Jharkhand High Court
Employers In Relation To The Management ... vs Their Workmen Being Represented By The ... on 11 May, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 2266 of 2007
Employers in relation to the Management of Rajhara Colliery of M/S CCL,
Palamau, through Sri Bhabani Das Mitra, Project Officer, Rajhara Colliery of M/S
CCL, Palamau ..... Petitioner
Versus
1. Their workmen being represented by the President, Hind Mazdoor Kisan
Panchayat, Palamau
2. Union of India, through its Secretary, Ministry of Labour, New Delhi
..... Respondents
With
Contempt Case (C) No. 624 of 2015
Ramjatan Ram ..... Petitioner
Versus
1. The State of Jharkhand, through the Deputy Commissioner, Palamau
2. Sri Gopal Singh, Chief Managing Director, Employer in relation to the
Management of Rajhara Colliery of M/S CCL, Palamau
..... Opposite Parties
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner (CCL): M/s Jagdeep Dhankar (Sr. Adv.), A.K.Mehta, Anshuman, Amit Kumar Sinha For the Respondents (workmen): M/s V.P.Singh (Sr. Adv.), Ayush Aditya, Ragini Kumari For the State: Ms. Amrita Kumari, A.C to Sr. S.C-I For the Intervener: Mr. Rajiv Nandan Prasad (I.A. No. 5803/2016)
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34/11.05.2018 W.P.(L) No. 2266 of 2007 has been filed for quashing the award dated 16.03.2006 passed by the learned Central Government Industrial Tribunal No.1, Dhanbad (hereinafter referred to as 'the learned Tribunal') in Reference No. 114/1989 (Annexure-1 to the writ petition) whereby the reference has been answered against the management of M/S Central Coalfields Limited (CCL)- petitioner holding, inter alia, that the concerned workmen are entitled to regularization and payment of wages as per the National Coal Wage Agreement (NCWA).
2. Contempt Case (C) No. 624 of 2015 has been filed on behalf of the workmen alleging non-compliance of the order dated 08.08.2014 passed by this 2 Court in W.P.(L) No. 2266 of 2007 whereby the interlocutory application being I.A No. 2181 of 2012 was allowed directing the petitioner-management to pay full wages last drawn inclusive of maintenance allowance admissible, if any, to the concerned 103 workmen whose identities have not been disputed, provided the affidavits are filed by the workmen to the effect that they have not been employed in any establishment so far, and upon filling up the forms annexed as Annexure-F to the reply affidavit to the interlocutory application filed on behalf of the workmen on 10.04.2013.
3. The factual background of the case, as stated by the writ petitioner, is that the respondent-Union demanded regularization of the concerned workmen before the petitioner-management and, subsequently, the matter was referred for conciliation before the Assistant Labour Commissioner (C), Hazaribagh. During the pendency of the conciliation, three Trade Unions operating at Rajhara Colliery of M/S CCL raised demand from the management for abolition of contract system in "wagon loading" and as a result of mutual negotiation between the petitioner-management and the three Trade Unions, a settlement was arrived at on 23.08.1988 and all the matters relating to providing employment to the workers of ex-contractor were resolved and the same were, thus, finally settled. While the above developments were taking place, the contractor engaged some workers in the job of "shale picking" etc. which as per the petitioner-management was purely a temporary arrangement for short duration. The dispute of regularization of the concerned workmen was raised on 09.08.1985 which was contested by the management stating that the job of "shale picking" and "wagon picking" was being carried out by the workers of the contractor. According to the petitioner-management, since on account of absorption of the workers of the contractor engaged in loading of coal on the railway wagons, the job of shale picking was also being performed by the said wagon loaders absorbed on the basis of the settlement, the management did not require any more worker for the said job. The conciliation thus failed and the failure report was submitted before the appropriate government and vide 3 order dated 15.09.1989, the matter was referred for adjudication to the learned Tribunal. The said terms of reference reads as follows:
"Whether the action of the management of Rajhara colliery of M/s CCL in denying regularization to Sri Banwari Ram and 102 other concerned workmen shown in the annexure employed through a contractor on shale picking, wagon picking jobs is justified? If not, to what relief are the workmen concerned are entitled?"
Subsequently, vide corrigendum dated 30.05.1990, the reference was amended to the following extent:-
"By Ministry's corrigendum dated 30.05.1990, the name shown in the Appendix to this reference be added below as Sl. No. 103 of the Annexure."
4. The reference was registered as Reference No. 114 of 1989 and notices were issued to the parties. The case of the sponsoring Union before the learned Tribunal was that Banwari Ram and 102 persons whose names find place in the schedule to the term of reference dated 15.09.1989 were working in permanent nature of job of shale picking and wagon picking from the year 1982 at the railway siding of Rajhara Colliery of M/S CCL, but their payment of wages was being made through some intermediary in order to deprive them of the benefit of wages as per NCWA. They further contended that their work used to be supervised by the loading clerk of the management of Rajhara Colliery and their attendance in each calendar year was for more than 240 days.
5. On the other hand, the management contended before the learned Tribunal that the job of shale picking was not in the prohibited category of job, and as such it used to engage contractors for a very short period for the said job as well as for execution of job of civil nature. The management also contended that none of the concerned workmen was the employee of the management of Rajhara Colliery, though some of them had worked for a very short period under the contractor.
6. The learned Tribunal passed the impugned award dated 16.03.2006 holding, inter alia, that the concerned workmen were continuously working from the year 1982 to 1985 as shale pickers which was a job of permanent and 4 perennial nature. Therefore, the management of Rajhara Colliery should have regularized all the concerned workmen as permanent employees of the colliery and the intermediary should have been removed, but the management exploited the concerned workmen by not doing so and making less payment of wages to them. Finally, it has been held that the concerned workmen whose names find place in the reference order dated 15.09.89 are entitled for regularization as permanent employees of the management.
7. The learned Sr. counsel for the petitioner-management submits that the impugned award is bereft of any factual premise. As regards the identity of the concerned workmen, it was the obligation of the concerned workmen to fully establish the same by adducing cogent and legally admissible evidence showing the full particulars of their identity. However, only one witness was examined on behalf of 136 workers. The said witness, in his testimony, did not even indicate the names of all the concerned workmen much less the particulars of their engagement. Thus, the identity of the concerned workmen could not be established before the learned Tribunal nor any evidence could be led for establishing the employer-employee relationship between the petitioner- management and the concerned workmen. It is further submitted that there was absolutely no employer-employee relationship between the management and the workmen referred to in the reference order and as such there was no question of regularization of the concerned persons by the management. The contractor concerned had engaged some workers on the job of shale picking which was a purely temporary arrangement for a short duration. The job of shale picking was never prohibited from being entrusted to the contractor under the Contract Labour (Regulation & Abolition) Act, 1970 (in short the Act, 1970). The arrangement was discontinued several years ago and the contractor also discontinued the employment of the persons engaged by him. Some of the persons concerned were engaged by the contractor for some time, as stated in the written statement of the management, who paid their wages directly. The management was not concerned with such arrangement. The management was 5 paying the contractor according to the bills submitted by him on the basis of the work executed by the workers, who in turn, was paying wages to his workers. It is further submitted that in view of Section 10(4) of the Industrial Dispute Act, 1947 (in short the Act, 1947), the Labour Court / the Tribunal / the National Tribunal has to confine its adjudication only to those points which have been referred for adjudication and the matters incidental thereto. In the present case, there was no reference with regard to the issue of termination or reinstatement, however, the learned Tribunal exceeded its jurisdiction and determined the issue of termination and reinstatement as well.
8. The learned Sr. counsel for the petitioner-management puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of R. K. Panda & Ors. Vs. Steel Authority of India & Ors. reported in (1994) 5 SCC 304 and submits that when the Act, 1970 was introduced, it did not, in any way, abolish the concept of contract labour.
9. The learned Sr. counsel for the petitioner-management puts further reliance on a judgment of the Hon'ble Supreme Court rendered in the case of Atlas Cycle (Haryana) Limited Vs. Kitab Singh reported in (2013) 12 SCC 573 and submits that if a finding of fact is based on no evidence, it would be regarded as an error of law which can be corrected by issuance of appropriate writ.
10. The learned Sr. counsel for the petitioner-management also puts reliance on a judgment of learned Single Bench of this Court rendered in the case of Bharat Coking Coal Ltd. Vs. Their Workmen represented by the Secretary, Bihar Colliery Kamgar Union and Anr. (W.P.C No. 3015 of 2001) and submits that it was the duty of the Industrial Adjudicator to determine the very question of fact whether the workers were the employees of the principal employer engaged through the contractor and the arrangement was a mere camouflage and a smokescreen or they were actually engaged by the contractor. This question of fact had to be established by the contract labourers on the basis of requisite materials, but they failed to establish the 6 same in the present case. It is further submitted that the judgment of Bharat Coking Coal Ltd. (Supra) has been confirmed by the learned Division Bench of this Court vide judgment dated 24.03.2014 passed in L.P.A No. 283 of 2013 wherein it has been held that merely because of non-registration of the establishment under Section 7 and non-possession of license under Section 12 of the Act, 1970, the Tribunal was not right in concluding that the contract labour system was sham or camouflage.
11. The learned Sr. counsel for the petitioner-management also puts reliance upon a judgment of the Hon'ble Supreme court rendered in the case of National Aluminium Co. Ltd. & Ors. Vs. Ananta Kishore Rout & Ors. reported in (2014) 6 SCC 756 and submits that in order to determine the existence of employer-employee relationship, the correct approach would be to consider as to whether there was a complete control and supervision of the management upon the concerned workmen.
12. Learned Sr. counsel for the petitioner-management puts further reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Oshiar Prasad & Ors. Vs. Employers in relation to Management of Sudamdih Coal Washery of M/S BCCL, Dhanbad, Jharkhand reported in (2015) 4 SCC 71 and submits that learned Tribunal has failed to consider that the question of regularisation arises only when there exists employee-employer relationship.
13. The learned Sr. counsel for the petitioner-management also puts reliance upon a judgment rendered by the Hon'ble Supreme Court in the case of Balwant Rai Saluja & Anr. Vs. Air India Ltd. & Ors. reported in (2014) 9 SCC 407 and submits that in the matter of contractual employment, if the contractor decides as to where, how long and subject to what conditions the employee will work, the ultimate duty of supervision rests with the contractor.
14. Per contra, the learned Sr. counsel for the respondent-Union submits that the present writ petition is not maintainable since the award under challenge is based on the findings of facts and there is no illegality or perversity in the award 7 under challenge. It has been admitted by the management witnesses that the concerned workmen represented by the respondent-Union had been working in the job of "shale picking" which was of permanent nature (time rated job under the National Coal Wage Agreement) and such job was neither temporary nor casual. The management took regular work from the concerned workmen and made paper arrangement of contract work, and as such, it was found to be a camouflage by the learned Tribunal. Consequently, it passed the award as the respondent-Union had pleaded and proved its case before the learned Tribunal. The respondent-Union was not aware of any such settlement dated 23.08.1988, and if any settlement had been arrived at between the petitioner and any other union or unions in collusion with each other, the same is not binding upon the respondent-Union, rather it conclusively proves the unfair labour practice by the employer/petitioner within the meaning of Section 2(ra) read with Clause 2(b), 3 and 4 of the Fifth Schedule of the Act, 1947. Ext. W-1 i.e. the enquiry report of the Labour Enforcement Officer-LEO (C) revealed that 57 workmen were working in the mine, and Ext. W-2 i.e. the attendance register conclusively proved that 103 workmen were working in the Rajhara Colliery of M/S CCL, and as such, this Court may decline to interfere with the impugned award in its discretionary jurisdiction as there is no failure of justice caused by passing the award. The management is seeking equitable relief from this Court but it has not been acting fairly, rather it has been misusing the pendency of the present proceeding. The petitioner while asserting that the work awarded to the contractor was not under the prohibited category as per the notification issued under Section 10(1) of the Act, 1970, has suppressed the important facts. The provisions of Section 1 of the Act, 1970, are applicable to the petitioner being the principal employer in view of Section 2(g) of the Act, 1970 as the persons even engaged through the contractor are the workmen in view of Section 2(b) of the Act, 1970 and the contractor was required to carry license under Section 12 of the Act, 1970. The petitioner-management failed to bring on record Form- II, Form-V and Form-VI provided under the Contract Labour (Prohibition & 8 Regulation) Central Rules, 1971 (in short Rules, 1971) before the learned Tribunal, and as such, it failed to discharge its burden. Thus, the petitioner- management is not entitled to take the plea that the workmen were the contract-labourers. The contention of the petitioner-management that the particulars i.e. the father's name, address etc. of the concerned workmen were not given in the reference, was not raised before the learned Tribunal, and thus, the same cannot be allowed to be raised at this stage. The petitioner- management has taken the plea that the concerned workmen were the contract-labourers just to save itself from the liability of regularising them which is clearly an unfair trade practice. The contention raised by the petitioner- management regarding the lack of details of the concerned workmen was never raised before the learned Tribunal and the same has also not been specifically pleaded in the writ petition, and thus, the said issue cannot be allowed to be raised at this stage. Moreover, the question of identity of 103 workmen has already been decided by this Court in I.A. No. 2181 of 2014 vide order dated 08.08.2014. The petitioner-management is wrongly contending that the learned Tribunal has exceeded its jurisdiction while passing the impugned award. The Act, 1947 is a beneficial legislation to protect the interest of the poor workmen and that the learned Labour Court/Tribunal while deciding the reference may adjudicate the incidental issues to give complete answer to the reference. Thus, by passing the order of reinstatement and regularization, the learned Tribunal has not exceeded the terms of reference. The argument of the learned Sr. counsel for the petitioner-management that only one witness had been examined on behalf of the workmen will not help its case as the quality of evidence has to be seen rather than the quantity. In view of Section 106 of the Evidence Act, the onus was upon the petitioner-management to prove those facts in the proceeding before the learned Tribunal which were especially within its knowledge. The petitioner-management having failed to do so is not permitted to take advantage of the aforesaid plea regarding contract-labourer engagement. Thus, in the present case, the learned Tribunal by directing the 9 petitioner-management to reinstate the workmen for the purpose of their regularization has not exceeded its jurisdiction. Any change in the condition of service etc. during conciliation and/or pursuant to raising of industrial dispute is prohibited in view of the provisions of Section 33 of the Act, 1947. The petitioner-management having not obtained permission to terminate the workmen as required under Section 33(2) of the Act, 1947 from the Labour Court/Industrial Tribunal cannot be allowed to raise the said objection. Thus, in view of the legal and factual position, the judgment rendered in the case of Oshiar Prasad (Supra) is not applicable in the present case. In view of the fact that the job of the concerned workmen was permanent and perennial in nature, and also in terms with the findings of fact recorded by the learned Tribunal, the judgment relied upon by the petitioner-management in the case of Balwant Rai Aluja (Supra) has also no application in the present case.
15. The learned Sr. counsel for the respondent-Union puts reliance upon a judgment of the Hon'ble Supreme Court rendered in the case of Steel Authority of India Limited & Ors. Vs. National Union Water Front Workers & Ors. reported in (2001) 7 SCC 1 and submits that paragraph 125 of the said judgment saves the power of industrial adjudicator for passing appropriate award in appropriate case where the management is found to have engaged the contractor in a camouflage manner.
16. The learned Sr. counsel for the respondent-Union puts further reliance upon a judgment of the Hon'ble Supreme Court rendered in the case of Hussainbhai, Calicut Vs. Alath Factory Tezhilahi Union, Kozhikode & Ors. reported in (1978) 4 SCC 257 and submits that an award could be challenged under writ jurisdiction on a limited ground and not like an appeal against the award.
17. The learned Sr. counsel for the respondent-Union also puts reliance on a judgment of the Hon'ble Supreme Court rendered in the case of G.M, ONGC, Shilchar Vs. ONGC Contractual Workers Union reported in 2008 AIR 10 SCW 3996 and submits that the award of the learned Tribunal can be interfered by the High Court only in case the award is perverse and illegal.
18. Heard the learned counsel for the parties and perused the materials available on record. It appears from the record that the sponsoring Union had raised the dispute regarding regularization of the concerned workmen-Banwari Ram and 102 other persons, which was referred by the Central Government to the learned Tribunal vide order of reference dated 15.09.1989 and subsequently, by corrigendum dated 30.05.1990, the claims of 32 workmen were also added to the reference. However, the claims of 32 persons were not agitated before the learned Tribunal and hence the same were not allowed. So far as the claim of 103 concerned workmen are concerned, it was contended on their behalf before the learned Tribunal that they were performing the job of shale picking in the railway siding of Rajhara Colliery of M/S CCL since 1982 which was of permanent nature and their work was used to be supervised by the loading clerk of the management, however, they were being paid less wages. The management denied the claim of the concerned workmen and submitted that some of the concerned workmen had worked in the petitioner's colliery for a very short period under the direct supervision of a contractor. On final adjudication, the learned Tribunal passed the impugned award in favour of the concerned workmen directing the management to reinstate and regularize them and pay the wages as per the NCWA. The learned Sr. counsel for the respondent-Union has contended that the learned Tribunal has come to the finding after due appreciation of the evidences, and thus, the writ Court should not act as an appellate Court over the decision of the learned Tribunal and reverse the findings of fact. On the other hand, the learned Sr. counsel for the petitioner has submitted that the writ Court may interfere with the finding of the learned Tribunal, if the same is found to be based on inadmissible evidence, or if any material evidence on record, has been erroneously ignored.
19. Before entering into the merit of the case, it would be appropriate to discuss the judgments cited by both the sides relating to the jurisdiction of the 11 writ Court to interfere with the award passed by the learned Labour Court/ Industrial Tribunal.
20. The learned Sr. counsel for the petitioner-management has put reliance upon a judgment of the Hon'ble Supreme Court rendered in the case of Atlas Cycle (Haryana) Limited Vs. Kitab Singh (Supra) wherein it has been held as under:
"15. We are satisfied that the learned single Judge thoroughly analysed all the aspects and arrived at a correct conclusion. It is settled law that when the Labour Court arrived at a finding overlooking the materials on record, it would amount to perversity and the writ Court would be fully justified in interfering with the said conclusion. We are conscious of the fact that the High Court exercising writ of certiorari would not permit to assume the role of the appellate Court, however, the Court is well within its power to interfere if it is shown that in recording the said finding, the Tribunal/Labour Court had erroneously refused to admit the admissible and material evidence, or had erroneously admitted any inadmissible evidence which has influenced the impugned finding, the writ Court would be justified in exercising its remedy. In other words, if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari.
16. On going through the entire reasoning of the Labour Court, materials placed and stand taken by the workman and the Management, we are satisfied that the learned single Judge was fully justified in interfering with the conclusion arrived at by the Labour Court which has been rightly affirmed by the Division Bench. Consequently, the appeal of the Management fails and the same is dismissed with costs quantified at Rs.10,000/-."
21. I have also perused the judgment rendered in the case of G.M. ONGC, Shilchar Vs. ONGC, Contractual Workers Union (Supra) as has been relied upon by the learned Sr. Counsel for the respondent-Union. In the said judgment also, Their Lordship in para 8 has held that the High Court has power to make an enquiry as to whether the finding arrived at by the learned Tribunal was based on evidence, and to correct the error apparent on the face of record, if any. After the above observation, Their Lordship while entering the facts of that case, came to the finding that there was no perversity or patent illegality in the award of the Industrial Tribunal. Para 12 of the said judgment reads as under: 12
"12. In the instant case, on a consideration of material produced before it, the Tribunal came to the following conclusions:
(1) That there existed a relationship of master and servant.
(2) That there was no contractor appointed by ONGC.
(3) That the ONGC used to supervise and allot works to individual workers.
(4) That the ONGC took disciplinary action and called for explanations from the workers. (5) The workers were paid wages though they did not attend their duties due to CacharBandh and due to flood.
(6) The wages were paid direct to the workers by the ONGC and the acquaintance roll was prepared by the Management to make payment to the workmen."
22. It has been contended by the learned Sr. counsel for the petitioner- management that the reference was not made for examining the matter of termination or reinstatement of the concerned workmen, however, the learned Tribunal passed the impugned award for their reinstatement followed by regularization. On the other hand, the learned Sr. counsel for the respondent- Union has submitted that the Act, 1947 is a beneficial legislation and the learned Tribunal while deciding the main terms of reference was well within its jurisdiction to consider and decide the related/incidental issues to give complete answer to the reference made to it by the appropriate Government. I have perused the judgment of the Hon'ble Supreme Court rendered in the case of Oshiar Prasad (supra) as has been relied upon by the learned Sr. Counsel for the petitioner-management. In the said case, the term of the reference was as to whether the management was justified in not absorbing the concerned workmen. Their Lordships have held as under:
"25. It is a settled principle of law that absorption and regularisation in service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and the employer. Once it comes to an end either by efflux of time or as per the terms of the contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination.13
26. In our considered opinion, the only industrial dispute, which existed for being referred to the Industrial Tribunal for adjudication was in relation to termination of the appellants' employment and whether it was legal or not? It is an admitted fact that it was not referred to the Tribunal and, therefore, it attained finality against the appellants.
27. In our considered opinion, therefore, the reference, even if made to examine the issue of absorption of the appellants in the services of BCCL, the same was misconceived."
23. In the present case also, it transpires from the evidence of W.W-1 Ramesh Chauhan that the concerned workmen were stopped from performing their duties since 11.08.1985, and the reference was made on 15.09.1989 not for deciding the question regarding legality of the termination, rather the same was made for regularization of the concerned workmen who were not working at that time. Thus, I find force in the submission of the learned Sr. counsel for the petitioner that the learned Tribunal went beyond the term of the reference and directed for reinstatement of the concerned workmen.
24. On perusal of the record, it further appears that only one witness i.e. W.W-1-Ramesh Chouhan was examined on behalf of the concerned workmen who deposed that all the workmen were performing the work of permanent nature. The work used to be supervised by the Loading Supervisor and they used to receive the wages from the counter of M/S CCL. W.W-1 further deposed that appointment letters were not given to them. He also deposed that after the enquiry conducted by the Labour Enforcement Officer on 10.08.1985, the concerned workmen were stopped from performing their duties from the very next date. In the written statement filed on behalf of the concerned workmen in the Reference Case, it has been admitted in para 3 that the petitioner- management had been disbursing the wages to the concerned workmen through an intermediary posing as a contractor. Thus, the factual position emerges here is that though the concerned workmen were working within the precinct and premises of the mines, they were getting the wages through the contractor. The said fact is also evident from Ext. M1 series i.e. the bills relating to payment of the contractor. Thus, the question before this Court is as to 14 whether in the given set of facts, the concerned workmen can be said to be the employees of the petitioner-management or they were working under the contractor.
25. The learned Sr. counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court rendered in the case of National Aluminium Co. Ltd. & Ors. Vs. Ananta Kishore Rout & Ors. reported in (2014) 6 SCC 756 wherein the essential requirement for establishing the employer-employee relationship has been laid down, which reads as under:
"22. In order to determine the existence of employer-employee relationship, the correct approach would be to consider as to whether there is complete control and supervision of NALCO. It was so held by this Court in Chemical Works Ltd. way back in the year 1956. The Court emphasized that the relationship of master and servant is a question of fact and that depends upon the existence of power in the employer, not only to direct what work the servant is to do but also the manner in which the work is to be done. This was so explained by formulating the following principle:--
"14. The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at p. 23 in Mersey Docks and Harbour Board v. Coggins& Griffith (Liverpool) Ltd., 'The proper test is whether or not the hirer had authority to control the manner of execution of the act in question."
30. No doubt, there may be some element of control of NALCO because of the reason that its officials are nominated to the Managing Committees of the schools. Such provisions are made to ensure that schools are run smoothly and properly by the society. It also becomes necessary to ensure that the money is appropriately spent. However, this kind of "remote control" would not make NALCO the employer of these workers. This only shows that since NALCO is shouldering and meeting the financial deficits, it wants to ensure that money is spent for rightful purposes."
26. The Hon'ble Supreme Court in the case of Balwant Rai Saluja & Anr. Vs. Air India Ltd. & Ors. reported in (2014) 9 SCC 407 has held as under: 15
"61. Further, the above case made reference to International Airport Authority of India case wherein the expression "control and supervision" in the context of contract labour was explained by this Court. The relevant part of International Airport Authority of India case, as quoted in Bengal Nagpur Cotton Mills case is as follows: (Bengal Nagpur Cotton Mills case, SCC pp. 638-39, para 12) "12.38. ... if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor.
12.39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.' (International Airport Authority of India case, SCC p. 388, paras 38-39)"
"65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer-employee relationship would include, inter alia, (i) who appoints the workers; ii. Who pays the salary/remuneration; (iii) who has the authority to dismiss; iv. Who can take disciplinary action; v. whether there is continuity of service; and vii. Extent of control and supervision i.e whether there exists complete control and supervision. As regards, extent of control and supervision, we have already taken note of the observation in Bengal Nagpur Cotton Mills case (Supra.), the international Airport Authority of India case (supra.) and the NALCO case (supra.)."
27. In the aforesaid judgment, the Hon'ble Supreme Court has held that although a workman engaged in a company under the contract of supply of 16 labourer, works under the directions, supervision and control of the principal employer, yet it does not ipso facto make him a direct employee of the principal employer if the salary is paid by the contractor and if the right to regulate the employment is with the contractor as well as the ultimate supervision and control lies with the contractor. To establish the employer-employee relationship, there must be complete control and supervision of the principal employer over the employees.
28. The next limb of the argument of the learned Sr. Counsel for the petitioner-management is that the work of shale picking was not prohibited by the State Government by issuing notification under Section 10(1) of the Act, 1970 and as such the engagement of the concerned workmen through the contractor cannot be termed as illegal.
29. The learned Sr. counsel for the petitioner-management puts reliance upon a judgment of the Hon'ble Supreme Court rendered in the case of R.K Panda (Supra) and submits that the Contract Labour system has in fact not been abolished by the introduction of the Act, 1970 rather it provides for regulation of the work of the contract labourers so as to ensure due payment of wages and for providing essential amenities to them.
30. I have perused the judgment rendered in the case of R.K Panda (Supra), relevant part of which reads as under:
"5. Of late a trend amongst the contract labourers is discernible that after having worked for some years, they make a claim that they should be absorbed by the principal employer and be treated as the employees of the principal employer especially when the principal employer is the Central Government or the State Government or an authority which can be held to be State within the meaning of Article 12 of the Constitution, although no right flows from the provisions of the Act for the contract labourers to be absorbed or to become the employees of the principal employer. This Court in the case of Gammon India Ltd. v. Union of India, pointed out the object and scope of the Act as follows :-
"The Act was passed to prevent the exploitation of contract labour and also to introduce better conditions of work. The Act provides for regulation and abolition of contrractlabour. The underlying policy of the 17 Act is to abolish contract labour, wherever possible and practicable, and where it cannot be abolished altogether, the policy of the Act is that the working conditions of the contract labour should be so regulated as to ensure payment of wages and provision of essential amenities. That is why the Act provides for regulated conditions of work and contemplates progressive abolition to the extent contemplated by Section 10 of the Act."
31. The Act, 1970 has been promulgated to regulate the engagement of contract labour in establishments and to provide for its abolition in certain circumstances, and for the matters connected therewith. The scheme of the Act, 1970 would manifest that the same applies to every contractor who employs or employed twenty or more workmen on any day of the preceding twelve months. The Act, 1970 provides certain requirements to be followed by the contractors who engage the contract labourer; such as taking of license, giving certain facilities to the labourers like canteen, rest rooms, first aid facilities, payment of wages etc., and in case of violation thereof, there is also a provision for imposition of penalties upon the contractor. Section 10(1) of the Act, 1970 provides that the Appropriate Government may after consultation with the State Board or Central Board, as the case may be, by a Gazette notification, prohibit employment of contract labourer in any process, operation or other work in any establishment. It can thus be construed that unless any notification is published by the appropriate government, prohibiting engagement of contract labourer in any process, operation or other works in any establishment, the engagement of contract labourer is not illegal, provided that the contractor follows the other requirements provided in the Act itself, failing which he will be liable for penal consequences. The learned Tribunal, while answering the reference in favour of the concerned workmen, has given much emphasis on the violation of the provision of the Act, 1970 by the management while engaging the workmen concerned.
32. A Bench of this Court in the case of Bharat Coking Coal (Supra) has held that failure to comply the provisions of Sections 7 & 12 of the Act, 1970 18 does not lead to inescapable conclusion that the workmen concerned are to be regularized under the services of the management for the violation of the said provisions. There are other penal consequences which arise for such violation. The relevant portion of the said judgment is quoted hereunder:
"In the aforesaid facts and circumstances, therefore, it appears that learned Tribunal has come to an erroneous findings on both issues framed by it. Failure to comply the provisions of Sections 7 and 12 of the Act of 1970 does not lead to inescapable conclusion that the workmen concerned are to be regularized under the services of the management for violation of the said provisions. There are other penal consequences which arise for such violation. In the instant case merely upon such finding the learned Tribunal has gone to hold that the arrangement of the management to execute the work through a contractor was sham and camouflage. On the other hand, the learned Tribunal on the basis of oral evidence of sole workman witness W.W,.1 has come to a finding that all 27 workmen were engaged in a perennial nature of work for 240 days or more in a calendar year under the management of Loyabad Coke Plant of BCCL and are therefore entitled for regularization. The aforesaid finding is also clearly not based upon cogent evidence to that effect.
In the wake of the aforesaid facts and circumstance and the totality of the reasons, the judgments relied upon by the respondents workmen, do not come to their aid as the findings of the learned Tribunal are clearly in teeth of the well settled law. The proposition of law relating to the test for determining a workman as laid down in the case of Hussainbhai, Caligut-Vs.- The Alath Factory Tejhila Union and others reported in AIR 1978 SC 1410 as also reported in (1978) 4 SCC 257, is well settled. The question in the present case, framed for adjudication by the Industrial Tribunal was whether the concerned persons were really contractor's workers or of the management. For determination of this issue the learned Industrial Tribunal had to arrive at a finding after appraisal of cogent evidence adduced during the proceedings of the reference case which the Tribunal has failed to do. The conclusion drawn by the learned Tribunal in the impugned Award relating to this issue that the engagement of the workmen through a contractor was a mere camouflage as already discussed hereinabove is based upon the inference drawn from the findings recorded by it that the management did not have a registration as required under Section 7(2) of the Act of 1970 nor Co-operative Society i.e. contractor have a license under Section 12 of the said Act. This conclusion however is clearly erroneous in view of the judgment rendered in the 19 case of Dena Nath& Others-Vs.- National Fertilizers Ltd. (Supra) as quoted hereinabove. Therefore, the judgment relied upon by the workmen as reported in (2002) 3 JCR 398 (Supra) is also not applicable to the present facts. The impugned Award is contrary to the law laid down by Hon'ble Supreme Court in the case of Dena Nath& Others-Vs.- National Fertilizers Ltd. reported in (1992) 1 SCC 695.
Therefore, the judgment relied upon by the petitioner rendered in the case of General Manager, Oil and Natural Gas Commission, Silchar-Vs.- Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275, does not support the case of the workmen rather it supports the case of the management petitioner. The Tribunal on account of violation of the provisions of Section 7(2) and 12 of the Act of 1970 had drawn an inference that the arrangement made by the management was a camouflage. It does not appear to have made any serious efforts to lift the veil to find out that the engagement of these workmen were in the nature of a camouflage or ruse employed by the management through a contractor.
In the instant case, the workman had adduced sole witness i.e. W.W. 1 and no evidence in respect other 26 workmen were on record of their regular employment of the management for more than a period of 240 days in a calender year. The Tribunal had not passed any order for production of any attendance register by the management, but had without any legal basis or justification drawn an adverse inference against the management for non-
production of the attendance register contrary to the law laid down by Hon'ble Supreme Court as referred to the earlier part of the judgment.
Therefore, the reliance of the petitioner on the judgment of Apex court in the case of Director, Fisheries Terminal DivisionVs.-
BhikhubhaiMeghjiBhai (Supra) reported in 2010 AIR SCW 542 is once again misplaced. The judgment relied upon by the workmen in the case of R.K.Panda and others-Vs.- Steel Authority of India and others reported in (1994) 5 SCC 304 is once again of no help to the petitioner as even by the opinion expressed at para 7 of the said judgment, it was the duty of the Industrial Adjudicator to determine the very question of fact whether the workmen were employees of the principal employer engaged through a contractor and that it is a mere camouflage and a smokescreen. This question of fact had to be established by the contract labourers on the basis of requisite material which the workmen have failed to establish in the present case. The judgment in the case of Kanpur Electricity Supply Company Limited-Vs.- ShamimMirza reported in (2009) 1 SCC as also in the case of Bank of Baroda-
Vs.- GhemarbhaiHarjibhaiRabari reported in (2005) 10 SCC 792 relied upon by the respondents 20 workmen on the question of burden of proof is of no aid, as the evidence adduced by the workmen through sole witness i.e. W.W.1 could not prima facie establish that all these 27 workmen were in the regular employment of the management for a period of more than 240 days in a calender year, so as to place the onus upon the employer to rebut the same."
33. The said judgment of Bharat Coking Coal (Supra) was affirmed by the learned Division Bench of this court in L.P.A. No. 283 of 2013 wherein it has been held as under:
"12. Learned counsel for the respondent- management submitted that in the case of Dena Nath&Ors. [(1992) 1 SCC 695], Hon'ble Supreme Court held that the effect of non-compliance of the provisions of CLRA Act of 1970, i.e. non-registration of the establishment under Section 7 of the Act and non-possession of licence under Section 12 of the Act would not result in regularization of the concerned workmen, rather it would result in penal consequences - that is, prosecution under Section 23/24 of the CLRA Act, 1970 and therefore, the finding of the Tribunal that the contract labour system is sham or camouflage was an erroneous finding and referring to the findings of the Tribunal that the arrangement of the management is camouflage, learned Single Judge held that the said finding is in clear teeth of the decision rendered by Hon'ble Supreme Court in the case of Dena Nath&Ors. v. National Fertilizer Ltd. [(1992) 1 SCC 695] and para 22 thereof reads as under:-
"22. It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not. It is a matter for the decision of the government after considering the matter, as required to be considered under Section 10 of the Act. The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Sections 9 (sic 7) and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25 of the Act. We are thus of the firm view that in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the rules, the Court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer. We would not like to express any view on the decision of the Karnataka High Court or of the Gujarat High Court (supra) since these decisions are under challenge in this Court, but we would place on record that we do not agree with the aforequoted 21 observations of the Madras High Court about the effect of non-registration of the principal employer or the non-licensing of the labour contractor nor with the view of Bombay High Court in the aforesaid case. We are of the view that the decisions of the Kerala High Court and Delhi High Court are correct and we approve the same." Hon'ble Supreme Court thus categorically held that the effect of non- compliance of the CLRA Act, 1970 and non- possession of licence under Section 12 of the Act would not result in regularization of the concerned workmen, rather it would result in prosecution under Section 23/24 of the CLRA Act. We are of the view that the learned Single Judge has rightly held that merely because of non-registration of the establishment under Section 7 of the CLRA Act and non-possession of licence under Section 12 of the Act, the Tribunal was not right in concluding that the contract labour system is a sham or camouflage.
13. It is now well settled that if the industrial adjudicator finds the contract between the principal employer and the contractor to be a sham, nominal and merely a camouflage to deny employment benefits to the employee and that there was in fact a direct employment, it can grant relief to the employee by holding that the workman is the direct employee of the principal employer. Two of the well- recognized tests to find out whether the contract 8 labourers are the direct employees of the principal employer are: (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. In this case, the Tribunal answered both the above questions in affirmative and held that the workmen are direct employees of the management. We are of the view that the Tribunal ought to have examined the matter in the light of the above well-settled principles. On careful consideration of the evidence and materials on record, we are of the view that the Industrial Tribunal committed a serious error in arriving at the finding that because of non-registration of establishment under Section 7 of the CLRA Act and non-possession of licence under Section 12 of the said Act, the contract labour system was a sham or camouflage.
22. Looked at from any angle, direction of regularization could not have been issued by the Tribunal. It is well settled that merely because the workman has worked for 240 days, it would not entitle the workman for regularization of his service. The "concept of 240 days" has been evolved with reference to Section 25F of the Industrial Disputes Act and it has been held by the Hon'ble Supreme Court that merely working of "240 days" in a calendar year cannot be the sole ground for regularization of the service of the workman. Also, as per the decision of Hon'ble Supreme Court in 22 State of Karnataka v. Uma Devi (3) [(2006) 4 SCC 1), the court cannot issue direction for regularization of temporary or casual employees and the contractual employees in violation of Article 14 and the constitutional scheme. In the case of U.P. Power Corporation Ltd. v. BijliMazdoorSangh [(2007) 5 SCC 755], Hon'ble Supreme Court held that even though the Industrial adjudicator can modify the relief, but that does not dilute the observations of the Hon'ble Supreme Court in Uma Devi(3) case [(2006) 4 SCC 1] about the regularisation. In paras 6 and 7of the above decision, [(2007) 5 SCC 755], Hon'ble Supreme Court held as under:- "6. It is true as contended by learned counsel for the respondent that the question as regards the effect of the industrial adjudicators' powers was not directly in issue in Uma Devi (3) case [(2006) 4 SCC 1]. But the foundational logic in Uma Devi (3) case [(2006) 4 SCC 1] is based on Article 14 of the Constitution of India. Though the industrial adjudicator can vary the terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularisation, the same cannot be viewed differently. The plea of learned counsel for the respondent that at the time the High Court decided the matter, decision in Uma Devi (3) case [(2006) 4 SCC 1] was not rendered is really of no consequence. There cannot be a case for regularisation without there being employee-employer relationship. As noted above the concept of regularisation is clearly linked with Article 14 of the Constitution. However, if in a case the fact situation is covered by what is stated in para 45 of Umadevi (3) case [(2006) 4 SCC 1] the industrial adjudicator can modify the relief, but that does not dilute the observations made by this Court in Umadevi (3) case [(2006) 4 SCC 1] about the regularisation."
23. In conclusion, the Tribunal committed serious error of law in holding that the contract labour system is a sham or camouflage merely because of non-registration of the establishment under Section 7 of the CLRA Act and non-possession of licence under Section 12 of the Act. The Tribunal also erred in raising the presumption that the workmen have worked for more than 240 days, which is not based on any evidence or scientific calculation. Since the Tribunal committed a serious error of law and misconstrued the meaning of the terms, "control and supervision", learned Single Judge rightly held that the conclusion of the Tribunal is erroneous in the teeth of the decisions rendered in the cases of Dena Nath&Ors. v. National Fertilizer Ltd. [(1992) 1 SCC 695] and General Manager, (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon, v. Bharat Lal&Another (2011) 1 SCC 635. We do not find any infirmity in the order of the learned Single Judge setting aside 23 the award passed by the Tribunal and this LPA is liable to be dismissed."
34. Further, in the case of R. M Yellatti Vs. The Assistant Executive Engineer reported in (2006) 1 SCC 106, the Hon'ble Supreme Court has held as under:
"17. Analyzing the above decisions of this court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant/workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further lay down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the labour court unless they are perverse. This exercise will depend upon facts of each case."
35. In L.P.A. No. 283/2013, the learned Division Bench while affirming the view taken by the learned Single Judge in the case of Bharat Coking Coal (Supra), further added that it is for the workmen to prove that they were in the regular employment of the management for a period of more than 240 days in a calendar year. In the present case, the sole oral testimony of W.W-1 cannot be 24 said to have prima facie established the fact that all the workmen were in regular employment of the management for 240 days in a calendar year so as to place the onus upon the management to rebut the same.
36. Moreover, on perusal of the evidence of W.W-1, it appears that he has claimed to have worked for more than 240 days in a calendar year and the learned Tribunal while passing the impugned award has heavily relied upon the said statement of W.W-1. Even if the said statement of W.W-1 is accepted, it does not create any right to the concerned workmen for their regularization.
37. The Hon'ble Supreme Court in the case of Hindustan Aeronautics Ltd. Vs. Dan Bahadur Singh & Ors. reported in (2007) 6 SCC 207 has held as under:
"18. The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularization in service. In MadhyamikShikshaParishad v. Anil Kumar Mishra & Ors. (2005) 5 SCC 122 it was held that the completion of 240 days' work does not confer the right to regularization under the Industrial Disputes Act. It merely imposes certain obligations on the employer at the time of termination of the services. In M.P. Housing Board &Anr. v. Manoj Shrivastava (2006) 2 SCC 702 (paragraph 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533. The same question has been examined in considerable detail with reference to an employee working in a Government Company in Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 and paragraphs 34 and 35 of the reports are being reproduced below :-
34. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan and Ors. v. State of Kerala and Ors. (1996) 10 SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore v. State of Maharashtra (1997) 3 SCC 209 and Union of India and Ors. v. BishambarDutt (1996) 11 SCC
341. The direction issued by the Services 25 Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time."
35. In Surinder Singh Jamwal (Dr.) v.
State of J&K it was held that ad hoc appointment does not give any right for regularisation as regularisation is governed by the statutory rules."
38. In the aforesaid judgment, the Hon'ble Supreme Court has held that merely working for 240 days in a calendar year does not ipso facto create any right in favour of a workman to be regularized, rather the said right flows from the rules of the said establishment.
39. The learned Labour Court has failed to take into consideration the settled principle that if the industrial adjudicator finds the contract between the principal employer and the contractor to be sham or merely a camouflage to deny employment benefits to the workers and it is found on facts that there is employer-employee relationship between the principal employer and the contract-labourers, it can grant relief to the workers by directing the principal employer to regularise them holding that the workmen were the direct employees of the principal employer. However, in the present case, it was admitted by the respondent-Union in the reference case by filing written statement to the effect that the wages used to be disbursed to them through a contractor. The said fact was further supplemented by the management who produced the bills relating to payment to the contractor before the learned Tribunal. Moreover, in the impugned award itself, it has been observed that as per the record of the office of A.L.C (C), the Labour Enforcement Officer had inspected the railway siding of Rajhara Colliery on 10.08.1985 and had found that 50 concerned workmen were doing the job of shale picking under the contractor Surat Pandey. Although the work used to be supervised by the officers of the management, yet it cannot be said that there was complete control of the management upon the concerned workmen. Even if W.W-1 had denied that the concerned workmen were engaged by the contractor, the 26 averments made in the written statement of the sponsoring Union filed before the learned Tribunal and the report of the LEO, would reveal that they were engaged by the contractor. Once it is proved that the concerned workmen were engaged by the contractor, the burden was upon the concerned workmen to adduce sufficient materials before the learned Tribunal to show that such arrangement between the management and the contractor was mere sham and camouflage only to deny the benefits to the concerned workmen and that they were the employees of the management (the principal employer). However, they failed to discharge the said burden, which, otherwise, could have shifted the onus upon the management to controvert the same. The judgment rendered in the case of Steel Authority of India Ltd. (Supra) cited on behalf of the respondent-Union will not help its case.
40. In view of the discussions made herein in above, W.P.(L) No. 2266 of 2007 is allowed and the impugned award dated 16.03.2006 passed in Reference Case No. 114/1989 by the Central Government Industrial Tribunal No.1, Dhanbad is, hereby, quashed and set aside. Contempt Case (C) No. 624 of 2015 is also disposed of accordingly and the petitioners are absolved from any consequence arising out of the impugned award dated 16.03.2006.
41. Consequently, I.A. Nos. 5604/2015 & 6136/2015 [Contempt Case (C) No. 624 of 2015] and I.A. Nos. 3719/2015, 3923/2015, 5803/2016 & 9740/2017 [W.P.(L) No. 2266 of 2007] also stand disposed of.
I.A. No. 3923 of 2018
During the course of argument, the respondent-Union filed the present interlocutory application seeking leave of this Court to bring on record a copy of Form-B claiming that on perusal of said document, it would appear that all the concerned workmen were working in the petitioner's colliery, and that the said document has also been attested by the Project Officer, Rajhara Colliery of M/S CCL. It has further been submitted that the said document was not available with the respondent and the same was found after hectic search. 27
It is a settled position of law that the learned Labour Court/Industrial Tribunal is the final fact finding Court and the writ Court under the power of superintendence cannot allow the parties to bring on record the additional evidence, rather the writ Court is to look into the evidences which are already on record. The writ Court does not exercise jurisdiction as the Court of appeal. By way of the present interlocutory application, the respondent-Union has sought to bring on record the documents, which cannot be tested under the writ jurisdiction. The respondent-Union has made a vague assertion in the present interlocutory application that the said documents have been found after hectic search, without mentioning that from where the same were found and why the same could not be procured earlier. No one should be benefitted for its own wrong. If any relevant document is not produced before the fact finding Court due to the laches on the part of the person who was supposed to produce it, no indulgence can be given by the writ Court.
I.A. No. 3923 of 2018 is accordingly rejected.
- (RAJESH SHANKAR, J) High Court of Jharkhand, Ranchi Dated 11.05.2018 Satish/A.F.R