Central
\nGovernment Industrial Tribunal No.1, at Dhanbad in Ref. No. 230\/94.19 is
\nhereby quashed. However, the petitioner is directed to give preference to
\nthe workmen by relaxing their age as and when regular vacancy and
\nregular appointment takes place.<\/p>\n
\n\n\n\n\n                                                 (Ajit Kumar Sinha, J.)\nJharkhand High Court, Ranchi\nDated the    01 July, 2009\nD.S.\/sudhir   N.A.F.R.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court M\/S.B.C.C.L. vs Their Workmen & Anr on 1 July, 2009 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No. 2952 of 2001 M\/s. Bharat Coking Coal Limited … … Petitioner Versus Their Workmen & Another … … Respondents CORAM: HON’BLE MR.JUSTICE AJIT KUMAR SINHA For the Petitioner: Mr. Anoop […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-125960","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nM\/S.B.C.C.L. vs Their Workmen & Anr on 1 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-b-c-c-l-vs-their-workmen-anr-on-1-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S.B.C.C.L. vs Their Workmen & Anr on 1 July, 2009 - 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