{"id":160644,"date":"2009-09-03T00:00:00","date_gmt":"2009-09-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/oshiar-prasad-vs-presiding-officer-anr-on-3-september-2009"},"modified":"2015-07-13T20:37:07","modified_gmt":"2015-07-13T15:07:07","slug":"oshiar-prasad-vs-presiding-officer-anr-on-3-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/oshiar-prasad-vs-presiding-officer-anr-on-3-september-2009","title":{"rendered":"Oshiar Prasad vs Presiding Officer & Anr. on 3 September, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Oshiar Prasad vs Presiding Officer & Anr. on 3 September, 2009<\/div>\n
                   CIVIL WRIT JURISDICTION CASE No. 616 of 1999 (R)\n                                            ...\n<\/pre>\n
                     In the matter of an application under Article 226 of the
\n             Constitution of India.\n<\/p>\n
                                            …\n<\/p>\n
             Oshiar Prasad                                  ...       ...     Petitioner\n                                    -V e r s u s-\n<\/pre>\n
             1. Presiding Officer, Central Government Industrial Tribunal No. 2,
\n             Dhanbad\n<\/p>\n
             2. The Employers in relation to the Management of Sudamdih Coal
\n             Washery of M\/s.Bharat Coking Coal Ltd., Dhanbad …            Respondents.\n<\/p>\n
                                            …\n<\/p>\n
             For the Petitioner             : – Mr. P. K. Sinha, Sr. Advocate
\n                             & M\/s. Rajeev Ranjan and Abhay Kr. Mishra, Advocates.
\n             For the Respondents            : -Mr. Anoop Kumar Mehta, Advocate.\n<\/p>\n
                                            …\n<\/p>\n
                                    P R E S E N T: –\n<\/p>\n
                     THE HON’BLE MR. JUSTICE D.G.R. PATNAIK.\n<\/p>\n
                                            …\n<\/p>\n
             C.A.V. On: – 13\/08\/2009                      Delivered On: – 03\/09\/2009
\n                                            …\n<\/p>\n
D.G.R. Patnaik, J.           The petitioner Oshiar Prasad has filed this writ application in
\n              representative capacity, challenging the Award dated 21.12.1998, passed under
\n              Reference Case No. 75 of 1995 (Annexure-10), by the Presiding Officer, Central
\n              Government Industrial Tribunal No. 2, Dhanbad, whereby and where under a
\n              Reference has been answered against the concerned workmen.\n<\/p>\n
              2.             The dispute which arose on account of the refusal of the
\n              Respondent-Management, to concede to the demand of the workmen for their
\n              absorption in service under the Respondent-Management, was referred to the
\n              Tribunal by the Central Government by its order dated 04.05.1995, for
\n              adjudication in the following terms: –\n<\/p>\n
                                                     “Whether the action of the management of
\n                                            Sudamdih Coal Washery of M\/s. Bharat Coking
\n                                            Coal Ltd., Sudamdih Colliery, District-Dhanbad are
\n                                            justified in not absorbing Ainuel Haq and 15 others
\n                                            (as in the list annexed) as their regular employees?
\n                                            If not, to what reliefs are the said workman
\n                                            entitled?”\n<\/p><\/blockquote>\n
              3.             For better appreciation of the issues involved in this case, a brief
\n              statement of the background facts would be necessary: –\n<\/p>\n
                                                           For the purposes of construction of a
\n                                            Washery on Turnkey Basis, the Management
\n                                            floated a Tender on 24.07.1974.\n<\/p><\/blockquote>\n
                                                           The work was finally given by the
\n                                            Management to a Contractor namely, M\/s. McNelly,
\n                                            Bharat Engineering Company Ltd., under an
\n                                            Agreement executed on 29.01.1976 by and between
\n                                            the Contractor and the Respondent-Management.<\/p><\/blockquote>\n
                                                           The work, required to be executed by
\n                                            the Contractor included preparation of the complete
\n [2]                    [C.W.J.C. No. 616 of 1999 (R) ]<\/p>\n
 design of the Washery, Supply of materials required
\n for construction of plant, building, installation of
\n machinery and also construction of the structures in
\n the process of erection and construction of
\n Washery.\n<\/p>\n
                  The terms of Contract also included
\n that the contractor was to engage his own workmen,
\n pay them their wages, bonus and other monetary
\n benefits and also to retrench them after completion
\n of the job.\n<\/p>\n
                  Pursuant      to     the     contract,    the
\n Contractor, by recruiting its own workmen,
\n commenced the execution of the job entrusted to it.
\n The present group of workmen are admittedly those
\n workmen, who were employed by the Contractor
\n and inducted in its service in the year 1977.\n<\/p>\n
                  The construction of Washery was
\n completed by the contractor in December, 1979.
\n After completion of the Civil construction work,
\n installation of conveyor machineries, both electrical
\n and mechanical, there was no further requirement of
\n any Mazdoors, Helpers, Fitters, Masons and other
\n incidental     workers,     therefore,      the     Contractor
\n terminated the services of such workers, after
\n offering them retrenchment compensation, notice
\n pay etc. as per the provisions of Section 25 F and
\n the relevant provisions of the Industrial Disputes
\n Act.\n<\/p>\n
                  However,       out      of       the   several
\n workmen, who were engaged by the Contractor, and
\n after retrenching a majority of them, the Contractor
\n had retained the services of about 39 workmen, who
\n were employed as skilled workers, for running and
\n maintenance of the Washery. The Respondent-
\n Management       undertook      the      responsibility     of
\n retaining the 39 skilled workmen from January,
\n 1980 under their control and supervision and paid
\n their wages.\n<\/p>\n
                  After retaining their services for
\n about 1 year, the Management terminated the
\n services of the 39 employees in January, 1981.\n<\/p>\n
 [3]                     [C.W.J.C. No. 616 of 1999 (R) ]<\/p>\n
                Being aggrieved by the order of their
\n termination and claiming that since they were the
\n employees of the Respondent-B.C.C.L., the 39
\n workmen whose services were terminated, raised a
\n dispute demanding their absorption by way of
\n regularization in service under the Respondent-
\n B.C.C.L.\n<\/p>\n
                The industrial dispute, thus raised by
\n the 39 workmen, was referred by the Central
\n Government     for adjudication to the Central
\n Government Industrial Tribunal No. 3, vide
\n Reference Case No. 58 of 1981.\n<\/p>\n
                Though the Management contested
\n the claim of the workmen, the Industrial Tribunal
\n by its Award dated 03.03.1983, directed that the 39
\n workmen be absorbed by the B.C.C.L. as regular
\n employees with full back wages.\n<\/p>\n
                In compliance with the directions
\n contained in the Award, the Management of the
\n B.C.C.L. had regularized\/absorbed all the 39
\n workmen.\n<\/p>\n
                During this time, and prior to the
\n date of the Award of the Industrial Tribunal in
\n respect of the dispute concerning the 39 workmen,
\n some of the earlier retrenched employees, including
\n one Shambhu Singh and four others apprehending
\n termination of their services by the Contractor, filed
\n a Title Suit in the court of the Munsif 02nd,
\n Dhanbad vide Title Suit No. 51 of 1980, for a
\n declaration that they are entitled to continue in
\n service even after taking of charge by the B.C.C.L.
\n from the Contractor.\n<\/p>\n
                A prayer for permanent injunction
\n restraining the Contractor from retrenching or
\n terminating their services were made for, but the
\n same was not granted by the civil court.\n<\/p>\n
                It was only at the conclusion of the
\n trial in the Title Suit, that by decreeing the suit in
\n favour of the five workmen\/plaintiffs, the learned
\n Munsif by his decree dated 27.05.1983, declared
\n                         [4]                     [C.W.J.C. No. 616 of 1999 (R) ]<\/p>\n
                         that the plaintiffs were entitled to continue in
\n                         service under the Bharat Coking Coal Ltd.\n<\/p>\n
                                         Rule     of    permanent     injunction\n                         restraining    defendants      from    retrenching   or\n<\/pre>\n
                         terminating the services of the plaintiffs was also
\n                         issued against the B.C.C.L.\n<\/p>\n
                                         Being aggrieved by the judgment
\n                         and decree, passed by the learned Munsif, the
\n                         Management of B.C.C.L. filed a Title Appeal No.
\n                         71 of 1983 before the appellate court.\n<\/p>\n
                                         The Appeal was however, dismissed
\n                         on 16.12.1986 affirming the decree passed by the
\n                         trial court.\n<\/p>\n
                                         However,       the    Management     of
\n                         B.C.C.L. succeeded in the Second Appeal preferred
\n                         by them against the judgments of the appellate court
\n                         and the trial court before this Court.\n<\/p>\n
                                         By     order   dated-05.03.1993,     the
\n                         judgment and decree under Appeal, was set aside
\n                         and the suit as filed by the plaintiffs\/workmen was
\n                         also dismissed as not maintainable.\n<\/p>\n
                                         Against the judgment in the second
\n                         appeal, the plaintiffs-workmen approached the
\n                         Supreme Court by filing S.L.P. (C) No. 4495 of
\n                         1994, corresponding to Civil Appeal No. 8403 of
\n                         1994.\n<\/p>\n
                                         By order dated 14.11.1994, the
\n                         Supreme Court dismissed the Civil Appeal with a
\n                         liberty to the appellants to move the appropriate
\n                         Government for reference.\n<\/p>\n
                                         It was in the background of the
\n                         aforesaid circumstances that the dispute was
\n                         referred to the Central Government in respect of not
\n                         only the five workmen\/plaintiffs who had filed the
\n                         Title Suit, but also in respect of similarly situated
\n                         other workmen including the present petitioners and
\n                         the dispute so raised, was referred to the Industrial
\n                         Tribunal for adjudication in terms mentioned
\n                         hereinabove.\n<\/p>\n
4.          Both parties were allowed to adduce their evidences before the
\nTribunal.\n<\/p>\n
                             [5]                    [C.W.J.C. No. 616 of 1999 (R) ]<\/p>\n
5.            The evidences adduced on behalf of the workmen in support of
\ntheir claim, included documentary evidences in the nature of the I.D. cards
\npurportedly issued under the signatures of the Project Officer of the Respondent-
\nManagement. Other evidence sought to be relied upon, were the evidences
\nadduced in the proceeding before the civil court in which some of the witnesses
\nexamined on behalf of the Management had purportedly made some admissions
\nin support of the case of the workmen, Registers maintained for underground
\ncolliery workers pertaining to the issuance of Head lamps and similar other
\ndocuments, besides the oral evidences of the witnesses.\n<\/p>\n
6.            The Management in its turn, had relied upon the Agreement and
\nthe terms and conditions contained therein, executed by and between the
\nManagement and the Contractor, which was adduced in evidence and the oral and
\ndocumentary evidences, to confirm that after completion of the work of
\nconstruction of the Washery, the Contractor had handed over the same to the
\nB.C.C.L.-Management in December, 1979, whereafter the Washery was
\ncommissioned.\n<\/p>\n
7.            After considering the evidences on record and taking special note
\nof the certain admissions made by the witnesses adduced on behalf of the
\nworkmen, the Tribunal recorded its finding that there was no relationship of
\nemployer and employee between the workmen and the Respondent-Management
\nof B.C.C.L. at any point of time, and that the workmen were not entitled to any of
\nthe reliefs as claimed by them against the Respondent-B.C.C.L.\n<\/p>\n
8.            Heard Mr. P. K. Sinha, learned senior counsel for the petitioner
\nand Mr. Anoop Kr. Mehta, learned counsel for the Respondents.\n<\/p>\n
9.            Assailing the impugned judgment, learned counsel for the
\npetitioner would pursue the following grounds: –\n<\/p>\n
                             (i)     The findings of the Tribunal are perverse
\n                             and against the weight of evidences on record. The
\n                             Tribunal has erred in failing to appreciate the oral
\n                             evidences of the witnesses adduced on behalf of the
\n                             workmen, which otherwise confirm that the
\n                             workmen were though employed initially by the
\n                             Contractor but their services was not of a permanent
\n                             nature and after completion of the construction of
\n                             the Washery, and handing over of the Washery to
\n                             the    B.C.C.L.-Management,          these   workmen
\n                             continued to remain in employment under the direct
\n                             supervision    and    control   of     the   B.C.C.L.-
\n                             Management for more than two months after
\n                             handing over of the Washery.\n<\/p><\/blockquote>\n
 [6]                     [C.W.J.C. No. 616 of 1999 (R) ]\n\n\n\n (ii)    The learned court below had failed to\n<\/pre>\n
 appreciate that the services of these workmen were
\n engaged under the direct supervision of the Officers
\n of the B.C.C.L.-Management including the Project
\n Officer and moreover, the Identity cards and the
\n head lamps were issued to these workmen by the
\n Management.\n<\/p><\/blockquote>\n
 (iii)   The Tribunal has also erred in failing to
\n consider that the Management had deliberately
\n failed to produce the Form B Register, which is a
\n mandatory Register to be maintained by the
\n Management in respect of the Colliery workers and
\n in which the names of the present set of workmen
\n also finds a mention. This document, according to
\n the learned counsel, would have confirmed beyond
\n all controversy that the services of the workmen
\n were under the direct supervision and control of the
\n B.C.C.L.-Management.\n<\/p>\n
 (iv)    The Tribunal has further erred in ignoring
\n the decision on merits arrived at in the Title Suit by
\n the Munsif as well as the decision arrived at by the
\n appellate court.\n<\/p>\n
         Learned counsel argues in this context that
\n the evidences adduced on behalf of the workmen in
\n the civil suit, and those of the witnesses of the
\n Management also, had clearly admitted that the
\n services of the workmen was under the direct
\n control and supervision of the principal employer,
\n namely,    the     Respondent-B.C.C.L.,     confirming
\n thereby a direct relationship between the workmen
\n and the B.C.C.L.-Management. Learned counsel
\n argues that the Tribunal could not have totally
\n brushed aside and ignored such evidences which
\n were recorded in the civil suit.\n<\/p>\n
 (v)     The Tribunal had gone beyond the scope of
\n reference by deciding an entirely different issue that
\n the relationship of employer and the employee
\n between the concerned workmen and the B.C.C.L.
\n did not exist, although such issue was beyond the
\n scope of the terms of reference and that the findings
\n recorded by the learned Munsif in the Title Suit
\n                             [7]                    [C.W.J.C. No. 616 of 1999 (R) ]<\/p>\n
                              have a binding force under the law, which cannot be
\n                              ignored by the Tribunal..\n<\/p>\n
                              (vi)    That the Contractor was not made a party
\n                              either by the Management or by the Tribunal and as
\n                              such, in absence of the Contractor, the decision on
\n                              the issue of relationship of employer and the
\n                              employee was illegal and perverse.\n<\/p>\n
                              (vii)   The Tribunal had also ignored the fact that
\n                              some of the workmen were though initially
\n                              employed by the Contractor but their services, were
\n                              absorbed by the B.C.C.L.-Management.\n<\/p>\n
10.            Mr. A. K. Mehta, learned counsel for the Respondents while
\ncontroverting the grounds advanced by the counsel for the petitioner would
\nsubmit inter alia, the following arguments: –\n<\/p>\n
                              (i)     The very reference of the purported dispute
\n                              was incorrect in as much as no industrial dispute
\n                              was ever raised and as such, the proceeding before
\n                              the Tribunal could not have been initiated or
\n                              maintained.\n<\/p><\/blockquote>\n
                              (ii)    The findings of the Tribunal on the issue
\n                              relating to the relationship of employer and
\n                              employee between the concerned workmen and the
\n                              Respondent-Management is based on the evidences
\n                              on record and more particularly on the admission of
\n                              the witnesses of the workmen themselves that the
\n                              appointment letters to all such workmen was given
\n                              only by the concerned Contractor and no such letter
\n                              of appointment was given to any of the concerned
\n                              workmen by the management of the B.C.C.L. Such
\n                              inference was rightly drawn by the Tribunal on the
\n                              basis of the admitted facts that the services of these
\n                              workmen were engaged by the Contractor for a
\n                              limited period till the completion of the construction
\n                              of the Washery and other essential jobs and their
\n                              services were never contemplated therefore in the
\n                              nature of the permanent employment. Furthermore,
\n                              the services of the concerned workmen were
\n                              terminated by way of retrenchment by the
\n                              Contractor after payment of the Retrenchment
\n                              compensation and notice pay to each one of them.\n<\/p><\/blockquote>\n
 [8]                      [C.W.J.C. No. 616 of 1999 (R) ]\n\n\n\n (iii)     The case of 39 workmen, whose services\n<\/pre>\n
 were absorbed by the B.C.C.L. Management, albeit
\n in pursuance to the directions contained in the
\n Award of the Tribunal in the earlier Reference Case
\n No. 58 of 1991 stands on a totally different footing
\n in as much as the services of the 39 skilled
\n workmen continued to be taken by the B.C.C.L. –\n<\/p><\/blockquote>\n
 Management for a period of more than six months
\n and they were paid their wages by the B.C.C.L.
\n Management. The same facts do not apply to the
\n cases of the concerned workmen in the present
\n dispute.\n<\/p>\n
 (iv)      The demand of the Form B Register is
\n totally irrelevant. The Sudamdih Coal Washery
\n being a Factory, registered under the Factories Act,
\n 1948 and having been granted a license under the
\n Factory Act, do require to maintain a Register
\n containing names of all such workmen employed
\n under the Underground Collieries. Such workmen
\n be      the   direct   employees   of   the   B.C.C.L.-\n<\/p>\n
 Management or employee of the Contractor, a list
\n of the names of such workmen working in the
\n Colliery has to be maintained under the statutory
\n provisions. Such Register does not necessarily
\n indicate that the workmen named in the Registers,
\n are invariably the workmen employed by the
\n Management.\n<\/p>\n
           Even otherwise, in absence of any demand
\n from the workmen for production of any such
\n document, it was not obligatory on the part of the
\n Tribunal to order for production of such documents
\n and in absence of any such claim or order, no
\n adverse inference can be drawn for the non-
\n production of such documents, even under the
\n provisions of Section 114 (iii) (g) of the Evidence
\n Act.\n<\/p>\n
 (v)       The claim of the workmen that they had
\n continued to work for more than 240 days, in itself,
\n would not entitle them for regularization\/absorption.
\n This issue has been well decided by the Supreme
\n Court in several cases including the case of Ganga
\n                             [9]                    [C.W.J.C. No. 616 of 1999 (R) ]<\/p>\n
                              Dhar Pillai-versus-Siemens Ltd. reported in (2007)
\n                              1 SCC 533 and also in the case of Hindustan
\n                              Aeronautics    Ltd.-versus-Dan     Bahadur     Singh
\n                              reported in (2007) 6 SCC 207.\n<\/p>\n
                              (vi)   It is a misconceived statement that the oral
\n                              and documentary evidences recorded in the civil
\n                              suit and the findings of the civil court, recorded in
\n                              Title Suit No. 51 of 1979 of 1980-81 is binding
\n                              upon the Tribunal. In the Appeal preferred by the
\n                              Management, against the judgment and decree
\n                              passed by the civil court, the Division Bench of this
\n                              Court had categorically held that the civil court had
\n                              no jurisdiction to entertain or adjudicate upon the
\n                              dispute raised by the plaintiff in the suit. Such
\n                              findings have been upheld by the Supreme Court in
\n                              the S.L.P.\/Civil Appeal and it was also declared that
\n                              the civil court had no jurisdiction and the decrees
\n                              passed by it had no force of law and cannot be held
\n                              binding upon the Tribunal.\n<\/p>\n
11.            Having heard the learned counsel for the parties and having gone
\nthrough the Award of the Tribunal, I find force in the arguments advanced by the
\nlearned counsel for the Respondents-Management.\n<\/p>\n
                      The findings of the Tribunal as it would appear are based
\non the following admitted facts: –\n<\/p>\n
                              (a)    That    the      B.C.C.L.-Management       had
\n                              appointed the Contractor to construct the Washery
\n                              at the Sudamdih Colliery on Turnkey Basis. The
\n                              work was to be completed within the stipulated
\n                              time. There was no prohibition imposed by the
\n                              Central Government by the Notification restraining
\n                              the    Respondents-Management        from     getting
\n                              executed its work through the Contractors under the
\n                              provisions of Contract Labour (Regulation and
\n                              Abolition) Act, 1970.\n<\/p>\n
                              (b)    Under the terms of agreement, executed by
\n                              and between the Contractor and the Management, it
\n                              was for the Contractor to engage his own workers
\n                              for the execution of the job and to pay them not
\n                              only their wages but also Bonus and other monetary
\n                              benefits to which they may be entitled during the
\n                              course of their employment under the Contractor.\n<\/p>\n
                             [ 10 ]                 [C.W.J.C. No. 616 of 1999 (R) ]\n\n\n\n                              (c)    The engagement of the workmen was\n<\/pre>\n
                              therefore, only for the purposes of execution of the
\n                              job during the course of their employment under the
\n                              Contractor.\n<\/p>\n
                              (d)    As per the terms of Agreement, the work
\n                              was    to   be   executed   within   the   stipulated
\n                              specifications and approved designs etc. under the
\n                              supervision of the officials of the Management.\n<\/p>\n
                              (e)    That the letters of appointment was issued to
\n                              the concerned workmen by the Contractor and not
\n                              by the B.C.C.L.-Management. The work entrusted
\n                              to the Contractor took about three years for
\n                              completion and after construction of the Washery
\n                              and the installation of the Machines, the same was
\n                              handed over to the B.C.C.L.-Management, since the
\n                              services of the workmen was no more required,
\n                              such workmen, except 39 skilled workers were
\n                              retrenched by the Contractor after payment of
\n                              Retrenchment compensation and notice pay.\n<\/p>\n
12.            The logical inferences from these admitted facts, which was
\nreflected even from the evidences adduced, as rightly drawn by the Tribunal, is
\nthat the concerned workmen were never appointed by the B.C.C.L.-Management
\nnor were their services directly taken by the B.C.C.L.-Management as long as
\nthey remained in employment. The services of these workmen were engaged
\nexclusively by the Contractor and it was to continue only till the execution of the
\nContract work and it was not therefore, of a permanent nature. The further
\ninference, which was legitimately drawn by the Industrial Tribunal was that there
\nwas no relationship of employer and employee between the Management-
\nB.C.C.L. and the workmen, at any point of time and therefore, the workmen
\ncannot legitimately claim for their absorption\/regularization under the B.C.C.L.-
\nManagement. The refusal of the Management to accept the demand of the
\nworkmen for their regularization\/absorption was essentially on the ground that
\nthey were never appointed or employed by the B.C.C.L.-Management and that
\nthey were basically the employees of the Contractor. In the light of the terms of
\nreference, under which the Tribunal was called upon to decide upon the dispute as
\nto whether the refusal of the B.C.C.L.-Management to absorb the concerned
\nworkmen as its regular employees was justified or not, necessarily implies the
\nissue as to whether there was any existing relationship of employer and employee
\nbetween the B.C.C.L.-Management and the concerned workmen. It cannot,
\ntherefore, be said that the decision by the Tribunal on this issue is beyond the
\nscope of the terms of reference.\n<\/p>\n
                               [ 11 ]                   [C.W.J.C. No. 616 of 1999 (R) ]<\/p>\n
13.             As regards the petitioner’s contention that the impugned Award
\nsuffers from perversity on account of the omission of the Tribunal to advert to the
\nevidences recorded in the civil suit and to the findings recorded by the civil court,
\nthe grievance of the petitioner, is totally misconceived in this regard. Admittedly,
\non the same dispute raised by a Section of the workmen, a Division Bench of this
\nCourt, while referring to the judgment and the decree, passed by the civil court,
\nhad categorically held that in the nature of the dispute raised, the civil court had
\nno jurisdiction to adjudicate upon such dispute. This finding was confirmed by the
\nSupreme Court in the civil appeal preferred by the aggrieved workmen. While
\ndismissing the appeal, the Supreme Court had given a liberty to the
\nappellants\/workmen to refer their dispute to the Government for the purposes of
\nraising an industrial dispute for adjudication by the Industrial Tribunal. Since, it
\nhas been held by the High Court as well as by the apex Court that the civil court
\nhad no jurisdiction, it follows that the decrees passed by the civil court, having no
\njurisdiction, has no force of law.\n<\/p>\n
                        In the case of Rajasthan SRTC and Another-versus-Ugma
\nRam Choudhary reported in (2006) 1 SCC 61, the Supreme Court has held that
\nonce it is held that civil court has no jurisdiction, the consequences must follow.\n<\/p>\n
                        It further follows that no materials including the evidences
\ncollected during the trial of the civil suit, can have any bearing or the same can be
\nlooked into, even for any collateral purposes. The Tribunal was therefore, not
\nbound by either the decree passed by the civil court, nor was it obliged to look
\ninto the materials including the evidences collected by the civil court in course of
\nthe trial of the suit, for which it had no jurisdiction.\n<\/p>\n
14.             The claim of discrimination between the present workmen and 39
\nother workmen, whose services were absorbed, also appears to be misconceived.\n<\/p>\n
15.             From the facts as stated above, the absorption of 39 workmen who
\nwere though engaged initially by the Contractor but whose services were later,
\ntaken over by the Respondent-Management was made pursuant to the Award
\ndeclared by the Tribunal in the earlier Reference case. The case of the concerned
\nworkmen in the present case, cannot be equated, therefore, with the case of the 39
\nother workmen.\n<\/p>\n
16.             As regards the contention of the petitioner that in absence of the
\nproduction of the Form B Register, adverse inference ought to have been taken by
\nthe Respondent-Management, such argument also appears to be misconceived.\n<\/p>\n
17.             The Form B Register as required to be maintained, under the
\nmandatory provisions of the Factory Act, is for the purpose of maintaining a list
\nof all such workers employed in the Colliery, be they workers, directly appointed
\nby the Management or appointed by the Contractor. Furthermore, as pointed out
\nby the learned counsel for the Respondents, neither did the workmen claim for
\nproduction of the Form B Register by the Management nor was any order passed
\n                                          [ 12 ]                 [C.W.J.C. No. 616 of 1999 (R) ]<\/p>\n
             by the Tribunal calling upon the Management to produce such Register, and as
\n             such, the mere non-production of the Form B Register by the Management, in
\n             itself, would not be sufficient to draw any adverse inference against the
\n             Management.\n<\/p>\n
             18.            As regards the claim of the concerned workmen that in course of
\n             their employment, they had completed more than 240 days in a year and they had
\n             rendered their services under the direct control and supervision of the Officers of
\n             the B.C.C.L.-Management, also appears to be misconceived.\n<\/p>\n
                                    In the case of GangaDhar Pillai (Supra) and earlier in the
\n             case of Manager, Reserve Bank of India,Bangalore-versus-S.Mani and Others
\n             reported in (2005) 5 SCC 100, the Supreme Court has held that 240 days of
\n             continuous service does not by itself give rise to a claim of permanence nor does
\n             it entitle the employee concerned to claim regularization and\/or permanent status.\n<\/p>\n
             19.            From the facts stated, the services of the concerned workmen was
\n             engaged only for the purposes of executing the job undertaken by the Contractor
\n             and were not to continue after completion of the job. The nature of the
\n             employment of the concerned workmen, therefore, was never considered to be on
\n             permanent basis. Rather, the period of employment of the workmen, being only
\n             co-extensive with the period of work undertaken by the Contractor, such
\n             employment was only on temporary basis. As has been observed by the Supreme
\n             Court in the case of GangaDhar Pillai (Supra) that only because an employee has
\n             been engaged as a casual or temporary employee or that he had been employed
\n             for a number of years, the same by itself may not lead to the conclusion that such
\n             appointment was made by way of conferring him the status of permanent
\n             employee.\n<\/p>\n
             20.            Having considered the findings recorded by the Tribunal in its
\n             Award and the reasons assigned thereto, I do not find any perversity or
\n             impropriety in the findings of the Tribunal as declared in its impugned Award, nor
\n             do I find any reason to interfere with the same.
\n             21             For the above reasons, I do not find any merit in this writ
\n             application. Accordingly, the same is dismissed.\n<\/p>\n
                                                                         (D.G.R. Patnaik, J.)
\nJharkhand High Court, Ranchi
\nDated – The 3rd September, 2009
\nA.F.R.\/APK\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Oshiar Prasad vs Presiding Officer & Anr. on 3 September, 2009 CIVIL WRIT JURISDICTION CASE No. 616 of 1999 (R) … In the matter of an application under Article 226 of the Constitution of India. … Oshiar Prasad … … Petitioner -V e r s u s- 1. Presiding Officer, Central Government […]<\/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-160644","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nOshiar Prasad vs Presiding Officer & Anr. on 3 September, 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\/oshiar-prasad-vs-presiding-officer-anr-on-3-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Oshiar Prasad vs Presiding Officer & Anr. on 3 September, 2009 - 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