Gauhati High Court
Smt Bharati Das And Ors vs The Management Of Messaijan Division ( ... on 11 May, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 5233/2006
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
11.05.2015
Heard Mr. B. Chakraborty, learned counsel for the
petitioners.
None has appeared for the respondent.
Petitioners are workmen of Messaijan Tea Estate (referred to as "workmen" hereafter) and respondent is the management of the Tea Estate (referred to as "management" hereafter).
By filing this petition, the five workmen have challenged the legality and validity of the award dated 20.04.2004 passed by the learned Industrial Tribunal, Dibrugarh in Reference No. 3/2001.
Case of the workmen is that there is a clone nursery attached to the Tea Estate where more than 70 workers were employed on casual basis which included the petitioners. They were engaged as casual worker for a long time. Despite raising of demands from time to time for conferring permanent status to these workers, management did not accept the demand. In the year 1998, the management agreed to make 44 of the 70 workers permanent and assured to consider the case of further 16 workers for conferring permanent status vide memorandum of settlement dated 05.05.1998. In spite of such settlement, management did not give permanent WP(C) No. 5233 of 2006 Page 1 of 10 status to the 16 workers. While 44 of the workmen were conferred permanent status 16 were denied such status. Alleging discrimination and indulging in unfair labour practice by the management, an industrial dispute was raised on behalf of the 16 workmen including the petitioners. Though conciliation was resorted to, the same failed. Ultimately, the dispute had to be referred to the Industrial Tribunal, Dibrugarh for adjudication. The reference was made by the appropriate Government i.e. the Govt. of Assam in the Labour Department vide notification dated 08.03.2001. The issues referred for adjudication by the Industrial Tribunal were as follows:-
"1. Whether the management of Messaijan Division out garden of Samdang Tea Estate of Doom Dooma India Division under Hindustan Level Ltd. have committed unfair Labour practice by denying the status of permanent workman to their 16 No. of employees as shown in Annexure-A.
2. If no what relief the workman are entitled to."
Thus the issue for adjudication was whether management had committed unfair labour practice by denying permanent status to the 16 workmen as per Annexure-A which included the petitioners. If the answer to the said issue was in the negative, then to what relief the workmen would be entitled to.
The reference was registered as Reference No. 3/2001. WP(C) No. 5233 of 2006 Page 2 of 10 On notice being issued by the Industrial Tribunal, both workmen and the management appeared and submitted written statement.
In the course of the proceedings, the workmen adduced two witnesses and the management adduced one witness. It appears that only one document was executed which is a letter dated 04.03.1995 of the Secretary of the Assam Chah Mazdoor Sangha addressed to the management.
Thereafter the matter was heard. On consideration of rival submissions and on perusal of the evidence on record, the Industrial Tribunal came to the conclusion that the management had not committed unfair labour practice by denying permanent status to the 16 workmen.
Hence, this writ petition.
Mr. B. Chakraborty, learned Counsel for the workmen has referred to the evidence adduced by both the management witness and the witnesses on behalf of the workmen and contends that the evidence before the Industrial Tribunal clearly pointed out towards commission of unfair labour practice by the management. Even the exhibitted document shows that the management did not consider conferment of permanent status on the 16 workmen, including the WP(C) No. 5233 of 2006 Page 3 of 10 petitioners though assurance to that effect was given in the memorandum of settlement. Therefore, the Industrial Tribunal was not justified in holding that the management had not committed unfair labour practice.
Submission made by learned counsel for the workmen is considered.
I have also perused the lower court record.
On due consideration, I am of the view that the finding arrived at by the Industrial Tribunal as contained in the award cannot be sustained for more than one reason.
Section 2 of the Industrial Disputes Act, 1947 (briefly "the Act" hereafter) is the definition section. Under Section 2 (ra), "unfair labour practice" has been defined to mean any of the practices specified in the Fifth Schedule. As per the Fifth Schedule to the Act, if an employee employs workmen as "badlis", casuals or temporaries and continues them as such for years, with the object of depriving them of the status and privileges of permanent workmen, it would be construed as unfair labour practice within the meant of Section 2 (r
a).
The workmen in the written statement has stated that the Tea Estate has an out garden in the name and style of Messaijan Division WP(C) No. 5233 of 2006 Page 4 of 10 which has a clone nursery employing more than 70 workers. These workers were treated by the management as casual workers for a longtime. In the year 1998, a memorandum of settlement was entered into between the management and the workmen represented by the Union i.e. Assam Chah Mazdoor Sangha on 05.05.1998 to confer permanent status to 44 workers out of the 70. Assurance was given by the management that 16 more workers would be conferred permanent status subsequently. Despite such settlement, management had adopted delaying tactics and refused to confer permanent status to the 16 workmen. It was asserted that the work carried out by the 16 workmen were permanent in nature and therefore they were entitled to a permanent status which had been illegally denied by the management, thereby depriving them of service benefits like pension etc. The standing orders applicable to tea estates do not provide for employing casual workers in the work which were of permanent nature. These workers were working in the nursery since last 7 to 17 years at the time of submission of the written statement in the year 2001.
Management side also filed its written statement. Objection was raised as to the maintainability of the reference as well as on the merits of the case. It was stated that there was no permanent WP(C) No. 5233 of 2006 Page 5 of 10 requirement of the workers since the job profile was need basis. However, as a goodwill gesture, management had conferred permanent status to 44 of such workmen.
One Sri Gopal Tati deposed as witness No. 1 for the workmen. He stated that he had worked in the Messaijan division as casual worker for about 12 years. Like him there were 14 other workmen who worked there as casual worker for about 12 years but they were not given permanent status. 40 workers who were working as casual workers were made permanent by the management. As a result, those workers who had not been conferred permanent status stood deprived of fire wood, quarter, cloth etc. After the dispute was raised by the workmen, the casual workers were laid off for 15 days every year to show that they were not in continuous casual employment. In his cross examination, he stated that while 44 workers were made permanent, the other workers at that time were working at the garden site. But even in the cross examination, he was steadfast in stating that the 16 workers worked throughout the year in the garden and denied that they were seasonal workers. When the 44 workers were made permanent, they took up the issue of conferring them status of permanent workmen with the WP(C) No. 5233 of 2006 Page 6 of 10 management. Similar evidence was given by the workmen witness No. 2 Sri Ananta Matal.
Sri Saibal Dasgupta, Assistant Manager deposed as the sole management witness. In his evidence he stated that there was a discussion between the Union and the management on 04.01.1995 regarding conferment of permanent status to 44 casual workers working in the Messaijan Division. Thereafter, these 44 workers were made permanent according to their seniority. At that time, no demand was put forward for conferring permanent status to other workmen. This issue cropped up only during the conciliation proceeding when the workmen came out with a demand that 16 other workers should also be conferred permanent status. He, however, admitted that the casual workers employed in the nursery during the season time were shifted to other field works during the off season.
The lone exhibit i.e. letter dated 04.03.1995 only indicates that discussions were being held between the two sides for conferring permanent status to 44 of the casual workers which ultimately culminated in the settlement dated 05.05.1998. Interestingly, the memorandum of settlement dated 05.05.1998 was not exhibited. WP(C) No. 5233 of 2006 Page 7 of 10
Be that as it may, what is evident from the materials on record is that these 16 workmen were employed in the nursery attached to the Tea Estate known as Messaijan Division on casual basis for a number of years ranging from 7 to 17 years at the time of hearing of the reference. It has come on record that during the season time their services were utilized in the nursery and during the off season time their services were utilized either in the garden or in other field works. In such circumstances, the work rendered by these workmen cannot be said to be seasonal in nature. The work rendered by these workmen is similar to the work rendered by the 44 workmen who had been conferred permanent status. If that be so there could be no justification in denying similar permanent status to the 16 workmen. It has also come on record that the 16 workmen are provided wages, remuneration etc. as due under the Plantation Labour Act.
Keeping a group of workmen whose services are utilized throughout the year in casual status while conferring permanent status to similarly situated workmen would certainly be discriminatory and come within the definition of unfair labour practice within the meaning of Section 2 (ra) of the Act read with the Fifth Schedule to the Act.
WP(C) No. 5233 of 2006 Page 8 of 10
The finding recorded to the contrary by the Industrial Tribunal therefore cannot be sustained. The Industrial Tribunal had also gone beyond the terms of the reference by recording the assurance of the learned counsel for the management that priority would be given to the said 16 workmen when permanent vacancy would arise in the future. If the Industrial Tribunal was of the view that no case of unfair labour practice was made out, there was no necessity for making such observation.
Accordingly and in the light of the discussions made above, Court is of the view that the reference is required to be answered in the affirmative by holding that the management had committed unfair labour practice by denying permanent status to the 16 workmen as per Annexure-A to the reference notification. However, since this award has been challenged by only 5 of the workmen, the benefit of the judgment would be confined to the 5 petitioners only though Mr. Chakraborty, learned Counsel for the petitioners fairly submits that perhaps the remaining workmen out of the 16 workmen might have got the benefit of permanent status.
Be that as it may, having regard to the above, the impugned award dated 20.04.2004 is set aside and quashed. WP(C) No. 5233 of 2006 Page 9 of 10
Respondent is directed to confer permanent status to the petitioners w.e.f date of the award.
Writ petition is accordingly allowed but without any order as to cost.
Registry to send down the LCR forthwith.
Judge aparna WP(C) No. 5233 of 2006 Page 10 of 10