Oshiar Prasad vs The Employers In Relation To on 17 June, 2011

[Cites 0, Cited by 11]

Jharkhand High Court

Oshiar Prasad vs The Employers In Relation To on 17 June, 2011

Bench: Prakash Tatia

      IN   THE   HIGH   COURT   OF   JHARKHAND   AT   RANCHI
                      L.P.A. No. 447  of 2009
                                  
      Oshiar Prasad                           . ........ Appellants
                                    Versus
      The Employers in relation to 
      Manatement of Sudamdih Coal 
      Washery of M/s BCCL, Dhanbad                        .......       Respondents.
                              
      CORAM:       HON'BLE THE ACTING CHIEF JUSTICE
                   HON'BLE MRS. JUSTICE JAYA ROY
                            
      For the Appellants    :        Mr. Kalyan Roy, Advocate
      For the Respondents   :        Mr. A.K.Mehta, Advocate

                                    
      Order No.  10                                Dated 17th June, 2011

      1.     Heard learned counsel for the parties.

      2.     PetitionerAppellant claims that he should have been absorbed 

      by   the   respondent   M/s   Bharat   Coking   Coal   Limited   as   he   was 

      employee of the said respondentcompany and 39 skilled workmen 

      have  already  been   absorbed  by  the   said  respondentcompany. The 

      appellant's claim was rejected by the Labour Court vide Award dated 

      21.12.1998

passed in Reference Case No. 75 of 1995. The appellant being aggrieved against the said Award of rejection of his claim preferred writ petition before this Court as C.W.J.C. No. 616 of 1999 (R). The appellant'spetitioner's writ petition was dismissed by detailed order dated 03.09.2009 after considering the argument raised by the workman.

3. Learned counsel for the appellant submitted that the Industrial Tribunal went beyond its jurisdiction as it travelled beyond the scope of the reference as the reference was only to the effect that whether the workmen were entitled to be absorbed or not whereas the Tribunal has declared that there was no relationship of employer and employee between the appellant and the respondent company. It is also submitted that the Award is perverse as it has not considered the evidence produced by the appellantwrit petitioner before the Tribunal whereby they have fully proved that the workmen were working with the respondent M/s Bharat Coking Coal Limited even after the expiry of the contract between M/s. Mc. Nally Bharat Engineering Com (P) Ltd. and M/s Bharat Coking Coal Limited and they were duly issued Identity Card by M/s Bharat Coking Coal Limited itself. It is also submitted that the Tribunal committed serious error of law by rejecting the evidence of one of the witnesses of the workmen merely on the ground that he was earlier employee of the respondent company M/s Bharat Coking Coal Limited and subsequently he took the cause of the workmen and therefore, he is an interested witness and his testimony cannot be relied upon.

4. We have considered the submissions of the learned counsel for the appellant and perused the detailed reasons given in the impugned order of 03.09.2009. It appears from the impugned order that the learned Single Judge has considered each and every argument referred above and thereafter dismissed the writ petition of the petitioner. However, if we examine the argument advanced by the learned counsel for the appellant again, then we are of the view that if the employee is seeking absorption then he is required to establish the fundamental issue first that there exists or existed some relationship of employer and employee or otherwise his employment, as a fresh candidate, come from any other organization and he acquired right to get absorbed in terms of contract. Here in this case the case of the workmen was specifically clear that he with others were earlier engaged through the contractor by the respondent company and that contract came to an end and therefore, admittedly they were employee of the contractor and not the employee of the respondent company. Therefore, if the workmen sought relief of absorption then they should have placed some legal foundational facts also like they have been given employment by the respondent company or there was any term in the contract of the contractor providing for absorption of the workmen in the respondent company or otherwise they have been taken in job by the respondent company so as to create a right to claim absorption. These facts substantially are missing and therefore, the Tribunal was wholly justified in declaring that there was no relationship of employer and employee and consequently, there is no possibility of grant of relief of absorption to the workmen.

5. So far as contention of the learned counsel for the appellant that two evidence have not been considered which are issuance of Identity Card by the respondent company itself to the petitioner and he was working with the respondent company. The Identity Card does not establish the relationship of employer and employee necessarily nor the working in the premises under a contract through a contractor also makes the principal of the contractor as employer of the employee of the contractor. Therefore, also the Tribunal was wholly justified in observing that no appointment order was ever given to the workmen of the respondent company.

6. In the facts and circumstances of the case, the present appellant's case is not at par with the persons who have been given appointment by the respondent company.

7. In view of the above reasons, we do not find any merit in the L.P.A. hence the L.P.A. is dismissed.

(Prakash Tatia, A.C.J.) (Jaya Roy, J.) R.S./Birendra

Unlock Advanced Research with PRISMAI

Jharkhand High Court