Management Of Bokaro Steel Cit vs Gen. Sec. Bokaro Karamchari Pa on 9 September, 2016

[Cites 17, Cited by 3]

Jharkhand High Court

Management Of Bokaro Steel Cit vs Gen. Sec. Bokaro Karamchari Pa on 9 September, 2016

Equivalent citations: 2017 AJR 100, (2017) 152 FACLR 330 (2017) 1 JCR 307 (JHA), (2017) 1 JCR 307 (JHA)

Bench: Aparesh Kumar Singh

                             W. P. (L) No. 3925 of 2002
              An application under Article 226 of the Constitution of India
                                    ----

Management of Bokaro Steel Plant of Steel Authority of India Ltd., Bokaro Steel City, District- Bokaro ....Petitioner.

-Versus-

1. The General Secretary, Bokaro Karamchari Panchayat, Sector-III, Bokaro Steel City, Bokaro

2. The Presiding Officer, Labour Court, Bokaro .....Respondents.

---

      For the Petitioner                    : Mr. G. M. Mishra, Adv.
      For the Respondents                   : M/s. Sumeet Gadodia
                                            & Prem Pujari Roy, Advs.
                                    ---
                                PRESENT
              HON'BLE MR. JUSTICE APARESH KUMAR SINGH

By Court,    Heard learned counsel for the parties.

2. The ManagementPetitioner has preferred this writ petition being aggrieved by Award dated 17th January, 2001 (pronounced on 25th January, 2002) (Annexure8) in Reference Case no. 15 of 1998 by learned Presiding Officer, Labour Court, Bokaro Steel City. The learned Labour Court has by the impugned Award held the reference as maintainable and the action of the management not to regularize the services of the concerned workmen is not justified. It has accordingly held that the concerned workmen are entitled for regularization of their services from 26th May, 1995 (the date of submission of statement of demand) with all back wages and consequential benefits.

3. The Government of Bihar vide its notification dated 21st July, 1998 made the following reference for adjudication before learned Labour Court, Bokaro Steel City:

"whether not to regularize the service of the Football Players: 1) Shri Mahendra Rana, 2) Habibulla 3) Ravi Kumar 4) Anil Kumar 5) Sanjiv Kumar 6) Sunil Kr.

7) Rohit Mukherjee 8) Paban 9) Ram Bahadur 10) Lal Bahadur and 11) Rajesh Kumar of Bokaro Steel Plant, Bokaro Steel City by the Management is justified? If not what relief the players are entitled to"

4. In order to address the grounds urged in support of the challenge to the impugned Award by the PetitionerManagement, the 2. necessary foundational facts as borne out from the records are noticed hereinafter.

The workmen raised industrial dispute by making a demand dated 26th may, 1995 (Annexure1) before the Managing Director, SAIL, Bokaro Steel City for regularization of salary and other benefits to the Football players. They contended that they have been engaged on stipend since last 1991 and are sportsmen/football players, who are participating in Inter Steel Football Matches organized by Bokaro Steel Plant under Sports Council of the Management. They are not being paid salary at par with other players as they are regular football players. Eleven persons therefore alleged victimization in not treating them at par with the enrolled employees of B.S.L. On these demands and on failure to arrive at conciliation between the workmen and the Management, the reference was made by the appropriate Government of State of Bihar.

5. The workmen set up their cases through their written statements that they are entitled for due wages and regularization of services. The Management has previously regularized the services of many other players from the Sports Council and that they are entitled for similar benefits of regularization. The management put up its case that plea of regularization is misconceived as there is no employee and employers relationship between them. It also pleaded that Bokaro Steel Sports and Recreation Council (B.S.S&R.C) is an independent and autonomous body, at time financed by Bokaro Steel Sports Club/ Association. It also stated that Bokaro Steel Plant does not have its own team of football players. A limited number of wards of the employees of Bokaro Steel Plant are there in the Sports Club, some of these players were at time included in the team of Bokaro Sports 3. Club/Council based on their performance in the game during the years and that some of them also participated in the Inter Steel Football Tournaments during different years including other players, some of whom happened to be the employees of Management. These football players were paid stipend at the rate of Rs. 500/ per month for about nine months by B.S.S and R.C and not by Management. The period of stipend was not extended for subsequent years 199596, but their engagement on stipendiary basis was also discontinued by Bokaro Sports Club as it did not bring the desired results. The Bokaro Steel Plant, a leading Unit in the Public Sector under Steel Authority of India Ltd. (SAIL), has its own prescribed Rules and Regulations, Service Conditions, Recruitment and Promotion Rules. These persons cannot claim regularization or appointment on the ground that they happened to be the ward of employees; their claims are false and unwarranted. Therefore, the demand is liable to be rejected.

6. The learned Tribunal formulated three points for consideration of the case:

i) whether the reference is maintainable?

ii) Whether not to regularize the service of Football Players Shri Mahendra Ram, Habibulla, Ravi Kumar, Anil Kumar, Sanjiv Kumar, Shushil Kumar, Robin Mukherjee, Pawan, Ram Bahadur, Lal Bahadur and Rajesh Kumar of Bokaro Steel Plant, Bokaro Steel City by the Management is justified?

iii) Whether the workmen are entitled to any relief?

All the points have been dealt together and answered in the impugned Award. One witness M. W1, Jai Prakash Lal, Chief of Communication Department of the Company and the Secretary of B.S.S & R.C since 1995 was produced by the Management.

7. On behalf of concerned workman, witness no. 1, S. K. Habibullah was examined. Certain documents were exhibited during the course of deposition.

8. Learned Labour Court after consideration of the materials on record including the deposition and the documentary evidences, came to a finding that B.S.S & R.C is not an autonomous body independent of Bokaro Steel Plant. It also came to the finding that their exists relationship of employer and employee between the management and workmen, though the workmen were paid small sum of stipend monthly. It also came to the conclusion that stipend to these workmen was paid from May, 1991 till May, 1995 on the basis of documentary evidence produced by either of the parties and the statement of the witness for management and the workmen as well. It also made observation that the management's witness conceded that the concerned workmen are competent players and there are no complaints against them. Therefore, there was no valid reason for discontinuance of stipend and removal of their names from the rolls of council, which tantamounts to retrenchment within the meaning of Section 2(oo) of Industrial Disputes Act, 1947. It came to a finding that all the concerned workmen had put in more than 240 days of continuous services and their retrenchment was bad in law and void abinitio. In that case the provision of Section 25F of I.D. Act were also not observed. The learned Labour Court also found that the Management has deprived them of status and privilege of permanent workmen despite utilizing their services for organization as a casual employee. This amounted to unfair labour practices on the part of the management within the meaning of Clause 1.10 of the Fifth Schedule of I.D Act, 1947, which deserves to be deprecated as the Management is an undertaking of Central Government. It referred to the judgment rendered by Apex Court reported in 1996 LIC 967 in the case of Chief Conservator of Forests and another etc. vs. Jagga Nath 5. Maruti Kondhare etc. on the point that if badlis, casuals or temporary workers are continued as such for years it can be inferred that it was with object to deprive them the status of permanent employees. In that case, the burden does not lie upon the workmen to establish that object of employers and therefore relief of regularization with all benefits of permanent workers cannot be refused. The learned Labour Court also took into account the instances of regularization of certain football players, namely, Songa Pareya earlier as was evident from Exts. W3 and W4. in the employment of management. W6 and W7 were also evidenced to lend support to their contention which persuaded the learned Labour Court to come to an opinion that such regularization had taken place. It also took note of the statement of MW1 that after coming on the rolls of the Company such persons continued to play on behalf of the Company, so long as they remained capable. However, the management witness had also qualified the statement that regularization of their services had been effected through the normal procedure and that they being competent player was not the only consideration. However, no such documents were produced by the Management. The learned Labour Court therefore answered the reference in favour of the workmen by holding in the terms as noted hereinabove directing the workmen to be regularized in service from 26th May, 1995 with all back wages and other consequential reliefs.

9. Counsel for the Management has assailed the findings of learned Labour Court mainly on the following grounds:

(i) The finding that retrenchment of these persons by the management was in teeth of provisions of Section 25F of I.D. Act was contrary to the terms of the reference. On such finding, a direction to 6. regularize is incompatible as there was no existence of employer and employee relationship from the date on which regularization has been directed i.e., 26th May, 1995.

Reliance has been placed on the judgment of Apex Court rendered in the case of Oshiar Prasad and others Vs. Employers in Relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Limitd Dhanbad, Jharkhand reported in (2015) 4 SCC 71, paragraph 25 thereof.

(ii) The Award is not inconformity with the ratio rendered by Apex Court Constitution Bench Judgment in the case of State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1, as there is no evidence on record to show that the engagement of the petitioner was inconformity with procedure laid down under Articles 14 and 16 of the Constitution of India. In the absence thereof any direction to regularize them would amount to perpetuating an illegality. He has also relied upon a judgment rendered by the Apex Court in the case of Hari Nandan Prasad and another Vs. Employer I/R to Management of Food Corporation of India and another reported in 2014 (7) SCC 190, Paragraphs 34 and 39 thereof. It has been canvassed that even in industrial adjudication, the learned Labour Court in such circumstances ought to have examined whether there was availability of post on the date, on which regularization was directed to be effected or there was an invidious discrimination visavis any other similarly situated person. This exercise has not been undertaken by the Labour Court directing regularization in general terms of these workmen on suitable designation commensurate with their qualification which is in itself in vague direction impractical to be implemented.

(iii) On the question of validity of reference he has relied upon the judgment rendered by the Apex Court in the case of National Engineering Industries Ltd. Vs. State of Rajasthan and others reported in 2000 LAB I.C 260. It is submitted that the question of validity of reference could only be raised in a proceeding under Article 226 of the Constitution of India. Therefore, the challenge to the reference on the nature of dispute referred is being pressed as these workmen had raised a totally different demand before the Management.

(iv) On the grounds of parity raised by the petitioner now with employee like Anil Kumar who has been regularized in service pursuant to the adjudication in Reference Case no. 6/1995 by Presiding Officer, Labour Court, Bokaro Steel City, it is submitted that these petitioners do not stand at par with the said workman in terms of the length of service, the nature of duties performed, the scale or grade on which he had worked etc. The findings of fact on such relevant factors recorded by learned Labour Court in that case upheld to the Apex Court are absent in the case of the present petitioner. Therefore, the case of Anil Kumar is distinguishable on the facts.

10. Learned counsel for the Management however has submitted that the grounds relating to the autonomous status of B.S.S & R.C may not be open to be raised after adjudication in Anil Kumar's Case upto Apex Court judgments. The Award and the judgments of High Court and the Apex Court are enclosed as Annexures: A to D in the counter affidavit of the respondent workmen. However, on other relevant facts, the case of the present workmen are distinguishable from that of Anil Kumar's case. On all those grounds, therefore, the impugned 8. Award suffers in the eye of law as well as on fact and warranting interference by this Court under Article 226 of the Constitution of India

11. Learned counsel for the workmen have defended the impugned Award. It is their case that findings recorded by learned Labour Court on the question whether B.S.S & R.C is not an autonomous organization independent of Bokaro Steel City is unassailable in view of the judgments on the same point in the case of Anil Kumar upto Apex Court. The said Anil Kumar has consequentially been regularized in service. It is further submitted that findings relating to status of the workmen and their engagement since May, 1991 to 1995 are also not open to challenge as no infirmity or perversity has been manifestly shown by the Management in the findings recorded. It is the case of the workmen that they stand on the same footing as that of other persons like Songa Pareya or Anil Kumar and few others, who have been regularized in service by the same Management on suitable designated posts commensurate with their qualification. These workmen do not insist on any particular post or grade but are inclined to accept regularization from due date on any post which is commensurate with their qualifications. After 20 years of the demand being raised now these workmen would be left with no avenue for any other gainful employment at this stage of their life. This Court may therefore suitably mould the relief in such circumstances while upholding the impugned Award. The impugned Award, however, does not suffer from any errors on the finding of fact or on the application of law to the question posed. It is submitted that the writ petition should be accordingly dismissed.

12. In support of their submission, reliance has been placed on the judgment of Apex Court rendered in the cases reported in (2015) 9 SCC 345, (2010) 3 SCC 637. It is further submitted that the plea of absence of sanctioned post is not open for them to be taken as no such grounds were urged before the learned Labour Court at the time of adjudication of reference.

13. I have considered the submission of the parties at some length and gone through the relevant records including the impugned Award. The status of B.S.S & R.C as an autonomous organization independent of Bokaro Steel Plant, is no longer an issue open for challenge. Apart from the findings recorded by learned Labour Court on the issue the status of B.S.S & R.C as a part of Bokaro Steel Plant, it stands determined in the case of Anil Kumar pursuant to the adjudication made in Reference Case No. 6/95 by learned Labour Court, Bokaro Steel City and upheld upto the Apex Court.

14. Counsel for the management has also not been able to dislodge the findings of fact recorded by learned Labour Court on the question of engagement of these workmen on stipend basis since 1991 till 1995. It would be only proper to refer to the discussions made on the issue by learned Labour Court at paragraph nos. 13, 15, 17, 18 and 19 of the impugned Award. The document as Ext.M1, letter dated 13th May, 1991 issued with approval of Managing Director of the Company shows the selection of 15 football players including the concerned workmen, on stipendiary payment for a period of one year. Learned Labour Court has found this evidence to corroborate the statement of WW1 that payment of stipend was started in the year 1991. It also refers to statement of M.W1, in his deposition, at para 5 that documents relating to payment of stipend to the concerned 10. workmen were available in the office. These documents which could have clearly shown the period of employment of workmen since May, 1991 were however not brought on record by the Management. Further stipened for the month of January,1995, were found to have been paid to these workmen in May, 1995 which was supportive of the version of the workmen that they were in receipt of such stipend from May 1991 till May 1995. These workmen through their witness have also stated that they were required to report to concerned authority daily in the morning and evening hours except on days of weekly off. Absence without information invited deduction from the stipendiary payment which was not rebutted by the management nor has any suggestion to the contrary been made to him. Ext. W1, office order dated 3rd August, 1992 issued by Deputy Manger, Mr. R. A. Khan of the Management company indicates approval of the competent authority of the company for their participation in some tournaments wherein besides the names of regular playeremployees, the names of certain concerned workmen also appear as members of the team. The name of the concerned workmen also appear in W2 dated 19th November, 1994 issued by the Executive Director of the Company showing them as employees on the rolls of Bokaro Steel Sports and Recreation Council with a request to organizing Secretary Inter Steel Plant Football championship 1994 TISCO Jamshedpur to allow them to represent Bokaro Steel Plant Football Team. This document has been held by Labour Court to deny the averments made by the Management that Bokaro Steel City does not have its own football team of football players. Reference has been made to exhibits W9 and W11 dated 26th November, 1994 and W12 dated 21st December, 1994 as also to Ext. M2 to M8 by learned Labour Court. 11.

15. In view of these documentary evidences and the statements of witness for management as well as the workmen, the learned Labour Court was persuaded to hold that contention of the Management that these workmen ceased to be on the rolls of the management after completion of their initial employment on stipendiary payment is not correct. Based on these evidences, the learned Labour Court came to a finding that there exists a relationship of employeremployee between the management and these workmen. The second issue relevant for determination before learned Labour Court on the question of engagement of these workmen on stipendiary basis from May 1991 till May 1995 and existence of employer and employee relationship therefore stood answered in favour of workmen.

16. At this stage, it would be proper to deal with the grounds of challenge by learned counsel for the management about the mode of engagement or recruitment of these workmen as casual employees on stipendiary basis being, assailed on the grounds of illegality and failure to follow the principles enshrined in Articles 14 and 16 of the Constitution of India.

17. The definition of workmen under Industrial Disputes Act, Section 2(s) reads as follows:

" workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person 12.

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature]

18. In that context, it would be proper to refer to the opinion of the Apex Court on the import and ambit of the exhaustive definition of the term of workman, as held in the case of Devinder Singh Vs. Municipal Council, Sanaur reported in 2011(6) SCC 584. Paras 12 to 14 of the report are quoted hereunder:

12. Section 2(s) contains an exhaustive definition of the term 'workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that that terms of employment are not reduced into writing.

The definition also includes a person, who has been dismissed, discharged or retrenched in connection with an industrial dispute or as a consequence of such dispute or whose dismissal, discharge or retrenchment has led to that dispute. The last segment of the definition specifies certain exclusions. A person to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957, is applicable or who is employed in the police service as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who is employed in a supervisory capacity and is drawing specified wages per mensem or exercises mainly managerial functions does not fall within the definition of the terms "workman.

13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It is apposite to observe that the definition of 13. workman also does not make any distinction between fulltime and parttime employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on a regular basis or a person employed for doing wholetime job is a workman and the one employed on temporary, parttime or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.

14. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of "workman".

19. From the quoted text hereinabove, it is apparent that the Apex Court has held that the exhaustive definition of the term 'workman' takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and it is immaterial that terms of employment are not reduced into writing. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/ pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It has been observed that that the definition of workman also does not make any distinction between fulltime and parttime employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only a person employed on a regular 14. basis or a person employed for doing wholetime job is a workman and the one employed on temporary, parttime or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.

Therefore, such a ground of illegality to question the engagement of the workmen on stipendiary basis for the period May 1991 till May 1995 by the Management is not a germane issue to be dealt with in an industrial adjudication where a reference has been made on the question of regularization of workmen. The challenge to the validity of the reference after having consciously participated in the proceeding before the Labour Court without raising an objection thereto is also not fit to be entertained at this stage.

20. Counsel for the management has while relying upon the judgment rendered by the Apex Court in the case of Uma Devi(Supra) has also fairly based his submission on the ratio rendered by Apex Court itself in the case of Hari Nandan Prasad and another Vs. Employer I/R to Management of Food Corporation of India and another reported in 2014 (7) SCC 190, reported in 2014 (7) SCC 190, where the principles enshrined in the Constitution Bench Judgment in the case of Uma Devi has been read with the principles on which the industrial adjudication is to be arrived at by the Labour Court on such question of regularization. Para 34 and 39 of the report is apposite to be quoted hereunder:

34. A close scrutiny of the two cases, thus, would reveal that the law laid down in those cases is not contradictory to each other. In U.P. Power Corpn. this Court has recognized the powers of the Labour Court and at the same time emphasized that the Labour Court is to keep in mind that there should not be any direction of regularization if this offends, the provisions of Article 14 of the Constitution on which the judgment in Umadevi is primarily founded. On the other hand, in 15. Bhonde case, the Court has recognized the principle that having regard to the statutory powers conferred upon the Labour Court/Industrial Court to grant certain reliefs to the workmen, which includes the relief of giving the status of permanency to the contract employees, such statutory power does not get denuded by the judgment in Umadevi case. It is clear from the reading of this judgment that such a power is to be exercised when the employer has indulged in unfair labour practice by not filing up permanent posts even when available and continuing to employ workers on temporary/dailywage basis and taking the same work from them and making them do some purpose which was being performed by the regular workers but paying them much less wages. It is only when a particular practice is found to be unfair labour practice, as enumerated in Schedule IV of the MRTP and PULP Act, and it necessitates giving direction under Section 30 of the said Act, that the court would give such a direction.

39. On a harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because the worker has continued as dailywage worker/ad hoc/temporary worker for number of years. Further if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as dailywager, etc. may amount to back door entry into the service which is an anathema to Article 14 of the Constitution.

Further, such a direction would not be given when the worker concerned does not meet the eligibility requirement of the post in question as per the recruitment rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached the Industrial/Labour Court are on a par with them, direction of regularization in such cases may be legally justified, otherwise, nonregularization of the leftover workers itself would amount to invidious discrimination qua them in such cases and would be violation of Article 14 of the Constitution. Thus, the industrial adjudication would be achieving the equality by upholding Article 14, rather than violating this constitutional provision.

From the opinion of the Apex Court rendered on a harmonious reading of the judgments on the point, it is evident that when there are posts available, in the absence of any unfair labour practice, the 16. Labour Court would not give direction for regularization only because the worker has continued as dailywage worker/ad hoc/temporary worker for number of years. Further if there are no posts available, such a direction for regularization would be impermissible. It has further opined that in such circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as dailywager, etc. may amount to back door entry into the service which is an anathema to Article 14 of the Constitution. Further, such a direction would not be given when the worker concerned does not meet the eligibility requirement of the post in question as per the recruitment rules. However, there is a caveat added that wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached the Industrial/Labour Court are on a par with them, direction of regularization in such cases may be legally justified, otherwise, non regularization of the leftover workers itself would amount to invidious discrimination qua them in such cases and would be violation of Article 14 of the Constitution of India. The Apex Court therefore, held that the industrial adjudication would be achieving the equality by upholding Article 14, rather than violating this constitutional provision. The Hon'ble Court has however also made it clear that the aforesaid examples are only illustrative. It would depend on the facts of each case as to whether the order of regularization is necessitated to advance justice or it has to be denied if giving of such a direction infringes upon the employer's right.

21. In the facts of the present case as has been dealt hereinabove the plea raised by the management relating to the cession of employer 17. or employee relationship sometime in January, 1995 disentitling the claim of regularization in such cases by relying upon the judgment rendered by the Apex Court rendered in the case of Oshiar Prasad and others Vs. Employers in Relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Limitd Dhanbad, Jharkhand reported in (2015) 4 SCC 71, however is distinguishable on the facts of the case. As is noted from the facts of the case of Oshiar Prasad (Supra), the workmen in question had been disengaged during the pendency of the Title Suit No. 51 of 1980 preferred against the BCCL in the Court of MunsiffII, Dhanbad though the trial court had finally decreed the suit on 27th May, 1983 holding that the plaintiffs are entitled to regularize in services of BCCL. The matter was taken upto the Apex Court through the stages of writ petition and Letters Patent Appeal preferred before this Court by the aggrieved parties. The Hon'ble Supreme Court in Special Leave Petition (C) No. 4495 of 1994, by order dated 14th November, 1994, however, dismissed the appeal of the appellant plaintiff with a liberty to approach the Industrial Tribunal for claiming of any appropriate relief, if so advised. It was only thereafter that the Reference under Section 10 was made by the Central Government on the question whether the workmen were entitled for absorption as regular employees. The Award dated 21st December, 1998 answered the same against the workmen.

22. In the aforesaid factual matrix of the case, the Hon'ble Supreme Court arrived at the opinion that the question of absorption or regularization would not have arisen as the workman/appellant at whose instance reference was made were terminated long back prior to making reference from the facts of the instant case. In the facts of the present case, however, it is evident that on 26th May, 1995 itself, 18. the month in which they were disengaged, the demand for according parity with regular employee in the matter of salary etc. was raised by the workmen in question which led to the industrial dispute being referred by the appropriate Government vide notification dated 21st July, 1998. Learned Labour Court in those circumstances came to a finding that cession of their engagement since 26th May, 1995 without observing the provisions of Section 25F of the Industrial Disputes Act, 1947 was not proper. However, the Learned Labour Court having observed as above proceeded to answer the reference by directing regularization of the workmen since 26th May, 1995 i.e., date of raising of the demand by the workmen before the Management.

23. However, on perusal of the impugned Award, even after leaving aside the observation relating to retrenchment, the materials adduced during the industrial adjudication independently are sufficient to support its answer to the reference in question.

24. Having said that in view of the ratio rendered by the Apex Court in the case Hari Nandan Prasad and another(Supra) reported in 2014(7) SCC 190, it cannot also be lost sight of that learned Labour Court was also required to address itself on the question of the availability of sanctioned post with the Management before directing the regularization of individual workmen. This approach was warranted in view of the facts that the industrial adjudicator in matters of granting of relief in a case of public instrumentality where under Articles 14 and 16 of the Constitution of India are also required to be observed, has an obligation to satisfy itself on that aspect of the matter. In that way, the implementation of the direction for regularization with effect from 26th May, 1995 may also be depending upon availability of sanctioned vacant post with the Management, a 19. Unit of public sector undertaking i.e, Steel Authority of India Ltd. It is to be noted here that the Labour Court came to a finding of unfair labour practice on the part of the Management in not giving permanent status to these workmen despite keeping them in employment for a number of years.

25. On the question of parity it is also necessary to compare the findings of fact in the case of Anil Kumar whose judgment have been enclosed to the counter affidavit by the workmen themselves. It is evident therefrom that the said persons had been appointed in 1985 itself and had continued for sufficient length of time for 10 years as a Junior Sports Officer. He had also been transferred from one place to another which facts have been taken note of not only by learned Labour Court but also by learned Single Judge as an attribute of employeremployee relationship in the challenge led by the Management. His case therefore may not stand on same footing as those of the persons. In the present case, however, there are other evidences on record before learned Labour Court such as regularization of an employee, Songa Pareya since August, 1982 or certain exhibits in the nature of W6 & W7 of certain employees who have been regularized in service.

However, the findings recorded by learned Industrial Court in the impugned Award on overall consideration do not appear to suffer from any legal or factual infirmity.

26. In that event after 21 years of the dispute being raised on 26th May, 1995 and the reference referred in 1998 having been answered by the impugned award on 17th January, 2002 itself, it would not only be a wholly futile exercise but hugely onerous for the workman to remand the matter before the learned Labour Court to deal with the 20. question of availability of sanctioned and vacant post for the purposes of regularization of the workmen in question. Therefore in order to effect a just resolution of the situation faced, it is considered appropriate to mould the relief granted by the learned Labour Court. The petitionerManagement would therefore consider the regularization of the workmen in question from the date of availability of sanctioned vacant post commensurate with their qualification in the proper grade. This exercise should be undertaken within a period of 16 weeks from the date of a certified copy of this order. This Court is also of the view that in the totality of facts and circumstances therefore the direction to grant the entire back wages and other consequential benefits also requires to be modified. The individual workmen would be entitled to the back wages to the extent of 25% only from the date of regularization. However, for the purpose of fixation of their salary and other post retiral benefits, they would be treated to be in continuous service from the date of their regularization. This would meet the ends of justice.

27. The writ petition is accordingly disposed of with the aforesaid observations and directions.

(Aparesh Kumar Singh, J) Jharkhand High Court, Ranchi The 9th September, 2016 Jk/AFR

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