Jharkhand High Court
The Workmen Of Simla Bahal Colliery ... vs The Employer In Relation To The ... on 20 May, 2020
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.L. No. 4442 of 2014
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The workmen of Simla Bahal Colliery under Bhalgora Area of M/s Bharat Coking Coal Limited represented by Shri Ramashray Gahlot, Son of late Suraj Deo Gahlot, Resident of village-South Balihari, P.O. Kusonda, P.S. Putkee, District- Dhanbad, the Secretary, Kustore Shramik Sahyog Samiti.
......Petitioner Versus The Employer in relation to the Management of Simla Bahal Colliery under Bhalgora Area of M/s Bharat Coking Coal Limited through General Manager, Bhalgora Area of M/s BCCL at Bhalgora Area, P.O. Kusunda, P.S. Putkee, District-Dhanbad.
.....Respondents
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Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Sarju Prasad, Advocate
For the Respondent : Mr. Atul Roy, Advocate
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C.A.V. Order
04/20/05/2020 Heard the parties.
2. In this writ application, the petitioner has prayed for quashing of the Award dated 24.3.2014, passed by the learned Presiding Officer, Central Government, Industrial Tribunal No. 1, Dhanbad in Reference Case No. 123 of 1995, whereby and whereunder the reference has been answered against the workmen.
3. The Central Government vide order dated 6.10.95 had referred the following dispute for adjudication before the Tribunal.
"Whether the demand of the Union for regularization by the Management of Shimla Bahal Colliery under Bhalgora Area of M/s BCCL of Shri Gopal Sharan Singh and 107 other workers (as per list enclosed) is justified? if so, to what relief the concerned workmen are entitled?"
4. In the written statement filed on behalf of the workmen, it has been stated that they were members of Kustore Shramik Sahyog Samiti and were engaged by the Management of Shimla Bahal Colliery in different time rated jobs from January, 1989. It has been stated that the job of the concerned workmen were of stone cutting, tyndal jobs, such as recovery and carrying out old pipes and installation of stopping etc. under the direct control of the management with the implements being supplied to them by the Management. The day to day work of the concerned workmen used to be supervised by the Mining and Engineering Executives of the Colliery Management and wages paid used to be regularly supervised by the personnel executives of the colliery. It has been stated that the concerned workman had completed more than 190/240 days work in a calendar year and as per the standing orders the workmen deserve regularization in the company. It has further been stated that the concerned workmen were engaged -2- by the Management in 1989 and continued as such till 1992 when they were stopped from working. All the workmen were working in a perennial and permanent nature of job, which has been prohibited under the Contract Labour ( Regulation and Abolition Act) 1970.
5. The written statement of the Management reveals that preliminary objection was raised that the reference is not maintainable since the concerned workmen were never under the employment of the Management rather they were the members of the cooperative society. It has been stated that there was no employer employee relationship between the Management and the workmen. The concerned workmen used to be engaged by the Cooperative Society purely on a temporary basis against the nature of job and therefore the regularization of these employees in the employer company does not arise.
5. It appears that two witnesses each were produced on behalf of the workmen as well as the Management and documentary evidences were also adduced. The learned Tribunal vide Award dated 24.3.2014 had answered the reference against the workmen in view of the judgement rendered in the case of State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1.
6. The learned court below has passed a cryptic and non speaking award without making any discussion as to whether they were involved in a perennial nature of job, whether the Management had over all control and supervision over such workmen and as to whether their engagement was a camaflouge amongst other factors guiding the consideration of regularization of the workmen concerned. The learned Tribunal had failed to consider as to whether the Management was practicing unfair labour practice or not.
7. In the case of Harinandan Prasad and others Vs. Employer I/R to Management of FCI and another reported in (2014) 7 SCC 190, the factual aspects reveal that it was filed against the order of the Division Bench by which the award of the Tribunal as well as the order of the learned Single Judge affirming the same were set aside. One of the contentions of the Management before the learned Division Bench was that regularization could not have been directed in view of the judgement rendered in the case of State of Karnataka Vs. Uma Devi and others (Supra). While considering the submissions on the said point, it was held as follows:-
29. It was further noticed in Maharashtra SRTC case9 that Section 32 of the Act provides that the court shall have the power to decide all connected matters arising out of any application or a complaint referred to it for decision under any of the provisions of this Act. The Court then extensively quoted from the judgment in Umadevi (3)4 in order to demonstrate the exact ratio laid down in the said judgment and thereafter proceeded to formulate the following question and answer thereto: (Maharashtra SRTC case9, SCC p. 573, para 30) "30. The question that arises for consideration is: have the provisions of the MRTU and PULP Act been denuded of the statutory status by the Constitution Bench decision in Umadevi (3)4?-3-
In our judgment, it is not."
30. Detailed reasons are given in support of the conclusion stating that the MRTU and PULP Act provides for and empowers the Industrial/Labour Courts to decide about the unfair labour practice committed/being committed by any person and to declare a particular practice to be unfair labour practice if it so found and also to direct such person to cease and desist from unfair labour practice. The provisions contained in Section 30 of the MRTU and PULP Act giving such a power to the Industrial and Labour Courts vis-à-vis the ratio of Umadevi (3)4 are explained by the Court in the following terms: (Maharashtra SRTC case9, SCC pp. 573-74, paras 32-33 & 36) "32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
33. The provisions of the MRTU and PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi (3)4. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi (3)4. Unfair labour practice on the part of the employer in engaging employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
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36. Umadevi (3)4 does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi (3)4 cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and the PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
(emphasis in original)
31. The Court in Maharashtra SRTC case9 also accepted the legal proposition that courts cannot direct creation of posts, as held in Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union25. Referring to this judgment, the Court made it clear that inaction on the part of the State Government to create posts would not mean an unfair labour practice had been committed by the employer (University in that case) and as there were no posts, the direction of the High Court to accord the status of permanency was set aside. The Court also noticed that this legal position had been affirmed in State of Maharashtra v. R.S. Bhonde26. The Court also reiterated that creation and abolition of post and regularisation are purely executive functions, as held in a number of judgments and it was not for the court to arrogate the power of the executive or the legislature by directing creation of post and absorbing the workers or continue them in service or pay salary of regular employees. This legal position is summed up in para 41 which reads as under: (Maharashtra SRTC case9, SCC p. 576) "41. Thus, there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the courts."
32. However, the Court in Maharashtra SRTC case9 found that the factual position was different in the case before it. Here the post of cleaners in the establishment were in existence. Further, there was a finding of fact recorded that the Corporation had indulged in unfair labour practice by engaging these workers on temporary/casual/daily-wage basis and paying them paltry amount even when they were discharging duties of eight hours a day and performing the same duties as that of regular employees.
33. In this backdrop, the Court in Maharashtra SRTC case9 was of the opinion that the direction of the Industrial Court to accord permanency to these employees against the posts which were available, was clearly permissible and within the powers, statutorily conferred upon the Industrial/Labour Courts under Section 30(1)(b) of the MRTU and PULP Act, 1971 which enables the industrial adjudicator to take affirmative action against the erring employer and as those powers are of wide amplitude abrogating (sic including) within their fold a direction to accord permanency.
34. A close scrutiny of the two cases, thus, would reveal that the law laid down in those cases is not contradictory to each other. In U.P. Power Corpn.8, this Court has recognised the powers of the Labour Court and at the same time emphasised that the Labour Court is to keep in mind that there should not be any direction of regularisation if this offends the provisions of Article 14 of the Constitution on which the judgment in Umadevi (3)4 is primarily founded. On the other hand, in Bhonde case2, the Court has recognised the principle that having regard to the statutory -4- powers conferred upon the Labour Court/Industrial Court to grant certain reliefs to the workmen, which includes the relief of giving the status of permanency to the contract employees, such statutory power does not get denuded by the judgment in Umadevi (3) case4. It is clear from the reading of this judgment that such a power is to be exercised when the employer has indulged in unfair labour practice by not filling up permanent posts even when available and continuing to employ workers on temporary/daily-wage basis and taking the same work from them and making them do some purpose which was being performed by the regular workers but paying them much less wages. It is only when a particular practice is found to be unfair labour practice, as enumerated in Schedule IV of the MRTP and PULP Act, and it necessitates giving direction under Section 30 of the said Act, that the court would give such a direction."
8. The various considerations for regularization has been enumerated in the aforesaid judgement in the back drop of the principles laid down in the case of State of Karnataka Vs. Uma Devi (Supra).
9. In the case of Oil and Natural Gas Corporation Vs. Krishan Gopal & Ors. reported in 2020 SCC On Line SC 150, the judgement in the case of Oil and Natural Gas Commission Vs. Petroleum Coal Labour Union, reported in 2015 (6) SCC 494 was revisited and the matter was referred to an appropriate Bench for reconsideration on the following points:-
"35. The decision in PCLU needs to be revisited in order to set the position in law which it adopts in conformity with the principles emerging from the earlier line of precedent. More specifically, the areas on which PCLU needs reconsideration are:
(i) The interpretation placed on the provisions of clause 2(ii) of the Certified Standing Orders;
(ii) The meaning and content of an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act; and
(iii) The limitations, if any, on the power of the Labour and Industrial Courts to order regularisation in the absence of sanctioned posts. The decision in PCLU would, in our view, require reconsideration in view of the above decisions of this Court and for the reasons which we have noted above".
10. The judgment rendered in the case of Hari Nandan Prasad (Supra) was also taken into consideration and the prepositions which emerged were as follows:-
"34. The following propositions would emerge upon analyzing the above decisions:
(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;
(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;
(iii) The power to create permanent or sanctioned posts lies outside the judicial domain and where no posts are available, a direction to grant regularisation would be impermissible merely on the basis of the number of years of service;
(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and
(v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen."-5-
11. However, the points of reference for reconsiderations of the judgement rendered in PCLU (Supra) would not be applicable in the present case since no findings at all have been recorded by the learned Tribunal. The case of State of Karnataka Vs. Uma Devi (Supra) and the propositions thereof have been subsequently explained as noted above and therefore simply by stating that regularization of causal, ad hoc and contractual labour has virtually been banned, the reference could not have been answered against the workmen.
12. Thus, on consideration of the aforesaid facts, the impugned award dated 24.3.2014, passed by the learned Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad in Reference Case No. 123 of 1995 is hereby set aside with a direction to the learned Tribunal to pass a fresh order in accordance with law and in accordance with the various parameters enunciated in the judgements referred to above. This writ application stands allowed.
(Rongon Mukhopadhyay, J) Rakesh/-