Jharkhand High Court
Employers In Rel.To The Man.Of Barakar ... vs Their Workman Shri Rajendra Prasad ... on 23 June, 2016
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P.(L) No. 4527 of 2009
........
Employers in relation to the management of Barakar
Engineering and Foundry Works, Nirsa, Dhanbad. ....... Petitioner
Versus
Their Workman Shri Rajendra Prasad. ......... Respondent
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
...
For the Petitioner : Mr. Rajesh Lala, Advocate
Mr. Arpit Kumar, Advocate
For the Respondent : Mr. Ayush Aditya, Advocate
Mr. Shashank Shekhar, Advocate
...
12/23.06.2016: Heard learned counsel for the parties.
The present matter arises out of an award passed in the 2 nd Reference made vide notification dated 3rd August, 1999 in respect of the sole respondent workman by the Central Government to the Central Government Industrial Tribunal No.1 being Reference Case No.163/1999. On this occasion the following reference was made :-
"Whether the action of the management of Barakar Engineering and Foundry Works, Nirsa of M/s. E.C.L. in providing employment to Sri Rajendra Prasad as Cat.I Mazdoor considering his experience of past service and qualification in the light of award in Ref.No.21/89 of CGIT No.3 dated 21.8.91 is proper ? If not, what relief Sri Prasad is entitled to and whether Sri Rajendra Prasad is entitled to wages from the date of award became enforceable ?"
Earlier the Industrial Reference made vide notification dated 9th March, 1989 in respect of the said respondent workman was in the following language:-
"Whether the action of the management of the Barakar Engineering and Foundry Works, Nirsa, M/s Eastern Coalfields Limited in not allowing Shri Rajendra Prasad, Molding and Flouring gang mazdoor to resume his duty is justified ? If not, to what relief is the workman entitled ?"-2-
The said reference dated 9th March 1989 was adjudicated by the learned Central Government Industrial Tribunal No.1, Dhanbad as Reference Case No.27/1989. By the award at Annexure-1 dated 21 st August, 1991 it was held as follows :-
"15. Considering all these facts and circumstances, I came to the conclusion that the concerned workman is entitled to be reinstated in service. But there is no evidence on record with regard to the pay last drawn by the concerned workman or with regard to his qualification, academic or technical or experience. Considering all these aspect and regard being had to the financial position of the establishment which, according to the management, is far from stable, I direct the management to give employment to the concerned workman in such post as his qualification and experience may justify within one month from the date of publication of this award.
16. Accordingly, the following award is rendered the action of the management of Barakar Engineering and Foundry Works, Nirsa of M/s. E.C.Ltd. in refusing employment to Rajendra Prasad, the concerned workman, is not justified. The management is directed to give him employment within one month from the date of publication of the award on such terms and conditions as it may deem fit and proper after considering his experience and qualification."
Challenge to the award both by the workman and by the management on independent grounds were negatived by the Writ Court in C.W.J.C. No.2791/1991(R) and C.W.J.C. No.1183/1992(R) (Annexure-
2) vide judgment dated 29th August, 1996. Challenge to the same by the management before the Apex Court in Special Leave to Appeal (Civil) No.23553/1996 was also declined by the judgment and order dated 12 th December, 1996 (Annexure-3). The workman was allowed to resume duty -3- only thereafter on 13th May, 1997. He became aggrieved on his re-employment as a Category-I Mazdoor and raised an Industrial Dispute which has now been answered by the impugned award in his favour.
Certain more facts relevant for considering the controversy are also being noticed herein. The workman was in the employment of one Oriental Coal Company Limited since March 1972. The said coal company got nationalised after coming into force of the Coal Mines (Nationalisation) Act in 1973. The workman got involved in a criminal case in 1974 and was finally acquitted in 1986 vide judgment dated 28 th February, 1986. On refusal of the present employer to allow him to resume duty the Industrial Dispute raised by the workman resulted in the first reference which was answered in his favour by award at Annexure-1. Learned CGIT in the instant award (impugned herein) has directed the management to accord him the post of Supervisor since 21 st September, 1991 i.e. the date from which the award dated 21st August, 1991 in Reference Case No.27 of 1989 came into effect with all consequential benefits. Challenge by the petitioner management is raised on the following grounds :-
(i) The workman in the 1st reference itself was shown as a Moulding and Flooring Gang Mazdoor.
(ii) He failed to produce any evidence of his experience and qualification at the time of adjudication of the first reference, therefore learned Tribunal on that occasion simply directed the management to give him employment as per his qualification and experience.
(iii) Workman worked for only 2 years as even as per his case from 1972 to 1974 as he remained out of job due to involvement in -4- criminal case till 1996. He did not have sufficient experience either.
Counsel for the petitioner management has tried to make out a case that for being categorised in supervisory post, requirement is of Matriculation + ITI including technical experience of seven years. However, such cadre scheme was never brought to the notice of learned Tribunal at the time of adjudication of the second reference nor is that on record.
Counsel for the petitioner management has also questioned the plea of the workman on the ground that he has failed to produce any cogent evidence about the qualification and experience to entitle him to be employed in the supervisory class. The workman has, therefore, failed to establish his own case. The petitioner management has rightly categorised him as a General category Mazdoor-I. The impugned order, therefore, suffers from errors of law and are not based upon any material evidence to support the findings and directions made therein.
Learned counsel for the respondent workman has referred to the impugned award and their counter affidavit in support of his submission that on the one hand several exhibits specifically Exbt.X and W-11 relating to the employment of workman in the category of supervisor was produced before the Tribunal and at the same time Workman Witness no.1 Parsuram Yadav, a co-worker categorically deposed that the respondent workman was senior to him at the time of his original employment and he, being only 7 th pass, has been working on the post of Supervisor with the management while respondent workman, being senior to him, has been denied the supervisory post. Reliance has also been placed upon the findings recorded in the impugned award in relation -5- to the deposition made by the management witness no.1- Ranjit Kumar Ghosh to support his case that he has accepted that he was working as a Supervisor and doing supervisory job. It is submitted that the learned Tribunal after consideration of all the relevant material facts and the documents produced including the deposition of witnesses has found the case of the workman as tenable in the eye of law and directed his employment in supervisory grade w.e.f. 21st September, 1991 with all consequential benefits.
I have considered the submissions of the parties in the light of the relevant materials on record and gone through the impugned award as well. The conspicuous facts which have been noticed from the pleadings and materials on record show on the one hand that the workman has been shown as Moulding and Flooring General Mazdoor. First reference is dated 9th March, 1989. On the other hand it is also apparent that at the time of adjudication of the 1 st reference no material relating to the experience and qualification of the workman was produced before the learned Tribunal which led the Tribunal to direct the management to give employment on such post as his qualification and experience may justify. It is also evident from the admitted facts that the workman was out of employment from 1974 till he was finally reinstated in service in 1997 after the challenge to the impugned award till the Apex Court by the Management failed. His experience even on the post of Gangman was only of 2 years. It further appears from the certified copies of the depositions produced by the learned counsel for the petitioner management that the management witness in his deposition has at no place stated in categorical terms as erroneously recorded in the impugned award that workman was appointed on the supervisory post -6- and was supervising their jobs. From the certified copy of the deposition of workman witness Parsuram Yadav also it appears that there was no document on his part to show that the workman Rajendra Prasad was appointed as a Supervisor. The said witness has also not seen any certificate regarding passing of matriculation examination by the respondent workman. It was his simple assertion that he had worked as a Mazdoor from 1971 in the Barakar Engineering and Foundry Works, Nirsa and has thereafter been categorised in the supervisory class of post. He also stated in his examination in-chief that the respondent workman herein was appointed as a General Mazdoor. Therefore, there are contradictions in his statement in-chief and in cross-examination. The learned Tribunal on being guided by the aforesaid erroneous findings recorded on the basis of the deposition of the witnesses of workman and management and on consideration of certain exhibits such as Exbt.X and W-11 came to the conclusion that the workman was required to be categorised on the post of Supervisor as per his experience and qualification w.e.f. 21st September, 1991. The certified copies of the deposition of workman witness no.1 and management witness Mr. Ranjit Ghosh produced by the learned counsel for petitioner are kept on record.
However, as has been found herein above, findings recorded in respect of the deposition of the workman witnesses as well as the management witnesses in the impugned award suffers from serious errors of facts. In that sense the conclusion of the learned Tribunal can be said to be perverse which cannot be sustained in the eye of law. The entire gamut of facts, deposition of witnesses and exhibits adduced during the course of reference have also not been able to make out a definite case in terms of any prevalent standing orders and the cadre -7- scheme of the management that the necessary qualification and experience including that of technical nature were established on the part of the workman for categorization in the supervisory class of post.
Upon consideration of all the aforesaid factors and the discussions made herein above, this Court is of the opinion that the impugned award suffers from serious errors of fact and law. Therefore, the findings recorded thereupon suffer from perversity and cannot be upheld in the eye of law in exercise of the powers under judicial review of this Court under Article 226 and also 227 of the Constitution of India.
The writ petition is, accordingly, dismissed. All pending interlocutory applications are also disposed of.
(Aparesh Kumar Singh, J.) Shamim/