Jharkhand High Court
Their Workmen Represented By Surendra ... vs Employer In Relation To The Management ... on 7 April, 2020
Equivalent citations: AIRONLINE 2020 JHA 1214
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C. Rev. No.85 of 2012
With
I.A. No.5751 of 2018
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Their Workmen represented by Surendra Rai Area Secretary, Rastriya
Colliery Mazdoor Sangh .... .... Petitioner
Versus
Employer in Relation to the Management of Sudamdih Colliery of M/s
Bharat Coking Coal Limited .... .... Respondent
With
C. Rev. No.86 of 2012
With
I.A. No.2270 of 2016
Their Workmen represented by Surendra Rai Area Secretary, Rastriya
Colliery Mazdoor Sangh .... .... Petitioner
Versus
Employer in Relation to the Management of Sudamdih Colliery of M/s
Bharat Coking Coal Limited .... .... Respondent
------
CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Kalyan Roy, Advocate
For the Resp.-BCCL : Mr. Anoop Kumar Mehta, Advocate
------
C.A.V. on 19.12.2019 Delivered on 07/04/2020
Per Sujit Narayan Prasad, J.
I.A. No.5751 of 2018 in C. Rev. No.85 of 2012 and I.A. No.2270 of 2016 in C. Rev. No.86 of 2012 Mr. Kalyan Roy, learned counsel appearing for the review petitioners prayed to pass appropriate order in these two interlocutory applications since according to him, the relief sought for in these two applications are having significance for proper appreciation of the grounds agitated in the review petitions.
2
2. Learned counsel appearing for the respondent BCCL is fair enough to agree for disposal of the interlocutory applications on their own merit.
3. Accordingly, this Court has thought it proper to first deal with the relief sought for in the interlocutory applications before going into the merit of the issue raised in the review petitions.
4. These two interlocutory applications have been filed for calling upon certain documents i.e. attendance registers, which according to the review petitioners, are necessary for proper adjudication of the issue.
The ground upon which the interlocutory applications have been filed seeking a direction to call upon the relevant documents at this stage has seriously been opposed by the learned counsel appearing for the management BCCL. It has been submitted on behalf of learned counsel appearing for the BCCL that the documents, at this stage, would not be proper to be appreciated by this Court that too when the question of review of an order passed by the Division Bench of this Court in L.P.A. No. 33 of 2007 and L.P.A. No. 55 of 2007 is in issue.
It has further been submitted that the document is to be seen on the basis of the nature of dispute. According to him, the question, which has been agitated herein by the review petitioners, is to consider the action of the respondent management in taking work through the contractor as camouflage and sham but the reference is altogether different and as such, according to him, when the issue does not pertain to an adjudication with respect to a declaration about camouflage and sham transaction in case of work taken by the contractor for the principal employer, i.e., the 3 management BCCL, a specific reference was required to be made and only then the relevance of the documents could be considered.
In that view of the matter, the relief sought for in these two interlocutory applications was opposed by making a submission for its rejection.
5. This Court, after having heard learned counsel for the parties and after appreciating their submission and, after going across the pleadings made in these two interlocutory applications, deem it fit and proper first to refer to the terms of reference in order to assess the nexus of the said document with the dispute.
The dispute pertains to two reference cases, first being Reference Case No. 32 of 1989 and another is Reference Case No. 35 of 1989. The following references have been made in both the reference cases, which reads hereunder as :-
"Whether the action of the management of Sudamdih Colliery of M/s BCCL in denying employment to Shri Karma Rout and 21 others with effect from 09.07.1977 is justified? If not, to what relief the concerned workmen are entitled?"
The aforesaid reference has been numbered as Reference Case No.32 of 1989.
"Whether the action of the management of Sudamdih Area of M/s BCCL in denying employment to Shri Bhagwat Singh and 3 others, viz. Shri Sapan, Karan Sahi and Shanti Thakur, who were engaged as sump clearing mazdoors is justified? If not, to what reliefs are the workmen entitled?"
This reference has been numbered as Reference Case No.35 of 1989. 4 It is evident from the terms of reference that the Industrial Adjudicator was required to give a finding with respect to justification of denying employment to workmen from 09.07.1977.
There is no reference about a declaration by the Industrial Adjudicator about camouflage and sham transaction, in view of the allegation made by the workmen that the work has been taken from them through the contractor but for the principal employer and as such, the same is camouflage and sham and hence the workmen are entitled to be absorbed in service.
The law is settled with respect to the fact as to whether the Labour Court can travel beyond the terms of reference. In the case of Mukand Limited Vs. Mukand Staff and Officers [(2004) 10 SCC 460, the Hon'ble Supreme Court held that the labour court cannot travel beyond the terms of reference. The relevant paragraph of the judgment is reproduced hereunder as :-
"36. We, therefore, hold that the reference is limited to the dispute between the Company and the Workmen employed by them and that the Tribunal, being the creature of the reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference."
In the case of SAIL Vs. Union of India and Others [2006 (9) Scale 597, the Hon'ble Apex Court has observed as under:-
"The 1970 Act is a complete code by itself. It not only provides for regulation of contract labour but also abolition thereof. Relationship of employer and employee is essentially a question of fact. Determination of the said question would depend upon a larger number of factors. Ordinarily, a writ would not go into such a question. In State of Karnataka and Ors. v. KGSD Canteen Employees' Welfare Association 5 and Ors., [(2006) 1 SCC 567] the Hon'ble Apex Court held - "Keeping in view the facts and circumstances of this case as also the principle of law enunciated in the above-referred decisions of this Court, we are, thus, of the opinion that recourse to writ remedy was not apposite in this case".
In view of the above settled position of law, it is evident that neither the Labour Court nor the writ court could determine the question as to whether the contract labour should be abolished or not, the same being within the exclusive domain of the Appropriate Government. A decision in that behalf undoubtedly is required to be taken after following the procedure laid down in Sub-section (1) of Section 10 of the Act. A notification can be issued by an Appropriate Government prohibiting employment of contract labour if the factors enumerated in Sub-section (2) of Section 10 of the Act are satisfied. When, however, a contention is raised that the contract entered into by and between the management and the contractor is a sham one, in view of the decision of this Court in Steel Authority of India Limited (supra), an industrial adjudicator would be entitled to determine the said issue. The industrial adjudicator would have jurisdiction to determine the said issue even if it be held that the contract purportedly awarded by the management in favor of the contractor was really a camouflage or a sham one, the employees appointed by the contractor would, in effect and substance, be held to be direct employees of the management.
Therefore, it requires to consider as to whether the workmen had raised any contention that the contract entered into between the contractor and the management was a sham.
It is evident from the terms of reference, as reflected hereinabove, as 6 also the allegations leveled in the depositions by the witnesses, either of the workmen or of the management, the contention of the workmen was that they were employees of the respondent management but have been denied employment with effect from 09.07.1977 and, therefore, there was no occasion for the Industrial Adjudicator to travel into the question whether the contract was sham or not because no such reference was made to the Labour Court.
As has been discussed above, the reference made to the Industrial Tribunal was - whether the action of the management in denying employment was justified?
We, therefore, are of the view that the writ petitioners should have initially raised a proper dispute. They should have pleaded that they were employees of the contractor and the contract should be declared as sham and camouflage and they should be considered as employees of the principal employer, but this fact nowhere discussed.
It is settled law that the Labour Court or the Industrial Tribunal being creature of Statute and is required only to deal with mattes referred to it. It cannot go beyond the terms of reference except that the questions which are incidental to the dispute and those, which go to the root of the matter.
This Court, after going through the terms of reference, has found that the dispute does not pertain to a declaration about camouflage and sham transaction by taking work from the workmen and hence the document which is now being sought for consideration by this Court under Article 226 of the Constitution of India that too under the jurisdiction of review, would 7 not be required to be seen since the same is altogether different from the context of the terms of reference.
The other grounds raised in these two interlocutory applications are also not fit to be allowed for the reason that even the Hon'ble Apex Court in the case of Steel Authority of India Ltd. And Others Vs. National Union Waterfront Workers and Others reported in (2001) 7 SCC 1, has decided the ratio about the power of adjudication with respect to a declaration of camouflage and sham to the Industrial Adjudicator, as would be evident from paragraph 126 thereof which reads hereunder as :-
"126. We have used the expression "industrial adjudicator" by design as determination of the questions aforementioned requires inquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to judicial review."
Therefore, this Court is of the view that the subject which was not before the tribunal cannot be allowed to be agitated before this Court, that too, in review.
6. In view of the discussions made hereinabove, the relief sought for in these two interlocutory applications cannot be allowed. Accordingly, both the interlocutory applications stand dismissed.
C.Rev. No. 85 of 2012 and C.Rev. No. 86 of 2012
7. Both the review petitions arise out of the order passed by the Division Bench of this Court in intra court appeal being L.P.A. No.33 of 2007 with L.P.A. No.55 of 2007 disposed of on 24.11.2011. 8
8. Both the review petitions have been heard together and are being disposed of by this common order.
9. The case has got chequered history. The workmen working under the Management of Sudamdih Colliery of M/s BCCL, Dhanbad have been denied employment, against which, reference has been made which have been quoted hereinabove.
The Central Government Industrial Tribunal vide common Award dated 16.01.1992 disposed of both the reference cases directing the Management to reinstate the workmen with 75 per cent back wages and passed the following direction in Reference Case no.32 of 1989. The operative part of the order is quoted hereinbelow:-
"The action of the management of Sudamdih Colliery of M/s BCCL in denying employment to Shri Karma Rout and 21 others, as mentioned above, with effect from 09/07/1977 is not justified. The Management is directed to reinstate them in service within one month from the date of publication of the awards and to pay them wages as per N.C.W.A. and 75% of back wages from the date of reference (16.03.1989) till they are allowed to resume duty."
By the said Award the following direction was made by the Central Government Industrial Tribunal in Reference Case No.35/1989:-
"The action of the Management of Sudamdih Area of M/s BCCL in denying employment to S/Shri Sapan Banerjee, Karan Sahi and Shanti Thakur is not justified. The Management is directed to reinstate them in service within one month from the date of publication of the award and to pay them wages as per N.C.W.A. and 75% back wages from the date of reference (20.03.1989) till they are allowed to resume their duties."
The workmen were directed to report for duties within one month 9 from the date of publication of the Award.
The common Award of both the aforesaid reference cases were challenged before this Court under its writ jurisdiction by filing two separate writ applications being CWJC No.856/1993(R) (arising out of Reference Case No.32/1989) and CWJC No.859/1993(R) (arising out of Reference Case No.35/1989), by the Management of Sudamdih Colliery.
This Court vide common judgment dated 10.08.1998 dismissed both the writ applications and the Management was directed to reinstate the workmen covered by Reference Case Nos.32/1989 and 35/1989 within six weeks from the date of the judgment and to pay the back wages as directed in the said judgment.
The management preferred two Letters Patent Appeal against the said judgment of the learned Single Judge being L.P.A. Nos.424/1998 and 425/1998. The Division Bench of this Court, by a common judgment dated 17.05.1999 dismissed both the letters patent appeals.
The management, thereafter, filed two Special Leave Petitions before the Hon'ble Supreme Court. The Special Leave was granted and cases were registered as Civil Appeal No.1902/2000 and Civil Appeal No.1903/2000.
The aforesaid appeals have been decided by the Hon'ble Supreme Court vide its judgment dated 16.01.2006, wherein it has been ordered as hereunder:-
"It appears that the Tribunal and the High Court did not consider the factual position in the background of the legal position as noted above. Of course at the point of time when the matter was decided Air India's case (supra) held the field. But, in view of the pronouncement of the Constitution Bench in Steel Authority's case 10 (supra) the matter needs to be re-examined by the High Court. Though it was submitted by Mr. Upadhyay that there is a finding about the appellant having adopted a camouflage, there is no definite finding by the Tribunal and/or the High Court in this regard. Mere reference to certain observations of this Court would not suffice without examination of the factual position. Additionally, the effect of omitting the names of the claimants whose cause was being espoused by the Union has not been considered by the High Court in the proper perspective. Similar is the position regarding purported settlement. In these peculiar circumstances, it would be appropriate for the learned Single Judge of the High Court to re-consider the matter. Accordingly, the matter is remitted to the high Court so that learned Single Judge can consider the matter afresh taking into account the principles set out above and consider their applicability to the background facts on the issues raised by the appellant. As the matter is pending since long, learned Chief Justice of the High Court is requested to allot the matter to a learned Single Judge who shall make an effort to dispose of the matter afresh within a period of six months from the date the matter is allotted by the learned Chief Justice.
The appeals are allowed to the aforesaid extent without any order as to costs."
In pursuance to the order of remand, both the writ petitions were heard afresh and were disposed of vide judgment delivered on 20.12.2006 setting aside the Award passed by the Industrial Tribunal in Reference Case Nos.32/1989 and 35/1989.
The workmen preferred intra court appeals against the judgment dated 20.12.2006 passed in CWJC Nos.856/1993(R) and 859/1993(R) which was decided vide judgment dated 24.11.2011 by dismissing the appeals.
The workmen had preferred Special Leave to Appeal before the 11 Hon'ble Supreme Court being Special to Appeal (Civil) Nos.8788- 8799/2012 which was dismissed as not pressed, however, with the liberty to prefer a review, which is being reproduced hereinbelow:-
"Learned counsel for the petitioner seeks leave to withdraw the special leave petitions, stating that the petitioner would like to file a review application before the High Court. Accordingly, the special leave petitions are dismissed as not pressed. It goes without saying that we have not expressed any opinion on the merits of the submissions made by the learned counsel insofar as the review of the impugned order is concerned. As and when the review application is filed, it will be considered on its own merits."
The present review applications have been filed by the workmen in pursuance to the order passed by the Hon'ble Supreme Court in Special Leave to Appeal (Civil) Nos.8788-8789/2012.
The grounds for filing review as has been reflected from the memo of review petitions are that the Division Bench of this Court while dismissing the appeals being L.P.A. Nos.33 of 2007 and 55 of 2007 did not take into consideration the fact that even if it is held that the settlement set up by the respondent is illegal and the delay is not fatal, in peculiar facts and circumstances of the case and employment through contractor may be camouflage, even then the basic finding which could have been the only basis for relief to the claimants, had not been recorded by the learned Tribunal and the learned Single Judge.
The consideration about the works which were being rendered by the workmen which was for the Principal Employer i.e, the BCCL through the Contractor namely one Bhagwan Singh but the same has not been taken into 12 consideration by not examining the fact about camouflage and sham transaction.
10. Mr. Kalyan Roy, learned counsel appearing for the workmen/review petitioner has submitted vehemently that the issue of camouflage and sham transaction has not been decided either by the learned Single Judge or by the Division Bench in Intra Court Appeal and as such, the issue of remand by the judgment of the Hon'ble Supreme Court dated 16.01.2006 passed in Civil Appeal Nos.1902 of 2000 and 1903 of 2000, has not been appreciated properly and hence, the present review petitions have been filed.
Learned counsel for the petitioner has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Secretary, H.S.E.B. Vrs. Suresh & Ors., reported in (1993) 3 SCC 601.
11. Mr. Anoop Kumar Mehta, learned counsel appearing for the respondent-BCCL has submitted that the day when reference was made at that time, the judgment of the Hon'ble Supreme Court in the case of Air India Statutory Corporation Vrs. United Labour Union and Ors., reported in (1997) 9 SCC 377, was a good law but after the judgment by the Constitution Bench of the Hon'ble Supreme Court in the case of Steel Authority of India Ltd. & Ors. Vrs. National Union Waterfront Workers & Ors., reported in (2001) 7 SCC 1, overruling the ratio laid down in Air India Statutory Corporation Vrs. United Labour Union and Ors. (supra) by holding that there cannot be any ipso-facto reinstatement or absorption or regularization unless the fact about taking the work through the Contractor, if decided by the Industrial Adjudicator to be camouflage 13 and sham transaction. Therefore upon consideration of the appeals preferred before the Hon'ble Supreme Court after the judgment passed by the learned Single Judge in CWJC Nos.856/1993(R) and 859/1993(R) which were affirmed by the order passed in L.P.A. Nos.424/1998 and 425/1998, after taking into consideration the judgment pronounced by the Hon'ble Supreme Court in the case of Steel Authority of India Ltd. & Ors. Vrs. National Union Waterfront Workers & Ors. (supra), the matters were remitted back to be examined afresh.
Pursuant thereto, the learned Single Judge as well as the Division Bench of this Court, have examined the facts and specific finding has been recorded to the effect that the plea of camouflage was not even pleaded.
Further, this Court while declining to interfere with the order passed by the learned Single in CWJC Nos.856/1993(R) and 859/1993(R) has considered the aforesaid aspect of the matter which has been assailed before the Hon'ble Supreme Court by the review petitioner, however, leave was sought to withdraw the Special Leave petitions by not pressing the same, with the liberty to file a review application before the High Court for obvious reasons. The Hon'ble Supreme Court has been pleased to observe that the review would be decided on its own merits.
It has been contended that power of review since is very limited, it cannot be entertained like an appeal.
Learned counsel for the petitioners has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Director, Steel Authority of India Limited Vrs. Ispat Khadan Janta Mazdoor Union, 14 reported in (2019) 7 SCC 440.
12. This Court has heard the learned counsel for the parties at length.
13. Since this Court is considering the review application, therefore, it requires to refer herein the power and scope of review.
It is not in dispute that the power of review is the creation of a statute. It must be conferred by law either specifically or by necessary implication. Review is not an appeal in disguise. However, at the same time, it cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, then certainly this can be a good ground for review, but the mere fact that different views on the same subject are possible, cannot be said to be a ground to review the earlier judgment passed by a Court of Law.
The Hon'ble Apex Court has considered the width and scope of power of review in Moran Mar Basselios Catholicos and Anr. Vrs. Most Rev. Mar Poulose Athanasius and Ors., reported in AIR 1954 SC 526 particularly at paragraph-32 which read as hereunder:-
"32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasis that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XL VII, Rule I of our 15 Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason."
In the case of Shivdev Singh Vrs. State of Punjab, reported in AIR 1963 SC 1909, in a review petition filed under Order 47, Rule 1 C.P.C., the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court's power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon'ble Apex Court in the case of Sow. Chandra Kanta and Anr. Vrs. Sheik Habib, reported in AIR 1975 SC 1500 wherein it has been held that:-
"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient."
14. It is the settled proposition as has been settled by Hon'ble Apex Court in the judgment discussed hereinabove that the scope of review can only be done in case of discovery of new and important matter or evidence which, 16 after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, mistake or error apparent on the face of the record and for any other sufficient reason and in the light of this legal position the fact of these review petitions need to be appreciated.
15. This Court is to see the present context "as to whether the review petitioner has been able to make out a case for review of the order passed by this Court."
16. The admitted position herein is that the Contract Labour (Regulation and Abolition) Act, 1970 has been enacted with the object and intent to abolish the Contract Labour vis.-a-viz. to regulate it.
To achieve the aforesaid object, certain statutory provision has been enacted i.e., registration of certain establishments as provided under Section 7, the effect of non-registration as provided under Section 9, prohibition of employment of contract labour as provided under Section 10 and licensing of contractors as provided under Section 12.
The reference of these provisions are being made since the same is necessary for the present.
17. It is evident from the provision of Section 7 which requires such registration to certain establishments under which the Registering Authority on completion of the formalities has provided therein to register the establishment and issue to the principal employer of the establishment, a certificate of registration containing such particulars as may be prescribed.
Under Section 8, power to revoke registration has been enacted to the 17 Registering Officer, if he satisfied with the registration of any establishment has been obtained by misrepresentation or suppression of any material fact, but after giving opportunity of hearing to the principal employer of the establishment.
Section 10 contains the provision of prohibition of employment of contract labour for which, appropriate Government is required to issue notification in the Official Gazette but before issuing any notification under sub-section (1), appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment.
Section 12 contains the provision to provide licensing of contractors, in absence thereof, the contractor cannot be allowed to execute any work through contract labour.
18. The Hon'ble Supreme Court has considered the effect of the Contract Labour (Regulation and Abolition) Act, 1970 in the case of Air India Statutory Corporation Vrs. United Labour Union and Ors. (supra), wherein it was held that on abolition of contract labour system from any establishment under Section 10 of the Act by the appropriate Government, the logical and legitimate consequences were that the erstwhile regulated contract labourer covered to be treated as direct employee of the employer on whose establishment they were earlier working and they would be entitled to be treated as regular employees from the day on which the contract labour system in the establishment for the work which they were doing gets abolished.
19. Ratio laid down by the Hon'ble Apex Court in the case of AIR India 18 Statutory Corporation Vrs. United Labour Union and Ors. (supra), has been examined by the Constitution Bench of the Hon'ble Supreme Court in the case of Steel Authority of India Limited (supra), wherein it was held that there is no provision under the CLRA Act whether expressly or by necessary implication which provides for automatic absorption of contract labour on issuance of a notification by the appropriate Government under Section 10(1), prohibiting employment of contract labour in any process, operation or other work in any other establishment and overruled the judgment in AIR India Statutory Corporation Vrs. United Labour Union and Ors. (supra) making it clear that neither Section 10 nor any other provision in the CLRA Act provides for automatic absorption of contract labour on issuance of a notification by the appropriate Government under Section 10(1) of the CLRA Act.
20. According to the case of the present workmen, they were working under the Management but were denied employment from 09.07.1977 which was the subject matter of reference and dispute and answered in favour of the workmen by holding the workmen were entitled for absorption treating them the workmen of the principal employer i.e., the Management taking into the consideration the provision of Sections 7, 9 and 12 of the Contract Labour (Regulation and Abolition) Act, 1970.
21. In the initial stage the same has been affirmed by this Court by the learned Single Judge and in the Intra Court Appeal but in the meanwhile, since the Hon'ble Apex Court by its Constitution Bench has overruled the judgment pronounced in the case of AIR India Statutory Corporation Vrs. 19 United Labour Union and Ors. (supra), therefore, remitted the matter for fresh hearing on the basis of the principle laid down in the SAIL case which is to be decided by the Industrial Adjudicator in view of the ratio laid down at paragraph-125 and 126 of the said judgment which reads as hereunder:-
"125. The upshot of the above discussion is outlined thus:
(1) (a) Before January 28, 1986, the determination of the question whether Central Government or the State Government, is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression appropriate Government as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry; or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance company? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government;
(b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in clause (a) of Section 2 of the Industrial Disputes Act; if (i) the concerned Central Government company/undertaking or any undertaking is included therein eo nomine, or (ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by railway company; or (c) by specified controlled industry, then the Central Government will be the appropriate Government otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government.
(2) (a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government : (1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and;
(2) having regard to
(i) conditions of work and benefits provided for the contract labour in the establishment in question; and
(ii) other relevant factors including those mentioned in sub-section (2) of 20 Section 10;
(b) inasmuch as the impugned notification issued by the Central Government on December 9, 1976 does not satisfy the afore-said requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any tribunal or court including a High Court if it has otherwise attained finality and/or it has been implemented.
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment;
(4) We over-rule the judgment of this court in Air Indias case (supra) prospectively and declare that any direction issued by any industrial adjudicator/any court including High Court, for absorption of contract labour following the judgment in Air India's case (supra), shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.21
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
126. We have used the expression industrial adjudicator by design as determination of the questions afore-mentioned requires inquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be industrial tribunal/court whose determination will be amenable to judicial review."
22. Learned Single Judge on its remand has considered the entire aspect of the matter afresh and after close scrutiny of the evidence recorded by the Industrial Tribunal has come to the conclusive finding that the plea of camouflage has not been pleaded hence no finding on the same issue. The learned Single Judge has examined the evidence and after going through the evidence of MW-1 to MW-4 as well as the documents, marked as Ext. M-1 to M-9/1 as also the statement of the witnesses, examined on behalf of the workmen, i.e., WW-1 to WW-3 and the documents adduced in evidence on behalf of the workmen as Ext. W-1 to W-6, from which, it was established that the contractor was engaged in the year 1976-1977 and thereafter, his engagement was discontinued and no workman was engaged in permanent and prohibited category of job.
22
It has further been found by the learned Single Judge, while reversing the finding recorded by the Industrial Tribunal in CWJC Nos.856/1993(R) and 859/1993(R), that after the workmen were stopped from work from 09.07.1977, discussions were held and then an agreement in the form of record note of discussions being Ext. M-3 dated 13.10.1978 and Ext. M-4 dated 10.04.1980 was prepared. As such, it is apparent that the said agreement was arrived at in the year 1980 but the dispute was raised and referred after nine long years i.e., in the year 1989 or even after 12 years from the date the concerned workmen were stopped from work on 09.07.1977 and as such, the conclusive findings have been arrived at that the Tribunal has travelled beyond the record.
Further, no specific plea about the camouflage has been agitated before the Industrial Tribunal.
The Division Bench of this Court has considered the entire aspect of the matter in detail while dealing with the entire aspects of the matter, and has gone one step forward by making difference of claim sought for on the basis of rendering 240 days of continuous service.
It is not in dispute that the regular discharge of continuous service of 240 days is to be taken into consideration in a case of Section 25-F of the Industrial Disputes Act, 1947 i.e., the consequence of the order of retrenchment if the workmen have discharged the continuous duty of 240 days and if any dispute would be raised, the consideration of continuous period of service as provided under Section 25-B of the Industrial Disputes Act, is to be considered but so far as the question of 23 regularization/absorption in pursuance to the provision of the Contract Labour (Regulation and Abolition) Act, 1970, the primary thing is required to be seen is that if in spite of issuance of prohibitory notice under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, if any work having perennial in nature, if taken through the Contractor, the same if established as camouflage and sham transaction, the conclusion would be the order of absorption, irrespective of period of service whether it is 240 days, more than that or less than it.
Therefore, even if review petitioners would have been found to had rendered continuous service of 240 days, it will be of no aid as even if the conclusion would be arrived at of discharging service of 240 days, there cannot be regularization/absorption unless it is established that the work taken through contractor was camouflage and sham one as has been held in the case of Steel Authority of India Limited (supra).
23. The learned Single Judge as also the Division Bench of this Court has considered the entire aspect of the matter in detail and thereafter has come to conclusive finding that in the absence of any pleading about camouflage and sham transaction, there cannot be any automatic absorption after the judgment rendered by the Hon'ble Apex Court in the Steel Authority of India Limited (supra) which has overruled the ratio laid down in the case of Air India Statutory Corporation (supra).
24. The Hon'ble Apex Court has again considered the issue in the judgment rendered in the case of Director, Steel Authority of India Limited Vrs. Ispat Khadan Janta Mazdoor Union (supra), wherein at 24 paragraph-44, 46, 47 and 48 it has been laid down which reads as hereunder:-
"44. In our considered view, the finding recorded by the High Court under the impugned judgment is not sustainable for the reason that effect of the prohibition notification under Section 10(1) of CLRA Act has been settled by the Constitution Bench of this Court in Steel Authority of India Ltd. and Others (supra) and this Court has made it clear that neither Section 10 nor any provision in the CLRA Act provides for automatic absorption of contract labour on issuance of prohibition notification by the appropriate Government under Section 10(1) of the CLRA Act and the Tribunal in the first place being the fact finding authority has extensively examined the documentary and oral evidence which came on record and also the relationship of principal employer, contractor and contract labour and the fact that their services were terminated by the contractor after the contract labour proceeded on a strike in April 1996.
46. To test it further, apart from the statutory compliance which every principal establishment is under an obligation to comply with, its non−compliance or breach may at best entail in penal consequences which is always for the safety and security of the employee/workmen which has been hired for discharge of the nature of job in a particular establishment. The exposition of law has been further considered in International Airport Authority of India case (supra) where the contract was to supply of labour and necessary labour was supplied by the contractor who worked under the directions, supervision and control of the principal employer, that in itself will not in any manner construe the contract entered between the contractor and contract labour to be sham and bogus per se.
47. Thus, in our considered view, if the scheme of the CLRA Act and other legislative enactments which the principal establishment has to comply with under the mandate of law and taking note of the oral and documentary evidence which came on record, the finding which has been recorded by the CGIT under its award dated 16th September, 2009 in absence of the finding of fact recorded being perverse or being of no evidence and even if there are two views which could possibly be arrived at, the view expressed by the Tribunal ordinarily was not open to be interfered with by the High Court under its limited scope of judicial review under Article 226/227 of the Constitution of India and this exposition has been settled by this Court in its various judicial precedents.25
48. It is true that judgment in Dena Nath and Others (supra) is in reference to failure of compliance of Section 7 and 12 and not in reference to Section 10(1) of the CLRA Act but if we look into the scheme of CLRA Act which is a complete code in itself, non−compliance or violation or breach of the provisions of the CLRA Act, it result into penal consequences as has been referred to in Sections 23 to 25 of the Act and there is no provision which would entail any other consequence other than provided under Section 23 to
25 of the Act."
The instant review petitions have been filed mainly to consider after calling upon the relevant records as per the relief sought for in the interlocutory applications.
This Court while dealing with the interlocutory applications has already rejected the plea to call upon the relevant documents by making elaborate discussions as above.
This Court, on the basis of the elaborate discussion made above and scope of review, has come to following conclusions :-
(i) The consideration by the adjudicator depends upon the terms of reference. The tribunal cannot be allowed to travel beyond the terms of reference. If any issue is not subject matter of dispute, the same cannot be expected to be answered.
Herein, the terms of reference is not for absorption by declaring the engagement through contractor as camouflage and sham and hence the documents upon which petitioners now sought to rely is quite foreign to such issue.
Further, the subject matter of review is only to test the transaction as camouflage and sham, but when it is not the terms of reference, the same cannot be examined by this Court 26 at this stage under Article 226 of the Constitution of India.
(ii) The documents i.e. Attendance Register, even though a proof of discharge of duty for a period of 240 days, cannot of any aid for the reason that unless there is determination by the Industrial Adjudicator about camouflage and sham, mere on account of period of service, there cannot be absorption of the workmen.
(iii) It is settled position of law that in review no new plea can be allowed to be agitated that too, herein, the plea of camouflage and sham has never been an issue and if it will be allowed, it will nothing but travelling beyond the terms of reference. The learned Single Judge has discussed this aspect of the matter and has found that no such plea was agitated, as would be apparent from the extract of the order as referred herein below:-
"21. In view of the direction of the Supreme Court, I have examined and scrutinized the evidences led by the parties before the Tribunal. After going through the evidences of MW-1 to MW-4 as well as the documents, which were marked as Ext. M-1 to M-9/1 as also the statement of the witnesses, examined on behalf of the workmen, i.e. WW-1 to WW-3 and the documents adduced in evidence on behalf of the workmen as Ext. W-1 to W-6, I find from he evidence that it was established that the contractor was engaged in the year 1976-77 and, thereafter, his engagement was discontinued and no workman was engaged in permanent and prohibited category of job. From the materials on record, I find that the plea of camouflage was not even specifically pleaded nor the learned tribunal gave any specific finding on the said point on the basis of the materials of record."
Under the scope of review as has been dealt with hereinabove, there 27 cannot be a fresh consideration of matter after calling upon fresh documents, if not agitated before the Industrial Adjudicator. In the present factual aspect, the plea of camouflage and sham has never been agitated by the review petitioners and the occasion has not come for that for the reason that the terms of reference was altogether different as has been discussed in detail while dealing with the interlocutory applications, as above and if the power of review is exercised at this stage by this Court, the same will be nothing but a futile exercise as in the absence of any reference to that effect, there cannot be any adjudication even by the Industrial Adjudicator.
The review petitioners are seeking indulgence of this Court under the power of review to review the order passed by the Division Bench of this Court on the basis of absolutely fresh documents and the plea which is beyond the terms of reference.
25. This Court, in view of the detailed discussion made hereinabove and taking into consideration the submission made on behalf of the learned counsel for the writ petitioner as also the ground of review, is of the view that the grounds upon which the order passed by the Division Bench of this Court is sought to be reviewed, are not falling under the principle to exercise the power of review as has been laid down by the Hon'ble Apex Court in the case of Moran Mar Basselios Catholicos and Anr. Vrs. Most Rev. Mar Poulose Athanasius and Ors. (supra), wherein it has been laid down that power of review as per the provision as contained under Order XL VII, Rule I of the C.P.C., 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language 28 used therein.
It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.
The same thing has been reiterated again by the Hon'ble Apex Court in the judgment rendered in the cases of Shivdev Singh Vrs. State of Punjab (supra) and Sow. Chandra Kanta and Anr. Vrs. Sheik Habib (supra).
26. Before parting with the order, this Court requires to discuss about the judgment upon which reliance has been placed by the learned counsel for review petitioners.
The judgment referred in the case of Secretary, H.S.E.B. Vrs. Suresh & Ors. (Supra) is not applicable on fact since in that case no ratio has been laid down and further the deposition of A.K. Choudhary could not disclose whether the Contractor was licensed Contractor or not. In that pretext an opportunity was provided to produce certain documents. However, in the case in hand, no such statement in the deposition was made nor was such point raised before the Industrial Tribunal rather the specific case therein is that from 09.07.1977, the management had stopped taking work from the workmen and the said fact has not been rebutted, hence in the present set of facts, the aforesaid judgment would not be applicable. 29
27. This Court has found no plausible ground for exercising the power of review.
28. In the result, both the review applications stand dismissed.
29. Pending I.As also stand disposed of.
I agree (Dr. Ravi Ranjan, C.J.)
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad,J.)
Rohit/Birendra
N.A.F.R.