Oshiar Prasad Petiti... v. Presiding Officer, C...

D.G.R Patnaik, J. The petitioner Oshiar Prasad has filed this writ application in representative capacity, challenging the Award dated 21.12.1998, passed under Reference Case No. 75 of 1995 (Annexure-10), by the Presiding Officer, Central Government Industrial Tribunal No. 2, Dhanbad, whereby and where under a Reference has been answered against the concerned workmen.

2. The dispute which arose on account of the refusal of the Respondent-Management, to concede to the demand of the workmen for their absorption in service under the Respondent-Management, was referred to the Tribunal by the Central Government by its order dated 04.05.1995, for adjudication in the following terms: -

“Whether the action of the management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Ltd., Sudamdih Colliery, District-Dhanbad are justified in not absorbing Ainuel Haq and 15 others (as in the list annexed) as their regular employees? If not, to what reliefs are the said workman entitled?”

3. For better appreciation of the issues involved in this case, a brief statement of the background facts would be necessary: -

For the purposes of construction of a Washery on Turnkey Basis, the Management floated a Tender on 24.07.1974

The work was finally given by the Management to a Contractor namely, M/s. McNelly, Bharat Engineering Company Ltd., under an Agreement executed on 29.01.1976 by and between the Contractor and the Respondent-Management.

The work, required to be executed by the Contractor included preparation of the complete design of the Washery, Supply of materials required for construction of plant, building, installation of machinery and also construction of the structures in the process of erection and construction of Washery.

The terms of Contract also included that the contractor was to engage his own workmen, pay them their wages, bonus and other monetary benefits and also to retrench them after completion of the job.

Pursuant to the contract, the Contractor, by recruiting its own workmen, commenced the execution of the job entrusted to it. The present group of workmen are admittedly those workmen, who were employed by the Contractor and inducted in its service in the year 1977.

The construction of Washery was completed by the contractor in December, 1979. After completion of the Civil construction work, installation of conveyor machineries, both electrical and mechanical, there was no further requirement of any Mazdoors, Helpers, Fitters, Masons and other incidental workers, therefore, the Contractor terminated the services of such workers, after offering them retrenchment compensation, notice pay etc. as per the provisions of Section 25 F and the relevant provisions of the Industrial Disputes Act.

However, out of the several workmen, who were engaged by the Contractor, and after retrenching a majority of them, the Contractor had retained the services of about 39 workmen, who were employed as skilled workers, for running and maintenance of the Washery. The Respondent-Management undertook the responsibility of retaining the 39 skilled workmen from January, 1980 under their control and supervision and paid their wages.

After retaining their services for about 1 year, the Management terminated the services of the 39 employees in January, 1981.

Being aggrieved by the order of their termination and claiming that since they were the employees of the Respondent-B.C.C.L, the 39 workmen whose services were terminated, raised a dispute demanding their absorption by way of regularization in service under the Respondent-B.C.C.L

The industrial dispute, thus raised by the 39 workmen, was referred by the Central Government for adjudication to the Central Government Industrial Tribunal No. 3, vide Reference Case No. 58 of 1981.

Though the Management contested the claim of the workmen, the Industrial Tribunal by its Award dated 03.03.1983, directed that the 39 workmen be absorbed by the B.C.C.L as regular employees with full back wages.

In compliance with the directions contained in the Award, the Management of the B.C.C.L had regularized/absorbed all the 39 workmen.

During this time, and prior to the date of the Award of the Industrial Tribunal in respect of the dispute concerning the 39 workmen, some of the earlier retrenched employees, including one Shambhu Singh and four others apprehending termination of their services by the Contractor, filed a Title Suit in the court of the Munsif 02nd, Dhanbad vide Title Suit No. 51 of 1980, for a declaration that they are entitled to continue in service even after taking of charge by the B.C.C.L from the Contractor.

A prayer for permanent injunction restraining the Contractor from retrenching or terminating their services were made for, but the same was not granted by the civil court.

It was only at the conclusion of the trial in the Title Suit, that by decreeing the suit in favour of the five workmen/plaintiffs, the learned Munsif by his decree dated 27.05.1983, declared that the plaintiffs were entitled to continue in service under the Bharat Coking Coal Ltd.

Rule of permanent injunction restraining defendants from retrenching or terminating the services of the plaintiffs was also issued against the B.C.C.L

Being aggrieved by the judgment and decree, passed by the learned Munsif, the Management of B.C.C.L filed a Title Appeal No. 71 of 1983 before the appellate court.

The Appeal was however, dismissed on 16.12.1986 affirming the decree passed by the trial court.

However, the Management of B.C.C.L succeeded in the Second Appeal preferred by them against the judgments of the appellate court and the trial court before this Court.

By order dated-05.03.1993, the judgment and decree under Appeal, was set aside and the suit as filed by the plaintiffs/workmen was also dismissed as not maintainable.

Against the judgment in the second appeal, the plaintiffs-workmen approached the Supreme Court by filing S.L.P (C) No. 4495 of 1994, corresponding to Civil Appeal No. 8403 of 1994.

By order dated 14.11.1994, the Supreme Court dismissed the Civil Appeal with a liberty to the appellants to move the appropriate Government for reference.

It was in the background of the aforesaid circumstances that the dispute was referred to the Central Government in respect of not only the five workmen/plaintiffs who had filed the Title Suit, but also in respect of similarly situated other workmen including the present petitioners and the dispute so raised, was referred to the Industrial Tribunal for adjudication in terms mentioned hereinabove.

4. Both parties were allowed to adduce their evidences before the Tribunal.

5. The evidences adduced on behalf of the workmen in support of their claim, included documentary evidences in the nature of the I.D cards purportedly issued under the signatures of the Project Officer of the Respondent-Management. Other evidence sought to be relied upon, were the evidences adduced in the proceeding before the civil court in which some of the witnesses examined on behalf of the Management had purportedly made some admissions in support of the case of the workmen, Registers maintained for underground colliery workers pertaining to the issuance of Head lamps and similar other documents, besides the oral evidences of the witnesses.

6. The Management in its turn, had relied upon the Agreement and the terms and conditions contained therein, executed by and between the Management and the Contractor, which was adduced in evidence and the oral and documentary evidences, to confirm that after completion of the work of construction of the Washery, the Contractor had handed over the same to the B.C.C.L-Management in December, 1979, whereafter the Washery was commissioned.

7. After considering the evidences on record and taking special note of the certain admissions made by the witnesses adduced on behalf of the workmen, the Tribunal recorded its finding that there was no relationship of employer and employee between the workmen and the Respondent-Management of B.C.C.L at any point of time, and that the workmen were not entitled to any of the reliefs as claimed by them against the Respondent-B.C.C.L

8. Assailing the impugned judgment, learned counsel for the petitioner would pursue the following grounds: -

(i) The findings of the Tribunal are perverse and against the weight of evidences on record. The Tribunal has erred in failing to appreciate the oral evidences of the witnesses adduced on behalf of the workmen, which otherwise confirm that the workmen were though employed initially by the Contractor but their services was not of a permanent nature and after completion of the construction of the Washery, and handing over of the Washery to the B.C.C.L-Management, these workmen continued to remain in employment under the direct supervision and control of the B.C.C.L-Management for more than two months after handing over of the Washery.

(ii) The learned court below had failed to appreciate that the services of these workmen were engaged under the direct supervision of the Officers of the B.C.C.L-Management including the Project Officer and moreover, the Identity cards and the head lamps were issued to these workmen by the Management.

(iii) The Tribunal has also erred in failing to consider that the Management had deliberately failed to produce the Form B Register, which is a mandatory Register to be maintained by the Management in respect of the Colliery workers and in which the names of the present set of workmen also finds a mention. This document, according to the learned counsel, would have confirmed beyond all controversy that the services of the workmen were under the direct supervision and control of the B.C.C.L-Management.

(iv) The Tribunal has further erred in ignoring the decision on merits arrived at in the Title Suit by the Munsif as well as the decision arrived at by the appellate court.

Learned counsel argues in this context that the evidences adduced on behalf of the workmen in the civil suit, and those of the witnesses of the Management also, had clearly admitted that the services of the workmen was under the direct control and supervision of the principal employer, namely, the Respondent-B.C.C.L, confirming thereby a direct relationship between the workmen and the B.C.C.L-Management. Learned counsel argues that the Tribunal could not have totally brushed aside and ignored such evidences which were recorded in the civil suit.

(v) The Tribunal had gone beyond the scope of reference by deciding an entirely different issue that the relationship of employer and the employee between the concerned workmen and the B.C.C.L did not exist, although such issue was beyond the scope of the terms of reference and that the findings recorded by the learned Munsif in the Title Suit have a binding force under the law, which cannot be ignored by the Tribunal.

(vi) That the Contractor was not made a party either by the Management or by the Tribunal and as such, in absence of the Contractor, the decision on the issue of relationship of employer and the employee was illegal and perverse.

(vii) The Tribunal had also ignored the fact that some of the workmen were though initially employed by the Contractor but their services, were absorbed by the B.C.C.L-Management.

9. Mr. A. K. Mehta, learned counsel for the Respondents while controverting the grounds advanced by the counsel for the petitioner would submit inter alia, the following arguments: -

(i) The very reference of the purported dispute was incorrect in as much as no industrial dispute was ever raised and as such, the proceeding before the Tribunal could not have been initiated or maintained.

(ii) The findings of the Tribunal on the issue relating to the relationship of employer and employee between the concerned workmen and the Respondent-Management is based on the evidences on record and more particularly on the admission of the witnesses of the workmen themselves that the appointment letters to all such workmen was given only by the concerned Contractor and no such letter of appointment was given to any of the concerned workmen by the management of the B.C.C.L Such inference was rightly drawn by the Tribunal on the basis of the admitted facts that the services of these workmen were engaged by the Contractor for a limited period till the completion of the construction of the Washery and other essential jobs and their services were never contemplated therefore in the nature of the permanent employment. Furthermore, the services of the concerned workmen were terminated by way of retrenchment by the Contractor after payment of the Retrenchment compensation and notice pay to each one of them.

(iii) The case of 39 workmen, whose services were absorbed by the B.C.C.L Management, albeit in pursuance to the directions contained in the Award of the Tribunal in the earlier Reference Case No. 58 of 1991 stands on a totally different footing in as much as the services of the 39 skilled workmen continued to be taken by the B.C.C.L - Management for a period of more than six months and they were paid their wages by the B.C.C.L Management. The same facts do not apply to the cases of the concerned workmen in the present dispute.

(iv) The demand of the Form B Register is totally irrelevant. The Sudamdih Coal Washery being a Factory, registered under the Factories Act, 1948 and having been granted a license under the Factory Act, do require to maintain a Register containing names of all such workmen employed under the Underground Collieries. Such workmen be the direct employees of the B.C.C.L-Management or employee of the Contractor, a list of the names of such workmen working in the Colliery has to be maintained under the statutory provisions. Such Register does not necessarily indicate that the workmen named in the Registers, are invariably the workmen employed by the Management.

Even otherwise, in absence of any demand from the workmen for production of any such document, it was not obligatory on the part of the Tribunal to order for production of such documents and in absence of any such claim or order, no adverse inference can be drawn for the non-production of such documents, even under the provisions of Section 114(iii)(g) of the Evidence Act.

(v) The claim of the workmen that they had continued to work for more than 240 days, in itself, would not entitle them for regularization/absorption. This issue has been well decided by the Supreme Court in several cases including the case of Ganga Dhar Pillai v. Siemens Ltd. reported in (2007) 1 SCC 533 and also in the case of Hindustan Aeronautics Ltd. v. Dan Bahadur Singh reported in (2007) 6 SCC 207.

(vi) It is a misconceived statement that the oral and documentary evidences recorded in the civil suit and the findings of the civil court, recorded in Title Suit No. 51 of 1979 of 1980-81 is binding upon the Tribunal. In the Appeal preferred by the Management, against the judgment and decree passed by the civil court, the Division Bench of this Court had categorically held that the civil court had no jurisdiction to entertain or adjudicate upon the dispute raised by the plaintiff in the suit. Such findings have been upheld by the Supreme Court in the S.L.P/Civil Appeal and it was also declared that the civil court had no jurisdiction and the decrees passed by it had no force of law and cannot be held binding upon the Tribunal.

10. Having heard the learned counsel for the parties and having gone through the Award of the Tribunal, I find force in the arguments advanced by the learned counsel for the Respondents-Management.

The findings of the Tribunal as it would appear are based on the following admitted facts: -

(a) That the B.C.C.L-Management had appointed the Contractor to construct the Washery at the Sudamdih Colliery on Turnkey Basis. The work was to be completed within the stipulated time. There was no prohibition imposed by the Central Government by the Notification restraining the Respondents-Management from getting executed its work through the Contractors under the provisions of Contract Labour (Regulation and Abolition) Act, 1970.

(b) Under the terms of agreement, executed by and between the Contractor and the Management, it was for the Contractor to engage his own workers for the execution of the job and to pay them not only their wages but also Bonus and other monetary benefits to which they may be entitled during the course of their employment under the Contractor.

(c) The engagement of the workmen was therefore, only for the purposes of execution of the job during the course of their employment under the Contractor.

(d) As per the terms of Agreement, the work was to be executed within the stipulated specifications and approved designs etc. under the supervision of the officials of the Management.

(e) That the letters of appointment was issued to the concerned workmen by the Contractor and not by the B.C.C.L-Management. The work entrusted to the Contractor took about three years for completion and after construction of the Washery and the installation of the Machines, the same was handed over to the B.C.C.L-Management, since the services of the workmen was no more required, such workmen, except 39 skilled workers were retrenched by the Contractor after payment of Retrenchment compensation and notice pay.

11. The logical inferences from these admitted facts, which was reflected even from the evidences adduced, as rightly drawn by the Tribunal, is that the concerned workmen were never appointed by the B.C.C.L-Management nor were their services directly taken by the B.C.C.L-Management as long as they remained in employment. The services of these workmen were engaged exclusively by the Contractor and it was to continue only till the execution of the Contract work and it was not therefore, of a permanent nature. The further inference, which was legitimately drawn by the Industrial Tribunal was that there was no relationship of employer and employee between the Management-B.C.C.L and the workmen, at any point of time and therefore, the workmen cannot legitimately claim for their absorption/regularization under the B.C.C.L-Management. The refusal of the Management to accept the demand of the workmen for their regularization/absorption was essentially on the ground that they were never appointed or employed by the B.C.C.L-Management and that they were basically the employees of the Contractor. In the light of the terms of reference, under which the Tribunal was called upon to decide upon the dispute as to whether the refusal of the B.C.C.L-Management to absorb the concerned workmen as its regular employees was justified or not, necessarily implies the issue as to whether there was any existing relationship of employer and employee between the B.C.C.L-Management and the concerned workmen. It cannot, therefore, be said that the decision by the Tribunal on this issue is beyond the scope of the terms of reference.

12. As regards the petitioner's contention that the impugned Award suffers from perversity on account of the omission of the Tribunal to advert to the evidences recorded in the civil suit and to the findings recorded by the civil court, the grievance of the petitioner, is totally misconceived in this regard. Admittedly, on the same dispute raised by a Section of the workmen, a Division Bench of this Court, while referring to the judgment and the decree, passed by the civil court, had categorically held that in the nature of the dispute raised, the civil court had no jurisdiction to adjudicate upon such dispute. This finding was confirmed by the Supreme Court in the civil appeal preferred by the aggrieved workmen. While dismissing the appeal, the Supreme Court had given a liberty to the appellants/workmen to refer their dispute to the Government for the purposes of raising an industrial dispute for adjudication by the Industrial Tribunal. Since, it has been held by the High Court as well as by the apex Court that the civil court had no jurisdiction, it follows that the decrees passed by the civil court, having no jurisdiction, has no force of law.

In the case of Rajasthan SRTC v. Ugma Ram Choudhary reported in (2006) 1 SCC 61, the Supreme Court has held that once it is held that civil court has no jurisdiction, the consequences must follow.

It further follows that no materials including the evidences collected during the trial of the civil suit, can have any bearing or the same can be looked into, even for any collateral purposes. The Tribunal was therefore, not bound by either the decree passed by the civil court, nor was it obliged to look into the materials including the evidences collected by the civil court in course of the trial of the suit, for which it had no jurisdiction.

13. The claim of discrimination between the present workmen and 39 other workmen, whose services were absorbed, also appears to be misconceived.

14. From the facts as stated above, the absorption of 39 workmen who were though engaged initially by the Contractor but whose services were later, taken over by the Respondent-Management was made pursuant to the Award declared by the Tribunal in the earlier Reference case. The case of the concerned workmen in the present case, cannot be equated, therefore, with the case of the 39 other workmen.

15. As regards the contention of the petitioner that in absence of the production of the Form B Register, adverse inference ought to have been taken by the Respondent-Management, such argument also appears to be misconceived.

16. The Form B Register as required to be maintained, under the mandatory provisions of the Factory Act, is for the purpose of maintaining a list of all such workers employed in the Colliery, be they workers, directly appointed by the Management or appointed by the Contractor. Furthermore, as pointed out by the learned counsel for the Respondents, neither did the workmen claim for production of the Form B Register by the Management nor was any order passed by the Tribunal calling upon the Management to produce such Register, and as such, the mere non-production of the Form B Register by the Management, in itself, would not be sufficient to draw any adverse inference against the Management.

17. As regards the claim of the concerned workmen that in course of their employment, they had completed more than 240 days in a year and they had rendered their services under the direct control and supervision of the Officers of the B.C.C.L-Management, also appears to be misconceived.

In the case of Ganga Dhar Pillai (Supra) and earlier in the case of Manager, Reserve Bank of India, Bangalore v. S. Mani reported in (2005) 5 SCC 100, the Supreme Court has held that 240 days of continuous service does not by itself give rise to a claim of permanence nor does it entitle the employee concerned to claim regularization and/or permanent status.

18. From the facts stated, the services of the concerned workmen was engaged only for the purposes of executing the job undertaken by the Contractor and were not to continue after completion of the job. The nature of the employment of the concerned workmen, therefore, was never considered to be on permanent basis. Rather, the period of employment of the workmen, being only co-extensive with the period of work undertaken by the Contractor, such employment was only on temporary basis. As has been observed by the Supreme Court in the case of Ganga Dhar Pillai (Supra) that only because an employee has been engaged as a casual or temporary employee or that he had been employed for a number of years, the same by itself may not lead to the conclusion that such appointment was made by way of conferring him the status of permanent employee.

19. Having considered the findings recorded by the Tribunal in its Award and the reasons assigned thereto, I do not find any perversity or impropriety in the findings of the Tribunal as declared in its impugned Award, nor do I find any reason to interfere with the same.

20. For the above reasons, I do not find any merit in this writ application. Accordingly, the same is dismissed.