Jharkhand High Court
Their Workmen Being Represented By Shri ... vs Employers In Relation To The Management ... on 13 June, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 588 of 2016
Their workmen being represented by Shri Keshav Singh
Yadav, Area Secretary, Bihar Colliery Kamgar Union,
Kathara, P.O. & P.S -Kathara, District-Bokaro ... Petitioner
Versus
Employers in relation to the management of Captive Power
Plant of M/s. Central Coalfields Limited at Kathara, P.O.& P.S -Kathara,
District-Bokaro through Shri Uma Shankar Singh, General Manager
.. Respondents
CORAM: Hon'ble Mr. Justice Rongon Mukhopadhyay
Hon'ble Mr. Justice Deepak Roshan
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For the Petitioner : Mrs. M.K.Pal, Sr. Advocate Ms. Mohua Palit, Advocate For the Respondent : Mr. Anoop Kumar Mehta, Advocate
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C.A.V ON 22.04. 2024 PRONOUNCED ON 13 /06/2024 Per Deepak Roshan,J. The instant appeal arises out of the judgment passed by the Writ Court in W.P.(L) No. 1751 of 2007, whereby the learned Writ Court allowed the writ application filed by the Respondent-Management holding therein that the Award suffers from serious error of law and the finding is also perverse and accordingly quashed the Award dated 30.08.2006 passed in Reference No. 52 of 1999 by Central Government Industrial Tribunal No. 1, Dhanbad (hereinafter referred to as 'the Tribunal').
2. The brief facts, which are necessary for proper adjudication of this case is that by Notification dated 17.04.1999, a dispute was referred for adjudication to the Tribunal by the Central Government, Ministry of Labour under Section 2(A)(1)(d) of the Industrial Disputes Act, 1947 (hereinafter to be referred as the Act). The same is extracted hereinbelow:
"Whether 92 workmen whose names appearing in the Annexures who are engaged by the Sub-Contractor of 1 BHEL, namely, Bihar General Works for working at Kathara Captive Power Plant shall be treated as an employee of M/s. Central Coalfields Ltd? If yes, whether their demand for regularization in CCL is justified? If yes, then what direction should be given.
The learned Tribunal after hearing both the parties has held that the concerned persons whose name finds place in the list of workers worked in Kathara Captive Power Plant enclosed with the term of reference should be reinstated in service and regularized in due course. The management was also directed to implement the Award within 30 days from the date of publication of the Award.
3. The Management preferred a writ application being W.P.(L) No. 1751 of 2007 and the learned Writ Court has allowed the writ application of the management. The operative portion of the order passed by the writ court is extracted hereinbelow:
"13. This Court on consideration of cumulative facts, discussion and reasons recorded herein-above, is of the firm view that the impugned award suffers from serious error of law and on facts. The findings of employer- employee relationship in fact are based on no evidence in the eye of law. In that sense, the Award suffers from perversity also. The impugned award in such circumstances cannot be upheld in the eye of law. Accordingly, the Award dated 30.08.2006 passed in Reference No. 52 of 1999 by Central Government Industrial No. 1, Dhanbad is quashed."
4. Mrs. M.M.Pal, Ld. Sr. counsel assailed the impugned order passed by the learned writ court by submitting as follows:
i) The nature of service contract as well as construction of power plant itself transpires that M/s.
CCL has been described as purchaser while M/s. BHEL has been described as the contractor.
She contended that the nature of relationship under the agreement itself is sufficient to show that M/s. CCL had entrusted M/s. BHEL to provide the 2 service by engaging the workmen towards completion of work relating to Captive Power Plant.
ii) It has been submitted by the Sr. Counsel that the Hon'ble Apex Court has laid down the principles under which Writ Court under power of judicial review is supposed to test the legality of the findings rendered in Award and the same is missing in the instant case.
She contended that if the findings of industrial adjudicator are fully supported by proper appreciation of evidence, the Writ Court should not enter into an exercise of re-appreciation of evidence and it is a settled law that if two views are possible on the basis of evidence, the Writ Court should not substitute its opinion to that of Industrial Forum.
In order to buttress her argument, she relied upon the judgment passed in the case of Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers' Union and another reported in 2000(4) SCC 245 [Para-17 and 20] and also Employers in Relation to the Management of Angar Pathra Colliery of M/s. Bharat Coking Coal Limited Vs. Presiding Officer, Central Government Industrial Tribunal (No.2) [2002(3) JCR 398 (Jhr)].
iii) On the point of violation of Section 25F of the Act, reliance has been placed on the rendered judgment in the case of SAIL Vs. National Union Waterfront Workers reported in (2001)7 SCC 1. 3
She has further referred several other judgments on this issue and contended that the industrial adjudicator had satisfied itself in the present reference that the engagement of these workmen through the contractor was a mere camouflage by CCL and accordingly CCL has rightly been held to be the principal employer. In this regard, she had also referred to the judgment in the case of Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and others reported in 1990(3) SCC 682 and 1997(2) PLJR 51 (SC).
iv) It has been further submitted by Mrs. Pal that if the deposition of one witness is sufficient in quality to make out the case of the workmen; no interference should be made under Article 226 of the Constitution of India.
v) She contended that even after completion of the project i.e., Captive Power Plant in the year 1993, these workmen had continuously engaged till 1996 and thereafter they have been retrenched without complying the provisions of Section 25F of I.D Act. In support of this contention, Ld. Sr, counsel referred to the certificates enclosed by workmen as W-1 Series and submits that these certificates are sufficient proof of the aforesaid fact. It is a settled principle of law that the onus is upon the employer to dispel the 4 presumption of employer-employee relation-ship once the workman had been able to show continuous engagement for more than 240 days. In this regard, she referred to the judgment passed in the case of Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari reported in (2005) 10 SCC 792.
5. Relying upon the aforesaid judgments and the contentions referred to hereinabove, Mrs. Pal contended that the order passed by the Writ Court be dismissed and the Award may be restored.
6. Mr. A.K.Mehta, learned counsel representing the management submits that there was no relationship of employer- employee existed between the management and the concerned workmen at any time. As a matter of fact, the Respondent-CCL entered into an agreement on 19.01.1989 with M/s. BHEL for construction of a Captive Thermal Power Station and as per the term of the contract; BHEL was required to complete the design and the Captive Thermal Power Station after getting approval from the Company on the design which was required to carry out the engineering jobs for the purpose of construction of plant.
He further submits that the aforesaid contractor engaged sub-contractors for carrying on several construction job and/or fabrication job. The contract was awarded to BHEL and it was BHEL who was required to select its own men to recruit them, to exercise control over them, to supervise their jobs and to make payment to them.
As a matter of fact, the workmen of the sub-contractor 5 appointed by M/S BHEL were selected and recruited by the sub- contractor. Their works were supervised and controlled by sub- contractor and they were paid by the sub-contractor and the document clearly transpires that all the workmen of the contractors engaged in the job of construction were either workmen of BHEL or the sub-contractors and they were having no relationship of any kind with the management-CCL.
He further referred to his written statement filed before the learned Tribunal and submits that as the contract work was for a temporary period, for construction of the Captive Power Plant at Kathara, all the workmen employed by the contractors were holding temporary status, except few who were the permanent staff of BHEL. As a matter of fact, the learned Writ Court has properly appreciated all these aspects and allowed the writ filed by the management by quashing the Award.
7. Having heard learned counsel for the parties and after perusing the impugned order, it appears that the sponsoring Union raised an industrial dispute for regularization of 92 workmen referred in the terms of reference on the ground that they have been working at Kathara Captive Power Plant of M/s. CCL since 1988 in different permanent nature of job under the direct control and supervision of the management-CCL and they worked for more than 240 days in each calendar year. Accordingly, the Union annoyed with their demand for regularization and payment of wages under NCWA.
The case of the management is that there was no 6 relationship of employer-employee between CCL and the concerned person.
8. After going through the Lower Court Records, it appears that an agreement was entered between CCL and M/s. BHEL on 19.01.1989 for construction of Captive Thermal Power Station. As per the term stipulated in the agreement, M/s BHEL was required to complete design of the Captive Thermal Power Station. The BHEL was also required to undertake testing and trial for some period after commissioning the plant in order to satisfy the CCL Management.
It further transpires that in order to fulfill the terms of agreement dated 19.01.1989 M/s BHEL engaged some petty contractors for carrying on some civil construction job and fabrication job. These petty contractors were required to select its own men to recruit them and to exercise control over them.
The records clearly transpire that the sub-contractors were recruited by M/s BHEL. It also transpires from the record that the workmen employed by the sub-contractors were for a temporary period only for construction of Power Captive plant at Kathara; as such prima facie, it appears that there was no relationship of employer and employee with CCL and CCL was not in the picture.
9. From perusal of the LCR, it further appears that two witnesses were examined on behalf of the management and the workmen. The management had exhibited one document being M1 which was contract agreement; whereas the workmen's witness exhibited series of service documents which was marked 7 as W-1 series.
10. The learned Tribunal after hearing both the parties and after perusing the exhibited documents held that the workmen appeared to be working on different nature of jobs under some petty contractor at Kathara Captive Power Plant from different dates for more than two years, some of them even more than three years. It also came to the finding that before stoppage of their work, there was no notice under Section 25-F of the Act nor any mention of the compensation paid in view of retrenchment.
The learned Tribunal came to the conclusion that the Management of M/s. CCL was duty bound as a principal employer to see that the provisions of the Contract Labour (Regulation & Abolition) Act, 1970 are complied with. No license of petty contractor was evidenced on their behalf. On arriving with such finding of violation of provision of Section 25-F of the Act; the earned Tribunal concluded that M/s. CCL had wrongly terminated/retrenched these workmen from service and they are liable to be reinstated by the CCL.
It has also come to the conclusion that since the sub- contractors did not possess any licence, the concerned persons were deemed to be employees of the management of CCL. Accordingly, the Award was rendered in favour of the workmen.
11. At the outset, it is noted by perusing the record that neither there was any pleading nor there was any evidence to suggest that any prohibition Notification was issued in terms of Section 10 of Contract Labour (Regulation & Abolition) Act, 8 1970. Even otherwise, as per the settled law the only consequence provided under the aforesaid Act is that either the principal employer or the labour contractor, if violates the provisions of Sections 7 & 12, it is a penal provision as envisaged under Sections 23 & 25 of the Act. The Hon'ble Apex Court in the case of Dena Nath & Ors v. National Fertilisers Ltd. and others reported in (1992) 1 SCC 695 has held that the Court could not issue any mandamus for deeming the contact labour as having become the employees of the principal employer merely because the contractor or the employer has violated the provisions of the Contract Labour Act and Rules.
As stated hereinabove, one witness each were examined by the management and the workmen and the workmen made a demand for regularization, though the reference was on the question of regularization of 92 workmen in the employment of M/s. CCL on their claim that they were engaged by sub-contractor of BHEL, namely Bihar General Works who worked for Kathara Captive Power Plant.
12. The deposition of WW-1 does not disclose that each of these 91 workmen was identified by WW-1 in the proceedings before the learned Tribunal. The deposition of WW-1 indicates that he worked continuously for BHEL for Captive Power Plant, Kathara from September, 1986 till 1994 and thereafter he worked under CCL up-till 1996. The workman, in his cross examination, has accepted that the CCL has not given any appointment letter. He has categorically deposed that he has not filed any document to show that the workmen were being paid 9 wages by CCL.
13. After going through the deposition of the sole witness on behalf of the workmen, it does not transpire confidence that CCL was in the picture, As stated hereinabove, the WW1 in his cross examination has categorically deposed that "BHEL has not given us any appointment letter.................... I have not filed any document to show we were being paid wages by CCL.......".
By going through the deposition of the sole witness on behalf of the appellant as well as agreement referred to hereinabove, it clearly indicates that for a particular job M/s CCL entered into an agreement with M/s BHEL and BHEL in pursuance to that agreement employed several petty contractors for completion of the job and that petty contractor engaged those workmen.
From the management's witness no. 1, it clearly transpires that work for construction of the power plant was awarded to M/s BHEL and the entire work was going on under the management of BHEL. Even in the cross-examination, nothing has come on surface in order to suggest that M/s CCL was in the picture in appointing the workmen. As a matter of fact, though Ext.-1 Series which are service certificates of the workmen have been relied upon by the Ld. Sr. counsel in support of her submission; however, perusal of none of the certificates show that they have been issued by the management of M/s. CCL. Of course, some of them have been issued by BHEL and some of them by Bihar General Works. Moreover, these certificates have been issued in respect of the individual 10 workman by Agencies such as Reunion Engineering Co. Ltd., Eastern Construction Company Ltd. and M/s. H.L. Roy, Bells Controls Ltd. etc.
14. The law is now no more res-integra; inasmuch as, in order to establish the connection of employer and employee relationship on the part of workmen, it is important to establish that the management exercised supervisory control upon these workmen and the payments of their wages were also being paid to them. Further, it is also settled principle of law that onus of proof that a claimant was in employment of a management primarily lies on person who claims to be a workman. In the case of Hussainbhai, Calicut VS Alath Factory, Thozhilali reported in 1978 AIR SC 1410, the Hon'ble Apex Court has laid down the law as under
" Who is an employee, in labour law ? That is the short, die-
hard question raised here but covered by this Court's earlier decisions. Like the High Court, we give short shift to the contention that the petitioner had entered into agreements with intermediate contractors who had hired the respondents-
Union's workmen and so no direct employer-employee vinculum juris existed between the petitioner and the workmen."
In the instant case, the workmen, in his evidence, has not been able to establish these facts nor led any evidence to that effect. These aspects of the matter have not been considered by learned Tribunal; whereas learned Writ Court after perusing the entire documents has come to the conclusion that the finding of learned Tribunal with regard to employee and employer relationship is without any evidence.
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15. Ld. Sr. counsel has also relied upon the agreement in order to submit that it was in the nature of service contract and CCL has been described as purchaser while BHEL has been described as a contractor. The contention of Ld. Sr. counsel is however without any evidence as noticed hereinabove. The entire documents as well as the agreement, the workmen have not been able to show any material on record under which it can be said that the petty contractors were through the principal employer under the terms of agreement. As a matter of fact, the number of Agencies, some of which has been referred to hereinabove, under which the workmen claim to have been engaged for different period in itself crystal clear to show that they were not working under one petty contractor i.e., Bihar General Works.
16. As a matter of fact, any claim for regularization, certain ingredients are required to be established i.e. employer- employee relationship; the continuous engagement for more than 240 days under principal employer or under a camouflage through a petty contractor. In the instant case, WW-1 claims to be one of the workmen; no other workmen have come forward to establish such claim. In fact, even WW-1 has not stated that any appointment letter has been issued by CCL in favour of any of the workmen nor there is any evidence of voucher.
17. Ld. Sr. counsel before the writ court and also before us had relied several judgments on the principles of judicial review and also on the point that the Industrial Tribunal is bound to examine the real issue in the background of the language of the reference to come to a proper finding of real 12 controversy. She has contended that if the findings of the Tribunal are fully supported by proper appreciation of evidence, the Writ Court should not enter into re-appreciation of evidence. Even, on the point of violation section 25F of I.D.Act, reliance has been placed in the number of judgments including the judgment passed in the case of SAIL Vs. National Union Waterfron Workers reported in (2001)7 SCC 1, The learned writ court after dealing the entire evidence and the argument before it had held at para-11 & 12 as under:
"11. The legal points and precedents urged in support have been considered by this Court with due relevance to the facts of the present case. This Court is conscious of the contour within which the findings of the learned Industrial Court are subject to judicial review. It goes without saying that in any industrial adjudication the industrial adjudicator which is a creature of statue is required to answer the reference in terms whereof the industrial dispute has been raised. It has been already noticed hereinabove that reference raised was in respect of regularization on the ground of engagement of 92 workmen under sub-contractor of M/s. BHEL namely Bihar General Works. The workmen, however, have proceeded to establish their case on the basis of their engagement with several other such petty contractors which were never covered under the terms of reference. The findings of the Learned Tribunal have completely failed to take notice of such a vital lacunae in the case set up by the workmen seeking regularization under principal employer-CCL.
12. As observed in the foregoing paras, the learned Tribunal has also failed to base its conclusion on any cogent evidence at all so far as the question of employer- employee relationship of these 92 workmen with M/s. CCL is concerned. The direction of the learned Tribunal for regularization suffers from serious error of law and is in teeth of ratio rendered by Apex Court in the case of M/s. Dena Nath & Ors. V. National Fertilizer Ltd. Reported in (1992) 1 SCC 695, para-22 as it has held that M/s. CCL should be treated as the principal employer on account of fact that it has failed to produce any contractor licence issued under Section 12 of the Act of 1970. These findings, therefore, are such which go to th4e rot of the matter.
Therefore, the Judgment relied upon by the Learned Senior Counsel for the workmen do not come to the aid of the work n the facts and circumstances of the case as discussed above. An industrial adjudicator while answering the reference was required to pose the correct question and answer them accordingly. A writ of certiorari in such circumstance is therefore wholly warranted..................
18. After going through the entire Lower Court Records, 13 we do not find any error in the impugned judgment passed by learned Writ Court and we reiterate that the finding of employer- employee relationship in fact are based on no evidence as held by the learned Writ Court and accordingly the learned Writ Court has not committed any error in holding that the Award suffers from perversity and serious error of law and fact.
19. With the aforesaid discussions, we hold that there is no error in the impugned order under appeal. Accordingly, the instant appeal is hereby dismissed. Pending I.As, if any, stands closed.
(Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Jharkhand High Court Dated 13/06/ 2024 jk/AFR 14