Jharkhand High Court
Employers In Relation To The M vs President, Rajhara Colliery Ma on 3 March, 2014
Author: R.Banumathi
Bench: Chief Justice, Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P. A No. 179 of 2012
-----
Employer in relation to the Management
Of Rajhara Colliery of M/s. Central Coalfields
Ltd. through its General Manager, Palamau Appellant
Versus
President, Rajhara Colliery Mazdoor Sangh,
Rajhara Area Respondents
-----
CORAM: HON'BLE THE CHIEF JUSTICE.
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Appellant : Mr. Ananda Sen
For the Respondent : Mr.Manoj Tandon
For the Intervenor : M/s.Amarendra Dev Nath,
K.K.Srivastava
----
CAV on 24 th February, 2014 Pronounced on 3rd, March, 2014
R.Banumathi,C.J. The present appeal has been preferred
against the judgment and order dated 24.11.2011 passed in
W.P. (L) No.2911 of 2001 by the learned Single Judge,
whereby the writ application preferred by the appellant has
been dismissed affirming the award dated 22.12.2000 passed
by Central Government Industrial Tribunal, Dhanbad under
which 287 Casual Wagon Loaders were ordered to be
regularized as permanent workmen in Reference Case
No.50/91.
2. The brief facts are as follows-
All the concerned workmen were working under the
contractor Surat Pandey prior to 1983 as Contract Labour.
They were doing job of wagon loading since before the colliery
2
was nationalized with effect from 01.08.1973 under Non-
Coking Coal Mines (Nationalization) Act, 1973. Subsequently
loading of coal has been declared a prohibited job prohibiting
employment of casual labour in loading of coal under the
Contract Labour (Regulation and Abolition) Act, 1970. They
continued working as such even after nationalization of the
colliery. But even after a long lapse of time, they were not
regularized in job. That gave rise to a peaceful agitation
demanding regularization by the concerned workmen and
that led to an industrial dispute and complaint by Trade
Unions before the A.L.C. (C), Hazaribagh and the dispute was
conciliated by him. A settlement dated 13.08.1983 was
arrived at in which it was agreed by the Management that all
412 Wagon Loaders will be departmentalized as Casual
Wagon Loaders. It was further agreed that with effect from
01.09.1983, 311 persons will work as Casual Wagon Loaders and the rest 101 will be subject to arbitration proceedings. Out of 311, only 288 persons were found medically fit who were engaged as Casual Wagon Loaders. Pursuant to the said agreement, the concerned workmen were enrolled as casual wagon loaders by the Management. Further on 6.9.1985, another Tripartite Settlement was entered, wherein it was decided that a list of 245 Casual Wagon Loaders will be maintained over and above the present 3 strength of 283 and the services of Casual Wagon Loaders will be utilized when railways increase the supply of wagons.
3. The workmen of Rajhara Colliery of Central Coalfields Ltd. raised an industrial dispute for regularization of 287 Casual Wagon Loaders, who were alleged to be engaged for wagon loading from the year 1983 pursuant to a Tripartite Settlement dated 13-8-1983. The conciliation ended in failure but appropriate Government did not refer the dispute for adjudication. Thereafter, a writ application vide C.W.J.C. No.1786 of 1990(R) was filed before this Court for a direction to an appropriate authority to refer the matter to Tribunal for resolving the dispute and the said writ application was allowed. Then the following dispute was referred for adjudication by an order no.L-20012(271)/89 IR (Coal-I) dated 29.04.1991:-
"Whether the demand that Shri Jirwa Noniain and 287 other Casual Wagon Loaders indicted in the Annexure be regularized in the service of the management of Rajhara Area of Central Coalfields Ltd. is justified? If so, to what relief are the concerned workmen entitled and from what date?"
4. In the Tribunal, the workmen demanded regularization on the grounds that (i) the work is of permanent and perennial in nature; (ii) they are working since long and in fact, each of the workmen individually has worked for more than 240 days in a calendar year and (iii) 4 after abolition of the contract labour system, these workmen ought to be treated as contract employees of the management.
5. The Tribunal held that the employer and employee relationship between the Management and concerned persons exist and they will be deemed to be the workmen of the Management as the work of loading of coal is of prohibitory in nature. The Tribunal further held that the workmen have worked for more than 240 days in a calendar year and as such, they are entitled to be regularized. On those findings, the Tribunal, vide award dated 22.12.2000 in Reference No.50/91, held that all the concerned persons except those who have since died or have superannuated due to the age of 60 years be regularized as permanent workmen w.e.f. 29.04.1991 without back wages within 30 days from the date of publication of the award, failing which the concerned workmen shall be entitled for claiming wages of piece rated workmen of appropriate category from the date of award.
6. Challenging the award, the appellant, Central Coalfields Ltd., (CCL), filed writ petition before this Hon'ble Court vide W.P.(L) No.2911 of 2001. The learned Single Judge upheld the award of regularization and dismissed the writ petition by the judgment and order dated 24.11.2011. Learned Single Judge held that as per the terms of settlement, the Management assured to regularize the 5 concerned workmen and despite the terms of settlement, the Management did not regularize the workmen and the action of the Management is not justified. The learned Single Judge further held that the workmen has put in 240 days attendance in a calendar year and therefore, are entitled to be regularized.
7. The appellant being aggrieved by and dissatisfied with the judgment and order dated 24.11.2011 passed by the learned Single Judge of this Court in W.P.(L) No.2911 of 2001 preferred memo of appeal vide LPA no.179/2012 on the grounds, interalia, that the impugned judgment and order is bad in law and on facts and as such liable to be set aside.
8. Mr.Ananda Sen, learned counsel for the appellant, contended that the settlement in question has not been terminated as per the provisions of law and the concerned workmen have failed to produce any rule of the Central Coalfields Limited setting out the conditions of regularization of Casual Wagon Loaders. Contention of the appellant is that once the settlement was arrived at and after accepting the terms and conditions of employment and knowing fully well the existing situation from the point of view of production, dispatch and wagon supply as has been explained by the witnesses of the Management, it is clear that there is no scope for regularization of such large number of Casual Wagon Loaders and to continue making payment of wages to them. 6 The contention of the appellant is that merely because the workmen have put in 240 days, that by itself will not confer upon them the right to be regularized and while so, the Tribunal proceeded on a wrong footing that merely because Casual Wagon Loaders worked for 240 days, they are to be regularized. Learned counsel submitted that the award of the Tribunal and the order of the Writ Court suffer from serious error of law and prayed for allowing the Letters Patent Appeal.
9. Learned counsel for the respondent-workmen submitted that Casual Wagon Loaders have worked for 240 days in a calendar year continuously for many years and are therefore, entitled to regularization on permanent basis. It was submitted that on the basis of evidence and considering the fact that the workmen have been working as Casual Wagon Loaders for more than three decades, the Tribunal held that each of the workmen had worked for more than 240 days in a calendar year and therefore, are entitled to regularization which was confirmed by the learned Single Judge and such concurrent findings of fact cannot be interfered, unless there is apparent error and the award and the order of the Writ Court do not suffer from any illegality.
10. We have considered the submissions of the learned counsel appearing for the parties, award of the Tribunal and orders of the learned Single Judge and also perused the materials on record.
7
11. Facts are not in dispute. Prior to Nationalization of coal mines, the workmen were working under the Contractor, Surat Pandey. Colliery was nationalized with effect from 1.8.1973 under Non-Coking Coal Mines Nationalization Act, 1973. Under the Contract Labour (Regularization and Abolition) Act, 1970, loading of coal was declared prohibited job prohibiting the employment of contract labour in the year 1975; yet the workmen continued working Wagon Loaders under the Private Contractor and were engaged in loading work continuously. It is not in dispute that the workmen continued to work as Casual Wagon Loaders in Rajhara Colliery. It is also not in dispute that in view of the agitation an industrial dispute was raised before the ALC (C), Hazaribagh, as a result of which, settlement was arrived at on 13.8.1983, in which it was agreed that all the Wagon Loaders numbering 412 will be departmentalized. It was further agreed that 311 persons should be absorbed on the roll of the company with effect from 1.9.1983 as Casual Wagon Loaders and remaining 101 were referred to arbitration. Out of 311, 288 were found medically fit who were engaged as Casual Wagon Loaders.
12. Learned counsel for the appellant contended that when as per the provisions of the Contract Labour (Regularization and Abolition) Act, 1970, Contract Wagon Loaders in loading coal was abolished and the Act does not 8 provide for automatic absorption of the contract labour and therefore, the workmen cannot seek for regularization. Contending that the casual/temporary employee/daily rated employee has no right to the post or to be continued in the post to get absorption far less being regularization, the learned counsel placed reliance upon the decision rendered in the case of Steel Authority of India Ltd. & Ors. Vs. National Union Waterfront Workers & Ors. [(2001) 7 SCC 1]. While summarizing the discussion, in paragraph 125 of the aforesaid decision [(2001) 7 SCC 1], Hon'ble Supreme Court held as under:-
"125. .........................
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-
section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principle employer cannot be required to order absorption of the contract labour working in the establishment concerned.
(4) We overrule the judgment of this Court in Air India Case prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been give effect to and it has become final." In SAIL case, Hon'ble Supreme Court held that consequent to the abolition of the contract labour, Section 10 of the CLRA Act does not provide for automatic absorption of contract labour. The direction in SAIL case may be applicable, had 9 there been no settlement between the management and the workmen. In this case, settlement was arrived at on 13.8.1983, wherein it was agreed that all the Wagon Loaders numbering 311 should be absorbed on the roll of the company with effect from 1.9.1983 as Casual Wagon Loaders. Since 1.9.1983, 288 workmen, who were found fit, worked as Casual Wagon Loaders of Rajahara Colliery and worked for more than 240 days in a year, the decision in SAIL case is not applicable to the case on hand.
13. Reliance was placed upon the decision rendered in the case State of Karnataka Vs. Umadevi (3) reported in [(2006) 4 SCC 1], to contend that the casual/ad hoc employees/temporary employees cannot be regularized. 8B. It was contended that in view of the decision laid down in Umadevi's case [(2006) 4 SCC 1], no award for regularization of services of Casual Wagon Loaders could have been made by the Tribunal.
14. Observing that the Umadevi's case [(2006) 4 SCC 1], does not denude the Industrial/Labour Courts of their statutory power under Section 30 read with 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice, the Hon'ble Court in the case of Maharashtra State Road Transport Corporation & Anr. Vs. Casteribe Rajya Parivahan 10 Karmachari Sanghatana reported in (2009) 8 SCC 556, held as under:-
"35. "Umadevi (3) is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and the High Courts (Article 226) should not issue directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36. Umadevi (3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi (3) cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
15. In the case of State of Gujarat & Ors. Vs. P.W.D. Employees Union & Ors. reported in (2013) 12 SCC 417, the Hon'ble Supreme Court has observed that the decision in Uma Devi's case [(2006) 4 SCC 1] is regarding the regularisation of temporary/casual employees who have not been appointed after going through the proper selection procedure etc. is impermissible as it is violative of Article 14 of the Constitution of India. The workmen in the present case were identified and pursuant to the settlement, employed as casual Wagon Loaders and therefore, it cannot be contended that they were appointed in violation of Articles 14 and 16 of the Constitution of India or they entered in service by back door method.
11
16. On behalf of the appellant, it was then contended that job of Wagon Loaders was only for two or three days in a week, subject to availability of railway wagons and the work is of casual nature and therefore, the question of regularization does not arise. It was further contended that the job of Casual Wagon Loaders depends upon production, dispatch and availability of railway wagons and in the entire proceedings, it has not been proved that the workmen had worked for more than 240 days in a calendar year and while so, the learned Single Judge was not right in accepting the case of the sponsoring Union that the work of Casual Wagon Loaders is of a permanent nature and each and every concerned workman had put in more than 240 days attendance in a calendar year.
17. Learned counsel for the appellant contended that it is for the workmen to prove that they have worked for 240 days and onus is absolutely upon the workmen and the same cannot be shifted upon the Management. Learned counsel for the appellant placed reliance upon the decision rendered in the case of Municipal Corporation Faridabad Vs. Durga Prasad [(2008) 5 SCC 171] and contended that in the said judgment, it has been held that the onus and burden of proof that the workmen have worked for more than 240 days is upon the workmen and it cannot be placed on the Management. In this regard, reliance was also placed upon 12 the decision rendered in the case of (State of Madhya Pradesh Vs. Arjun Lal Rajak) [(2006) 2 SCC 711].
18. We have considered the above submission in the light of the oral evidence adduced by the Management and the workmen. In his evidence, MW - 1, Sailendra Kumar Sinha, the then Assistant Manager of Rajhara Colliery, stated that the operation of wagon loading was to be done whenever wagons are placed on the railway siding and Wagon Loaders are not required for duty, when wagons are not available on the railway siding. He has further contended that having regard to the production and dispatch of coal from the Rajhara Colliery, it was not necessary to keep Wagon Loaders under permanent rolls of the Colliery and Casual Wagon Loaders are employed depending upon the exigency of the circumstances. MW - 1 has also stated that during his service at Rajhara Colliery, he did not have any occasion to see that the Wagon Loaders had regular work throughout the month and refuted the claim of the workmen that they used to work regularly as Wagon Loaders.
19. Even though MW - 1 has stated that the Casual Wagon Loaders were employed depending upon the exigency of the circumstances and that those Casual Wagon Loaders were not regularly employed, the Management had not produced any evidence to substantiate the same. In his evidence, MW -1 admitted that in every Colliery, record is 13 maintained for loading of coal and dispatch of coal and at Rajhara Colliery, records are available showing loading of coal and dispatch of coal. But the Management has not produced any record pertaining to dispatch of coal, nor management produced any attendance register to show that the Casual Wagon Loaders have worked only for few days. In the absence of any supporting documents, no weight could be attached to the oral evidence of MW - 1 that the Casual Wagon Loaders did not have regular work.
20. On behalf of workmen, the President of the sponsoring Union of the Rajhara Colliery Mazdoor Sangh was examined as WW - 1, Satpal Verma. In his evidence, WW - 1 stated that the Casual Wagon Loaders have put in attendance of 240 days in each calendar year ever since they have been taken on roll of the company and inspite of their putting attendance for more than 240 days in each calendar year individually, they were not regularized. WW - 1 further stated that even though the Casual Wagon Loaders deployed for duty when railway wagons are placed on railway siding and Casual Wagon Loaders were also doing the job of truck loading and they were required to work when trucks are placed at the siding. WW - 1 further stated that all the Casual Wagon Loaders worked for 240 days in a calendar year individually.
14
21. WW - 2, Indradeo Noonia, Wagon Loader working in Rajhara Colliery since 1969-70 as Casual Wagon Loader in the siding, in his evidence, has clearly stated that he himself and other Casual Wagon Loaders were taken on the rolls of the Colliery as Casual Wagon Loaders as per the settlement and from 1983 onwards, they have been working continuously and each of the workmen has completed 240 days in a calendar year. WW - 2 stated that in the year 1988, even though the Management gave employment to some other 300 workmen, the case of 288 Casual Wagon Loaders, was not considered for regularization.
22. WW - 1 and WW - 2 have consistently stated that the Casual Wagon Loaders have individually completed 240 days in a calendar year. To substantiate the oral evidence, on behalf of the workmen, the statement prepared by the Union as Ext.W-3 in respect of production in the Colliery and number of days and attendance put in per head was produced. In the light of the consistent oral evidence and documentary evidence adduced by the workmen, the workmen have discharged the burden cast upon them establishing that the workmen worked for more than 240 days. The Management has not produced any documents like Attendance Register or Production Register to substantiate its plea that the workmen have not worked for 240 days in a calendar year. Having regard to the consistent evidence 15 adduced by the workmen, the Tribunal rightly held that the Casual Wagon Loaders having worked for 240 days in a calendar year are entitled to regularization.
23. Mr.Ananda Sen, learned counsel for the appellant, then contended that merely because the workmen have worked for more than 240 days in a calendar year, that by itself will not confer them a right to be regularized. Learned counsel placed reliance on a number of judgment to contend that even if the workmen have worked for a long period, they cannot be regularized dehors the rules of selection.
24. Placing reliance upon the decision rendered in the case of State of Karnataka Vs. Umadevi reported in [(2006) 4 SCC 1], learned counsel contended that Umadevi's case clearly lays down the law that casual/ad hoc employees cannot be regularized. Learned counsel also placed reliance upon the recent judgment of the Hon'ble Supreme Court rendered in the case of Hari Nandan Prasad & Ano. Vs. Employer I/R to Mangmt. Of FCI & Ano. (Civil Appeal No.2417-2418/2014) and submitted that in the said case, it has been held that the principle laid down in the case of Umadevi is applicable in the Labour Laws also and as per the decision of the Hon'ble Supreme Court, Casual Labourers have got no right to be regularized. Learned counsel placed reliance on the decision rendered in the case of Accounts Officer (A&I), AP SRTC & Ors. Vs. K.V.Ramana & Ors. 16 [(2007) 2 SCC 324], wherein Hon'ble Supreme Court held that "Even if the contract labourers or casual workers or ad hoc employees have worked for a long period they cannot be regularized dehors the rules for selection, as has been held in Umadevi case".
25. Reliance was also placed on the decision rendered in the case of Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. [(2007) 1 SCC 408], wherein Hon'ble Supreme Court held as under:-
"43. In view of the above observations of this Court it has to be held that the rules of recruitment cannot be relaxed and the court/tribunal cannot direct regularisation of temporary appointees dehors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily-rated employee) or payment of regular salaries to them.
44. It is well settled that regularisation cannot be a mode of appointment vide Manager, Reserve Bank of India v. S. Mani [(2005) 5 SCC 100] (AIR para 54).
..........
47. We are of the opinion that if the court/tribunal directs that a daily-rated or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularising such an employee, which cannot be done as held by this Court in Secy., State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] and other decisions of this Court.
26. It was then contended that the creation and abolition of post and regularization are purely executive functions and in the absence of sanctioned posts in Rajhara Colliery for Wagon Loaders, the Court cannot direct the appellant-Management to create more than 200 posts and regularize the workmen and pay salary of regular employees.
27. In the case of Hindustan Antibiotics Ltd. v. Workmen reported in (1967) 1 SCR 652, the Hon'ble Supreme Court observed that the social and economic upliftment of the 17 labour is absolutely imperative for securing industrial peace.
In the case of Workmen of Bhurkunda Colliery of Central Coalfields Ltd. v. Bhurkunda Colliery of Central Coalfields Ltd. reported in (2006) 3 SCC 297, the Hon'ble Supreme Court has observed that security of tenure is essential for an employee so that he can give his best to the job and this object can be attained by regularisation of the employees within a reasonable period.
28. Keeping in view the welfare of the workmen and in the interest of justice and considering the facts and circumstances of the case, the Industrial Tribunals/Labour Courts have power to issue such direction for regularization of the workmen. In the recent unreported decision rendered in the case of Hari Nandan Prasad & Ano. Vs. Employer I/R to Mangmt. Of FCI & Ano. (Civil Appeal No.2417- 2418/2014) dated 14.2.2014, wherein Hon'ble Supreme Court, after referring to Umadevi's case [(2006) 4 SCC 1], and Bhonde case [(2005) 6 SCC 751] and also U.P Power Corporation Ltd. case [(2007) 5 SCC 755], held as under:-
"29. 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 Corporation, 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 Art.14 of the Constitution, on which judgment in Umadevi is primarily founded. On the other hand, in Bhonde case, the Court has recognized the principle that having regard to 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's 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 filling up the permanent post even when available and continuing to 18 workers on temporary/daily wage basis and taking the same work from them and making them some purpose which were 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 MRTP and PULP Act and it necessitates giving direction under Section 30 of the said Act, that the Court would give such a direction.
30. We are conscious of the fact that the aforesaid judgment is rendered under MRTP and PULP Act and the specific provisions of that Act were considered to ascertain the powers conferred upon the Industrial Tribunal/Labour Court by the said Act. At the same time, it also hardly needs to be emphasized the powers of the industrial adjudicator under the Industrial Disputes Act are equally wide. The Act deals with industrial disputes, provides for conciliation, adjudication and settlements, and regulates the rights of the parties and the enforcement of the awards and settlements. Thus, by empowering the adjudicator authorities under the Act, to give reliefs such as a reinstatement of wrongfully dismissed or discharged workmen, which may not be permissible in common law or justified under the terms of the contract between the employer and such workmen, the legislature has attempted to frustrate the unfair labour practices and secure the policy of collective bargaining as a road to industrial peace. (Underlining added)
29. As held by Hon'ble Supreme Court in Hari Nandan Prasad case, the Labour Courts/Industrial Tribunals are given wide power not only to enforce the rights and even to create new rights with the underlying objective to achieve social justice. In the case of Bharat Bank Ltd. V. Employees of Bharat Bank Ltd. ([1950] LLJ 921(SC)), Hon'ble Supreme Court held as under:-
"In settling the disputes between the employers and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace."
30. The sweeping power conferred upon the Tribunal is circumscribed as held by the Hon'ble Supreme Court in the 19 case of New Maneckchowk Spinning & Weaving Co. Ltd. V. Textile Labour Association ([1961] 1 LLJ 521(SC)), holding as under:-
"This, however, does not mean that an industrial court can do anything and everything when dealing with an industrial dispute. This power is conditioned by the subject matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to the matter as laid down by the legislature or by this Court."
31. It is, thus, clear that fine balancing is required to be achieved while adjudicating a particular dispute. As held by the Hon'ble Supreme Court in Hari Nandan Prasad case, the industrial disputes are settled by industrial adjudication on principle of fair play and justice.
32. In the case of Workmen of Bhurkunda Colliery of Central coalfields Ltd. [(2006) 3 SCC 297], the workmen who were employed before take-over of the colliery by Central Coalfields Ltd., were employed by CCL as Mazdoors. The workmen claimed that they should be put on regular basis as "Casual Labour" and in course of time they should be regularised. However, instead of regularising the service of the workers, the Management retrenched the workmen concerned. An industrial dispute was raised and the Tribunal held that the workmen who had completed 240 days' attendance in the year were entitled for regularisation. The award of the Tribunal was challenged in writ petition, unsuccessfully and the Division Bench also upheld the same. The Hon'ble Supreme Court held that the employees who had 20 been working since 1973-74 were required to be regularised as expeditiously as possible. It was observed that, as held in Piara Singh's case, reported in (1992) 4 SCC 118, where a temporary or ad hoc workman is continued for long, the Court presumes that there is regular need for services on a regular post and accordingly, in the facts and circumstances of the case, it became imperative to issue direction regarding regularisation.
33. In the present case, it is not in dispute that in pursuance of the settlement dated 13.8.1983, the concerned workmen were employed by the appellant, CCL, as Casual Wagon Loaders. They had been working as Casual Wagon Loaders since 1973-74, i.e. even prior to take over of the Colliery. It is also not in dispute that 288 workmen, who were finally identified by the appellant, CCL, had been continuing in service. The concerned workmen had continued in service as Casual Wagon Loaders for about 17 years after the settlement dated 13.8.1983 till the award was passed on 22.12.2000. Though, there cannot be any quarrel with respect to the contention advanced by Mr.Ananda Sen that only because an employee completed 240 days in a year, the employee would be entitled to regularization; however, this is not a case where the claim of the workmen has been decided in their favour for regularization only because they completed 240 days attendance in a year.
21
34. In this case, Wagon Loaders were working as Casual Wagon Loaders ever since 1983 for more than three decades and the workmen have individually completed 240 days in a calendar year. In paragraph 12 the counter affidavit filed in the writ petition, it is alleged that the management had shown fake document of regularization of Casual Wagon Loaders and regularized services of about 327 Casual Wagon Loaders but had not considered the case of genuine Casual Wagon Loaders, who are sponsored by the respondent Union. In his evidence, WW-2, had spoken about such regularization of other workmen. Apart from oral evidence, even though no other evidence has been adduced on this aspect, the averments made in the counter-statement cannot be brushed aside.
35. When 327 workmen in Rajhara Colliery were regularized and they were similarly situated to the workmen now covered under the award dated 22.12.2000, the claim of these workmen is sought to be denied on the plea that the settlement dated 13.8.1983 confers a right on the workmen to be employed as Casual Wagon Loaders only. Having engaged the Casual Wagon Loaders for a long period, we are of the view that in the facts and circumstances of the case, direction for regularization is justified.
36. Learned Tribunal found the claim of the workmen justified and the award dated 22.12.2000 has been confirmed by the learned Single Judge by the impugned order dated 22 24.11.2011. Powers under Article 226 and 227 of the Constitution of India can be exercised only for correcting gross error of jurisdiction where the Court/Tribunal found to have acted (i) without jurisdiction - by assuming the jurisdiction where there exists none, (ii) in excess of its jurisdiction, (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice and thereby occasioning failure of justice [vide Surya Dev Rai Vs. Ram Chander Rai & Ors. (2003) 6 SCC 675)].
37. Keeping in view that the workmen were working as Casual Wagon Loaders for more than three decades, the Tribunal, in exercise of its wide power, directed the appellant Management to regularize the Casual Wagon Loaders except those who died and have superannuated due to attaining the age of 60 years with effect from 29.4.1991 without backwages. The award was confirmed by the learned Single Judge by the impugned order dated 24.11.2011. We do not find any error of law or error of jurisdiction warranting interference.
38. In the result, this LPA is dismissed. The appellant is directed to implement the impugned award at an early date, preferably within a period of six months from today.
(R.Banumathi, CJ) (Shree Chandrashekhar,J) dey A.F.R.