Patna High Court
Chandrabali vs Chief Mining Engineer, Tata Iron And ... on 17 July, 1964
Equivalent citations: AIR1965PAT19, [1965(11)FLR322], (1965)IILLJ214PAT, AIR 1965 PATNA 19, (1965) 11 FACLR 322, (1964 - 65) 27 FJR 261, (1965) 2 LABLJ 214, 1965 BLJR 657
Bench: V. Ramaswami, N.L. Untwalia
ORDER
1. The petitioner Chandrabali was employed as a Machinecut Coal Loader in Jamadoba Colliery belonging to Messrs. Tata Iron and Steej Company Limited, The petitioner was recruited through the agency of the Coalfield Recruiting Organization for employment, under the management of the Jamadoba Colliery as a Machine-cut Coal Loader. The petitioner had gone on leave on the 10th May, 1958, for a period of fourteen days and the grant of his leave was made by the Unit Supervisor of the Coalfield Recruiting Organization (which will be hereafter referred to as C. R. O. in this judgment).
While at home the petitioner applied for an extension of leave with medical certificate dated the 1st June, 1958, for a further period of three weeks. His application was received by the Unit Supervisor on the 7th June, 1958. The petitioner applied for a further extension of leave for two weeks with another medical certificate. Subsequently the petitioner returned for work on the 7th July, 1958, but he was not permitted to join. The matter of the petitioner's discharge was taken up by the Colliery Mazdoor Sangh, which wrote to the Colliery Manager stating that the petitioner had been unfairly treated in violation of the Standing Orders of the Company. The matter was not amicably settled and, on the report of the Conciliation Officer, the Government of India referred the Industrial dispute to the Central Government Industrial Tribunal, Dhanbad, under Section 10 of the Industrial Disputes Act. The issues which were contained in the order of reference were (1) whether the discharge of Sri Chandrabali was justified, and (2) if not, what relief he is entitled to and with effect from which date. On the 12th May, 1960, the Central Government Industrial Tribunal made an award stating that the discharge of Sri Chandrabali was justified.
2. The petitioner has now obtained a rule from the High Court calling upon the respondents to show cause why the award of the Central Government Industrial Tribunal should not be set aside by the High Court by virtue of the authority granted to it under Article 227 of the Constitution.
3. On behalf of the petitioner it was submitted In the first place that the Tribunal was erroneous as a matter of law in holding that the petitioner was not a "workman" within the meaning of the Industrial Disputes Act and there was no nexus or relationship of master and servant between the petitioner and the management of the Jamadoba Colliery. On behalf of the petitioner, learned counsel referred to the definition of "workman" contained in Section 2(s) of the Industrial Disputes Act, which states that "workman" means "any person employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied"
It was submitted that the petitioner was admittedly employed in the Jamadoba Colliery as a Machine-cut Coal Loader and the colliery belonged to the Tata Iron and Steel Company Limited and was under its management. On behalf of the respondent company, respondent No. 1, it was, however, submitted by learned counsel that the petitioner was recruited by the C. R. O. which is under the Government of India. The function of the C. R. O. was to enlist the workmen when they report for recruitment, look to their welfare and open Safe Deposit Accounts for each individual workman at the Record Office. The practice is that the collieries which are members of the C. R. O. place indents for a definite number of workmen with the C. R. O. and on receipt of the indents from different collieries the specified number of workmen are recruited from the depot at Gorakhpur. It also appears that a bill is submitted by the C. R. O. to the Colliery concerned for the amount of work performed by the workmen and the payment is made to the individual workman in the camp by the C. R. O. Group Officer. It has also been found that the workman apply to the C. R. O. for leave and the application for leave is dealt with finally by the C. R. O. The contention of the C. R. O. before the Tribunal was that it was the employer of Chandraball who was recruited by it for working at the Jamadoba Colliery. That was also the stand taken by the Manager of the Jamadoba Colliery before the Industrial Tribunal. The argument addressed on behalf of the respondent company is that the Industrial tribunal was right in reaching the inference that the petitioner was in the employment of the C. R. O. and not of Tata Iron and Steel Company Limited, respondent No. 1. It is manifest from the facts found and admitted in this case that the petitioner Chandrabali was under the dual control of the C. R. O. and the Tata Iron and Steel Company Limited in the matter of his employment. We are unable therefore, to accept the argument addressed on behalf of respondent No. 1 that the petitioner was not a workman employed under it within the meaning of Section 2(s) of the Industrial Disputes Act.
The principles according to which the legal relationship as between the employer and employee or master and servant has got to be determined are well settled by important authorities. The test which is uniformly employed in order to determine the relationship is the existence of the right of control over the manner in which the work is to be done. There are, however, other indicia of legal relationship of a contract of service which have been recapitulated by Lord Thankerton in Short v. J. W. Hederson Ltd., (1946) 62 TLR 427 at p. 429. In that case Lord Thankerton referred to four indicia of a contract of service, (a) the master's power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master's right to control the method of doing the work; and (d) the master's right of suspension or dismissal. He, however, observed as follows:--
"Modern industrial conditions have so much affected the freedom of the master in cases in which no one could reasonably suggest that the employee was thereby converted into an independent contractor that, if and when an appropriate occasion arises, it will be incumbent on this House to reconsider and to restate these indicia. For example, (a), (b) and (d) and probably also (c), are affected by the statutory provisions and rules which restrict the master's choice to men supplied by the labour bureau, or directed to him under the essential work provisions, and his power of suspension or dismissal is similarly affected. These matters are all also affected by trade union rules, which are, at least primarily, made for the protection of wage-earners. The statement of Lord Justice Clerk Alness in Park v. Wilsons and Clyde Coal Co., 1928 SC 121 at p. 134 that selection, payment and control are inevitable in every contract of service, is clearly open to reconsideration".
In that case the discharge of ships at a particular harbour was in the hands of dockers who were members of a union. By the union's rule the men worked on the group system. As each" ship came in, the dockers, then first on the union list were assigned to her, and the ship owner had to take these men. The dockers were paid on a tonnage rate which was divided between them equally regardless of the work which each in fact did. On September 9, 1941, the appellant, a docker, was injured while working as a member of a group on the discharge of the respondent's cargo at the harbour. On his claiming compensation under the Workmen's Compensation Act, the respondent contended that he was not a workman within Section 3(1) of the Act but a member of a joint stevedoring adventure.
On appeal by the workman from the decision of the Court of Session reversing the award made by the arbitrator in his favour, it was held by the House of Lords that there was sufficient evidence to justify the conclusion of the arbitrator that a contract of employment existed between the appellant and the respondent, and the fact, that the master's right of selection of his servants was cut down and his control over their wages, supervision and dismissal was limited, did not necessarily mean that the employee was an independent contractor; but the respondent had retained a certain right of supervision and control over the discharge of the cargo and the contract of service did exist between the respondent and the appellant. The principle laid down in this case has been referred with approval by the Supreme Court in Dharangadhra Chemical Works Ltd. v. State of Saurashtra, (S) AIR 1957 SC 264. Applying the principle laid down in these authorities we are of opinion that there was an implied contract of service between the petitioner and respondent No. 1, the management of Jamadoba Colliery, and the petitioner was a "Workman" within the meaning of the Industrial Disputes Act, and the finding of the Central Government Industrial Tribunal on this point was erroneous as a matter of law.
4. It Follows, therefore, that the Standing Orders of Tata Iron and Steel Company Limited are applicable to the case of the petitioner and under paragraph 20 of the Standing Orders the petitioner could not be removed from his job unless he was informed in writing of the alleged misconduct and was given an opportunity to explain the circumstances alleged against him. Paragraph 19 of the Standing Orders provides that an employee may be finally dismissed if he is found guilty of misconduct, and sub-paragraph (16) states that continuous absence without permission and without satisfactory cause for more than ten days is misconduct. In the present case admittedly there was no inquiry held by respondent No. 1 with regard to the alleged misconduct of the petitioner and there has been violation of the Standing Orders. In the absence of an inquiry by the employer it is well settled that the Labour Court is entitled to go into the merits of the case, and find out for itself whether the order of discharge or dismissal is justified or not. That is the view expressed by the Supreme Court in Punjab National Bank Ltd. v. All India Punjab National Bank Employees Federation, AIR 1960 SC 160 and also in a later case Management of Rilz Theatre (Private) Ltd., Delhi v. Its Workmen, AIR 1963 SC 295, in the present case, however, the Tribunal has not dealt will the merits of the case against the petitioner or given a proper finding whether the discharge of the petitioner is justified.
5. Acting, therefore, in exercise of our authority under Article 227 of the Constitution, we set aside the award of the Central Government Industrial Tribunal made in Reference Case No. 37 of 1959, dated the 12th May, 1960, and remand the case back to the Tribunal for deciding the matter afresh and giving an award in accordance with law.
6. We accordingly allow this application, but there will be no order as to costs.