Patna High Court
Employers In Relation To The Management ... vs Presiding Officer, Central Government ... on 7 July, 1997
Equivalent citations: 1998(46)BLJR245, (1999)IIILLJ1593PAT
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. In this writ application, the petitioner, who is Employer in relation to the Management of Bhurangiya Project of Bharat Coking Coal Limited, Dhanbad, has challenged the award dated June 29, 1990 passed by the Central Government Industrial Tribunal No. 1 in Reference Case No. 77 of 1983, whereby and whereunder the Tribunal held that the action of the Management in not regularising the concerned workmen and not paying them the scale of wages as per the National Coal Wage Agreement (NCWA)-II is not justified. By the said Award, the Management has been directed to regularise the concerned workmen in service and to pay them wages as per NCWA-II and 50% back wages with effect from the date of reference i.e., November 14/17, 1983.
2. It appears that by order dated November 14/17, 1983, the Central Government in the Ministry of Labour, in exercise of powers conferred by Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947, referred the following dispute to the Industrial Tribunal for an adjudication.
"Whether the action of the Management of Bhurangiya Project of Bharat Coking Coal Limited, Post Office Mahuda, District-Dhanbad, in not regularising the workmen listed in Annexure-1 and not paying NCWA-II wages is justified? If not, to what relief are the said workmen entitled?"
3. From the list annexed with the order of reference, it appears that the reference was in respect of 105 workmen who are stated to have been the workmen in the Bhurangia Project of M/s. Bharat Coking Coal Limited. The case of the concerned workmen before the Tribunal was that they had been working as underground stonecutters and doing miscellaneous job against, permanent vacancies since long with unblemished record of service; they had been working as underground workmen and performing the job of permanent nature under the direct control and supervision of the colliery management. They have rendered services for the benefit of the colliery management. The workmen's further case was that all implements for execution of job, such as caplamps, torches, shoes, belts, explosives, hammers, stone-pits are supplied by the colliery management. According to the workmen, as per the Mines Act and the rules & regulations, all underground workmen are legally bound to work under the direct control and supervision of the competent authority; for all purposes, the concerned workmen should be legally deemed to be the employees of Bhurangiya Project. It was further stated that the management has been disbursing wages through different intermediaries as contractors. The disbursements of wages through so called contractor(s) are nothing, but a legal camouflage. The concerned workmen and the Union on their behalf represented before the management to regularise them as permanent employees of Bhurangiya Project, but the anti-labour management refused to settle the dispute amicably due to biased attitude against the members of the Bihar Colliery Kamgar Union. The workmen claimed regularisation of their service and payment of wages as per NCWA-II. The case of the management was that the persons concerned never worked either as stone-cutters or against permanent vacancies and that they have not been performing the job of permanent nature. The management's further case was that tools and supplements were not supplied to the contractors and to the concerned persons. The use of cap lamps while moving underground is a statutory requirement and the same is supplied to any person going underground, whether employees of the colliery management or a contractor's workman. The persons concerned were the employees/ workmen of the contractors and were being paid by the contractors. The management also challenged the legality and validity of the reference and stated that the Centra! Government has got no jurisdiction to make reference. It was further stated that the identity of the persons concerned have not been disclosed at all and the concerned persons in the present reference were, in no way, connected with the raising of coal or any work connected with the mining operation and there existed no employer-employee relationship between the persons concerned and the management, i.e. the employer of Bhurangiya Project. The further case of the management was that in course of renovation and widening of the diameter of the pit civil work construction of ventilation, stopping isolation, making drains, lane foundation for the machinery and others, both underground and on the surface, which has got nothing to do with the production of coal, was undertaken and some contractors were engaged. Work carried out by the contractors was temporary in nature and has since come to an end. It was further stated that the contractors were not employed in any work incidental to or connected with the mining operation, and subsequently, the persons, who were allegedly employed through contractors were not employed in any kind of work incidental to or connected with the mining operation.
4. The management of Bhurangiya project examined two witnesses. On the other hand, the sponsoring union has examined two of the concerned workmen as witnesses. The witnesses so examined by the employer are Mr. O.P. Agrawal, who was posted as the Manager in the Project from June, 1982 to June, 1985 and another is Mr. R.K. Prasad, posted as the Project Officer in the said Project from July, 1983 to September, 1986.
5. The Tribunal after considering the entire evidence, both oral and documentary, adduced by the parties and after hearing the parties came to a conclusion that the concerned workmen were employed in Bhurangiya Project for doing certain job under the contractor. The tribunal further came to the finding that the concerned workmen were working as stone-cutters, which is a job of permanent nature and that the management used to provide them with, work implement and supervise their work. The tribunal further found that although stone-cutting job through contractor's workmen was prohibited, under the provisions of the Contract Labour (Regulation & Abolition) Act, 1970, the management has resorted to it in spite of the ban and prohibition. Ultimately, the tribunal came to the conclusion that the workmen concerned are really workmen of the project and not of the contractor concerned and, accordingly, the award was passed for regularising their services and for payment of wages.
6. Mr. M.M. Banerjee, learned Counsel appearing for the petitioner assailed the award of the tribunal as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that when there existed no relationship of employer and employees, then the Central Government had no authority or jurisdiction to refer the dispute for adjudication. The learned Counsel also made submission on the finding recorded by the tribunal as being illegal and without any basis. On the question of regularisation of the concerned workmen, Mr. Banerjee vehemently argued that although the reference of the dispute was in respect of 105 employees shown in the list, but their parentage and addresses were not given in absence of which, it was difficult to identify these persons. On the other hand, Mr. D. Mukherjee, learned Counsel appearing on behalf of the concerned workmen submitted that the award is based on the finding of fact, inasmuch as, the tribunal, after considering the entire evidence came to the finding that the concerned workmen were employed in the Project for doing a job of permanent nature. This Court, therefore, in exercise of writ jurisdiction should not interfere with the finding of fact recorded by the tribunal. Learned Counsel has drawn my attention to the admission made by the management witnesses and submitted that it was proved beyond any doubt that the concerned workmen were working in the Project for a long period and the job was 'permanent' in nature. According to the learned Counsel, in view of the notification issued under the Contract Labour (Regulation & Abolition) Act, declaring the said work under the prohibited degree, the management are bound to regularise the services of the concerned workmen. On the question of identification of the concerned workmen, the learned Counsel submitted that the Deputy Commissioner, Dhanbad, has identified most of the workmen as per direction issued by this Court and, therefore, there is no difficulty for the management to regularise the services of those workmen.
7. I have gone through the findings recorded by the Tribunal in its award and also the evidence adduced by the parties. There is no dispute that Bhurangiya Project comprised of four closed units namely, Bhurangiya colliery, Ranidih colliery, Pather-goria colliery and East Hurchraiding colliery. According to the management, the first phase of the Project by reopening the Ranidih Unit, was started on January 1, 1975 and the production of coal of that unit started in February, 1976 and that the second phase i.e de-watering of Bhurangiya Unit was started in May, 1976 and fitting of hand-gears, installation of windering sub-station at pit No. 6 was completed in June, 1977. Admittedly, the management of Bhurangiya Project employed contractors for execution of contractual work. As stated above, two witnesses were examined on behalf of the management. MW2, R.K. Prasad who was posted as project officer has admitted in his evidence that during his tenure, services of the three contractors were engaged to execute contractual work. Another witness of the management has also disclosed the name of the contractor engaged for doing the work. Mr. R.K. Prasad further admitted in his evidence that during his tenure of service, contractors were engaged to execute work both on the surface and underground. He further admitted that whenever the workmen of the contractors were deployed to work underground, their names used to be recorded in Form C register and cap lamps used to be issued to the workmen of the contractors working underground. However, all the relevant documents and registers have not been produced by the management to show that either the concerned workmen were not engaged by the Management through contractors or the concerned workmen worked through the contractors on surface and not in the underground mine. Considering the facts of the case and the evidence adduced by the parties, I am of the opinion that the finding of fact arrived at by the tribunal does not suffer from any illegality or infirmity.
8. It is well settled that the High Court should not normally interfere with the award of the tribunal or the Labour Court, in exercise of writ jurisdiction by issuing a writ of certiorari, unless it is shown that the award suffers from an error apparent on the face of the record or the error must be an error of law, and not an error of fact. It is equally well settled that the High Court should not review the findings of fact reached by inferior Court or tribunal, even if it is erroneous on the principle that the High Court is not supposed to sit in appeal against the award of the tribunal.
9. As stated above, the Labour Court has come to a right conclusion on the question of fact that the concerned workmen were employed in Bhurangiya Project under the direct supervision of the management, and they were working as stone-cutters, which is a permanent job. The tribunal further correctly appreciated that the stone cutting job in an underground mine is prohibited under the aforesaid Act. The workmen are entitled to be regularised in their service, I do not find reason to interfere with the award.
10. The only question remains with regard to identification of the workmen. In this connection, reference may be made to different orders passed by this Court from time to time in this case. On June 28, 1991, an application for stay of the award was moved by the Management. This Court ordered that the petitioner shall pay 105 workmen a sum of Rs. 5,000/- (rupees five thousand) each. On the submission of Mr. M.M. Banerjee, learned Counsel appearing on behalf of the management. Mr. A.K. Roy, the President of the Kamgar Union was directed to identify the workmen. Again, this Court by order dated July 26. 1991, on an application filed by Mr. Roy, ordered that the workmen's identification shall be done by the Secretary of the Central Committee of the Union. The application under Section 17-B of the Act was finally heard on August 5, 1991 and it was ordered that the management shall pay the workmen their wages @ last drawn by them including allowances admissible with effect from July 29, 1990. So far as the payment of subsequent months are concerned, that shall be paid on the pay day of the next following month. The case was again listed on April 13, 1994 and on the question of identification, this Court after hearing the parties, directed the Dy. Commissioner, Dhanbad to either hold an inquiry himself or direct some other official to ascertain the correct identification of the workmen involved in this case and to submit a report to this Court. It appears that the Dy. Commissioner, Dhanbad, submitted his report, which is at Flag-R, from perusal of which, I find that out of 105 workmen, 94 workmen have been identified. The details of these workmen have been furnished by the Deputy Commissioner on the basis of the inquiry conducted by the officer authorised by him. In that view of the matter, the Management shall implement the award by regularising the services of the concerned workmen duly identified by the Deputy Commissioner, Dhanbad.
11. In the result, this writ application is dismissed with the aforesaid observations and directions.
S.K. Chattopdhyaya, J.
12. I agree.