Bombay High Court
The Workmen Of Taroda Opencast Mine vs Central Government Industrial on 5 January, 2011
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 327 OF 1998
The Workmen of Taroda Opencast Mine
of Western Coalfields Limited,
represented by the Union, Rashtriya
Koyala Khadan Mazdoor Sangh (INTUC),
through its Joint General Secretary,
Shri G.V.R. Sarma. ... PETITIONER
Versus
1. Central Government Industrial
Tribunal-cum-Labour Court No.2,
IInd Floor, Shram Raksha Bhavan,
Shiv Shruti Road, opposite Priya
Darshani, Off Eastern Express
Highway, Sion, Mumbai 400 022.
2. The Sub Area Manager,
Taroda Opencast Mine, now
known as Neeljay Opencast Mine
No. 1 of the Western Coalfields
Limited, Post Office - Belora,
District - Yavatmal (Maharashtra). ... RESPONDENTS
Shri R.B. Pendharkar, Sr. Advocate with Shri G. Belsare, Advocate
for the petitioner.
Shri M.P. Badar, Advocate for respondent No. 2.
.....
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2
CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT : DECEMBER 16, 2010
DATE OF PRONOUNCING THE JUDGMENT: JANUARY 05, 2011
JUDGMENT :
By this petition filed under Article 226 of Constitution of India, the petitioner - Trade Union has challenged the Award dated 02.05.1997 delivered by the Central Government Industrial Tribunal No. 2, Mumbai, in Reference No. CGIT-2/68 of 92 answering the reference made at their instance in negative.
The reference as made on 10.12.1992 reads as under:
"Whether Shri K.P.S. Nair and other 12 workers (list enclosed) working in the Canteen through the contractor are entitled for absorption by the Sub Area Manager, Taroda Opencast, W.C. Ltd., District -
Yeotmal, after working from March 1989 ? If not, to what relief they are entitled to ?"
2. The reference was sought by the petitioner about workers in Canteen at Taroda Opencast Coalmine. The mine is one of the mines owned and managed by National Coal Limited ::: Downloaded on - 09/06/2013 16:44:21 ::: 3 i.e. Coal India Limited. The operations there started in the year 1987 and with a view to make canteen facility available to employees working therein, a contractor came to be appointed by an order dated 16.03.1989. Contractor engaged certain workmen and their names have been shown in scheduled appended to reference. Those names also include name of Contractor himself as worker at sr. no. 1. They started working from March 1989 and their wages were paid every month in presence of a Welfare Officer of Taroda Opencast mine. They approached Central Government Industrial Tribunal (CGIT) with contention that engagement of contractor was in violation of Contract Labour (Regulation and Abolition) Act, 1947, and also all provisions of Mines Act, 1952 and Mines Rules, 1955, framed thereunder. They also pointed out various provisions of bi-
partite agreement between employees of Coal-mines and National Coal Limited to urge that the engagement of contractor was also in breach thereof. They particularly relied upon National Coal Wage Agreement - IV (NCWA - IV) signed on 27.02.1989 which came into force on 01.01.1987. They, ::: Downloaded on - 09/06/2013 16:44:21 ::: 4 therefore, claimed absorption in service of Respondent No. 2 -
Sub-Area Manager of Taroda Opencast mine. Respondent No. 2
- management resisted the claim and contended that there was no relationship of employer and workman. They also pointed out that arrangement of contractor was made on ad-hoc basis and as per decision taken in joint meeting of management and different Unions including the petitioner. They, therefore, urged that Union cannot raise such dispute. They further claimed that neither Mines Act, 1952 nor Mines Rules, 1955, were violated and there was also no violation of any National Coal Wage Agreement (NCWA). CGIT accordingly framed issues and answered the reference in negative observing that contractor K.P.S. Nair and other 12 workers mentioned in the scheduled were not entitled for absorption.
3. I have heard Shri Pendharkar, learned Senior Advocate with Shri Belsare, Advocate for the petitioner and Shri Badar, learned Advocate for respondent No. 2 - employer.
::: Downloaded on - 09/06/2013 16:44:21 ::: 54. By giving a very brief outline of the dispute and controversy involved, the learned Senior Advocate stated that there are two options open before this Court. First one is to remand the matter to CGIT as it has not considered the relevant material and also law on the point. Second one and on which he laid more emphasis is to record a finding on existence of master servant relationship and remand the matter to CGIT to fix the salary/benefits of respective workman from 05.03.1989.
Attention has been invited to the evidence adduced and also to written arguments filed before the CGIT to urge that the facts brought on record in that evidence and pressed into service in written arguments have not been appreciated at all. It is pointed out that existence of NCWA - III before 1987 casting similar obligation upon Respondent No. 2 - employer is also overlooked and case law specifically cited by indicating relevant portion therein has been ignored only because the photostat copies of the citations or journals containing the same were not made available. It is contended that all this has resulted in refusal to exercise jurisdiction.
::: Downloaded on - 09/06/2013 16:44:21 ::: 65. The learned Senior Advocate points out that there was never any dispute about the identity of 13 workers in relation to whom reference was made and person at Sr. No. 1 therein by name K.P.S. Nair was shown as Contractor by Respondent No. 2. These names are accepted by the management on 04.03.1996 and in spite of this, for the first time before this Court, dispute about identity of these 13 workers has been raised. Attention has also been drawn to communication dated 20.07.1991 forwarded by the Manager of Respondent No. 2 to Personal Manager working at Wani Area in this respect to show that these 13 names also figure in that communication.
The other documents on record are also relied upon to show that supervision and control on Canteen was always that of Respondent No. 2 and canteen could not have survived if operations of Respondent No. 2 were to be discontinued. The learned Senior Advocate states that Respondent No. 2 made the space for canteen available, utensils and furniture was also provided, coal and electricity was also supplied free by Respondent No. 2. The price of articles sold was also decided by ::: Downloaded on - 09/06/2013 16:44:21 ::: 7 Respondent No. 2 and hence the active control by said respondent on working of these 13 claimants has been established on record. The contractor as shown was, therefore, sham and bogus. In effect said contractor Shri K.P.S. Nair was himself a workman under Respondent No. 2 & hence, he also sought recognition of that capacity. The fact that alleged Contractor was not registered, is also relied upon to show that entire arrangement & contract with him was sham and bogus.
6. The constitution of Canteen Committee on 28.12.1988 is also pressed into service with contention that the Commercial Manager of Respondent No. 2 functioned as its Chairman. The said constitution is contrary to Rule 69 of Mines Rules 1965. Earlier, award in identical circumstances delivered by CGIT, Jabalpur on 26.12.1990 and Circular No. 21 of 1961 is shown to this Court to urge that even as per that award & policy decision, running of canteen through contractor is expressly prohibited.
::: Downloaded on - 09/06/2013 16:44:21 ::: 87. The alleged subsequent event of running of canteen by Co-operative Society of employees from December 1993 or departmentally by Respondent No. 2 from August 1994 is also assailed by pointing out that said events have taken place during the pendency of reference proceedings and hence are hit by provisions of Section 33 of Industrial Disputes Act, 1947. Those developments are, therefore, stated to be irrelevant and insignificant insofar as controversy before this Court is concerned.
8. It is pointed out that as per agreement with Contractor, canteen was to continue only for a period of one year but then it has continued even thereafter till December 1990 and these 13 workers have received their salary accordingly. The canteen was handed over to Co-operative Society vide communication dated 15.12.1991 and even on that date, 13 workers had continued to serve the establishment. The provisions of Mines Rules, particularly Rule 69, the National Coal Wage Agreements and evidence of employer is pressed into ::: Downloaded on - 09/06/2013 16:44:21 ::: 9 service to show that failure to look into all these details has materially affected the consideration of controversy by CGIT.
9. The definition as contained in Section 2(h) of Mines Act, 1952, to show when person can be said to be employed and Section 58(o) and (p) thereof are pressed into service with provisions of Chapter IX of the Mines Rules, 1955, dealing with canteen. Attention is also invited to definition of mine as contained in Section 2(1)(b), to provisions of Fourth Schedule and to provisions of Fifth Schedule of Industrial Disputes Act,1947, to urge that any increase or decrease in number of workers is to be regulated in accordance with these Schedules & its S.9A. Lastly, it is urged that provisions of Section 33 of ID Act are not considered at all and the right of 13 employees to apply for regular recruitment or absorption has been taken away when canteen was started departmentally in August 1994. It is urged that there cannot be any estoppel in such matters. The Industrial Court, therefore, ought to have pierced the veil and found relationship between Respondent No. 2 and these 13 persons for ::: Downloaded on - 09/06/2013 16:44:22 ::: 10 whose benefit the reference was moved. The learned Senior Advocate has placed reliance upon various judgments and I find it appropriate to refer to the same as and when occasion therefor arises.
10. Shri Badar, learned Advocate, on the other hand, has argued that the reference as made by the petitioner - Union cannot be accepted as reference at the instance of 13 workers.
He points out that none of these 13 workers have been examined before CGIT and their whereabouts are also not known. The mode and manner in which their names are disclosed/recorded is also pointed out to urge that the same appears doubtful. The complete name with their surname and address has not been recorded and brought on record. The number of workmen is also not certain as in Charter of Demand there were 16 workers while in reference there are only 13 names. Payment sheet for the month of December 1990 is also shown to this Court to show that it contains only 12 names and two names appearing therein do not figure in 13 names mentioned above. It is urged that ::: Downloaded on - 09/06/2013 16:44:22 ::: 11 after canteen was handed over to Co-operative Society, the contractor or these workers have ceased to work therein and since December 1991, they are not available. Respondent No. 2 has recruited permanent regular employees in canteen and they are presently working. Shri Badar, learned Advocate states that in dispute of this type, the details like age, qualification, post held in canteen, were all very vital and absence thereof renders the reference itself bad. The learned counsel has pointed out that in chart giving basic scales of pay for the first time, some designation are shown but then those are in relation to only few persons while in relation to others, these details are missing. It is urged that decision to appoint contractor was taken jointly on 7/8th February 1989 in meeting in which two representatives of the petitioner Union also participated. The attention is also invited to terms and conditions as evolved therein to demonstrate that it was only an ad-hoc arrangement for a period of one year. The reliance is being placed on communication dated 16.03.1989 for said purpose.
::: Downloaded on - 09/06/2013 16:44:22 ::: 1211. The provisions of Rule 64 of Mines Rules, 1955, cast no obligation upon the employer to provide any canteen and the ad-hoc arrangement was discontinued when canteen was handed over to Co-operative society of employees. It is further urged that from August 1994, Respondent No. 2 is running the canteen departmentally and workmen in canteen are the permanent employees of Respondent No. 2. An affidavit has been filed before this Court on 14.12.2010 showing position of workmen working in the canteen. It is further urged that contractor willingly handed over the possession to the Co-operative society in response to communication dated 15.12.1991. Various documents on which the petitioner has placed reliance are stated to be not relevant as they do not pertain to establishment of Respondent No. 2. It is stated that there is no prohibition for engaging contract labour for canteen and reliance is being placed on Central Government Notification dated 15.02.1975 in support. It is urged that the provisions of Section 2(h) of Mines Act, 1952, need to be read in the light of Rule 78 and Rule 48(3) of Mines Rules, 1955. It is also pointed out that for alleged ::: Downloaded on - 09/06/2013 16:44:22 ::: 13 breach or change in conditions of service, no steps under Section 33-A of ID Act were taken at any point of time by the petitioner.
It is urged that employment with Respondent No. 2 is a public employment and any length of service is not sufficient for directing absorption of such employees of contractor in its canteen. The learned Advocate also relied upon certain judgments to substantiate his contentions and concluded by submitting that if remand is found necessary, CGIT should be permitted to look into the dispute as to the identity of the workers.
12. Shri Pendharkar, learned Senior Advocate, in reply, has stated that challenge to identity of workers did not figure in written statement and these names were accepted by Respondent No. 2 in its internal correspondence. It is further urged that various documents filed before CGIT are in relation to subsidiaries of Western Coalfields Limited and in present matter also written statement before CGIT and return before this Court is sworn by the competent officer of WCL only. It is further ::: Downloaded on - 09/06/2013 16:44:22 ::: 14 pointed out that Respondent No. 2 has accepted that NCWA - IV is binding upon it. It is also urged that the Conciliation Officer was requested by the petitioner to take cognizance of dispute in relation to 13 workmen whose name appeared in the Schedule in the light of relevant NCWAs. The attention is also invited to stand in written statement that the petitioner - Union was indirectly stalling the process of absorption of employees. The affidavit of examination in chief of the petitioner filed before CGIT is also pointed out to show that designation of canteen workers is disclosed therein.
13. It is seen that the schedule appended to the reference carries 13 names. The first eight names therein show first name, father's name or then initial and surname. Later five names are only first names without his age, occupation or address. This description was never challenged by the respondent 2 as inadequate. None of these 13 workers have entered the witness box. The correctness of these 13 names & this position is, however, also accepted in its internal communication forwarded ::: Downloaded on - 09/06/2013 16:44:22 ::: 15 by the Manager of respondent No. 2 to Personal Manager of WCL. The names appear in similar fashion even in that communication. It can, therefore, be safely said that 13 workmen named & as mentioned in Schedule to reference were working in canteen. The issue about identity was never raised by Respondent No. 2 before the CGIT at any point of time.
Hence, remand only on that ground is not essential.
14. The various judgments have been cited before this Court to point out tests to be applied while determining the relationship of employer and employee. Royal Talkies, Hyderabad vs. E.S.I. Corporation, reported at 1978 Lab. I.C. 1245 is the case where employees of Cycle Stand and Canteen run in Cinema Theatre by contractors were found covered by definition of term employee in Employees State Insurance Act. The said consideration shows that the definition was found wide and all that was necessary was employee has to be on the premises or under the supervision of principal employer or his agent. The requirement needed to be satisfied is found to be the work done ::: Downloaded on - 09/06/2013 16:44:22 ::: 16 by him. Such work should be ordinarily (not necessarily, not statutorily) part of the work of the establishment.
15 In M.M.R. Khan & Ors. vs. Union of India & Ors, reported at 1990 II CLR 261, case of employees in canteens in the establishment of Railways has been considered. Consideration in paras 25, 26 & 27 reveals that there the Railway administration was competent to employ a Staff Committee or a co-operative society for the management of canteen and legal responsibilities for its proper management rested solely with railway administration. After considering the facts like reimbursement of wages in full by Railways, existence of canteens in place for number of years, the entire paraphernalia belonging to railways, it has been held that the employees in statutory canteen, needed to be treated as Railway servants.
16. In S.J.T. House vs. C.I., Shops & Establishments, reported at 1974 Lab. I.C. 133, after applying relevant tests, it has been held that the employer's right to reject the end product ::: Downloaded on - 09/06/2013 16:44:22 ::: 17 was sufficient to indicate control and provision. Dispute there pertained to tailors & the fact that the Tailors were free to take the work from other tailoring establishments and not obliged to work whole time with appellant before the Hon'ble Apex Court, were found not militating with their status as employees of the proprietor of the shop, where they attended for work.
17. In Husainbhai vs. Alath Factory Tezhilali Union, reported at AIR 1978 SC 1410, again test for determining workman and employer relationship are laid down. One of the tests mentioned in para 5 is the effect of chocking off of the employer on the work of workmen. It is held that if in the event of such choking off, the worker is virtually laid off, the presence of intermediate contractors with whom alone the workers have immediate or direct relationship was of no consequence when, upon lifting the veil, the real employer was exposed.
18. In G.M., ONGC, Shilchar vs. O.N.G.C., Contractual Workers Union, reported at 2008 II CLR 988, the Hon'ble Apex ::: Downloaded on - 09/06/2013 16:44:22 ::: 18 Court has found that if upon lifting veil, a relationship of master and servant between ONGC and workers was established, the workers would ipso facto be entitled to all benefits. In such situation, the Hon'ble Apex Court has noticed that when contract is found to be sham and nominal, such cases do not relate to abolition of contract labour but present instances wherein the Court pierces the veil and finds out correct position. There, it is also noted that in case of R.K. Panda vs. Steel Authority of India, reported at 1994 II CLR 402 SC, the Hon'ble Apex Court had already found that wherein in discharge of statutory obligation of maintaining a canteen in an establishment, the principal employer availed the services of the contractor, the contract labour would indeed be the employee of principal employer. The Constitution Bench judgment in the case of the Secretary, State of Karnataka vs. Umadevi, 2006 II CLR 261 S.C., is found to be not applicable in such situation.
19. In Punjab National Bank vs. Punjab National Bank Canteen Workers' Union (Calcutta), reported at 2007 III LLJ Cal. 1040, the Division ::: Downloaded on - 09/06/2013 16:44:22 ::: 19 Bench of Calcutta High Court has upheld the claim of employees of a canteen of Bank as regular/ permanent employees of Bank.
In para 13, it is found that Bank had say in running of canteen though the facility provided was voluntary one. The Canteen Committee there was to run canteen under the supervision and control of the Bank. Bank had provided free accommodation, free electricity, kerosene and fuel and also granted subsidy.
20. The controversy involved in present matter needs to be looked into in this background. I have made very brief reference to these judgments because the definition as contained in Section 2(1)(h) of Mines Act, 1952, is very wide. It states that a person is said to be "employed" in a mine who works as the Manager or who works under appointment by the owner, agent or Manager of the mine or with the knowledge of the manager, whether for wages or not in any welfare, health, sanitary or conservancy services to be provided under this Act or watch and ward, within the premises of the mine excluding residential area.
The only relevant part of that definition is briefly stated above.
::: Downloaded on - 09/06/2013 16:44:22 ::: 20This definition shows that a person working in any welfare services required to be provided under Mines Act, 1952, even with the knowledge of the manager, is said to be employed in a mine. Admittedly, Canteen here is in mine and not in its residential locality. The provisions of Mines Rules, 1955, particularly Chapter IX prescribes & regulates welfare activities.
Rule 64 states that at every mine where more than 250 persons are ordinarily employed, if the Chief Inspector or a Inspector so requires, there shall be provided and maintained in or adjacent to the premises of mine, a canteen for use of all persons employed. Thus, Canteen is a welfare activity or amenity to be provided at every mine. It is not in dispute that in present matter number of employees exceeded 250. The establishment of mine is running in all three shifts and canteen also was running in three shifts.
21. On 21.01.1989, the petitioner Union nominated its two representatives for the purpose of development of canteen facility. The Committee for said purpose was constituted as per ::: Downloaded on - 09/06/2013 16:44:22 ::: 21 communication dated 27/28th December 1988 of the respondent
2. The Committee was competent to decide the rates and quality of snacks to be served in Canteen and it was also to decide whether Canteen should be handed over to private party or should be run by the management. The proceedings of said Committee conducted on 05.03.1989 show that two nominees of the petitioner were present therein and in that meeting the Contractor was also present. He agreed to start canteen by March 11, 1989. The proceedings also show that Committee agreed to fix the rate of rice plate at Rs.2.50 and contract was given to run the canteen for one year.
22. These facts, therefore, clearly show that the contractor was entrusted canteen by Respondent No. 2 itself and engagement of various workers by him was with the knowledge of Manager of Respondent No. 2. Their engagement, therefore, is covered by definition as given in Section 2(1)(h) of the Mines Act. Their names have also appeared in internal communication as already stated above. Hence, it is apparent that these 13 ::: Downloaded on - 09/06/2013 16:44:22 ::: 22 persons were working in canteen with the knowledge of manager and, therefore, " said to be employed" within the meaning of said term. In view of this position, it is not necessary to discuss other case law laying down various tests to find out existence of employer--employee relationship.
23. The documents on which the petitioner placed reliance before CGIT show that as per clause 8.9.0 of NCWA - III, signed on 11.11.1983 and in force up to 31.12.1986, the agreement provided & required that such canteen would not be run by Contractor. Utensils and fuel was to be supplied by colliery management and management was also to give certain amount to canteen managing committee depending upon size and operation of the canteen. On same lines is clause 8.9 of NCWA - IV signed on 27.07.1989 which came into force from 01.01.1987. This NCWA-IV was in force in March,1989 when contractor was introduced here. Next NCWA continued same arrangement & Clause 10.7 of NCWA - V is again on same lines.
It is not in dispute that these NCWAs are binding on all ::: Downloaded on - 09/06/2013 16:44:22 ::: 23 subsidiaries of Coal India.
24. The other document is a settlement in relation to six employees working in canteen at Korba (East) Mine where the concerned management accepted to give appointment to these six employees from 28.06.1981. The memorandum of Settlement under Section 12(3) of Industrial Disputes Act, 1947, in respect of canteen employees of Gond colliery also shows similar treatment of canteen employees. Another memorandum of settlement dated 02.09.1982 in relation to ex-canteen contractor's employees also show that those employees were treated as employees of colliery but then they were not given right to claim any wages or dues of wages. The Award dated 20.12.1990 in case No. CGIT 26 of 1987 by CGIT, Jabalpur, is about canteen at Banki and Surkachhar corollaries. There the circular No. 21 of 1961 issued by the Chief Inspector of Mines is also reproduced. The Circular states that running of canteens through contractors by some mines was not in accordance with provisions of Rule 68 of Mines Rules, 1955. The said award, ::: Downloaded on - 09/06/2013 16:44:22 ::: 24 therefore, declared that workmen in canteen would be deemed to be absorbed from 29.11.1985 in Canteen as general Mazdoor in category I with all consequential benefits arising therefrom prospectively and not retrospectively.
25. When in this background, the impugned award dated 02.05.1997 is looked into, I find that Respondent No. 1 - CGIT has framed issues in para 9 as under :
Sr. No. Issues Findings
1 Whether it is proved that there is no relationship Yes
of employer and employee between the parties ?
2 Whether it is proved that the principles of Yes
estoppel is applicable in the present reference ?
3 Whether Shri K.P.S. Nair and 12 workers working No in the canteen through Contractor are entitled to absorption by the Sub-Area Manager, Taroda Opencast WCL, District - Yeotmal after working from March 1989 ?
4 If not, to what relief they are entitled to ? Not entitled to any relief.
While considering these issues, CGIT has looked into evidence. Though that evidence was adduced on affidavit, it has referred to it as "oral evidence". The learned Senior Advocate Shri Pendharkar, has urged that this is first indication of non ::: Downloaded on - 09/06/2013 16:44:22 ::: 25 application of mind. However, I find that though examination-
in-chief has been filed in the shape of affidavit, cross examination has thereafter been recorded in the Court and hence use of words "oral evidence" by itself is not decisive of any such non application of mind. In the entire award, the above mentioned documents or their effect is not looked into. The provisions of NCWA - IV are very briefly mentioned but then same is found not applicable as canteen was assigned to contractor by Respondent No. 2 vide order dated 16.03.1989 i.e. four months before signing of NCWA-IV. Respondent 1 has however noticed the retrospective effect agreed to by parties but has not implemented it. This shows error apparent & refusal to exercise jurisdiction. Similar obligation cast upon the employer by NCWA - III which prevailed till signing of NCWA-IV is ignored. It needs to be noted that admittedly NCWA-III remained in force till 31.12.1986 and has been replaced by NCWA-IV thereafter. CGIT does not even consider this position & its impact.
::: Downloaded on - 09/06/2013 16:44:22 ::: 2626. The provisions of Rule 68 undoubtedly require owner, agent or manager to run the canteen. Sub-rule (2) permits a Co-
operative Society to undertake this welfare activity. The food, drink and other articles to be made available therein are to be recommended by Canteen Managing Committee. Rule 64 enables the Chief Inspector or Inspector to require the employer to make a provision for canteen if in the mine more than 250 persons are ordinarily employed. Here, the perusal of Circular No. 21 of 1961 produced before CGIT and looked into in Award in Case No. 216 of 1987 (by CGIT Jabalpur) reveals that the Chief Inspector already had directed that mine canteens needed to be run departmentally and not through the Contractors.
Respondent No. 2 was also aware of this situation and, therefore, only it held meetings of representatives of various unions and appointed contractor only for one year temporarily. Its defence also shows that effort was made to run canteen departmentally and that goal has been achieved in August 1994. Hence, there was defence in written statement that the petitioner union was stalling said purpose or goal. All this material having important ::: Downloaded on - 09/06/2013 16:44:22 ::: 27 bearing on controversy is lost sight of by CGIT.
27. The proceedings before conciliation officer started on 29.11.1991, when the petitioner union wrote to the Assistant Labour Commissioner (Central) raising this dispute. The management had written on 15.12.1991 to Canteen contractor to hand over the possession to Co-operative society and accordingly it appears that possession was handed over and ultimately canteen was started departmentally in August 1994.
It is, therefore, obvious that Respondent No. 2 - management was aware of these obligations and, therefore, only had started canteen in March 1989 by appointing a contractor with the consent of the petitioner and other unions. Otherwise, there was no need of such consent of all trade unions. The judgments of the Hon'ble Apex Court and definition as contained in Section 2(1)(h) of Mines Act with this material clearly demonstrates that the activity of canteen could not have been started through contractor.
::: Downloaded on - 09/06/2013 16:44:22 ::: 2828. The perusal of award as delivered on 02.05.1997 by Respondent No. 1 - CGIT shows that it found the constitution of Canteen Committee on 28.12.1988 for resolving the dispute and then the proceedings of the meeting to give that canteen to contractor, binding on the petitioner. It also noted that contract had expired in March 1990 itself but contractor continued in possession till 15.12.1991. It has also recorded that employees mentioned in the Schedule were appointed by that contractor and this position was not in dispute. It has, therefore, found that there is no employer and employee relationship between Respondent No. 2 and these 13 workmen. In the light of above finding, it is apparent that this conclusion is erroneous.
Respondent No. 1 has failed to look into the earlier award delivered by CGIT Jabalpur in Reference No. 216 of 1987 on 26.12.1990 and also Circular No. 21 of 1961 issued by the Chief Inspector of Mines in this respect.
29. The participation by the petitioner Union in meeting of Canteen Management Committee in which canteen was given ::: Downloaded on - 09/06/2013 16:44:22 ::: 29 to a Contractor has been held to stop it from raising such dispute. It is noted that the petitioner Union is a party to illegality and it wanted those workers employed by contractor to be absorbed in company (Respondent No. 2) as regular employees. The position above clearly reveals that Respondent No. 2 - management was under obligation to run canteen departmentally and for one reason or the other, it wanted to start canteen by giving it to a contractor. It has taken not only petitioner union but also various other unions into confidence for said purpose. The petitioner - Union is directly party to a decision by which the canteen was given to a contractor for a period of one year. The premises, furniture, utensils, fuel, electricity was free for said contract. Rates of eatables & menu was controlled by the management and the committee was also entitled to receive some grants from employer. There was provision for surprise check also. But then the Contractor was assigned that job by employer & all responsible trade unions together knowing well that it was in derogation of statutory obligations cast on employer and with a view to save the ::: Downloaded on - 09/06/2013 16:44:22 ::: 30 employer from it for some time. As such, it is difficult to hold that Contractor himself was sham or bogus though the arrangement made was not legal. In present facts that arrangement needs to be overlooked.
30. Shri Badar, learned Advocate had contended that the employment with Respondent No. 2 being public employment, the regularization or absorption of contractor's employees could not have been ordered and he has placed reliance upon the judgment of constitution bench in the case of the Secretary, State of Karnataka vs. Umadevi (supra). Shri Pendharkar, learned Senior Advocate pointed out that said judgment has been later on distinguished in Punjab National Bank vs. Punjab National Bank Canteen Workers' Union (Calcutta), (supra) by the Hon'ble Calcutta High Court and even by the Hon'ble Apex Court in G.M. ONGC, Shilchar vs. O.N.G.C. Contractual Workers Union, (supra).
He has also pointed out the judgment of Division Bench of this Court in the case of Uttam vs. Municipal Council, Darwha, reported at 1972 Mh. L.J. 874, to urge that when Canteen was ::: Downloaded on - 09/06/2013 16:44:22 ::: 31 started departmentally, all aspirants including these 13 workmen needed to be given an opportunity.
31. The fact that these 13 employees were never examined before the C.G.I.T. is not in dispute. From records it appears that these 13 employees were discontinued when contractor handed over possession on 15.12.1991 and the employees' Co-operative Society started managing that canteen.
The said position continued till August 1994 and in August 1994, canteen was taken up departmentally by Respondent No. 2. The petitioner has not produced any material before this Court to show that after 15.12.1991 or then after August 1994, these 13 workmen have continued to work with Respondent No. 2.
32. Rule 69 of Mines Rules 1955, envisaged constitution of canteen managing committee. It is required to be constituted by the owner or agent or manager. It has to consist of equal number of members nominated by owner, agent or manager and elected by persons working in mine. The owner or agent or ::: Downloaded on - 09/06/2013 16:44:22 ::: 32 manager or his nominee has to be ex-officio Chairman. The Canteen management committee which has functioned here and entrusted canteen to contractor is not constituted under this rule
69. The decision was taken by the Project Officer of Respondent No. 2 and an order came to be issued on 27/28th December 1988 constituting a committee to finalize the running of canteen. The procedure followed thereafter is already mentioned by me above.
33. It is, therefore, obvious that the petitioner, knowing fully well, participated in the process of handing over Canteen to an independent contractor for one year and permitted that contractor to appoint his own employees privately to run that canteen. It is also true that there cannot be any estoppel against law in such matters. Employer as also all trade unions including the petitioner are equally at fault for bringing about this position.
However, the controversy was/is required to be considered by CGIT & by this Court in situation obtaining after the canteen was already started departmentally by Respondent No. 2. In the earlier agreement/settlement noted above, as also in award of ::: Downloaded on - 09/06/2013 16:44:22 ::: 33 CGIT Jabalpur in Reference No. 261 of 1987, benefit has been given to Canteen workers only prospectively. Here, as already noted, there is nothing on record to show that after 15.12.1991, these 13 workers have continued to work in the canteen of Respondent No. 2.
34. Rambhau vs. Vinkar Co-operative Society, Chanda, reported at AIR 1966 Bom. 187, is the judgment of Full Bench of this Court which shows that an Industrial Arbitrator is not fettered by the agreement between the parties and he has to decide the dispute not according to that agreement but according to what, having regard to all circumstances, he considers to be just and fair.
35. Shri Badar, learned Advocate has relied upon the judgment in the case of Official Liquidator vs. Dayanand, reported at 2009 III LLJ 305, to urge that employees who have even put in long service of 10 years cannot be ordered to be regularized. He has also relied upon the judgment in the case of Canteen ::: Downloaded on - 09/06/2013 16:44:22 ::: 34 Mazdoor Sabha vs. Metallurgical Engineering Consultants (I) Ltd., reported at 2007 III LLJ 771, to urge that providing subsidy to a canteen or making available facility of canteen is different from running of canteen itself. Tumkur Poura Karmikara Sangha vs. Municipal Council, reported at 2009 IV LLJ 709 (Kant) is the judgment of learned Single Judge, relied upon to urge that when Contractor has not taken out a licence, it does not give any right to employee working under him to get their services regularized under principal employer. In the situation already considered above, I do not find it necessary to consider these judgments in more details. Here, the petitioner is seeking absorption of 13 employees not as contractor's employees but by pointing out that welfare legislation prohibited engagement of contractor himself.
36. The learned Senior Advocate has relied upon the judgment in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sanghatana, reported at (2009) 8 SCC 556, to urge that the judgment in the case of Secretary, State of Karnataka vs. Umadevi (supra) has been distinguished and is ::: Downloaded on - 09/06/2013 16:44:22 ::: 35 found to have no application when a case of unfair labour practice is made out. He has also relied upon the judgment in the case of P.M. Patel and Sons vs. Union of India, reported at (1986) 1 SCC 32, to explain the definition as contained in Section 2(1)(h) of the Mines Act. The judgment in Air India vs. Nergesh Meerza, reported at AIR 1981 SC 1829, has been pressed into service to show that there cannot be any estoppel against statute again for the reasons already recorded above. I do not find it necessary to consider these judgments in detail here.
37. In M.G.K. Union vs. Glass Containers Pvt. Ltd. & Anr., reported at 1983 1 L.L.J. 326, the learned Single Judge of this Court has held that what is made by law penal and attract the sentence of imprisonment, cannot be regarded as legal, valid or effective. A closure, effected in fact, without compliance with the requirements of Section 25FFA of the Industrial Disputes Act, 1947, was therefore, held to be devoid of legal effect, invalid and illegal. The challenge before Industrial Court there to notice of one month duration of closure of manufacturing unit was filed ::: Downloaded on - 09/06/2013 16:44:22 ::: 36 30/10/1978 & closure was to commence on 9/11/1978. Thus the threats & efforts to close were very much in dispute. The High Court found closure bad and liable to be ignored. Actual closure therefore can not be regarded as a subsequent event.
38. Here, said analogy is being relied upon to point out violation of Section 33 of the Industrial Disputes Act. Section 33 of the ID Act states that during the pendency of proceedings, conditions of service etc. have to remain unchanged. Section 33A therein is a special provision & procedure to find out whether conditions of service etc. have been changed during the pendency of proceedings before CGIT. It permits an aggrieved workman by such change to make a complaint in writing to the Court before whom such proceedings are pending and upon receipt of such complaint, that Court is obliged to decide it as a dispute referred to it or pending before it. Here, though Respondent No. 2 pointed out before the CGIT that Co-operative Society started managing canteen on 15.12.1991 and thereafter in 1994, canteen was taken up departmentally; no steps under ::: Downloaded on - 09/06/2013 16:44:22 ::: 37 Section 33A of the ID Act have been taken by petitioner union.
M.G.K. Union vs. Glass Containers Pvt. Ltd. & Anr.(supra), which does not consider such an independent or unrelated event occurring subsequently therefore is not relevant in present facts.
39. The non-applicability of constitution bench judgment of Hon. Apex Court in case of Secretary,State of Karnataka vs. Umadevi (supra) in matters of present nature arising under welfare labour legislation is also explained by Hon. Apex Court in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (supra). Both sides here accept that employment with Respondent 2 is public employment and all eligible/aspiring candidates are entitled to participate in open competitive selection process. If the Canteen could have been started departmentally in March, 1989, the said recruitment procedure would have been definitely adopted. Selection & recruitment of 13 workers named in schedule to reference in that event might not have been possible. Contractor whose name appears at Sr. No. 1 in that schedule as worker was aware that he was not ::: Downloaded on - 09/06/2013 16:44:22 ::: 38 entering service of respondent 2. So is the position of remaining 12 workers who accepted employment with him and not with the respondent 2. The relief ,if any, to be granted to these 13 workers therefore can not be retrospective ie from March,1989 and will have to be prospective as in other matters or instances placed on record by petitioner only. That is possible only if workman of Respondent 2 presently in Canteen are discharged or these 13 workers are still in employment of Canteen. The petitioner did not obtain or rather avoided any adjudication necessary for it. It did not take recourse to S.33A of ID Act. It is, therefore, obvious that because of subsequent developments vital in this connection, the grant of relief of absorption of 13 employees in present matter is rendered impossible. Respondent No. 2 has filed affidavit before this Court when arguments of the petitioner were nearing completion and urged that employees named therein have been working or they worked in the canteen and they were/ are employees of Respondent No. 2. Though said affidavit can not be looked into, still the departmentalization of Canteen by Respondent 2 since August 1994 can not be disputed.
::: Downloaded on - 09/06/2013 16:44:22 ::: 39Burden to prove continuation in service of Canteen of these 13 workmen was upon petitioner & it has failed to discharge it. The petitioner has filed an objection to that affidavit stating that no such efforts were made before Respondent No. 1 - CGIT and such facts cannot be accepted for the first time in writ petition.
The petitioner has also pointed out that no leave was sought for by Respondent No. 2 before filing that affidavit. But as already noted above, the union could not establish that these 13 workers continued to work in Canteen after 15/12/1991. The communication dated 15.12.1991 (Exh. 26) is already on record of CGIT and CGIT has recorded a finding that after 15.12.1991, the canteen was run by co-operative society and thereafter canteen was run departmentally from August 1994. The petitioner has not shown any material to the contrary to this Court.
40. To press the demand for remand to CGIT, judgment of the Hon'ble Apex Court in the case of B.V. Nagesh vs. H.V. Sreenivasa Murthy, reported at 2010 (6) All MR 928, particularly ::: Downloaded on - 09/06/2013 16:44:22 ::: 40 para 4, judgment of learned Single Judge of this Court in the case of Janba Daulatrao vs. Rajeshkumar, reported at 1975 Mh.
L.J. 746, have been pressed into service to show how application of mind is essential and how reasons are vital in any judgment.
The support is taken from the judgment of the Hon'ble Apex Court in the case of Director, Horticulture, Punjab vs. Jagjivan Parshad, reported at (2008) 5 SCC 539.
41. I find that CGIT has not made reference to entire material produced before it. Not only this, that material has been commented upon effectively by the petitioner in his written notes of arguments, still its relevance has not been looked into.
The way in which case law cited has been avoided to be dealt with is not acceptable. Not only this, the provisions of Circular No. 21 of 1961 or CGIT Award in Case No. 16 of 1987 have not been even looked into. But then this by itself is not sufficient to warrant a remand. Here, situation underwent change on 15.12.1991 i.e. about 19 years back. No cognizance thereof was taken by the petitioner. The Canteen started departmentally in ::: Downloaded on - 09/06/2013 16:44:22 ::: 41 August 1994 and again its due cognizance has not been taken by the petitioner union.
42. It is true that the language of reference by itself may not be sufficient in all cases to deny relief to the workmen. But here the petitioner took no steps whatsoever to bring the subsequent events to the notice of CGIT and did not invoke its jurisdiction under Section 33A. Real issues involved were, therefore, not pressed into service by the petitioner. Reliance upon the judgment in the case of G.M., ONGC, Shilchar vs. O.N.G.C. Contractual Workers Union, particularly para 17 wherein the Hon'ble Apex Court noticed that the Industrial Tribunal and Division Bench correctly observed that both parties to dispute were aware of the real issues involved in the light of protracted litigation and efforts made during conciliation proceedings. Here, the conciliation proceedings were started for absorption of employees and shortly thereafter Canteen was handed over to co-operative society and about three years thereafter, Canteen was started departmentally in accordance ::: Downloaded on - 09/06/2013 16:44:22 ::: 42 with the obligations cast upon it by law by Respondent No.2.
Though there is no question of foundation of the dispute mentioned in the order of reference being non existent, here 13 workers have admittedly not reported for duty or worked for past 19 years. Mere pendency of the dispute for all these years is therefore not enough to presume their continuation in employment in Canteen. Hence, there is no question of grant of relief of absorption to them at this juncture. If grant of any other relief to these 13 workmen is to be considered, they have not entered the witness box & their individual grievance like discrimination in the matter of salary or other benefits, service conditions has not been brought on record.
43. As I found that in present situation, though relationship of employer and employee existed between these 13 persons and Respondent No. 2, in changed circumstances, grant of relief, even prospectively, to them has been rendered impossible. Hence, though Award passed by CGIT is unsustainable, I find that no fruitful purpose will be achieved by ::: Downloaded on - 09/06/2013 16:44:22 ::: 43 remanding the matter to it. Writ Petition is, therefore, dismissed accordingly. Rule discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE ******* *GS.
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