Jharkhand High Court
Bihar Colliery Kamgar Union vs Union Of India & Ors on 15 January, 2010
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 600 of 2002
Bihar Colliery Kamgar Union through its Secretary
Shri D.M. Mukherjee Petitioner
Versus
1. Union of India through the Secretary, Ministry
of Labour, Government of India, New Delhi
2. Presiding Officer, Central Government Industrial
Tribunal No. 1, Dhanbad
3. Employers in relation to the management of Munidih Colliery
of M/s Bharat Coking Coal Limited, Sijus, Dhanbad Respondents
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CORAM: The Hon'ble Mr. Justice D.G.R. Patnaik For the Petitioner: Mr. R.S. Majumdar and Mr. P.A.S. Pati, Advocates For the Respondents: Mr. A.K. Mehta, Advocate
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CAV ORDER
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Reserved on: 05.01.2010 Pronounced on: 15.01.2010
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9. 15. 01.2010 Heard learned counsel for the parties.
2. Challenge in this writ application is to the Award dated 19.10.2001 passed by the Central Government Industrial Tribunal No. 1, Dhanbad in Reference Case No. 141 of 1991, whereby the Tribunal has answered the reference against the workmen, declaring that the workmen cannot be held to be the employees of the Management of the BCCL and that, they can be treated only as the employees of the cooperative stores run by the Managing Committee and further, workmen are entitled to wages as per the provisions prescribed under Clauses II and III of NCWA.
3. The dispute raised by the petitioner Union on behalf of the workmen, was referred by the Central Government to the Tribunal for adjudication under the following terms:
"Whether the demand of Bihar Colliery Kamgar Union for treating Shri Pradeep Banerjee and A.P. Burnwal as employee of M/s Bharat Coking Coal Ltd. and for payment of wages at the rate prescribed under N.C.W.A.-II & III to them is justified, if so, to what relief the workmen are entitled?
4. Case of the workmen is that they have been working in the cooperative stores of Moonidih colliery of the respondent Management since 1971 continuously. The cooperative stores of Moonidih colliery is functioning directly under the control and supervision of the Management of the BCCL. The Agent and the Deputy Personnel Manager of the colliery are the President and the secretary respectively, of the cooperative stores. The building, furnitures and other materials of the cooperative stores have been provided by the management of the BCCL and the Cooperative stores have been set up as a welfare measures to cater to the needs of the employees of the colliery. Facilities of quarters to the concerned employees of cooperative stores, have also been provided by the management. The workmen were appointed by Moonidih colliery and have been performing the duties as per the direction of the Management and for the benefit of the Management.
25. The case of the Management, as per its written statement filed before the Tribunal, is one of the total denial of the claim made by the workmen.
The stand taken by the Management is that the concerned workmen are not the employees of the BCCL. Rather, they were admittedly employed by the Management of the Cooperative Stores and are working exclusively as the employees of the Cooperative Stores. The Cooperative Stores is registered under the Bihar Cooperative Societies Act, 1935 and is therefore, a body corporate and function through the Managing Committee constituted as per the provisions of the Act and bye-laws of the society. The employees of the colliery are shareholders of the Cooperative Society. The Managing Committee consists of officers of the Management who function as the President, Secretary and the Cashier. But merely because Officers of the Management also function as the office bearers of the Society, it cannot be claimed that the Management of the BCCL has any direct control over the Cooperative Stores, nor can it be claimed that the stores employees are working under the control and supervision of the Management of BCCL. Even though, the Management has extended some facilities by providing building and furnitures and also subsidy to the cooperative stores, but such benefits have been given only to maintain affordable price of the commodities below the market price to the workmen of the colliery. Furthermore, the concerned workmen were neither appointed by the Management of the BCCL, nor have they been ever paid salary by the Management of the BCCL. Rather, salary to the concerned workmen and other employees of the Cooperative Stores is paid out of the sale proceeds of the stores by the cooperative society and not from the sale of coal.
6. The Tribunal after considering the pleadings and evidences adduced by the parties, recorded its findings answering the terms of reference against the workmen in the manner stated here-in-above.
7. In the present writ application, the petitioner Union has raised virtually the same grounds as raised before the Tribunal. Likewise, the respondent workmen have also relied upon the same grounds as advanced before the Tribunal.
8. Assailing the impugned Award, counsel for the petitioner Union submits that the Cooperative Stores in which the concerned workmen are employed, belongs to the Moonidih Colliery and the Cooperative Stores is managed by the officers of the BCCL Management. The affairs of the Cooperative Stores are thus managed and controlled by the BCCL Management through its officers. Employees of the cooperative stores work under the direct control and supervision of the officers of the BCCL Management. Learned counsel argues further that the Cooperative Store has been set up by way of welfare measures to cater to the needs of the employees of the BCCL. The concerned workmen who are employed in the Cooperative Stores, have been performing duties as per the direction of the Management of the BCCL for the benefit of the Management.
Learned counsel adds further that even as per the evidence of the Management witness no. 1, salary of the concerned workmen is being paid under the signature of the officials of the BCCL Management and furthermore, the concerned workmen have also been allotted residential quarters by the BCCL Management besides being provided with 3 domestic coal, health and other facilities. Such facilities are given only to the employees of the management. It is deemed therefore that the concerned workmen who have also been provided with the similar facilities, are acknowledged to be the employees under the BCCL Management.
9. Relying upon the judgment of the Supreme Court in the case of Indian Overseas Bank vs. IOB Staff Canteen Workers Union [2000 (85) FLR 672], learned counsel for the petitioner argues that on considering the fact that canteen facilities were provided to its employees by the Bank, the employees of the canteen are deemed to be the workmen of the Bank. The same ratio would apply to the facts of the present case also, in view of the fact that the Cooperative Store was established for providing facilities to the employees of the BCCL and all requisite facilities to sustain smooth functioning of the Cooperative Stores, have been provided by the Management of the BCCL .
10 From the rival submissions, the following facts emerge:
I. The Cooperative Stores is a society registered under the Societies Act. It is governed by the Managing Committee of the society in accordance with the provisions of the Societies Act and bye-laws of the society.
II. The Cooperative Stores has been set up by the employees of the colliery who are its share holders.
III. The Managing Committee of the Cooperative Society is a distinct body independent of the management of the BCCL, though, the President, Secretary and the Cashier who function as the office bearers of the Managing Committee, happen also to be the officers of the Management of the BCCL. Salary is paid to the employees of the Cooperative Stores by the Cooperative Society itself out of its own funds and not by the Management of the BCCL, though, pay slips to such employees are issued under the signatures of the authorized office bearers of the Managing Committee.
11. The question which needs to be addressed is, whether any employee or employer relationship was existing between the management of the BCCL and the concerned workmen who are employees of the cooperative stores?
12. Admittedly, the concerned workmen and other employees of the Cooperative Stores, were not appointed or employed by the Management of the BCCL. Rather, their appointment was made by the Managing Committee of the Cooperative Stores.
Learned counsel argues further that in the present case, BCCL Management reserves its authority to choose the members of the Managing Committee of the society. Furthermore, even the Management of the BCCL has acknowledged that the employees of the cooperative store are eligible for all such facilities, as extended to the employees of the BCCL including the medical facilities, quarter facilities and other such amenities.
13. The argument of the learned counsel for the petitioner based on the judgment in the case of Indian Overseas Bank (Supra), is not acceptable. The facts in the case of the Indian Overseas Bank (Supra) would not apply to the facts of the present case. The 4 Cooperative Store, as in the present case, cannot be equated with the canteen referred to the aforesaid judgment, nor would the ratio determined therein, apply to the facts of the present case. In the judgment passed in the case of Indian Overseas Bank (Supra), it was observed by the Supreme Court that under the provisions of the Factories Act, it is statutorily obligatory on the employer to provide and maintain canteen for the use of its employees. The canteen becomes part of the establishment and therefore, the workers employed in such canteen, are deemed to be the employees of the Management. The judgment also distinguishes between the statutory obligation to provide a canteen, from an obligation to provide facilities to run canteen. The canteen run pursuant to the latter obligation, does not become a part of the establishment.
14. In the present case, the setting up of Cooperative Stores by way of establishing a Society under the Cooperative Societies Act, does not constitute any part of any statutory obligation on the Management. The facts of the case declare that the Cooperative Stores was constituted entirely by the workers of the BCCL who also constitute the body share holders of the society. Merely because the Management of the BCCL has provided some facilities to the Cooperative Stores for the benefit of its workers, it does not imply, nor lead to the inference that the Cooperative Stores was either set up by the Management of the BCCL or that such benefits have to be given by the Management under any statutory compulsion. The facts of this case also declare unambiguously that there is no relationship of employee and employer between the concerned workmen and the Management of the BCCL.
15. The Tribunal has analyzed the facts and has recorded its findings on such facts. I do not find any perversity or illegality in the factual findings as recorded in its Award by the Tribunal. As such, in my opinion, the impugned Award does not call for any interference. There being no merit in this application, the same is accordingly dismissed.
(D.G.R. Patnaik, J) Ranjeet/A.F.R.