Jharkhand High Court
M/S. Bharat Coking Coal Limited vs Their Workmen Represented By Joint Area ... on 18 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
W.P.(L) No.5444 of 2001
With
W.P.(L) No.5461 of 2001
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.5444 of 2001
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M/s. Bharat Coking Coal Limited, a Government Company within the meaning of Section 617 of the Companies Act, through the management of its Jealgora colliery, P.O. Jealgora, district- Dhanbad.
... Petitioner
Versus
1. Their workmen represented by Joint Area Secretary, Bihar Colliery Kamgar Union, Bhowra Area, P.O. Bhowra, district- Dhanbad.
2. The Presiding officer, Central Government Industrial Tribunal No.1, Dhanbad ... Respondents With W.P.(L) No.5461 of 2001
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M/s. Bharat Coking Coal Limited, a Government Company within the meaning of Section 617 of the Indian Companies Act, through the management of its Jealgora Colliery, P.O. Jealgora, district-
Dhanbad. ... Petitioner
Versus
1. Their workmen represented by Joint Area Secretary, Bihar Colliery Kamgar Union, Bhowra Area, P.O. Bhowra, district- Dhanbad.
2. The Presiding officer, Central Government Industrial Tribunal No.1, Dhanbad ... Respondents
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For the Petitioners : Mr. Anoop Kr. Mehta, Advocate
For the Respondents : None
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the learned counsel for the petitioners.
2. No one turns up on behalf of the respondents in spite of repeated calls. 1 W.P.(L) No.5444 of 2001
With W.P.(L) No.5461 of 2001
3. Both these writ petitions are disposed of by this common judgment because both these writ petitions have been filed with a prayer to set aside the common award dated 14.03.2001 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No.54 of 1994 in respect of which W.P. (L) No.5444 of 2001 has been filed and Reference No.117 of 1994 in respect of which W.P. (L) No.5461 of 2001 has been filed.
4. The Schedule in Reference No.54 of 1994 and the Schedule in Reference No.117 of 1994 are as under:-
THE SCHEDULE IN REFERENCE NO.54 OF 1994 "Whether the claim of Shri Bihari Prasad and 54 others (as listed in the Annexure) engaged as contract Labour at Jealgora Colliery of M/s. BCCL and the management of M/s. IISCO. for regularisation of their services is justified? If so, from what date?"
THE SCHEDULE IN REFERENCE NO.117 OF 1994 "Whether the demand of the union for regularization of the contract workmen S/Shri Kuber Nath Ram and 44 others (as per attached annexure) through contractors M/s. R.B. Traders and Shri R. P. Agarwal, contractors of M/s. Bharat Coking Coal Limited is justified? If not to what relief should be granted?"
5. The dispute in Reference No.54 of 1994 relates to the question of regularisation of Shri Bihari Prasad and 54 others who are engaged as contract labour in Jealgora Colliery of M/s. BCCL and the management of M/s. IISCO. The dispute in Reference No.117 of 1994 relates to the question of regularisation 2 W.P.(L) No.5444 of 2001 With W.P.(L) No.5461 of 2001 of Shri Kubernath Ram and 44 others who were working through contractor M/s. R.B. Traders and Shri R.P. Agrawal Contractors of M/s. BCCL. In both reference cases there are three common persons namely Bholaram at serial No.53, Kubernath Ram at serial No.54 and Bhim Manjhi at serial No.55 in Reference No.54 of 1994 have their name in serial Nos.13, 1, 40 respectively in Reference No.117 of 1994. It is the case of the workers who are sponsored by their union that they were engaged to perform the duty for truck loading of coal at the depot of Jealgora colliery in Lodna area of M/s. BCCL from where coal is being transported through trucks to Lodna Coke Plant in Bhowra Area in M/s. BCCL and washery of Chasnalla colliery of M/s. IISCO. It was contended that the workmen were loading coal in the trucks which is permanent and perennial nature of work within the premises of Jealgora Colliery of M/s. BCCL continuously for more than 5 years and their attendance in each calendar year is more than 240 days. The appropriate Government i.e. the Central Government by notification under Section 10 of the Contract Labour (Regularisation & Abolition) Act, 1970 has prohibited engagement of contract labour for coal loading and unloading besides four other jobs by Notification dated 01.02.1975. It is also contended by the workmen that despite the appropriate government having prohibited the engagement of contractor or contract labour; yet the management of M/s. BCCL and IISCO is getting the work of loading of coal done in trucks by the concerned persons but their wages is being paid through contractor, which is much less than the rate prescribed by NCWA and they claim that they are the workmen of M/s. BCCL and they are entitled for regularisation.
3 W.P.(L) No.5444 of 2001
With W.P.(L) No.5461 of 2001
6. The case of the management of BCCL which is the writ petitioner herein is that no relationship of employer and employee exists between the concerned persons and the management of BCCL as employer and workmen. It was contended by the management of BCCL that M/s. IISCO has a steel plant at Burnpur and in order to meet the requirement of coal for its steel plant at Burnpur, the IISCO has got its own three captive mines at Chasnalla, Jitpur and Ramnagar but IISCO requires some selected ROM coal from Jealgora colliery coal seam for the purpose of blending with the washery grade coal and to utilize the same for the manufacture of hard coke for feeding the same in its steel plant. The management of M/s. BCCL has permitted to lift the selected quality of coal from Jealgora Coal depot by M/s. IISCO which is being lifted by M /s. IISCO by engaging its own supervisor and its own labour from the coal dump of Jealgora colliery and got the same transported through the contractor M/s R.B. Traders. The BCCL management also contended that the loading of coal after picking and selection is mostly done by mechanical means and only in the case of mechanical failure, the loading work is done manually by engaging contract labour under the supervision and control of M/s. R.B. Traders. Thus, the management of BCCL contended that they have nothing to do with the employment of the concerned persons or any of them. Hence, they do not have any obligation to regularise them because the BCCL has got its own surplus labour.
7. The management of BCCL further pleaded that from June, 1991 to September, 1991, the management of Lodna colliery engaged a contractor M/s. R. P. Agrawala to transport coal from Jealgora colliery to meet the demand of Lodna Coke Plant consequent upon an outbreak of fire and emission of 4 W.P.(L) No.5444 of 2001 With W.P.(L) No.5461 of 2001 poisonous and noxious gases from one district of mines which took about 3-4 months to bring down the situation to normal. Therefore, the job was not a regular job and the contractor M/s. R.P. Agrawala engaged dumper which were being loaded with coal at Jealgora by mechanical means and coal used to be unloaded at Lodna Coke Plant with the help of hydraulic device fitted with dumper and no manual labour was engaged on the job of loading and unloading of coal in the process of transportation contract carried out between from June, 1991 to September, 1991. The management of BCCL further pleaded that by the notification dated 01.02.1975 prohibiting loading and unloading of coal was modified by a subsequent notification No. SO 2053 dated 21.06.1989 in which the engagement of contract labour was permitted on loading of coal where there is a mechanical or electrical failure bringing a halt to the mechanical loading of coal into trucks or railway wagons and also permitted engagement of contract labour on loading of coal in case of irregular supply of wagons by railways. Thus, the loading and unloading of coal was not absolutely prohibited rather the same was relaxed by subsequent notification.
8. In its written statement, the management of IISCO pleaded that since the claim of the concerned persons is for regularisation in the employment of M/s. BCCL, hence, IISCO is unnecessarily been made a party. The management of IISCO admitted that they have engaged transporting contractor for transportation of coal from Jealgora colliery coal depot of BCCL to Chasnalla coal washery but they have nothing to do with the loading of coal at Jealgora Coal Depot. Thus, they deny the liability to regularise the concerned workmen as loaded in the employment of M/s. IISCO or payment of wages in accordance with the NCWA.
5 W.P.(L) No.5444 of 2001
With W.P.(L) No.5461 of 2001
9. The Central Government Industrial No.1, Dhanbad (hereinafter referred to as the tribunal) formulated the following points to be considered:-
(i) Whether the concerned persons were engaged in permanent or perennial nature of job of loading of coal in trucks i.e. the job in which the engagement of contractor has been prohibited? If so, whether they shall be deemed to be the workmen of BCCL?
(II) Whether the concerned persons are entitled for regularisation as permanent employee of M/s. BCCCL/IISCO?
10. The tribunal considered the testimony of sole witness of the management of BCCL being MW-1 Murlidhar Banerjee who was a senior sales officer at Bhowra Area. The learned tribunal considered that the management has suppressed the relevant papers and drew an adverse inference that had the documents been produced the same would support the case of the workmen. The learned tribunal also considered the cross-examination of MW-1 wherein he stated that BCCL loaded coal on rail without charging F.O.R. (free on rail) and inferred that the same must be applicable in case of loading of coal in trucks for being transported to Chasnalla washery of M/s. IISCO. The tribunal also considered that the loading work of the workmen was supervised by the loading clerk of M/s. BCCL and they were also allotted work groupwise by loading clerk. The tribunal further considered the admission of the management of M/s. BCCL that it engaged transporting contractor M/s. R.P. Agarwala for transportation of coal from Jealgora colliery of BCCL to Chasnalla Coal washery from the month of June, 1991 to September, 1991 but the management has not filed any paper regarding engagement of R.P. Agarwala. 6 W.P.(L) No.5444 of 2001
With W.P.(L) No.5461 of 2001
11. The learned tribunal relied upon the judgment of the Hon'ble Supreme Court of India in the case of Air India Statutory Corporation & Others vs. United Labour Union & Others reported in (1997) 9 SCC 377 and came to the conclusion that only the persons who have submitted their bio-data through their unions which has been marked as Ext. 1 to 1/88, must be deemed to be the workmen of BCCL because it is the duty of the BCCL to get coal loaded free on truck and went on to hold that relationship of employer and employee exist between the concerned persons and the management of M/s. BCCL and held that there are 89 workmen who are entitled to be absorbed and regularized as permanent workmen of BCCL and they are also entitled for wages of Group III as prescribed in NCWA and answered the reference by holding that the demand of sponsoring union for regularisation of 89 persons out of 100 persons whose name find place in the Reference order of both these Reference Case No.54 of 1994 and 117 of 1994 in whose favour bio-data has been filed marked Ext.W-1 to W-1/88 are entitled to be regularised in the employment of BCCL without back wages within 30 days from the date of publication of the Award failing which the concerned persons in whose favour biodata Ext.W-1 to W- 1/88 has been filed shall be entitled to claim wages as per NCWA from the date of publication of the Award.
12. Mr. Anoop Kumar Mehta- the learned counsel for the petitioners relies upon the judgment of the Hon'ble Supreme Court of India in the case of Steel Authority of India Limited & Others v. National Union Waterfront Workers & Others reported in (2001) 7 SCC 1 para-125 (4) of which reads as under:-
"125. (4) We overrule the judgment of this Court in Air India case [(1997) 9 SCC 377 : 1997 SCC (L&S) 1344] prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour 7 W.P.(L) No.5444 of 2001 With W.P.(L) No.5461 of 2001 following the judgment in Air India case [(1997) 9 SCC 377 : 1997 SCC (L&S) 1344] 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." (Emphasis supplied) and submits that the very judgment based upon which the said award was passed i.e., the judgment of the Hon'ble Supreme Court of India in the case of Air India Statutory Corporation & Others vs. United Labour Union & Others (supra) has been overruled by the constitutional Bench judgment albeit prospectively but the rider is that such prospective effect is applicable to such cases where a direction given by any Industrial Adjudicator/any court has been given effect to and it has become final.
13. It is submitted by Mr. Mehta that in this case, the award passed by the learned tribunal has neither become final because of the challenge of same being made in filing this writ petition and consequently the operation of the award has been stayed by this court nor the same has been given effect to as none of such workmen has been regularized. It is next submitted that the undisputed fact remains that the Central Government by its notification No. SO 2053 dated 21.06.1989 permitted loading of coal where there is a mechanical or electrical failure bringing a halt to the mechanical loading of coal into trucks or railway wagons and also permitted engagement of contract labour on loading of coal in case of irregular supply of wagons by railways. Hence, it is submitted that in view of this notification and in the absence of any prohibition as envisaged under Section 10 of the prohibition of employment of contract labourers, the right for regularisation of the workmen does not arise. It is then submitted that learned tribunal committed a faux pass by ignoring the fact that M/s. R. B. Traders are not the contractor of M/s. BCCL rather they are the contractors of IISCO. It is next submitted that learned tribunal also committed a 8 W.P.(L) No.5444 of 2001 With W.P.(L) No.5461 of 2001 grave illegality by drawing an adverse inference against the management of BCCL even though; it is the specific case of the management of BCCL that M/s. Rajendra Prasad Agarwala was engaged from June, 1991 to September, 1991 and such testimony of the MW-1 has remained unchallenged. So, in view of the unchallenged testimony of the MW-1 there was no necessity for the management of BCCL to bring any document in support of that nor learned tribunal ever directed the BCCL management to produce any document in respect of that and in absence of that learned tribunal ought not have drawn any adverse inference against the BCCL management. It is next submitted by Mr Mehta that the tribunal also committed an error by using the testimony of MW -1 regarding free of cost of loading of coal in railway wagons is applicable to loading of coal in trucks also; though there is no such materials in the record to draw such an inference.
14. It is further submitted by Mr. Mehta that under Rule 10 (B) 10 of the Industrial Disputes (Central) Rules, 1957, the tribunal is required to pass the award within 30 days from the date of argument and reserving the delivery of the award but in this case though the arguments were concluded lastly on 20.01.2000 but the award was not made within 30 days from the date of arguments and reserving the delivery of award. It is next submitted that the award passed by learned tribunal is a fraudulent one, hence, the same be set aside.
15. Having heard the submissions of the learned counsel for the petitioners and after going through the materials available in the record, this Court finds force in the submissions of the learned counsel for the petitioners that overruling of the judgment of the Hon'ble Supreme Court of India in the case of 9 W.P.(L) No.5444 of 2001 With W.P.(L) No.5461 of 2001 Air India Statutory Corporation & Others vs. United Labour Union & Others (supra) with prospective effect applies only to such directions issued by any industrial adjudicator/any court; for absorption of contract labours following the judgment in Air India Statutory Corporation & Others vs. United Labour Union & Others (supra) in cases where such a direction has been given effect to and it has become final.
16. Now, coming to the facts of the case way back in 19.10.2001, this Court passed an order staying the operation of the impugned award. Hence, till date the same has not been given effect to. Further, in view of the pendency of these writ petitions, it cannot be said that the impugned award has become final. Hence, this Court has no hesitation in holding that the award directing absorption of the contract labourers having been made following the judgment in Air India Statutory Corporation & Others vs. United Labour Union & Others (supra), in view of the judgment of constitutional Bench of the Hon'ble Supreme Court of India in the case of Steel Authority of India Limited & Others v. National Union Waterfront Workers & Others (supra), the impugned award dated 14.03.2001 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No.54 of 1994 in respect of which W.P. (L) No.5444 of 2001 has been filed and Reference No.117 of 1994 in respect of which W.P. (L) No.5461 of 2001 has been filed, being not sustainable in law, is liable to be quashed and set aside.
17. Besides, this Court finds that learned tribunal has committed a grave illegality by overlooking the undisputed fact that vide S.O. No.2053 dated 21.06.1989 there was relaxation of the prohibition of the employment of contract 10 W.P.(L) No.5444 of 2001 With W.P.(L) No.5461 of 2001 labourers in the nature of work involved in this case under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970.
18. Further, learned tribunal also committed an illegality by drawing an adverse inference when the unchallenged testimony of MW-1 was to the effect that M/s. R. P. Agarwala was engaged only from June, 1991 to September, 1991 that is much less than 240 days.
19. Under such circumstances, this Court is of the considered view that this is a fit case where the impugned award dated 14.03.2001 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No.54 of 1994 in respect of which W.P. (L) No.5444 of 2001 has been filed and Reference No.117 of 1994 in respect of which W.P. (L) No.5461 of 2001 has been filed, be quashed and set aside.
20. Accordingly, the impugned award dated 14.03.2001 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No.54 of 1994 in respect of which W.P. (L) No.5444 of 2001 has been filed and Reference No.117 of 1994 in respect of which W.P. (L) No.5461 of 2001 has been filed, is quashed and set aside.
21. In the result, these Writ Petitions stand allowed.
22. Let a copy of this judgment along with the lower court records be sent back to the learned tribunal concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 18th of January, 2024 AFR/ Animesh 11