Jharkhand High Court
Telco Convoy Drivers Mazdoor Sangh vs Presiding Officer, Industrial ... on 11 May, 2001
Equivalent citations: 2001 LAB. I. C. 3265, 2001 AIR - JHAR. H. C. R. 305, (2002) 4 LABLJ 101, (2001) 4 LAB LN 1084
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. The petitioner M/s Telco Convoy Drivers' Mazdoor Sangh has filed this writ application praying for issuance of writ in the nature of certiorari for quashing the award dated 31.7.1991 made by respondent No. 1, the Presiding Officer, Industrial Tribunal, Ranchi in Reference Case No. 12/89, whereby he has answered the term of reference in negative and held that there is no relationship of master and servant between the convoy drivers and the respondent No. 2, Tata Engineering and Locomotive Company Ltd. Jamshedpur (in short Telco').
2. It appears that the Government of Bihar in the Department of Labour. Employment and Training by notification dated 27.6.1989 refereed the following dispute between the management of Telco and the workmen represented by the petitioner to the Industrial Tribunal, Ranchi for adjudication : "Whether the relationship of employer and employee exists between M/s Telco Ltd., Jamshedpure and Convoy Drivers ? If so whether they are entitled to be made permanent employee of Telco ?"
3. Both the petitioner and the management filed their respective written statement and rejoinder thereof before the Tribunal.
4. The case of the petitioner is that in the year 1954 Telco started manufacturing commercial vehicles/chassis. Till 1964 the chassis were directly sold to the dealers at Jamshedpur. These dealers through their respective representatives used to collect the chassis from Jamshedpure and to take to their destinations by Drivers of their own choice. Since the drivers who used to be engaged by dealers started causing damage to the vehicle during transportation by road, the Management laid down rules and guidelines of testing drivers before he was permitted to drive away the chassis. The petitioners' further case is that in 1964 Telco management introduced a condition that only such drivers will form part of convoy drivers who have been given Test Card by the Service Manager of Telco after having been tested and found fit to drive the chassis. In 1970 a further change was introduced by the Telco to recruit the convoy drivers after the driver is found fit by the Service Manager of Telco and was given a temporary employment card issued by the Telco. In 1971 the company changed the employment card which was used to be issued and about 550 convoy drivers were issued another card by the company. It is stated that after coming into force of the Contract Labour (Regulation and Abolition) Act. 1970, the company, to deny the benefit of the Act, stopped issuing the employment card to the convoy drivers and insisted upon the convoy drivers to return the employment card given by the company. The petitioner's further case is that till 1974 the convoy drivers directly worked under the control and supervision of Telco but they did not get basic amenities namely, medical facility, uniform, quarters etc., and hence the matter was taken upon by the management. Consequently the management started giving medical facilities to the convoy drivers and their family members. From 1974 the company also began to give uniform to them. It is stated that by agreement and settlement between the management and the recognised union dated 30.3.1978 the management agreed in principle not to engage contract labour in the job of permanent and perenial nature and the nature of duty performed by the convoy drivers is of a permanent and perenial nature. The petitioner's further case is that there is a relationship of employer and employee and master and servant between the Telco and the convoy drivers and about 1000 convoy drivers are entitled to be given permanent status from different dates.
5. On the other hand, the case of the Telco management is that it started manufacturing commercial vehicles from 1954 and till 1989 it sold the vehicle/chassis to the dealers at Jamshedpur, who through their respective representatives used to collect them and take to the destination. In order to avoid the hardship to the dealers Telco started several regional sales services and it also introduced a system of delivery of chassis for army and Export purposes to the different stations in the country. Telco appointed different contractors for different destinations for the transport of its chassis on the conditions, inter alia, that the charge of transport will be paid to the contractor at a lump sum rate per vehicle plus road tax and further in case of transport of chassis by road the contractor would assume the responsibility and liability arising out of an accident and Telco will not bind itself to the transport contractors for any fixed volume of business and the company will be free to make any other arrangement without contractors for transporting the vehicles. The further case of Telco is that the question of relationship of master and servant or employer and employee between transport contractors and the convoy drivers was examined in detail by the Government of Bihar in 1973 and it came to the conclusion that there was no such relationship and hence the Government of Bihar declined to further look into the grievances and demand of the convoy drivers. It is stated that when the convoy drivers used to create law and order problem the Deputy Commissioner, Singhbhum intervened and called a meeting which was attended by the Union of the convoy drivers as well as the representatives of the Transport contractors. Under the orders of the Deputy Commissioner a panel of convoy drivers was made uptodate and a committee consisting of different convoy drivers' unions and the representatives of telco Transport Contractors' Association was constituted. It was decided that a representative of telco should be in the committee, who should be able to find out which the drivers have passed the standard test of driving. As per the decision of the Deputy Commissioner a panel of convoy drivers was prepared and is being maintained and the convoy drivers are provided with the work of driving chassis on the basis of said list. The power of taking disciplinary action against the erring convoy drivers was vested in the committee headed by the Magistrate as agreed by the representatives of all unions and the transport contractors. It has been categorically stated by Telco that there was or there is no relationship of master and servant between the Telco and the convoy drivers.
6. Before the Industrial Tribunal both the parties have filed their respective documentary evidences but no oral evidence was adduced by any party. The Industrial Tribunal, on consideration of the entire facts and evidences, has reached the conclusion that there is no relationship of master and servant between the convoy drivers and the Telco. Accordingly the reference was answered in negative and the claim of the petitioner-union for permanent absorption was rejected by the impugned award.
7. Mr. A.K. Sinha, learned Sr. counsel appearing for the petitioner-union assailed the impugned award as being illegal, contrary to the evidence on record and erroneous both in law and fact. Learned counsels submitted that the award is perverse in law inasmuch as the Tribunal has considered irrelevant evidence and ignored the most relevant evidence on record. Learned counsel firstly submitted that the award though signed by the Presiding Officer was not announced in open court and the award was announced after retirement of the Presiding Officer and in that view of the matter it cannot be said to be a valid award. Learned counsel then submitted that the impugned award is vitiated in law and the Tribunal has committed serious illegality in so far as it held that the decision of the Advisory Board constituted under the provisions of Contract Labour (Regulation and Abolition) Act. 1970 (in short Act of 1970) will not operate as res judicata but may carry weight in deciding the matter in issue as to whether the convoy drivers are employees of Telco. The Tribunal further committed error of law in holding that the convoy drivers are not the employees of Telco because the disciplinary action, if any, is to be taken by TTCA under the agreement. Learned counsel submitted that the nature of job of convoy drivers is perenial in nature and therefore, it cannot be inferred that there is no relationship of employer and employee between the Telco and the convoy drivers. Learned counsel then submitted that most of the relevant documents filed by the petitioner have not been considered by the Tribunal nor any order was passed by the Tribunal on the application dated 16.1.1991 filed by the petitioner in Reference case after directing the Telco to file original copy of the documents mentioned in the said application. Learned counsel further submitted that the Tribunal has not correctly appreciated the fact that a convoy driver in addition to licence of driving heavy vehicle issued by the State Transport Authority has to qualify the test conducted by Telco Service Department before issuance of test card by Telco and before his name could be included by TTCA to be a member of convoy drivers. The Tribunal further failed to appreciate the agreement dated 30.1.1973 entered into between the workmen and the Telco Transport Contractors Services laying down the terms and conditions for giving the chassis to a convoy driver for transportation. Learned counsel lastly submitted that the impugned award is bad in law for non-consideration of evidence brought on record by the petitioner.
8. On the other hand Mr. M.N. Rao, learned counsel for the respondent-Management firstly submitted that the Tribunal on consideration of the entire evidence has reached at a conclusion that there is no relationship of master and servant between the convoy drivers and the telco and the question decided by the Tribunal is pure question of fact. Learned counsel therefore submitted that such finding cannot be set-aside unless the petitioner establishes that the conclusion is totally based on no evidence. Learned counsel further submitted that in any view of the matter even if there is error of fact or law that cannot be a ground for interference unless error is manifest on the face of record. In this connection learned counsel relied upon the decisions of the Supreme Court in the case of Dharangadhra Chemical Work Ltd. v. State of Saurashtra and Ors. 1957 SC 264, in the case of Nagendra Nath Bora and Anr. v. The Commissioner of Hills Division, 1958 SCR 1240, and the Secretary HSBB v. Suresh and Ors., 1999 (3) SCC 601. Learned counsel by referring various exhibits submitted that the convoy drivers are engaged by different contractors and they work for different establishments and the respondent-Telco has no power of appointment or discipline over convoy drivers. Learned counsel then drawn my attention to Ext. M-66 which is the view expressed by State Advisory Board. The said Advisory Board expressed their view that there was no need to alter the existing system, so far convoy drivers are concerned, The contention of the convoy drivers before the Advisory Board was that they were employees of TTCA but riot the Telco. According to the learned counsel therefore this Court cannot substitute a decision taken by the Tribunal after appreciating the entire evidence.
9. From perusal of the award, it appears that on the basis of the pleadings of the parties the Tribunal formulated the following points for consideration :
"(i) Whether the convoy drivers are engaged by Telco or by Telco contractors for taking the chassis to the different R.S.O's. and whether they are entitled to be permanent employees of Telco?
(ii) Whether the convoy drivers, even if engaged by the different Telco Transport Contractors have become employees of the Telco and whether they are entitled to be made permanent employees of Telco?
(iii) Whether the claim of the union that the convoy drivers are the employees of Telco is barred by res Judicata and estoppel?
10. On the question of res Judicata it was vehemently argued on behalf of Telco that in view of the several decisions of various courts declaring that the convoy drivers are the employees of Telco, the issue has become barred by principle of estoppel and res Judicata. On the question of res judicata the management relied upon the following documents :--
"(i) Judgment of the Hon'ble Patna High Court. Ranchi Bench dated 25.9.1987 given in CWJC No. 1571 of 1981 (R) (Ext. M- 63).
(ii) Order dated 3.11.1989 given by the Deputy Labour Commisstoner, Jamshedpur and Controlling authority under the Payment of Gratuity Act, 1972 (Ext. M-76).
(iii) Proceeding of the Bihar State Advisory Committee dated 16.10.1986 under Contract Labour (Regulation and Abolition) Act, 1970 (Ext. M-66).
(iv) Order dated 30.8.1983 passed by the Presiding Officer, Labour Court, Jamshedpur in MJC Case No. 64 of 1979 and 40 of 1980 under Section 33C(2) of the Industrial Disputes Act, 1947 (Ext. M-64).
(v) Order dated 29.4.1987 passed in BSE Case No. 33 of 1980, under Section 28 of the Bihar Shops and Establishments Act, 1953 (Ext. M-75),"
11. The Tribunal after considering the evidence on record and after hearing the submissions of the learned counsels came to the conclusion that the reference case is not barred by res judicata.
12. On the question whether the convoy drivers are the employees of Telco, the Tribunal has gone in detail of the entire facts and evidence and came to the conclusion that the ultimate control in selection of the convoy drivers is of TTCA and the union and not of Telco. On the basis of Exts. M-1 and M-2, which are the memorandum of settlement between the union of convoy drivers, and on the basis of several documentary evidence, the Tribunal also recorded a finding that the Telco has got no control over the selection of the convoy drivers. The Tribunal further came to a finding that no memorandum or settlement was ever arrived at between the Telco and the convoy drivers. There is also not a single agreement or contract of service between Telco and the convoy drivers. The Tribunal also recorded a finding that earlier there was a series of litigation by and between the convoy drivers and Telco and no court ever declared the relationship of employer and employees between the convoy drivers and Telco. The Tribunal also noticed the documents in relation to proceeding of Advisory Board constituted under the provisions of Contract Labour (Regulation and Abolition) Act in which it was held that there is no necessity of abolishing contract labour since the driving of chassis was not a contract work. There is nothing to show that the drivers had worked for 120 days. The Tribunal, therefore, finally recorded his finding that the convoy drivers are not the employees of Telco and no relationship of employer and employee exists between Telco and convoy drivers and they are not entitled to be made permanent employee of Telco.
13. As noticed above, no oral evidence was adduced by either of the parties before the Tribunal and all the documents filed by the management and the convoy drivers' union had been marked without objection. The Tribunal after analysing the entire documentary evidence has arrived at a conclusion that there is no relationship of master and servant in between the Telco and the convoy drivers. The first question therefore falls for consideration is as to whether this Court in exercise of writ Jurisdiction can substitute its own finding after reappraisal of the entire evidence. The well settled English Principle of Public Law that Judicial Review is concerned, not with the decision but with the decision making process has been accepted as part of Indian Public Law. The Apex Court after referring various English decisions on this point that "it is not within the purview of a Court to substitute a decision taken by a constituted authority simply because the decision sought to be substituted in a better one Dwarkadas Marfatlal and Sons v. Board of Trustees of the Port of Bombay. 1989 (3) SCC 293. In the case of Nagendra Nath Bora and Anr. v. The Commissioner of Hills Division. 1958 SCR 1240, their Lordships considering the certiorari jurisdiction of the High Court- in the matter of interference with the decision of the Tribunal has observed that : "It is clear from an examination of the authorities of this Court as also of the Courts in England, that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent on the face of the record and not every error either of law or fact, which can be corrected by a Superior Court, in exercise of its statutory powers as a court of appeal or revision.
So far as we know, it has never been contended before this court that an error of fact, even though apparent on the face of the record, could be a ground for interference by the Court exercising its writ jurisdiction. No ruling was brought to our notice in support of the proposition that the court exercising its powers under Article 226 of the Constitution, could quash an order of an inferior tribunal, on the ground of mistake of fact apparent on the face of the record.
But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record.' Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned ?. This Court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record, In this respect, the law in India and the law in England, are therefore, the same, It is also clear, on an examination of all the authorities of this Court and of those in England, referred to above, as also those considered in the several judgments of this Court, that the Common Law writ, now called order of certiorari, which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal, its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction."
In the case of "Employers in relation to the management of Govindpur Colliery of BCCL v. Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad, 1999 (2) PLJR 818, this Court in similar facts and circumstances of the case after relying upon the decision of the Apex Court (1984 SC 1976) has held that when the Labour Court or Tribunal come to a particular finding on appraisal of evidence, the High Court in exercise of writ Jurisdiction is not supposed to disturb the said Finding even it is erroneous In law.
14. In the instant case, as noticed above, the Tribunal has analysed the entire evidence adduced by the parties and also relied upon the view expressed by Bihar State Advisory Board before whom the contention of convoy drivers was that they were employees of the Telco Transport Contractors' Association. (TTCA) and not the Telco). It is not disputed that the question whether contract labour with regard to the nature of job in question should be abolished was not approved by the State Government in view of nature of job performed by the convoy drivers. The Tribunal has also considered other aspects of the matter and recorded a conclusive finding. I do not find any serious error of law or error of fact in the finding arrived at by the Tribunal which warrant interference by this Court.
15. For the reasons aforesaid, I do not find any merit in this writ application, which is accordingly dismissed.
16. Application dismissed.