Employer In Relation To The Management ... vs Union Of India (Uoi) And Ors. on 7 July, 2003

[Cites 25, Cited by 1]

Jharkhand High Court

Employer In Relation To The Management ... vs Union Of India (Uoi) And Ors. on 7 July, 2003

Equivalent citations: [2003(3)JCR647(JHR)], 2004 LAB. I. C. 1602, 2004 AIR - JHAR. H. C. R. 895, (2004) 8 SERVLR 249, (2003) 3 JLJR 333, (2003) 3 JCR 647 (JHA)

1. In this, Writ Application, the petitioner, namely, the Management of Central Mine Planning and Design Institute Ltd. have filed the instant Writ Application challenging the award dated 01.05.1997 (Annexure-14) passed by the respondent No. 2 in Reference Case No. 51 of 1993, whereby and whereunder it has inter alia been held that the action of the petitioner in terminating the services of Naresh Jha and 27 others with effect from 01.07.1992 is not justified and that the concerned workmen are entitled to be reinstated and regularized from that day together with 40% of back wages and other benefits within two months from the date of publication of the award.

2. The facts, as pleaded, are that the establishment of the petitioner is neither a 'mine' nor does it own any 'mine' nor does it carry on any mining activities and therefore, the Central Government being not the appropriate Government could not have made the reference. The further case of the petitioner is that its roles and functions do not bring the petitioner in the schedule of "controlled industry" and that none of its functions are covered under Schedule 1 of the Industries (Development and Regulation) Act, 1951 and therefore also, the Central Government can not be treated to be the appropriate Government in so far as the petitioner is concerned.

3. The petitioners have also stated that the Government of India, in collaboration with the United Nations Development Project (hereinafter referred to for the sake of brevity as UNDP) carries out programmes related to research orientation in various fields. Under Category III Programme, a project entitled "modelling and control of water systems in various coal mining environments" was assigned by UNDP to India and the executing agency of the said project was the Department of Coal, Government of India, The said Department of Coal in turn appointed the petitioner as the implementing agency/executing agency and an agreement to that effect was executed for the said project in March 1986 and initially the project was to be completed by June 1990.

4. Mr. Ajit Kumar Sinha, learned counsel for the petitioner refers to Annexure-1 and submits that upon perusal thereof it will be apparent that the agreement/project was limited only to the extent of water system which was executed between the Government of India and the UNDP. The tenure of the project was fixed for 4 (four) years and 100% finance was to be made jointly by the Government of India and UNDP. According to him the Department of Coal through the Central Mine Planning and Design Institute (hereinafter referred to for the sake of brevity as the CMPDIL) as per Annexure-1 was the implementing agency and this would also be evident from the final approval which is contained in page 40. Mr. Ajit Kumar Sinha further submits that in order to carry out the project, two officers of the petitioner, namely Shri R.C. Savanor and Shri A.K. Agarwal, who were the Chief of Geology and Deputy Chief of Geology were sent by the petitioner to work as Project Director and Deputy Project Director respectively for the aforementioned project, namely, UNDP/CP-III Project entitled "Modelling and Controlling of Water Systems in Coal Mining Environment" He further submits that all appointments made in relation to the concerned workmen were purely temporary appointments against causal nature of work and while issuing the said letters of casual engagement, it was specifically intimated that the offer was purely temporary being casual engagement and that the same would not carry any claim or right in future for regular appointment in the Company. One such letter of casual engagement has been brought on record by the petitioners vide Annexure-3. According to Mr. Ajit Kumar Sinha, each of the workmen filled up the relevant 'Form-B' which was the register of employees which specifically mentioned that the designation of such employees was that of casual worker/temporary worker in UNDP Project. Mr. Ajit Kumar Sinha further submits that these workmen signed on these 'Form-B' registers with their eyes and ears open and therefore they cannot be allowed to turn around at a subsequent stage and pray for regularization of service with the petitioner company, namely, CMPDIL.

5. The petitioners have further stated that the aforementioned project was to be carried out in two areas, namely, Rajmahal in the State of Bihar and Chandrapur in the State of Maharastra. The petitioners have further stated that while filling up the aforementioned registers, the concerned workmen were aware of the fact that their engagement/appointment was limited so long as the project was alive and that after the same was over, they could not have any subsisting right to claim for regular employment in the Company. The project, according to the petitioner, came to an end with effect from 30.6.1992 and therefore the services of the employees were discontinued as they were not required with effect from 01.07.1992. Mr. Ajit Kumar Sinha draws attention of this Court to Annexure-4 and submits that the contents of Annexure-4 unequivocally pointed out to the factum of termination of the project with effect from 30.06.1992 and therefore 28 people were informed that their engagements are to be discontinued with effect from the afternoon of 30.06.1992. Further case of the petitioner is that inspite of the fact that the concerned workmen were all along aware of their status to the effect that their engagement would come to an end upon closure of the project, yet, a dispute was raised and by "an order dated 18.05.1993, the Government of India, Ministry of Labour, in exercise of its powers under Section 10(1)(d) of the Industrial Disputes Act, referred the dispute to the Central Government Industrial Tribunal No. 2, Dhanbad (respondent No. 2) for adjudication of the following dispute :--

"Whether the action of the management of Central Mine Planning and Design Institute Ltd., Ranchi in terminating the services of Shri Naresh Jha and 27 Others (as per annexure) w.e.f. 1.7.92 is justified? if not, to what relief the workmen are entitled?"

6. Written statements were filed and the petitioner also appeared specifically taking the plea to the effect that the Central Government had no jurisdiction to make the reference. They also took the plea that the project was a totally research and development assignment where the petitioner functioned only as an implementing/executing agency and therefore they never functioned as employers of the concerned workmen. They also took the plea that the project was a time bound project and was purely temporary in nature and the same was aided by the UNDP. The also stated that the workmen were paid their wages from the funds provided by UNDP and that their details were never reflected in the monthly man power report of the Petitioners' Establishment because they were never engaged for trade or business of the organization. Upon completion of the UNDP Project and closure thereof with effect from 30.06.1992, the Management did not find any reason to continue with their engagement. They also stated that being a Government Company, they were required to abide by the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act so as to ensure equal opportunities to all eligible job seekers. Since the petitioner never employed the concerned workmen for themselves and since they were engaged by the Deputy Project Director. UNDP who was the nominated official of the petitioner, it could not be said that the concerned workmen were the employees of the petitioner. In fact, what the petitioner pleaded was that there was no employer-employee relationship at all.

7. Mr. Ajit Kumar Sinha, learned counsel for the petitioner submits that from a perusal of paragraph 8 it is apparent that the learned Tribunal could have only taken into consideration the actual scope of reference and that was to the effect as to whether the petitioner's action in terminating the services of the concerned workmen with effect from 01.07.1992 was justified or not. Mr. Sinha submits that the answer to this question would have been either in the affirmative or in the negative, but the Tribunal could certainly not have proceeded to add at paragraph 24 of the award the words "and regularize the concerned workmen in service with payment of 40% back wages and other benefits......". According to him, therefore, learned Tribunal went beyond the scope of reference and exceeded its jurisdiction. Mr. Ajit Kumar Sinha then submitted that the learned Tribunal at paragraph 14 of the award has gone into an unnecessary exercise of roming to a conclusion that all the workmen had rendered and/or completed 240 days of continuous employment. Mr. Sinha submits that even assuming for the sake of arguments, that the workmen had completed 240 days, even then that factor could not have entitled the workmen to claim regularization with the Company because, firstly they were not the employees of the Petitioner and secondly all of them were project duration employees. He further submits that the very reference by the Central Government was totally misconceived because the petitioner was not an industry within the meaning of Section 2(i) of the Industrial Disputes Act. On the contrary, as per Mr. Ajit Kumar Sinha, the petitioner being an educational, scientific, research or training institute, cannot be deemed to be an "industry" in view of the exclusion made in the definition of "industry". He further submits that the petitioner is a shop under the Bihar Shops and Establishments Act and therefore, it was only the State Government which could have made the reference and not the Central Government. In this context, it is relevant to mention that what Mr. Ajit Kumar Sinha refers to is the definition of the word "industry" which was inserted by the Industrial Disputes (Amendment) Act, 1982 (Act No. 46 of 1982), which reads as follows :--

"[2(j) "Industry means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--

(i) any capital has been invested for the purpose of carrying on such activity; or

(ii) such activity is carried on with a motive to make any gain or profit, and includes-

(a) any activity of the Dock Labour Board established under Section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);

(b) any activity relating to the promotion of sale or business or both carried on by an establishment.

but does not include-

(1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.

Explanation.--For the purposes of this sub-clause, "agricultural operation' does not include and activity carried on in a plantation as defined in Clause (f) of Section 2 of the Planations Labour Act, 1951;

or (2) hospital or dispensaries; or (3) educational, scientific, research or training institutions; or (4) institutions owned or managed by organizations wholly or substantially engaged in any charitable, social or philanthropic service; or (5) khadi or village industries; or (6) any activity of the Government relatable to sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or (7) any domestic service; or (8) any activity, being profession practiced by an individual or body of individuals, if the number of persons employed by the individuals or body of individuals in relation to such activity is less than ten; or (9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten;] However, from the note appearing below the text, it is obvious that the aforementioned substituted definition has not been enforced as yet and hence the earlier definition has to be taken note of and which reads thus :--

2(j) "Industry" means any business, trade, undertaking manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen,"

For the foregoing reasons the argument to the effect that being a research or training institute it is not an "industry" cannot be accepted. Moreover, from the reasons given hereinafter one has to come to the inescapable conclusion that the petitioner certainly falls within the definition of the word "industry" and therefore, the argument to the effect that the Tribunal should not have taken into consideration the provisions of Section 25F is not acceptable to this Court.

8. In this context, Mr. Ajit Kumar Sinha drew attention of this Court to Section 2(k) of the Industrial Disputes Act, 1947 and submitted that an industrial dispute means a dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or non-employment or the terms of employment all with the conditions of labour of any person. According to him, since Annexures 1, 2 and 3 prove that the entire project was that of UNDP where the petitioner was only the implementing agency and also upon perusal of Exhibit W-4 which, was referred to by the learned Tribunal at paragraph 16 of the award, the demand of the concerned workmen for regularization of their services was therefore totally misconceived. He further submits that the finding of the learned Tribunal at paragraph 17 to the effect that the work was continuing after 30.6.1992 was erroneous inasmuch as the workmen had themselves admitted at paragraph 16 by bringing on record Exhibit W-4 to the effect that the UNDP Project came to an end on 30.06.1992. He further argues that the learned Tribunal committed a serious error inasmuch as at paragraph 22 he wrongly comes to a conclusion that the project was still continuing and that they were terminated in violation of the provisions of Section 25F of the Industrial Disputes Act. Mr. Ajit Kumar Sinha draws attention of this Court to Section 25F which reads as follows :--

"25-F. Conditions precedent to retrenchment of workmen.--No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workmen has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice ;

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(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service [or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].

9. Mr. Ajit Kumar Sinha submits that in view of Section 2(oo)(bb), the termination of the concerned workmen cannot be termed to be "retrenchment" because under Section 2(oo)(bb), it has been laid down inter alia that retrenchment does not include termination as a result of non- renewal of contract of employment between the employer and the workman on its expiry or of such contract being terminated under a stipulation contained in that behalf. Sections 2(oo) reads as follows :--

"[2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include-

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [(bb) termination of the service of the workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]

(c) termination of the service of a workman on the ground of continued ill health;]

10. Therefore, what Mr. Ajit Kumar Sinha has argued is that (a) the Industrial Tribunal went beyond the scope of reference; (b) Section 25F of the Industrial Disputes Act could not have been made applicable in view of Section 2(oo) (bb) and (c) the petitioner, not being an industry and being an institute which provides technical know-how and expertise is exempted from the applicability clause because it cannot be said to be an industry for purpose of business, trade etc. as defined under Section 2(j) of the Industrial Disputes Act. He further submits that the project was totally funded by UNDP and that there was no employer-employee relationship and in any event, the engagement was co-terminus with the project and it had come to an end upon completion thereof. The concerned workmen having signed the 'Form-B' registers and having accepted the offers of engagement, are estopped from claiming regularization of service because the petitioners never employed them. His final argument is that the petitioner cannot be brought within the definition of Section 2(j) of the Mines Act, 1952 because it is not a 'Mine' within the said definition and therefore the Central Government could not have been the appropriate Government for making the reference.

11. Mr. P.K. Sinha, learned counsel for the respondent No. 3 on the other hand emphasized the fact that all employments were given by the petitioner and that there was very much an employer- employee relationship. He further argues that CMPDIL is a 'Mine' and is covered under the Mines Act and therefore, the Central Government did have the authority to make the reference. He firstly refers to page 200 of the Writ Application which is an Enquiry Report submitted by the Chairman-cum-Managing Director addressed to the Director (P & IR), Coal India Limited. This is report in relation to the inquiry conducted in respect of various aspects of engagement of 28 casuals in the CMPDIL for the UNDP Project. Upon perusal of pages 200 to 207 of the Writ Application, the following facts emerge and they are as follows :--

(a) That the engagement of casuals in CMPDI has been the usual practice. [at page 200, Clause i]

(b) Regarding engagement of casuals for implementation of UNDP Projects, persons are engaged as per prevalent practice in CMPDI with the association of all concerned authorities, [at page 200, Clause v]

(c) The engagement of casuals for UNDP Project and their continuance in CMPDI has never been questioned by any authority, [at page 200, Clause vi]

(d) That CMPDIL was the executing/implementing agency and for that purpose necessary man power for implementation of the UNDP Project was necessary, [at page 204 Clause i]

(e) That sanction was for the entire period of four years but recruitment was to be made through the local employment exchange. [at page 205, Clause i infra]

(f) That in relation to the proposal for engagement of at least two persons, the verbal approval of the Chairman cum Managing Director was obtained, [at page 205, Clause ii]

(g) That the list of candidates sponsored by the Employment Exchange for recruitment in Rajmahal Project was vide Annexure-III page 9 to 20. 11 persons were appointed as casuals from the list sponsored by the local Employment Exchange, two were appointed on the basis of earlier experience another two persons i.e. Shri Bhimsen Marandi (ST) and Sri Jaikant Ravidas (SC) were appointed to meet the reservation quota of SC/ST. One persons Shri A.K. Bhat-tacharjee was also appointed as Casual though his name was not sponsored by the Employment Exchange, [at page 205, Clause iv]

(h) That UNDP Project was assigned to India through the executing agency, i.e., the Department of Coal and the said Department of Coal in turn entrusted the entire job to CMPDIL; [at page 204]

(i) That from individual summary of attendance it would be apparent that all casuals had completed more than 240 days of service, [at page 206, Clause vi]

(j) That no formal termination order for casual workers was made available but it was informed that the termination orders were passed as per the order of the Chairman cum Managing Director, [at page 206, Clause viii]

(k) That the casuals were paid Category I wages, [at page 207, Clause ix] From the details of the facts taken note of in the foregoing paragraphs, we have to bear in mind the dominant nature of the activities of the petitioner Company and the only inevitable conclusion is that it must be held that it is an "industry" within the meaning of Section 2(j) of the Industrial Disputes Act. To that extent the judgment cited by the learned counsel for the petitioner in the case of Management of Danadakaranya Project, Koreput v. Workmen through Rehabilitation Employees' Union and Anr. reported in [1997) 2 SCC 296 goes against the petitioner and in favour of the respondents.

12. Mr. P.K. Sinha further placed emphasis on Exhibit W-18 which is at running page 502. It is a letter of one R.B. Mathur, Chairman cum Managing Director of CMPDIL addressed to the Chairman, Coal India Limited, wherein it has been stated inter alia that the casuals engaged for UNDP work were appointed for a period of four years and that two years had already passed. Similarly, the casuals engaged for hydrogeological work had also completed 240 days much earlier and therefore it may be necessary to regularize the casuals engaged on UNDP Project and also on hydrogeological works. According to Mr. P.K. Sinha, this document totally demolishes the argument of Mr. Ajit Kumar Sinha to the effect that there was no employer-employee relationship.

13. The next contention of Mr. P.K. Sinha is that CMPDIL is very much a 'Mine' and is therefore covered under the Mines Act. He also submits that the Central Government is the appropriate Government and in that context he refers to Exhibit W-24 which is placed between running pages 511 to 515 of the instant Writ Application. This document is a letter of the Government of India issued by the Joint Secretary to the Government of India, Ministry of Energy, Department of Coal and is dated 27.09.1975 and it relates to the setting up of the Coal India Limited, a Holding Company for the Coal Industry. Upon perusal of the letter it appears that the Government of India had decided to convert the then Coal Mines Authority Limited into a Holding Company known as the Coal India Limited, which was supposed to be responsible for the management of the entire Coal Mining Sector owned and controlled by the Central Government and the existing division of the Coal Mines Authority was converted into registered companies with a stipulation that they would be subsidiaries of Coal of India Limited. The first Company mentioned is CMPDIL. Additionally Mr. P.K. Sinha submits that upon perusal of the Written Statement filed by the workmen it was specifically stated at paragraphs 18 and 19 that it was absurd to suggest that the concerned workmen were casuals although they were appointed in Category I wages. According to the said paragraphs all Category I workers under the NCWA are regular workers, who on completion of six months service, are made permanent. From a perusal of paragraph 18 of the award it appears that in relation to other casuals employed at Chasnala and Meera Nagar Project who were appointed on identical terms, were regularized on regular terms and so far as the workmen of CMPDIL are concerned, payments were made by CMPDIL. It has also been discussed in the same paragraph that Exhibit W-12 showed the decision about absorption of casuals with 240 days attendance in Category I. Those employees, after closure of their projects on 08.09.1988 and even after their termination, were absorbed later on.

14. Mr. P.K. Sinha further draws attention to Exhibit W-19 which is placed at running page 503 of the instant Writ Application. It is a letter of the Director (P & IR) of Coal India Limited addressed to the Chairman-cum-Managing Director, CMPDIL. In that letter, while expressing satisfaction in relation to the termination of the concerned workman with effect from 30.6.1992, an advise was given to the effect that for purposes of completing the work in Rajmahal and Wardha, workmen should be requisitioned from amongst the new recruits under NCWA/land loser schemes from BCCL, CCL. ECL and in case these companies failed to identify them, then CMPDIL may consider engaging casual workmen. This letter shows that Coal India Limited advised the CMPDIL that it may consider engaging casual workmen in solving the manpower requirement upon extension of the project by six months. This letter, according to Mr. P.K. Sinha, clearly points out to the fact that the project was continuing even after termination of the services of the concerned workmen with effect from 30.06.1992 since this letter is dated 16/20.07.1992. This apart, Mr. P.K. Sinha draws attention of this Court to the fact that payment was made as per Category I wages and submits that evidence to that effect is at W-16 which is contained at running page 498 of the instant Writ Application. The above exhibits have been taken into consideration in the aforementioned paragraph 18 of the award. More over, it appears that all the engagement letters which had been issued have been signed by the Deputy Director (Project), UNDP Project, CMPDIL. Mr. P.K. Sinha further draws attention of this Court to Exhibit 9 which finds place at running page 338 onwards in the Writ Application and points out that upon perusal of Clause 2.3 (page

341) it is apparent that CMPDIL is very much a subsidiary of Coal India Limited and that CMPDIL is a Planning, Design and Engineering Company in the Coal Sector. At Clause 3.2 (page 342) it is evident that CMPDIL has been set up for preparing perspective plans, rendering consultancy services and undertaking exploration and drilling to establish coal reserves in the country. From Clause 3.20 (page 345) it is apparent that CMPDIL is rendering mining and engineering consultancy and it is also rendering services with respect to transfer of technology from foreign countries viz. Soviet Union, Poland, United Kingdom, France, Federal Republic of Germany, German Democratic Republic, Australia, Canada etc. to India in areas like mining in difficult geo-mining conditions, including mining in thick seam, coal beneficiation, improved drilling technique, mining electronics and environmental management.

Furthermore Clause 3.18 of the same Exhibit reads as follows :--

"3.18 Central Mine Planning and Design Institute Limited, a subsidiary of Coal India Limited is engaged in the work of exploration project planning, detailed designing of systems and subsystems, coordination and integration of applied research and development, absorption of new techniques of coal mining, beneficiation and utilization of coal, perspective planning and demand assessment and caters to the total planning and designing needs of new coal projects and re-organisation of exiting mines for optimal production of coal. The Company is equipped to take up consultancy jobs in the above fields both within and outside the country. The Company's headquarters is located at Ranchi. It has regional institutes located at Asansol. Dhanbad, Ranchi, Nagpur, Bilaspur, Singrauli and Bhubaneshwar to render doorstep service to the coal producing companies located in these areas.

15. Thus, upon perusal of the aforementioned different clauses it is apparent that CMPDIL carries on not only mining activities but it also functions under the authority of the Central Government and therefore it cannot be contended that the Central Government is not the appropriate Government so far as the CMPDIL is concerned. It is also apparent in view of the same analogy that CMPDIL also comes within the definition of 'controlled industry' as per Section 2(ee). The aforesaid analogy also leads to the inevitable conclusion that CMPDIL must also fall within the definition of an industrial establishment or undertaking. That being the position, an industrial establishment as per explanation appended to Section 25A includes a 'Mine' as defined under Section 2(j) of the Mines Act. Since activities of the CMPDIL pertain to exploration and drilling in search of finding out coal and since its apex body is the Coal India Limited, it must also be said to come within the definition of 'Mine' as defined under Section 2(j) of the Mines Act, 1952. This definition includes various activities and the ones that are apparent from pages 316 onwards of this Writ Application and especially at pages 319, 320, 321 and 325, all go to show intensive mining activities is being carried out. Section 2(j) of the Mines Act therefore is necessary to be quoted which reads as follows :--

"2(j) "mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes-

(i) all borings, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oil fields;

(ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not;

(iii) all levels and inclined planes in the course of being driven;

(iv) all open cast workings;

(v) all conveyors or aerial rope-ways provided for the brining into or removal from a mine of minerals or other articles or for the removal of refuse therefrom;

(vi) all audits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a mine;

(vii) all protective works being carried out in or adjacent to a mine;

(viii) all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with the mine or a number of mines under the same management;

(ix) all power stations, transformer sub-stations converter stations, rectifier stations and accumulator, storage stations for supplying electricity solely or mainly for the purpose of working the mine or a number of mines under the same management.

(x) any premises for the time being used for depositing sand or other material for use in a mine or for depositing refuse from a mine or in which any operations in connection with such sand, refuse or other material is being carried on, being premises exclusively occupied by the power of the mine;

(xi) any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting dressing or preparation for sale of minerals or of coke is being carried on;

16. Thus it is an industrial undertaking which includes a mine and that being the position Section 25FFF of the Industrial Disputes becomes applicable. Section 25FFF of the Industrial Disputes Act reads as follows :--

"25-FFF.Compensation to workmen in case of closing down of undertakings.--(1) Where an undertaking, is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of Sub-section (2), be entitled to notice and compensation in accordance with the provisions of Section 25F, as if the workman had been retrenched :

Provided that where the undertaking is closed down on account of un-avoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under Clause (b) of Section 25F shall not exceed his average pay for three months. Explanation.--An undertaking which is closed down by reason merely of-

(i) financial difficulties (including losses); or

(ii) accumulation of undisposed of stock; or

(iii) the expiry of the period of the lease of licence granted to it; or

(iv) in a case where the undertaking is engaged in mining operations, exhaustion of the minerals in the area in which such operations are carried on;

shall not be deemed to be closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to this sub-section.

(1-A) Notwithstanding anything contained in Sub-section (1), where an undertaking engaged in mining operations is closed down by reason merely of exhaustion of the minerals in the area in which such operations are carried on, no workman referred to in that sub-section shall be entitled to any notice or compensation in accordance with the provisions of Section 25F, if-

(a) the employer provides the workman with alternative employment with effect from the date of closure at the same remuneration as he was entitled to receive, and on the same terms and conditions of service as were applicable to him immediately before the closure;

(b) the service of the workman has not been interrupted by such alternative employment; and

(c) the employer is under the terms of such alternative employment or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by such alternative employment.

(1-B) For the purposes of Sub-sections (1) and (1-A), the expressions "minerals" and "mining operations" shall have the meanings respectively assigned to them in Clauses (a) and (b) of Section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 (67 of 1957).

(2) Where any undertaking set up for the construction of buildings bridges, roads, canals, dams or other construction work is closed down on account of the completion of the work within two years from the date on which the undertaking had been set up, no workman employed therein shall be entitled to any compensation under Clause (b) of Section 25F, but if the construction work is not so completed within two years, he shall be entitled to notice and compensation under that section for every completed year of continuous service or any part thereof in excess of six months.

17. Section 25FFF which has been quoted above, makes compliance of Section 25F compulsory. Section 25F reads as follows :--

"25-F. Conditions precedent to retrenchment of workmen.--No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice wages for the period of the notice;

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(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay [for every completed year of continuous service] or any part thereof in excess of six months; and

(c) notice in the prescribed manner is service on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].

18. Thus, the argument of Mr. Ajit Kumar Sinha to the effect that Section 2(oo)(bb) protects the petitioner and the definition could not be treated to be retrenchment does not appear to be reasonable submission at all. It is accordingly rejected and it is held that the Tribunal correctly came to the conclusion that the provisions of Section 25F of the Industrial Disputes Act had been violated and therefore, he correctly also held at paragraph 22 that the action of the Management in regularizing the other similarly situated persons amounted to double standards being adopted by the Management and therefore came to the conclusion that the termination was illegal. The aforementioned finding is obviously based on paragraphs 16 and 17 of the Written Statement filed by the concerned workmen which is contained in Annexure-5, the relevant whereof is at page 50 of the writ application and it reads as follows :--

"16. That during conciliation proceedings on 21.9.92 a veiled allegation was made by the Management that the workmen concerned were appointed "purely a term appointment i.e. till completion of UNDP Project without any, valid basis. It was pointed out that CMPDI, as a Rule followed a policy of employing persons as casuals as consolidated Wage and regularizing such workmen on completion of 240 days and even workmen employed exclusively for the Contract Drilling work taken by CMPDIL at Meera Nagar, Rajasthan on voucher payment with consolidated wages were regularised initially in Category-I, NCWA and recategorised/ regularized in appropriate Categories/ grades.

17. That the fact remains that it was by an Office Note dated 6.8.1992 from Sri A.K. Agarwal, Addl. Chief of Geology and Drilling (Hydrogeology) the Controlling Officer for the first time stated that among other, the workmen concerned were "terminated w.e.f. 30.6.92."

According to the said office note dated 6.8.92, out of a total of 45 Casuals under the Department of Hydrogeology, 48 workers were terminated w.e.f. 30.6.92, 2 workers terminated "since March, 92" and 3 workers similarly situated were not terminated due to lack of instructions.

The 28 Workmen concerned in this dispute were terminated, without following the procedures established by law, while retaining and regularizing juniors."

19. Another important factor is that on perusal of Exhibit W-18 which is placed at running page 502, it is apparent that a total of 144 casuals were engaged in the ratio of 99 + 28 + 17. So far as the Meeranagar Camp Casual Workers, the petitioner issued letter dated 23.09.1988 wherein they regularized and/or absorbed those casual Category I workers engaged at Meeranagar Camp. This is evident from Exhibit W-12 placed at page 492 of the instant Writ Application. Similarly, Exhibit W-34 which is placed at page 558 goes to show that the Chief General Manager (MP & IR) Regularized six casual workers as Category I General Mazdoor and they were ordered to be included in the CMPDIL manpower. The 'Form-B' registers are also on record and they are Exhibit M2 series placed from page 177 onwards of the instant Writ Application. These 'Form-B' registers, right at the beginning, show that they are under Rules 48, 51, 77 and 77(a) of the Mines Rules. These Form-B' registers are to be maintained in every mine as per Section 48 of the Mines Act, 1952 and therefore, the management cannot contend on the one hand that it does not come within the purview of the Mines Act and on the other hand come out with an argument that 'Form-B' registers show that they were casual workers. The very fact that 'Form-B' registers were maintained goes to show that the concerned workmen were required to give their details as per the requirements of Section 48 of the Mines Act. Section 48 of the Mines Act reads thus :--

"48. Registers of persons employed.--[(1) For every mine there shall be kept in the prescribed form and place a register of all persons employed in the mine showing in respect of each such person-

(a) the name of the employee with the name of his father or, of her husband, as the case may be, and such other particulars as may be necessary for purposes of identification;

(b) the age and sex of the employee;

(c) the nature of employment (whether above ground or below ground, and if above ground, whether in open cast workings or otherwise) and the date of commencement thereof;

[* * *]

(e) such other particulars as may be prescribed, and the relevant entries shall be authenticated by the signature or the thumb impression of the person concerned].

(2) The entries in the register prescribed by Sub-section (1) shall be such that workers working in accordance therewith would not be working in contravention of any of the provisions of this Chapter.

(3) No person shall be employed in a mine until the particulars required by Sub-section (1) have been recorded in the register in respect of such person and no person shall be employed except during the period of work shown in respect of him in the register.

[(4) For every mine other than a mine which for any special reason to be recorded, is exempted by the Central Government by general or special order, there shall be kept in the prescribed form and place separate registers showing in respect of each person employed in the mine-

(a) below ground;

(b) above ground in open cast working; and

(i) the name of the employee;

(ii) the class or kind of his employment;

(iii) where work is carried on by a system of relays, the shift to which he belongs and the hours of the shift].

(5) The register of persons employed below ground referred to in Sub-section (4) shall show at any moment the name of every person who is then present below ground in the mine.

[(6) No person shall enter any open cast working or any working below ground unless he has been permitted by the manager or is authorized under this Act or any other law to do so].

Rule 77 of the Mines Rules also lays down the requirement of maintaining the aforementioned register as per the provisions of Section 48 of the Mines Act.

20. That apart in the Written Statement the workmen also clearly explained the reasons why the provisions of Section 25F as also Section 25N had been, violated. These are to be found at paragraphs 33 to 34.1 of the Written Statement, which is Annexure-5 appended to the Writ Application.

21. The implementing agency in the instant case as has been argued by Mr. Ajit Kumar Sinha is the CMPDIL which was entrusted with implementing the carrying out the project. If CMPDIL was the implementing agency then the hand written text of Exhibit W-5 which is placed at page 498 of the Writ Application, becomes significant. It is a note sheet of CMPDI Hydrogeological Investigation UNDP Rajmahal Area dated 23.01.1990. The hand written note sheet at page 498 reads thus :--

"AFO may kindly advise regarding the payments to casuals working in UNDP in regular nature jobs. As per ............ these casuals have to be paid Cat. I wages. Kindly indicate the present wages of Cat. I workers (daily wagers) so the same can be passed on to Lalmatia (Rajmahal, UNDP)......."

On the next page the note sheet further indicates as follows :--

"the casuals are engaged against permanent nature of job. Kindly indicate whether they are entitled for HRA ........."[underlining by Court].

This is Exhibit W-16 and it is to be found at running pages 498 to 499 of the Writ Application.

22. Thus, it can not be contended by the petitioners that the concerned workmen were not working on permanent nature of jobs.

23. The Management of CMPDIL took a decision to pay Category I wages to the casual workers who were engaged on regular nature of jobs with effect from 17.12.1985 under the NCWA-III. This is to be found at running page 505 which was Exhibit W-21 and it is quoted thus :--

"In view of the above, it has been decided to pay the casual workers who are engaged on regular nature of jobs against sanctioned vacancies under different cadre schemes, Cat. I wages under NEWA-III w.e.f. 17.12.1985. They will also be entitled t6 other attending benefits such as attendance bonus, Membership of CMPF, Medical reimbursement, ex-gratia payment in lieu of Bonus as and when decided by the Government of India etc."

24. It appear from running page 104 that 28 concerned workmen were appointed during 1986, 1987 and 1988. That being the position, all of them were working for much more than 240 days on the date of termination, i.e. 30.06.1992. Now as per the standing orders which is placed at running page 522 of the Writ Application, the relevant portion whereof are between pages 524 to 526, these workmen should be deemed to be permanent workmen as per Clause 3.5. of the said standing orders. The aforementioned three provisions of this classification of workmen, namely clause 3.1, 3.4 and 3.5 are quoted below :--

3.1 For the purpose of these Standing Orders workman shall be classified as follows :

(a) Apprentice

(b) Badli or substitute

(c) Casual

(d) Permanent

(e) Probationer

(f) Temporary 3.4 A 'casual workman' means a workman who has been engaged for work which is intermittent or sporadic or of casual nature not extending beyond a maximum period of 3 (three) months at a time provided that for employment of casual wagon loaders ....

the time limit of 3 (three) months shall not apply.

3.5. A 'permanent workman' is one who is employed on a job of permanent nature for a period of at least 6 (six) months or who has satisfactorily put in 6 (six) months continuous service in a permanent post as a probationer.

25. For the foregoing reasons, therefore,, this Court is of the opinion that the award does not suffer from any perversity or illegality. Moreover, the argument of Mr. Ajit Kumar Sinha to the effect that the learned Tribunal travelled beyond the scope of reference by awarding regularization and 40% of back wages is wholly misconceived, inasmuch as the principle reference was to adjudicate as to whether the termination was justified or not. The further reference was that if it was not justified, then to what relief the workmen would be entitled. The Tribunal came to a conclusion that the termination was illegal and therefore, the only corollary relief to which the workmen were entitled, was reinstatement, but in view of the judgment of the Hon'ble Supreme Court of India in the case of S.M. Nilajkar and Ors. v. Telecom. District Manager, Kar-nataka, reported in JT 2003 (3) SC 436, which will be referred to hereinafter, this part of the award needs to be modified. However, the fact remains that the concerned workmen had put in continuous work for such a long period and therefore, they should be dealt with in accordance with law.

26. The judgment cited by the learned counsel for the petitioner in the case of Haryana State F.C.C.W. Store Ltd. and Anr. v. Ram Niwas and Anr., reported in (2002) 5 SCC 654 cannot apply to this case because that case turned on the interpretation of Section 2(oo)(bb) of the Industrial Disputes Act, in the instant case, it has already been held at paragraphs 18 and 19 herein that on account of the action of the management in regularizing other similar situated persons and dealing differently with the concerned workmen was an act that could not be said that the termination was on account of non-renewal of contract of employment or its expiry or termination of such contract as defined under Section 2(oo)(bb). Consequently the provisions of Section 2(oo)(bb) does not come to the rescue of the petitioner and therefore the aforementioned citation by the learned counsel for the petitioner is not applicable.

For the same reason, the judgment cited by the learned counsel for the petitioner in the case of Harmohinder Singh v. Kharga Canteen, Ambala Cantt., reported in (2001) 5 SCC 540, also does not come to the rescue of the petitioner.

For the same reason, the Judgment cited by the learned counsel for the petitioner in the case of Uptron India Ltd.

v. Shammi Bhan and Anr., reported in (1998) 6 SCC 538, also does not come to the rescue of the petitioner.

27. The other judgment of the Hon'ble Supreme Court cited by the learned counsel for the petitioner in the case of Rajendra and Ors. v. State of Rajasthan and Ors., reported in 1999 (2) LLN 35, was a case in which termination was made on account of financial and administrative consideration, whereas, here, in the instant case, although the employers terminated the services of the concerned workmen with effect from 50.06.1992 on account of alleged closure of the project, yet by letter dated 16/20.07.1992, an advise was given by the Coal India Limited to the CMPDIL that on account of extension of the programme they could consider engaging casual workmen. This was Exfiibit W-19 placed at page 503 of the Writ Application which has already been dealt with by this Court in the foregoing paragraph. In that view of the matter, that judgment cited by the learned counsel for the petitioner does not also help the petitioners.

28. So far as the judgment passed in the case of Executive Engineer (State of Karnataka) v. Somasetty and Ors., reported in 1997 (4) SLR 582, is concerned, the same does not come to the rescue of the petitioner at all, inasmuch it cannot be contended by the learned counsel for the petitioner that the project totally came to a close as has been dealt with in the foregoing paragraphs. Moreover, the workmen deserved to have been given the status of permanent workmen because they were always entrusted with a job that was permanent in nature and they had all completed much more than 240 days on the date of their termination.

29. Another judgment cited by Mr. Ajit Kumar Sinha passed in the case of Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors. reported in (1992) 4 SCC 99, cannot also be made applicable in the instant case because that case related to a temporary Government Scheme, namely, the Jawahar Rojgar Yojana, for providing employment on daily wages for the rural poor for the period when they have no other source of livelihood.

30. From the records of this case, it is evident that although the management stated that the project was supposed to have come to a close, yet there are documents which go to show :--

(a) that the concerned workmen were employed on permanent nature of jobs;

(b) that even after the said closure of the project, M/s. Coal India Limited advised the petitioner that it may engage casual workmen from out of the casual employees and thereby solve the manpower requirements which became necessary upon extension of the project by six months by their letter dated 16/20/07-1992 (Exhibit-W/19); and

(c) that other persons in different projects were regularised.

31. However, since it is the admitted case of the parties that the concerned workmen were all casuals but the fact remains that they were working on jobs which were permanent in nature. On account of their being casual workmen, their services were terminated. Such termination has been held to be bad by the Industrial Tribunal. The case of the petitioner is that the project came to an end but, as stated above, the letter dated 16/20/07.1992 is suggestive of the fact that there was an extension of the project by another six months. Therefore, taking the ease in its entirety and looking at it on the basis of other documents which have been brought on record, and also taking into consideration the peculiar facts of this case and the findings recorded by the Labour Court, the award nevertheless needs to be modified in view of the judgment delivered by the Hon'ble Supreme Court of India in the case of S.M. Nilajakar and Ors. v. Telecom. District Manager, Karnataka, reported in JT 2003 (3) SC 436. At paragraph 20 of the aforementioned judgment, the said Hon'ble Apex Court has recorded as follows :--

During the course of hearing it was stated at the Bar that there are a number of matters pending in different fora, industrial-cum-labour Court or High Court, raising similar issues awaiting decision in this case. We clarify that all such pending cases shall be heard and decided in accordance with the law as stated hereinabove. The project in which the workmen were engaged has come to an end. The respondent Government may consider the appellants being accommodated in some other project or scheme or regular employment, if available, by issuing suitable instructions or guidelines. If it be not possible, the respondent shall be at liberty to terminate the employment of the appellants after reinstating them as directed by the High Court and then complying with Section 25F of the Industrial Disputes Act."

32. The nature, role and functions of the petitioner, as has been considered in the foregoing paragraphs, are such that they are all of national importance and as such, their activities will always go on. In that view of the matter, even assuming for the sake of argument that this project has come to an end, but considering the fact that the concerned workmen had put in such a long period of their valuable time with the petitioners, it would only be appropriate to direct the petitioners that these workmen should be accommodated in any other Scheme or Project of the petitioner. If even thereafter, it is not possible for the petitioner to accommodate them in their other Schemes or Projects for reasons which must be in accordance with law, then it would be open to them to terminate their services after complying with all the provisions, again in accordance with law. This would be in line with the judgment passed by the Hon'ble Supreme Court of India in the case of S.M. Nilajakar and Ors. v. Telecom. District Manager, Karnataka, reported in JT 2003 (3) SC 436, quoted above. The award dated 01.05.1997 (Annexure 14) passed by the respondent No. 2 in Reference Case No. 51 of 1993 shall therefore stand modified to that extent.

The Writ Application is accordingly disposed off. No order as to costs.

Writ accordingly disposed off.

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