Jharkhand High Court
Employers In Relation To The Management ... vs Presiding Officer, Central Govt. ... on 2 September, 2003
Equivalent citations: 2003(3)BLJR2058, [2003(4)JCR34(JHR)], (2004)ILLJ554JHAR, 2004 LAB. I. C. 232, 2004 AIR - JHAR. H. C. R. 355, (2003) 99 FACLR 804, (2004) 1 LABLJ 554, (2004) 1 CURLR 842, (2004) 107 FJR 527, 2004 LABLR 57, (2003) 4 JCR 34 (JHA), (2004) 1 LAB LN 1140, (2003) 4 JLJR 536, 2003 BLJR 3 2058
Author: R.K. Merathia
Bench: P.K. Balasubramanyan, R.K. Merathia
JUDGMENT R.K. Merathia, J.
1. As both the appeals arise out of a common judgment passed in CWJC No. 761 of 1996 (R), they were heard together and are being disposed of by this common judgment.
2. On the basis of the following reference, the award in question was passed on 19th December, 1995 in Reference Case No. 141/92 (old)/89/95 (new) "Whether Sh. Chandradeo Prasad Mandal and 65 other persons employed in Bhuli Township for repairing and maintenance of hand pump through a contractor are to be treated as employees of M/s. BCCL and whether the demand that these persons be regularized in the services of the said management is justified? If so, to what relief are these persons entitled?"
3. The case of the contractors' labourers, inter alia, was that Shri Chandradeo Prasad Deo and 65 other workmen, as per the list, were working as Mistry, Plumber, Helper and Fitter for maintaining hand pumps and the water line for supply for water in the quarters of Bhuli township; the job was permanent in nature and they were regularly working since October, 1978; the tools etc. were supplied by the management and they used to repair hand pumps on the basis of slips which were issued by the supervisor on receiving complaint, therefore, they were under direct control and supervision of the Management; they were not given the same scale of wages and allowances, paid to other regular employees.
4. The case of the Management, inter alia, was that there was no employer-employee relationship as contracts were awarded to different parties for ensuring proper functioning of handpumps; the workmen were working under the contractor, Shri Shambhu Nath Pandey; the contractor as well as supervisors and munsi used to inspect the proper working of handpumps; the contractor submitted his bills; he used to select the workmen, as per his requirement from time to time; usually, he engaged about 10 to 12 workmen; however during dry season and emergency conditions the strength of workmen could go up to 30 put in no case 65 of them were engaged at any point of time; the contractor exercised control over his workmen, who were temporary and casual, engaged from time to time considering the, duration of contract; most of the persons in this case are outsiders and job seekers making attempts to get themselves engaged Jnto the service through back door method; they did not work under the Management or under any contractor; engagement of contract labour on civil construction work and allied nature have not prohibited under the Contract Labour (Regulation and Abolition) Act, 1971; the Union has no right to demand regularization; it is incorrect that the labourers are working from October, 1978; the maintenance work of hand pumps is not permanent but it is of intermittent nature; and that the labourers are not paid below the prescribed minimum wages.
5. The Industrial Tribunal held that the labourers were employed under the contractor and that they were not the employees under the management directly, but they were the workmen of the management, as the job was of permanent nature and they were working for a long time under the control and supervision of the management. The Tribunal directed the management to re-instate 21 contract labourers listed in group 'A' of the award within one month and regularize and other 45 contract labourers under group 'B' of the award, within one year, in category 1, for the purpose they were engaged in, or in any other department under the management of BCCL.
6. The said award was challenged by the management by filing a writ petition in this Court being CWJC No. 761 of 1996 (R). The learned Single Judge held that in view of the judgment of Hon'ble Supreme Court rendered in Air India Statutory Corporation v. United Labour Union, reported in (1997) 9 SCC 377, if the employment was of perennial nature, contract system stands abolished and therefore the contract labours are required to be regularized; and that the Impugned award cannot be held as contrary to law and as against the spirit of the Contract Labour (Regulation & Abolition) Act, 1970 (the Act for short); and that merely because the work of repairing and maintenance of hand pumps has not been prohibited by a notification under Section 10 of the Act, it cannot be held that the concerned workmen are not entitled to regularizatfon if it is proved that the work is perennial in nature and the concerned workmen were working regularly for so many years. However, the learned Single Judge upheld the award so far as 21 persons listed in Group 'A' but the direction to regularize rest 45 workmen was held to be unjustified. Thus, the writ petition was allowed in part.
7. The management has challenged the said decision of learned Single Judge confirming the direction of the Tribunal to absorb/re-instate 21 workmen shown in Group 'A' of the award, in LPA No. 309 of 1997 (R).
In LPA No. 296 of 1997 (R), the Union, representing the rest of the 45 workmen has challenged that part of the judgment of learned Single Judge, whereby direction to regularize them was held to be unjustified.
8. Learned counsel for the management-appellant in LPA No, 309 of 1997 (R) submitted that the learned Single Judge did not consider the managements' case about perversity of the findings recorded by the Tribunal and decided the case only on the basis of the Judgment in Air India's case (supra), which has now been overruled by the Supreme Court in the case of Steel Authority of India Limited v. National Union Waterfront Workers, reported In (2001) 7 SCC 1; and that as the direction of the Tribunal has not been given effect to and the same has not become final in view of the pendency of this appeal in this Court, the present appeal is fit to be allowed on the basis of Steel Authority's case (supra).
He further submitted that the Tribunal having found that the contract labours were employed and were the workmen of contractors, and at no point of time they were employed under the management directly; could not record a finding that, as the job was of permanent nature and they were working for a long time under the control and supervision of the management, they were workmen of the management. It was also argued that the findings were perverse as they were not based on the evidence available on the record.
The certificate dated 30.9.1982 relied on was only to this effect, that the contractors were engaged for several jobs, including the one in question, and they used to engage the 38 workmen between October, 1978 to September 1982. Counsel submitted that even if the job of maintenance of hand pump was a regular one it could not be held on the basis of the said document, that the 38 labourers listed therein were continuously working from October, 1978 to 1982. Counsel submitted that the minutes of discussions also did not confer any right on the concerned workmen for their regularization. Only because the wage-sheets were prepared by the management in order to help the workmen and see that they are paid minimum wages and work slips were issued and work was supervised, it cannot be said that the workmen were directly under the management. It was also pointed out that the contract labours were disengaged in 1993, i.e. during the pendency of the reference, before the Tribunal.
Learned counsel lastly submitted that there is no finding that the labour contract was not genuine and was a mere camouflage.
9. Learned counsels appearing on behalf of the Union (representing 21 workmen in LPA No. 309 of 1997 (R) as respondent, and 45 workmen in LPA No. 296 of 1997 (R) as appellant), supported the findings of the Tribunal and submitted that those should not be disturbed by the High Court in a writ proceeding. They also submitted that even though the engagement of contract labour for the job in question was not prohibited under the Act, but in view of the perennial nature of the job and in view of the fact that the workmen were working for a, long time, learned Tribunal rightly directed the management to regularize them. Learned counsel appearing for the Union on behalf of 45 workmen in LPA No. 296 of 1997 (R) also assailed the decision of learned Single Judge rejecting their claim of regularization. Counsels also cited certain judgments.
10. In view of the authoritative pronouncement in Steel Authority's case on the issue involved, it is not necessary to refer to the judgments cited by learned counsel appearing for the Union in these appeals.
11. Even going by the findings of the Tribunal, it is clear that the concerned workmen were engaged by the contractor and there was no prohibition for engaging contract labour on the job of maintenance and repairing of hand pumps. Even if the said job was a regular one, there is no material to hold that the workmen were engaged/working continuously under the contractor. There is no finding that the contract in question was a camouflage. It is held in paragraph 120 of Steel Authority's case (supra) that, at various stages there is involvement of the principal employer, and that neither the provisions of the Act create a direct relationship of master and servant between the principal employer and the contract labourer nor can such relationship be implied, on issuing a prohibition notification under Section 10(1) of Act. It was also held in paragraph 125(3) that there is no provision for automatic absorption of contract labour on issuing a prohibition notification. The Air India case (supra) on the basis of which, the learned Single Judge has allowed the writ petition in part, has been overruled. However, any direction for absorption issued following the judgment of Air India case were saved in cases were such direction has been given effect to and has become final. In the present case, as the direction to regularize has not been given effect to and it has not become final in view of the pendency of these appeals, we are of the view that Steel Authority's case is applicable in the present case.
12. After hearing the parties and going through the records and keeping in view the facts and circumstances of this case, we are of the view that the award in question and the judgment of learned Single Judge cannot be sustained. They deserve to be set aside. ;
13. Before parting with these judgments, we notice that on a petition under Section 17B of the Industrial Disputes Act, by order dated 2.11.1998, this Court directed the employer to pay to 21 workmen full wages last drawn by them inclusive of the maintenance allowance admissible to them under any rules during the pendency of this appeal in this Court and continue to keep on paying the same every month. It was ordered that the concerned workmen will produce all the certificate/evidence of last pay drawn by them before the employer on the basis of which payments shall be made in terms of the order read with Section 17B of the Industrial Disputes Act. Against this order, the Management moved the Supreme Court in SLP (Civil) No. 923/1999 giving rise to Civil Appeal No. 6756 of 1999, wherein the Supreme Court observed that the said order passed under Section 17B will be subject to final orders which may be passed in this appeal. The Supreme Court further ordered that the question as to whether Section 17B would apply or not has to be decided by the High Court while finally disposing of this appeal. Accordingly an undertaking was given by the concerned workmen to the effect that in the event of success of the management in this appeal, the amount in question shall be returned to the management.
14. A Division Bench of this Court has held on 20.3.2003 in LPA No. 9 of 2003 that in a case involving regularization, Section 17B is not applicable. Thus that aspect is now concluded so far as this Court is concerned. In the facts and circumstances, of this case and in view of the said decision, we are of the view that Section 17B of Industrial Disputes Act is not attracted, in this case. The amounts if any paid to the workmen are liable to be refunded in view of the undertaking given in that behalf.
15. In the result. LPA No. 309 of 1997 (R) is allowed and LPA No. 296 of 1997 (R) is dismissed. The award and the decision of learned Single Judge are set aside. There will be no order as to costs.