Orissa High Court
Mahanadi Coalfields Limited vs General Secretary Orissa Collieries ... on 2 May, 2017
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.10744 of 2012
In the matter of an application under Articles 226 and 227 of the Constitution
of India.
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Mahanadi Coalfields Limited ...... Petitioner
- Versus-
General Secretary, Orissa Collieries Mazdoor
Sangha and another and another ...... Opposite Parties
For Petitioner : M/s Narendra Ku.Mishra, T.Pattnaik,
B.Mohanty, A.Mishra and N.K.Mishra
For Opp.Parties : Mr. Sanjay Ku.Mishra and
Sasanka Sekhar Sahoo( for O.P.No.1)
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PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE SHRI JUSTICE S.N.PRASAD
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Date of hearing and judgment: 2.5.2017
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S.N.Prasad,J. This writ petition is under Articles 226 and 227 of the
Constitution of India having been preferred by the Mahanadi Coalfields Limited
through its General Manager, Jagannath Area, District Angul wherein the
award dated 17.2.2012 passed by the Central Government Industrial Tribunal-
cum-Labour Court, Bhubaneswar in Industrial Dispute Case No.187 of 2001
is under challenge whereby and where under the Reference has been answered
in favour of the opposite party no.1, Sangha, representing the workmen.
2. Brief facts of the case is that the opposite party no.1/Sangha
representing the workmen have raised the dispute for 190 workmen who are
contract labourers having been employed by the officers of the Mahanadi
2
Coalfields Limited by a designed process, their names were lent, without fixity,
to some so-called contractors who are all fleeting and dubious
intermediaries. These labourers are engaged continuously for years, some
of them for more than a decade past, all discharging permanent and perennial
nature of work and as such these contractor labourers are engaged which
constitute an integral part of the industry and are permanent and perennial
being indispensible operations of the mining establishment of the MCL. The
labour supply contractors are in fact no contractors in reality, but are mere
name-lenders and paper products to conceal reality. They just come and go
as MCL desires and always without the knowledge of these labourers. They
are paid their paltry wages and all is being done with sinister designs for
exploitation which amounts to serious unfair labour practice. The
management of MCL has been paying wages even at rates less than the
minimum wage rates notified by the Government of India despite doing the
same and similar nature of work and has been discriminately treating them in
matters of leave, holidays, safety equipments, overtime wages, bonus, medical
facilities, etc. These labourers are engaged in the production process,
maintenance activities and all other incidental operations which form essential
part of the total industrial activities. Having all the necessary qualifications
and fitness as required of the regular departmental workers, there can be no
justification to undermine them as contract labourers by mere inter-position of
vague or name shake intermediaries styling theses contractors. In fact on
completion of 240 days of continuous work each of the disputant workmen
ought to have been made regular, but the management of MCL has been
showing them as contract labour. Therefore, prayer has been made to
regularize them from the date, each of the disputant workmen completed one
year of continuous service with grant of differential wage benefits in terms of
money and fixation of their inter-se seniority.
3. While on the other hand, case of the management, as per the
written statement, is that the claim for regularization of contract labourer is
untenable as the claim is not against any sanctioned/permanent vacancy.
Mere work for some days under a contract does not entitle a contract labourer
for regularization. The order of reference is not maintainable, both on facts
3
and law. The order of reference does not specify the names of concerned
contract labourers sought to be regularized, the nature of work alleged to be
permanent and perennial or the names of the contractor, hence the
reference is not only defective, bad and vague, but also not maintainable. The
opposite party no.1-Union has referred to the alleged list containing names of
190 persons sought to be regularized in paragraph-4 of the statement of claim,
same was neither part of the order of reference nor was issued under the seal
and signature of the Central Government.
Further plea is that the contract labourers are not workmen
within the meaning of Section 2(s) of the Industrial Disputes Act,1947 nor the
alleged dispute is an industrial dispute within the meaning of Section 2(k) of
the Industrial Disputes Act, hence the reference at the instance of the
registered trade union in respect of non-workmen/non-employees is not
maintainable. In the present reference, two areas namely Jagannath Area and
Kalinga Area of Talcher Coalfields are involved. The Jagannath Area comprises
of Jagannath Colliery, Ananta Colliery and Balanada Colliery. The Kalinga
Area comprises of Kalinga Open Cast Project and Bharatpur Open Cast Project.
It has also been denied that the opposite party no.1-Union is the largest single
Trade Union operating in different collieries of MCL.
It is further case of the management is that in order to save
public money and wastage of manpower, the jobs whcih are temporary in
nature are done through contractors after obtaining registration and license
under the relevant Act. The allegations that the works which are permanent
and perennial in nature, are done through engagement of contractors/contract
labourers are incorrect. It is further observed that under the Contract Labour
(Regulation and Abolition) Act,1970, hereinafter referred to as „the Act,1970‟,
provisions have been made for abolition of contract labour where the jobs are
of perennial nature, but the jobs in which the workmen are engaged are
temporary and intermittent in nature.
4. In the backdrop of these factual position, the opposite partyno.1-
Union representing its members have raised their grievances before the
competent authority and the competent authority after considering the dispute
4
has convened a meeting for its conciliation, the conciliation having failed, the
failure report has been submitted which ultimately culminated into
reference, being referred to the Central Government Industrial
Tribunal-cum-Labour Court, Bhubaneswar for its adjudication. The reference
is-
"Whether the demand of the Union for regularization of contract labour
engaged in permanent and perennial nature of work(as per list) is
justified? If so, what relief the workmen concerned are entitled to?
Labour Court, Bhubaneswar after hearing the parties had framed two
issues i.e.
(i) Whether the reference is maintainable?
(ii) Whether the demand of the Union for regularization of contract
labour engaged in permanent and perennial nature of work as per
list is justified ? If so, what relief the workmen concerned are
entitled to?
Labour Court, Bhubaneswar has answered the reference in
favour of the workmen with a direction to implement the award within three
months from the date of publication of the same which is under challenge in
this writ petition.
5. The management-petitioner herein challenged the award on the
grounds that
(i) the Labour Court has not appreciated the fact in right perspective
by not dealing with the entire aspects of the matter mainly the fact related to
nature of work.
(ii) The Labour Court has not taken into consideration regarding
correctness of the list of workmen which are being prepared by the opposite
party no.1-Union.
(iii) The Labour Court has not appreciated the fact that there is no
master and servant relationship in between the members of the opposite party
5
no.1-Union and the management, rather they are engaged by licensed
contractors.
6. While on the other hand, the learned counsel representing
the opposite party no.1-Union has vehemently opposed the submission
advanced on behalf the management by submitting that the Labour Court has
passed award taking into consideration the entire aspects of the matter in its
entirety. The Labour Court, while examining the issue regarding master and
servant relationship, has gone into various documents and then has come to
specific finding that the contractors who are said to be employer of the
workmen are in fact no contractors in reality but are mere name lender and
paper products to conceal the reality. The contractors have no physical
appearance on work much less any control. The fact is that the workmen are
directly under the supervision and control of the management discharging
their mining work regularly. It has been submitted that the work in which the
workmen are engaged is permanent and perennial in nature but they are
subjected to discrimination in comparison to that of the regular employees
working under the management, subjecting to unfair labour practice and
exploitation.
It has been submitted that the provisions of the Act,1970 has
grossly been violated which has been taken into consideration by the Labour
Court and while dealing with the said provision, the award has been passed.
So far as correctness of list of 190 labourers is concerned, it has
been submitted that the said reference is along with numbers of 190 workers
which was the subject matter of the writ petition before this Court being
O.J.C.No.16148 of 2001 and this Court while dealing with the entire issue has
dismissed the writ petition and the Labour Court is directed to answer the
reference.
He further submits that grievance regarding correctness of the
list of 190 workers has specifically been sought to be quashed in separate writ
petition being W.P.(C) No.829 of 2003 but this Court has declined to interfere
with the same by passing analogous order along with O.J.C.No.16148 of 2001
6
and as such now this point is not available with the management to question
the legality and propriety of the members of the workers. Learned counsel
for the opposite party no.1-Union on the strength of the prayer has
submitted that the writ petition is fit to be dismissed.
7. We have heard learned counsel for the parties and perused the
documents available on record.
8. The fact which is not in dispute in this case is that the dispute
arose between the management of the MCL and the General Secretary, Orissa
Colliary Mazdoor Sangha which represents 190 workers who are working on
contract basis under the Management in operational mining work of
Jagannath and Kalinga areas of Mahanadi Coalfields Limited. The Sangha-
opposite party no.1 herein has raised a dispute for regularization of their
members of 190 in numbers, the matter went before the conciliating authority,
conciliation having failed, failure report has been submitted and the
Government acting upon the failure report, has made reference as stated
above.
9. The management has approached this in O.J.C.No.16148 of 2001
praying therein to quash the terms of reference dated 31.8.1998 and another
writ petition has been filed being W.P.(C)No.829 of 2003 wherein against the
terms of reference, an order has been passed by the Labour Court dated
14.1.2003wherein the issue regarding list of workers sent by the Government of India(Ministry of Labour) can be accepted and the Labour Court has rejected the objection of the management with respect to the list containing the numbers of workers, both the writ petitions have been disposed of by common judgment dated 20.6.2005, a coordinate Bench of this Court has dismissed the writ petition being W.P.(C) No.829 of 2005 wherein list containing numbers of workmen have been quashed as well also the writ petition being O.J.C.No.16148 of 2001 quashing the reference has been dismissed.
The Labour Court has proceeded thereafter to adjudicate the issue and to answer the reference, the Labour Court has examined the matter in detail. The Labour Court while answering the issue Nos.1 and 2 has gone 7 into the stand of the parties and after appreciating the same, specific finding has been given to the effect that the list of 190 workers as a whole is taken into consideration for their regularization. The Labour Court has appreciated the evidence of the witnesses and came to conclusion that the workmen are discharging their duties, nature of which is permanent and perennial. The Labour Court has also came to finding that the management has not filed any document to show its stand that its establishment has been registered under section 7 of the Act,1970 to employ contract labour through licensed contractors as per section 12 of the said Act. The Labour Court has scrutinized the tender papers filed by the management as Exts.J to Ext.M which, according to the Labour Court, has not proved/justified engagement of 190 persons or more than 20 persons at a time for perennial nature of work through contractor and it has been observed that these papers might have been after thought. The Labour Court has also taken into consideration the explanation (i) of sub-section(5) of Section 1 of the Act,1970 that the work performed in an establishment shall not be deemed to be of an intermittent nature and if it was performed for more than 120 days in the preceding 12 months and according the Labour Court has came to definite finding that the workmen had worked or having been working for years in the management company.
The Labour Court thereafter gone through the judgment rendered by the Apex Court in the case of Ram Singh and others -vs- Union Territory, Chandigarh and others, 2004 SCC (L&S)14 wherein the Hon‟ble Apex Court has been pleased to observe that whether a particular relationship between employer and employee is genuine or a camouflage through the mode of a contractor, is essentially a question of fact to be determined on the basis of the features of the relationship, the written terms of employment, if any, and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. The Labour Court has also gone through the judgment rendered by the Apex Court in the case of Steel Authority of India Limited and others, etc. -vs- National Union 8 Water Front Workers and others, etc., AIR 2001 SC 3527 wherein the Hon‟ble Apex Court held that "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 regularize the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para-6 hereunder."
The Labour Court on the basis of the statutory provisions of the judgments rendered by the Apex Court as referred to above, has found that the demand of the opposite party no.1-Union for regularization of contract labour engaged in permanent and perennial nature of work as per the list is genuine and accordingly passed the order.
10. We have examined the provisions as contained in Section 7 of the Act,1970 which provides hereunder:
"7. Registration of certain establishments-
(1) Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate government may, by notification in the Official Gazette, fix in this behalf with respect to establishment generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment:
Provided that the registering officer may entertain any such application for registration after expiry of the period fixed in this behalf, if the registering officer is satisfied that the applicant was prevented by sufficient cause from making the application in time.
(2) If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the establishment a certificate of registration containing such particulars as may be prescribed."
It is evident from the statutory provision as referred to above that every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to the establishments generally or with respect to any class of them, make an application to the registering officer in 9 the prescribed manner for registration of the establishment. Section 12 of the Act,1970 provides provision which is being quoted hereunder:
"12. Licensing of contractors-
(1) With effect from such date as the appropriate government may, by notification in the Official Gazette, appoint no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a license issued in that behalf by the licensing officer.
(2) Subject to the provisions of this Act, a license under sub-section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate government may deem fit to impose in accordance with the rules, if any, made under section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed."
The provisions as contained in Section 12 of the Act,1970 provides provision that the appropriate government may, by notification in the Official Gazette, appoint no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a license issued in that behalf by the licensing officer.
11. It is settled that in violation of Sections 7 and 12 of the Act,1970 if it is found that there is no registration of the establishment under section 7 of the Act,1970 or licenced with the contractors under section 12 of the Act,1970 is there, direction will be issued to the principal employer to treat the contract workers as workers directly employed by the employer.
Reference in this regard may be made to the Hon‟ble Delhi High Court in the case of I.C.M Engineering workers Union -vs- Union of India, (2001)1 Lab. LR 1127, wherein on examination of the statutory provisions and by going through the record, the Labour Court has passed order wherein the Labour Court has came to definite finding that the management has not placed any document or has not brought on record pertaining to registration undergone under section 7 of the licensing of contractors to be done under section 12 of the Act,1970 and in absence thereof the Labour Court has rightly 10 came to conclusion that the workers are working under the principal employer which is the petitioner herein and in order to deprive from the legitimate claim which they are entitled to get under the Act,1970, the plea of their engagements through contractors has been taken before the Labour Court which has been rejected by it while answering the reference in favour of the workmen.
We, after going through the entire records, are of the considered view that the Labour Court has not committed error as has been argued by the learned counsel for the management-petitioner with respect to the fact that the list of workers is not correct, the same has been answered by this Court in W.P.(C) No.829 of 2003, which has not been challenged by the management and also the reference had been denied to be interfered with by this Court while dismissing the writ petition bearing O.J.C.No.16148 of 2001 with direction to the parties to place their cases before the Labour Court and in pursuance thereof, the parties have appeared before it and ultimately the award has been passed, hence the issue regarding quashing of the list of workmen is no more available to the management.
12. The contention raised by the management-petitioner regarding non-appreciating the facts by the Labour Court, we are of the considered view that the Labour Court has considered each and every aspect of the matter in the light of the statutory provisions as contained in Sections 7 and 12 of the Act,1970. Hence, the argument advanced by the management-petitioner is not tenable.
13. The argument of the management that the work which the workmen are performing is not permanent and perennial in nature but the Labour court has answered the same while answering the reference by observing in the award that no document has been placed by the management before it to substantiate it.
Further plea that the workers were/are not working more than the period of 120 days rather records shows that the workmen were working for the years together and no contrary evidence has been produced before it, 11 hence the Labour Court has came to definite finding by observing that the work which the workers are performing is perennial in nature.
The plea of the management that there is no master and servant relationship, the same has also been negatived by the Labour Court on the basis of the evidence placed before it, we on examination of the materials on record, are of the considered that that in view of Sections 7 and 12 of theAct,1970, the plea of the management regarding engagement of labourers through contractors is not sustainable.
14. In view of the settled proposition of law, we are of the considered view that the award passed by the Labour Court needs no interference.
Before parting with the order, we have thought it proper to examine the question of interference by this Court under Article 226 of the Constitution of India. In this regard, reference may be made to the judgment rendered by Hon‟ble Apex Court in the case of Syed Yakoob Vrs. K. S. Radhakrishnan and others, AIR 1964 SC 477 wherein it has been held that the High Court sitting under Article 226 of the Constitution of India may not exercise its power to review the fact finding given by the Tribunal after appreciation of the factual aspect produced before it, otherwise also it will be said that the High Court has acted as appellate court.
The proposition laid down by the Hon‟ble Apex Court in the case of Syed Yakoob (supra) still holds good and in this respect reference may also be made to the judgment rendered by Hon‟ble Apex Court in the case of M/s.Pepsico India Holding Pvt. Ltd. Vrs. Krishna Kant Pandey, (2015) 4 SCC 270 wherein their Lordships while discussing the scope of Article 226 of the Constitution of India in the matter of showing interference with the finding of the Tribunal has been pleased to hold after placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram, (1986) 4 SCC 447 as follows:
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of his Court in Bathutmal Raichand Oswal v.12
Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at p. 1301 of the report as follows: (SCC p. 864, para 7) "The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the ... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."
However, there is no absolute bar in interfering with the finding of the Tribunal/Labour Court by the High Court in exercising of power conferred under Articles 226/227 of the Constitution of India rather it can be interfered with subject to conditions i.e. on ground of a mistake apparent on the face of the record, but we, after going through the finding of the Labour Court, are of the view that there is no mistake apparent on the face of the record warranting interference in exercise of power conferred under Article 226 of the Constitution of India and further no issue has been raised regarding authority of the Labour Court warranting interference by us in exercise of power conferred under Article 227 of the Constitution of India.
1315. In view of the discussions made herein above, we find no merit in the writ petition.
Accordingly, the writ petition stands dismissed.
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S.N.Prasad, J. S.Panda,J.
Orissa High Court, Cuttack,
Dated the 2nd May,2017/Palai