Judgment 1 wp5365.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5365 OF 2012
Mineral Exploration Corporation
Employees Union, (Affiliated to
AITCU) through its General Secretary,
19, RNO, Near NIT Garden,
Katol Road, Nagpur.
.... PETITIONER.
// VERSUS //
1. Mineral Exploration Corporation
Limited, A Government of India
Undertaking, Registered under the
Companies Act, 1956, through its
Chairman Cum Managing Director,
Having its Head office at Ambedkar
Bhawan, Opposite CGO Complex,
High Land Drive, Seminary Hills,
Nagpur - 440 006.
2. Presiding Officer, Central Government
Industrial Tribunal cum- Labour Court,
Opposite V.C.A., Civil Lines, Nagpur.
.... RESPONDENTS
.
______________________________________________________________
Shri S.P.Dharmadhikari, Sr. Advocate a/b. Shri S.S.Ghate, Advocate for
Petitioner.
Shri M.D.Samel, Advocate for Respondent No.1.
Ms Neeraja Choubey, Advocate for Respondent No.2.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : MARCH 30, 2017.
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Judgment 2 wp5365.12.odt CAW NO.889/2016.
This petition arises out of the proceedings taken pursuant to the reference made by the Central Government under Section 10(1)
(d) and 2A of the Industrial Disputes Act, 1947 by the communication dated 7th January, 1993. The issue is about the claim of 2145 employees regarding regularization of services and fixation of their pay with all fringe benefits.
Considering the facts of the case and nature of controversy, the petition is taken up for final hearing.
The application praying for early hearing is allowed. CAW NO.8/2017.
In view of the orders passed on Civil Application No. 889 of 2016, no orders are required on this application praying for early hearing.
The civil application is disposed accordingly. ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 :::
Judgment 3 wp5365.12.odt ORAL JUDGMENT : 1. Heard.
2. The petitioner-Union takes exception to the order passed by the Industrial Court answering the reference against the employees and rejecting their claim for regularization in service.
It is undisputed that the petitioner-Union is a Trade Union registered under the provisions of the Trade Unions Act, 1926. According to the petitioner-Union, the employees (2145 in number) whose claim is being agitated by the petitioner-Union are its members. The respondent No.1-Corporation is a Government of India Undertaking.
3. The petitioner-Union raised a dispute regarding regularization of services of 2145 employees and as it could not be resolved the Central Government exercised its powers under Section 10(1)(d) and Section 2A of the Industrial Disputes Act, 1947 and by the communication dated 7th January, 1993 made reference to the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur as follows :
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Judgment 4 wp5365.12.odt "(A) Whether the action of the management of Mineral Exploration Corporation Ltd., Nagpur in not regularizing the services of S/Shri A.K. Janson and 2144 others (as per Annexure 'A' attached) and depriving them from all fringe benefits like permanent workmen is justified? If not, to what relief the concern workmen are entitled to and from what date?
AND (B) What the action of the management of MECL, Nagpur in not providing the employment to Smt. Surya Gayee and 63 others (as per Annexure 'B' attached) as the legal heirs/ dependents of the deceased employees on compassionate ground is justified? If yes, to what relief is they entitle to and from what date?"
The proceedings were registered as Reference No. 11 of 1993. The Industrial Tribunal at Jabalpur passed an award on 24th March, 1998 which was challenged before the High Court of Madhya Pradesh at Jabalpur by petitioner-Union in Writ Petition No.5423 of 1998 and by the respondent No.1-Corporation in Writ Petition 1981 of 1998. These two writ petitions were decided by common judgment on 26th February, 1999. Writ Petition No.1981 of 1998 filed by the respondent No.1-Corporation was allowed and Writ Petition No. 5423 of 1998 filed by the union was dismissed. The petitioner-Union had filed petitions for special leave to appeal challenging the judgment passed in Writ Petition No. 1981 of 1998 and Writ Petition No. 5423 of 1998. In these petitions, the Hon'ble Supreme Court granted an ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 5 wp5365.12.odt interim order in favour of the employees on 3rd May, 1999 and directed the Corporation to provide work to the members of the Union as casual employees, provided work was available and the members of the Union were willing to go to the places where work was available. After grant of leave, Civil Appeal Nos.2027-28 of 2000 were registered and decided by the judgment dated 26th July, 2006. The Hon'ble Supreme Court disposed the appeals and remitted the matter to the Industrial Tribunal for deciding it afresh. The Hon'ble Supreme Court directed the Industrial Tribunal to consider the directions given in paragraph No.38 of the judgment and also paragraph Nos. 12 and 53 of the judgment given in the case of Secy. State of Karnataka v. Umadevi (3), reported in (2006) 4 SCC 1. In paragraph 40 of the judgment the Hon'ble Supreme Court directed that the interim order granted by it on 3rd May, 1999 shall continue till the matter is decided by the Industrial Tribunal.
4. After remand, the matter was taken up by the Industrial Tribunal at Nagpur which started functioning in the meanwhile, as undisputedly the subject matter fell within the jurisdiction of the Industrial Tribunal at Nagpur. The Industrial Tribunal proceeded with the matter and passed award on 14th January, 2009 upholding the ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 6 wp5365.12.odt claim of 2145 employees regarding regularization of services and fixation of their pay with all fringe benefits. This order was challenged by the respondent No.1-Corporation in Writ Petition No. 2006 of 2009 which was decided on 31st August, 2009. The writ petition was allowed, the award passed by the Industrial Tribunal on 14th January, 2009 was modified and the matter was remanded to the Industrial Tribunal. The award dated 14th January, 2009, insofar as it rejected the claim regarding appointment on compassionate ground in respect of 66 claimants was not challenged and to that extent it came to be maintained. This Court directed the Industrial Tribunal to pass supplementary award considering the matter in the light of the directions given in the judgment delivered by the Hon'ble Supreme Court in Civil Appeal Nos.2027-28 of 2000.
After remand, the Industrial Tribunal again considered the claim made by the petitioner-Union regarding regularization of the employees and by the supplementary award passed on 5th August, 2010 concluded that the work available with the respondent No.1- Corporation (employer) is of perennial nature and there were vacancies in which the employees who had worked continuously for more than 10 years can be regularized. The Industrial Tribunal directed the ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 7 wp5365.12.odt respondent No.1-Corporation to regularize the services of the employees whose details are given in Annexure-B to the supplementary award. The Industrial Tribunal directed the respondent No.1- Corporation to fix the pay of these employees treating them in regular cadre and to pay them salary accordingly from the date of reference till the date of retrenchment. The claim of the petitioner-Union regarding regularization of the services of the other employees was dismissed. The petitioner-Union being aggrieved by that part of the supplementary award, by which its part-claim was dismissed, filed Writ Petition No. 1271 of 2011 before this Court. The respondent No.1-Corporation, being aggrieved by that part of the award by which the claim of the Union was partly allowed, filed Writ Petition No. 4619 of 2010. These two writ petitions were decided by the judgment given on 28th March, 2011.
This Court found that the supplementary award passed by the Industrial Court on 5th August, 2010 was not in conformity with the directions given by the Hon'ble Supreme Court and in the judgment given by this Court in Writ Petition No. 2006 of 2009. This Court allowed both the petitions, set aside the supplementary award dated 5th October, 2010 and again remitted the matter to the Industrial ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 8 wp5365.12.odt Tribunal for fresh decision. While disposing the writ petitions, this Court recorded that the grievance of the Corporation was that it was not given proper opportunity to refute the claim of the employees. This Court directed that the Corporation shall collect the certified copies of the statements of claim of the employees within one month and shall file its reply within two months. The Industrial Tribunal again took up the matter and passed the impugned award.
5. Shri S.P.Dharmadhikari, learned Senior Advocate appearing for the petitioner-Union has submitted that the Industrial Tribunal has committed an error in dismissing the claim of 1743 employees in respect of whom ample evidence is brought on record to show that they have worked for more than 240 days in a year, that these 1743 employees were in employment with the respondent No.1-Corporation for more than 10 years, the respondent No.1-Corporation has not brought any evidence on record to show that any of these 1743 employees is medically unfit for the employment or conduct and behaviour of any of these 1743 employees was not good when they were in employment. It is argued that the Industrial Court while passing the supplementary award dated 5th August, 2010 collected detailed information about the employees in question and undertook ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 9 wp5365.12.odt the exercise of verifying the genuineness and authenticity of each of the claimant and found that the claim of 1743 employees was required to be upheld.
The learned Senior Advocate has argued that the Industrial Tribunal, while passing the impugned award, has got swayed by the irrelevant submissions made on behalf of the respondent No.1- Corporation that the petitioner-Union has failed to establish that the employees were appointed after following due procedure for selection and appointment. It is submitted that throughout, the respondent No.1-Corporation has failed to produce material on record to show that the posts on which the 1743 employees were working are not available on its establishment. It is prayed that the impugned award be set aside, the claim of 1743 employees in respect of whom the Industrial Tribunal found favour by the supplementary award dated 5th August, 2010 be upheld. In respect of the other employees, it is submitted that the evidence is lacking in some respects and the petitioner-Union be given an opportunity to substantiate their claim and the matter be partially remanded to the Industrial Tribunal for that purpose. ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 :::
Judgment 10 wp5365.12.odt
6. The learned advocate for the respondent No.1-Corporation has opposed the petition on the following grounds :
i) The petitioner-Union has not been able to prove that sufficient posts are available on the establishment of the respondent No.1-Corporation in which 1743 employees can be absorbed after regularizing their services;
ii) The petitioner-Union has not established that 1743 employees in question were appointed by following the prescribed procedure for selection and appointment.
Admittedly, all the employees are retrenched prior to 1999 and their retrenchment is not challenged till date and therefore, there cannot be an order for regularization of the services of these employees and if it is done it will amount to travelling beyond the reference made by the Central Government under Section 10(1)(d) and 2A of the Industrial Disputes Act, 1947.
To support the arguments, the advocate for the respondent No.1-Corporation has relied on the following judgments :
a) The judgment given by the Hon'ble Supreme Court in the case of Oshiar Prasad vs. Sudamdih Coal Washery, reported in (2015) 4 SCC 71;
b) The judgment given by this Court in the case of Shirshal Vs. State of Mah. & Ors., reported in 2016 III CLR 585;::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 :::
Judgment 11 wp5365.12.odt
c) The judgment given by Gujarat High Court in the case of Saurashtra Shramik Sangh vs. Amreli Municipality, reported in 2017 I CLR 132;
d) The judgment given by Madras High Court in the case of All India.. vs. P.O. Central Govt., reported in 2017 I CLR 506;
e) The judgment given by the Hon'ble Supreme Court in the case of Secretary to Government, School Education Department, Chennai vs. R. Govindswamy and others, reported in (2014) 4 SCC 769;
f) The judgment given by the Hon'ble Supreme Court in the case of Nand Kumar vs. State of Bihar & oth., reported in (2014) 5 SCC 300;
7. After hearing the learned advocates for the respective parties, I find that the matter has to be considered as per the directions given by the Hon'ble Supreme Court in the judgment given in Civil Appeal No. 2027-2028/2000. The relevant paragraphs Nos. 31 to 40 are reproduced as follows :
"31. We may also usefully refer to the findings rendered by the Tribunal on the basis of the facts analysed from several affidavits filed before it, which are as under:::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 :::
Judgment 12 wp5365.12.odt "(A) The Temporary employees have been working in the Corporation for many years. Even some employees have still been working since the year 1979. (B) Those employees were transferred from one place to another during that period.
(C) The temporary employees were promoted. (D) Regular pay scale was not given to those temporary employees, but they were given salary equal to daily wagers.
(E) Those temporary employees have not been given other allowances and facilities of leave. (F) The amount of Provident Fund was deducted from the salary of those temporary employees. (G) The posts, on which temporary employees were kept, were given different names by the Management. (H) Old temporary employees were removed from services without giving any notice or without paying any compensation.
(I) Those employees are not given increments."
32. It is thus seen that the nature of work done by the Management is that they use work to explore the minerals in different parts of the country after taking over any project. According to the report of the year 1995-1996, the Corporation had 50 projects. The Corporation is permanent and it has been doing the work continuously. When one project is completed, then work starts in another project. It does not appear that the work of the Corporation would come to an end.
33. Ample material was placed before us to show that the temporary/contingent employees have been doing the work of permanent nature and the temporary employees are required to do work which was used to be done by skilled employees. The Annual ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 13 wp5365.12.odt Report of the Corporation for the year 1995-96 was also considered by the Tribunal. It appears from the Annual Report and the Magazine of the Corporation that the Corporation has sufficient work and the financial condition of the Corporation is also satisfactory.
34. The Respondent is an industry governed by the provisions of Industrial Disputes Act, 1947 as well as the provisions of the Industrial Employment Standing Orders Act, 1946. The Standing Orders defined temporary and casual employees as under:-
"A 'temporary' workman is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a limited period." "A 'casual' workman is a workman whose employment is of casual labour."
Therefore, it will be clear that, the employees engaged and continued for years together cannot be termed as temporary or casuals.
35. The respondent-management itself effected transfer of employees from one project to another and granted them benefit e.g. TA, DA etc. The term "contingent employee" is totally unknown to industrial law. To deny the benefits available to regular employees, certain employees are termed as contingent workers. Once an employee completes 240 days, he is deemed to be a permanent employee. The term "contingent employee" is not included in Standing Orders.
36. Usual practice of the Corporation has been to keep contingent workmen for long duration of time and offering regular appointment periodically which abruptly had stopped due to unfair attitude of the management. Reduction in work leading to poor physical and financial performance has been a result of incompetent and poor management which cannot be allowed to play with the future of thousands of employees and their families.
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Judgment 14 wp5365.12.odt
37. The present reference was made in January 1993. The employees working in the Corporation, it was submitted, used to do work far away from civilization and facilities and they did not get amenities with regard to the health and residence although such facilities are available to the permanent workmen doing similar work. The workmen lived away from their families while working on a project and faced all types of hardships.
38. It shall be proper to regularise the services of the workmen who have worked for several years. However, the workmen in order to succeed will have to substantiate their claim as per the established principles of law. We feel it just and proper to issue the following directions to the Tribunal which is directed to consider the following directions and pass appropriate orders after affording opportunities to both the parties:
1. The Tribunal is directed to again scrutinize all the records already placed by the appellant-Union and also the records placed by the management and discuss and deliberate with all the parties and ultimately arrive at a conclusion in regard to the genuineness and authenticity of each and every claimant for regularization. This exercise shall be done within nine months from the date of receipt of this judgment.
2. Subject to the outcome of the fresh enquiry of the award, the respondent-Corporation should absorb them permanently and regularize their services, the persons to be so appointed being limited to the quantum of work which may become available to them on a perennial basis.
3. The respondent-Corporation may absorb on permanent basis only such of those workmen who have not completed the age of superannuation.
4. The respondent-Corporation is not required to absorb on permanent basis such of the workmen who are found medically unfit for such employment. ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 :::
Judgment 15 wp5365.12.odt
5. The absorption of the eligible workmen on a regular and permanent basis by the Corporation does not disable the Corporation from utilizing their services for any other manual work for the Corporation upon its needs.
6. In the matter of absorption, the persons who have worked for longer period as contingent/ad hoc/temporary workmen shall be preferred to those who have to be in shorter period of work.
7. The workman should have worked for more than 240 days in a year. The conduct and behaviour of the workman should be good.
39. We, therefore, direct the Tribunal to decide the claim of the workmen of the Union strictly in accordance with and in compliance with all the directions given in the judgment by the Constitution Bench in the case of Secy., State of Karnataka & Ors. v. Umadevi(3), and in particular, paras 53 and 12 relied on by the learned Senior Counsel appearing for the Union. The Tribunal is directed to dispose of the matter afresh within 9 months from the date of receipt of this judgment without being influenced by any of the observations made by us in this judgment. Both the parties are at liberty to submit and furnish the details in regard to the names of the workmen, nature of the work, pay scales and the wages drawn by them from time to time and the transfers of the workmen made from time to time, from place to place and other necessary and requisite details. The above details shall be submitted within two months from the date of the receipt of this judgment before the Tribunal.
40. Till the matter is finally adjudicated by the Tribunal, the interim order passed by this Court on 3.5.1999 shall be in operation."
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Judgment 16 wp5365.12.odt The submissions made on behalf of the respondent No.1- Corporation that the claim made by the petitioner-Union in respect of the employees in question cannot be considered as the petitioner-Union has failed to establish that those employees were appointed after following the prescribed procedure, cannot be accepted. In the supplementary award passed on 5th August, 2010 the Industrial Tribunal found that the 1743 employees in question have worked with the respondent No.1-Corporation for more than 10 years continuously. In this background, in my view, the burden was on the respondent No.1-Corporation to show what procedure it followed for making appointments on the posts on which these 1743 employees were working continuously for more than 10 years. Except for making a general statement that the prescribed procedure was not followed while these 1743 employees were appointed, the respondent No.1- Corporation has not produced any evidence on record to substantiate its contention, specially when these 1743 employees continued for a long period of 10 years and were paid their emoluments by the Corporation. While deciding Civil Appeal Nos. 2027-2028/2000 in paragraph No.39, the Hon'ble Supreme Court directed that while deciding the claim of the employees the directions given in the ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 17 wp5365.12.odt judgment in the case of Secy. State of Karnataka Vs. Umadevi(3) (supra) particularly in paragraph Nos. 53 and 12 shall be taken into consideration. In paragraph 53 of the judgment given in the case of Secy. State of Karnataka Vs. Umadevi(3), distinction has been drawn between irregular appointments and the illegal appointments and it is observed that the services of the employees whose appointments are not illegal but suffering from some irregularity, may be regularized if they have continued to work for 10 years or more on sanctioned vacant posts without intervention of the Court or Tribunal.
In paragraph 12 of the above judgment, it is laid down that directions to absorb an employee in permanent employment cannot be issued under Article 226 or under Article 32 of the Constitution of India, if the employee is engaged without following due process of selection as envisaged by the constitutional scheme.
The contentions of the respondent No.1-Corporation will have to be examined in the light of the judgment given in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sanghatana, reported in (2009) 8 SCC 556. Paragraph Nos.30 to 36 of the above judgment are relevant, which are reproduced as follows : ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 :::
Judgment 18 wp5365.12.odt "30. The question that arises for consideration is : have the provisions of the MRTU & PULP Act been denuded of the statutory status by the Constitution Bench decision in Umadevi(3)? In our judgment, it is not.
31. The purpose and object of the MRTU & PULP Act, inter alia, is to define and provide for prevention of certain unfair labour practices as listed in Schedules II, III and IV. The MRTU & PULP Act empowers the Industrial and Labour Courts to decide that the person named in the complaint has engaged in or is engaged in unfair labour practice and if the unfair labour practice is proved, to declare that an unfair labour practice has been engaged in or is being engaged in by that person and direct such person to cease and desist from such unfair labour practice and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate policy of the Act.
32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
33. The provisions of the MRTU & PULP Act and the powers of Industrial and Labour Courts provided ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 19 wp5365.12.odt therein were not at all under consideration in Umadevi(3). As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi(3). Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
34. It is true that Dharwad District PWD Literate Daily Wages Employees' Assn. arising out of industrial adjudication has been considered in Umadevi(3) and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi(3) leaves no manner of doubt that what this Court was concerned in Umadevi(3) was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed.
35. Umadevi(3) is an authoritative pronouncement for the proposition that the Supreme Court (Article
32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36. Umadevi(3) does not denude the Industrial and Labour Courts of their statutory power under Section ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 20 wp5365.12.odt 30 read with Section 32 of the MRTU & PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exist. Umadevi(3) cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established."
Though the petitioner-Union has not been able to produce sufficient evidence on record to prove that the 1743 employees in question were appointed after issuing advertisement or inviting list/ names from the Employment Exchange and after interviews were conducted, the respondent No.1-Corporation is also not able to show what procedure it followed for making the appointments on the posts and as it is established on record that these 1743 employees worked with the respondent No.1-Corporation for more than 10 years, the presumption would be that the appointments made by the responsible officers of the respondent No.1-Corporation were made properly. Of course, the presumption could have been rebutted but, I find that the respondent No.1-Corporation has failed to rebut the presumption. Therefore, in the facts of the case and considering the proposition laid down in the judgment given in the case of Maharashtra State Road Transport Corporation and another vs. Casteribe Rajya Parivahan (supra) ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 21 wp5365.12.odt and the fact that the petitioner-Union has established that the 1743 employees in question have worked for more than 10 years continuously, it is to be held that their services are required to be regularized.
9. The submission made on behalf of the respondent No.1- Corporation that the claim for regularization of services cannot be examined in these proceedings and if so done it will amount to travelling beyond the reference made by the Central Government, also cannot be accepted. In the judgment given in Civil Appeal Nos.2027-28 of 2000, the Hon'ble Supreme Court has directed that the claim of the employees should be decided as per the directions given in paragraph No.38 of the judgment. Sub-paragraphs Nos. (1) to (7) of paragraph 38 lay down the condition subject to which the claim for regularization of services of the employees can be considered. The above judgment is between the parties and is binding on the respondent No.1- Corporation. As the Hon'ble Supreme Court has directed the Industrial Tribunal to consider the claim of the employees in question for regularization subject to conditions mentioned in paragraph 38 of the judgment, it is not open for the respondent No.1-Corporation now to urge that the claim for regularisation of services cannot be considered ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 22 wp5365.12.odt and it will amount to travelling beyond the reference made by the Central Government.
Moreover, the Hon'ble Supreme Court had granted an interim order on 3rd of May, 1999 which was continued when Civil Appeal Nos. 2027-2028/2000 were decided on 26th of July, 2006. On this ground also the above submission has to be rejected.
10. On merits of the matter, I find that the Industrial Tribunal has dismissed the claim for regularization of the employees on the ground that the petitioner-Union has failed to establish that the employees were appointed after following prescribed procedure. In the impugned award, the Industrial Tribunal has not considered the other relevant aspects which were considered by it while passing the supplementary award on 5th August, 2010.
As the Industrial Tribunal has not considered the entitlement or otherwise of the employees in question for regularization on merits as per law, one course which can be adopted is to again remand the matter to the Industrial Tribunal. However, in the facts of the case, I find that it will not be only onerous as far as the employees are concerned, but will also frustrate the objective of ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 23 wp5365.12.odt imparting justice. The reference came to be made on 7th January, 1993. Once the matter is remitted by the Hon'ble Supreme Court and twice the matter is remitted by this Court. The advocate for the petitioner-Union has submitted that about 123 employees are reported to be dead, a considerable number of employees whose claim is dismissed by the Industrial Tribunal have perhaps, lost interest in prosecuting the matter and they were not present at the relevant stages of the proceedings before the Industrial Tribunal.
Under these facts, I felt it appropriate to examine whether sufficient material is produced on record which shows that the petitioner-Union has established the claim of 1743 employees.
11. Though the supplementary award passed by the Industrial Tribunal on 5th August, 2010 is set aside by this Court by the judgment given in Writ Petition No. 4619 of 2010 and Writ Petition No. 1271 of 2011, I find that there is nothing in the judgment given by this Court in Writ Petition No. 4619 of 2010 and Writ Petition No. 1271 of 2011 which shows that the findings recorded by the Industrial Tribunal in the supplementary award passed on 5th August, 2010 on merits of the claim of 1743 employees has been found to be unacceptable. By the ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 24 wp5365.12.odt judgment given in Writ Petition No. 4619 of 2010 and Writ Petition No. 1271 of 2011, this Court remanded the matter to the Industrial Tribunal to enable the respondent No.1-Corporation to refute the claim of the employees and to substantiate its defence. While remanding the matter to the Industrial Tribunal, this Court recorded that the respondent No.1-Corporation shall collect the certified copies of the Statements of Claim of other employees within one month and shall file its reply within two months.
12. After remand, the respondent No.1-Corporation has examined Shri A.P. Gera, Manager (Legal Services) and Shri Ramakant Balaji Panigrahi, General Manager (Personnel and Administration). The advocate for the respondent No.1-Corporation has pointed out from the affidavit of Shri A.P. Gera (Paragraph No.32 of the affidavit) that earlier the strength of the respondent No.1-Corporation was 3298 (which included officers and 284 contingent workmen), it was brought down to 2500 and the strength was again reassessed and brought down to 2000 against which 3222 employees were on roll. This witness deposed that as the regular strength of the employees exceeded the sanctioned strength, the company introduced voluntary retirement scheme and 341 officers and 1959 non-executives were retired under the scheme from 1992-93 till 2006-2007. Relying on the above ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 25 wp5365.12.odt deposition, the advocate for the respondent No.1-Corporation submitted that there were and there are no sanctioned posts on which the employees in question can be absorbed. Though the affidavit of Shri A.P. Gera filed in lieu of examination-in-chief is of 16 pages (34 paragraphs) and the affidavit of Shri Ramakant Balaji Panigrahi is of 7 pages (16 paragraphs), there is nothing in the affidavits to show that the respondent No.1-Corporation have undertaken the exercise to workout the number of posts available on its establishment (considering the projects undertaken by it) on perennial basis. In paragraph 32(2) of the judgment given in Civil Appeal Nos. 2027-28 of 2000 the Hon'ble Supreme Court observed that subject to outcome of the enquiry by the Industrial Tribunal on the points mentioned in paragraph 38(1) of the judgment, the respondent Corporation shall absorbed the employees permanently and regularize their services, the number of such employees being limited to the quantum of work which may become available with it on perennial basis. In view of the directions given by the Hon'ble Supreme Court, the respondent No.1- Corporation was under an obligation to undertake the exercise of working out the number of posts available on its establishment (considering all the projects) on perennial basis. Inspite of the directions given by the Hon'ble Supreme Court, and further opportunity ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 26 wp5365.12.odt given by this Court while remanding the matter by the judgment given in Writ Petition No. 4619 of 2010 and Writ Petition No. 1271 of 2011, the respondent No.1-Corporation has failed to discharge its burden. Not only this, the respondent No.1-Corporation submitted before the Industrial Tribunal that it was working on 28 projects which is factually not correct. The petitioner-Union placed on record list of 39 projects and then the respondent No.1-Corporation explained through its witness Shri A.P. Gera that out of 11 projects which were not included in the list, two projects were included in the list filed by the respondent No.1-Corporation and other 9 projects were completed/ closed. Shri A.P. Gera deposed that a project undertaken by the respondent No.1- Corporation was operated through outsourcing. In paragraph No.32 of the judgment given in Civil Appeal Nos.2027-28 of 2000 the Hon'ble Supreme Court has recorded that the respondent No.1-Corporation is permanent, since 1995-96 it has worked on 50 projects, it is doing work continuously, when one project is completed then work starts on another project and it does not appear that the work of the Corporation would come to an end. The respondent No.1-Corporation which is an undertaking of the Central Government and is supposed to be model employer should have fairly undertaken the exercise of working out the number of posts available on its establishment, considering the number ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 27 wp5365.12.odt of projects it worked on and examining its requirement for employees, specially considering the observations made by the Hon'ble Supreme Court in the above referred judgment.
At the time of hearing, the submission was that the respondent No.1-Corporation was engaging the employees for the project undertaken in a particular area by applying the "son of soil" policy. It is argued that the local employees are engaged on the project. The respondent No.1-Corporation has not produced any material on the record to substantiate the above submission. If any policy decision is taken, it cannot be at the whims of the officers. As the respondent No.1-Corporation has not produced any such policy decision on the record, the above submission cannot be accepted. Moreover, the issue is about entitlement of unskilled employees. It is nowhere shown how the alleged "son of soil" policy is beneficial or helpful to the respondent No.1-Corporation in carrying on its activities. I find that the submission is made only to defend the illegal action of depriving the employees their legitimate claim of regularization and other benefits.
13. Though the supplementary award is partly set aside by this Court by the judgment given in Writ Petition No. 4619 of 2010 and ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 28 wp5365.12.odt Writ Petition No. 1271 of 2011, as recorded earlier, the remand was only to give an opportunity to the respondent No.1-Corporation to refute the claim of the petitioner-Union and the employees and to substantiate its defence. However, I find that the respondent No.1- Corporation has again failed to avail the opportunity and to produce evidence on record to refute the claim of the petitioner-Union and the employees and to substantiate its defence.
Considering the facts on record, in my view, the findings recorded by the Industrial Tribunal in the supplementary award passed on 5th August, 2010 that 1743 employees out of 2145 employees have been able to establish their claim for regularization and other benefits has to be upheld.
The normal rule, while upholding the claim of reinstatement/ regularization in service is that the back-wages should be granted. However, this is subject to the requirement that the employee discharges the preliminary burden of showing that he was not gainfully employed during the relevant period. In the present case, there are no pleadings of the petitioner-Union that the employees in question were not gainfully employed during the relevant period. As ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 29 wp5365.12.odt the petitioner-Union and the employees have failed to discharge the preliminary burden, the claim for back-wages is not granted.
14. In view of the above, following order is passed:
i) It is held that services of the 1743 employees whose names are shown in Annexure-B to the supplementary award passed by the Industrial Tribunal on 5th August, 2010 have to be regularized.
ii) It is held that the above referred 1743 employees will be entitled for all the benefits i.e. continuity of service and other benefits considering their initial date of appointment on record, notionally till today and they will be entitled for salary and other benefits as regular employees from 31st March, 2017. The above referred 1743 employees will not be entitled for actual monetary benefits for the period from the date of their retrenchment till today i.e. 30th March, 2017.
iii) The clam of the petitioner-Union in respect of the other employees is dismissed.
iv) As 123 employees out of 1743 employees are reported to be dead, the respondent No.1-Corporation shall examine their cases as per this judgment and also examine whether the legal heirs of those 123 employees are entitled for any benefits like family pension, gratuity etc. and if it is found ::: Uploaded on - 12/04/2017 ::: Downloaded on - 27/08/2017 21:29:54 ::: Judgment 30 wp5365.12.odt that the legal heirs of such employees are entitled for the benefits, the same shall be given to them.
v) Similarly, the employees out of the above referred 1743 employees, who have attained the age of superannuation will also be entitled for the retirement benefits.
v) The claims of the employees who have attained the age of superannuation and of the legal heirs of the deceased employees shall be finalized within six months from the date of receipt of the applications from the concerned employees/ legal representatives.
The award passed by the Industrial Tribunal is modified in the above terms.
The petition is allowed accordingly. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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