Calcutta High Court (Appellete Side)
Suresh Thakur @ Bin & Ors vs National Central Government ... on 5 December, 2022
Item No.5.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 05.12.2022
DELIVERED ON:05.12.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T No.1203 of 2018
Suresh Thakur @ Bin & Ors.
Vs.
National Central Government Industrial Tribunal-cum-Labour Court,
Kolkata & anr.
Appearance:-
Mr. Suresh Thakur ... Appellant no.1-in-person.
Mr. Shiv Shankar Banerjee,
Ms. Sanchita Barman Roy .... for the respondents.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. In the order dated 30th November, 2022, the date of the
award shall be read as "19th March, 1996" instead of "19th March,
1998" wherever it appears.
2. This intra Court appeal by the writ petitioners, namely,
Mr. Suresh Thakur @ Bin and 148 others is directed against the
order dated 11th September, 2018 passed in W.P.A. No.9916(W) of
2005. The said writ petition was filed by the appellants for
issuance of a writ of certiorari to quash the award passed by
the Central Government Industrial Tribunal-cum-Labour Court (for
short, "the Tribunal") dated 19th March, 1996 and the subsequent
order passed by the Tribunal dated 2nd February, 2005 in and by
which the miscellaneous application filed by the appellants to
set aside the award and to re-hear the matter on merits was
rejected on the ground that the Tribunal had no jurisdiction to
entertain such an application.
3. The learned Writ Court had passed the order on 11 th
September, 2018 impugned in this appeal and from the said order,
we find that the writ petition was listed before the Court on 3 rd
September, 2018 and an order was passed on the said date. The
learned Writ Court has referred to the said order and records
the submission of the petitioners that the Tribunal ought not to
have rejected the miscellaneous application in the light of the
decision of the Hon'ble Supreme Court in Grindlays Bank Ltd. Vs.
Central Government Industrial Tribunal reported at 1980 (Supp.)
SCC 420. Further, Rule 28 of the Rules was referred to, which
empowers the Tribunal to correct mistakes.The learned Single
Bench, came to the conclusion that what the appellants seek is
to review the order of the Tribunal, which is impermissible.
Ultimately, the writ petition was dismissed. Challenging the
correctness of the said order, the appellants have filed the
present appeal.
4. We have elaborately heard Mr. Suresh Thakur @ Bin,
appellant no.1-in-person and on behalf of the other appellants
and Mr. Shiv Shankar Banerjee, learned Advocate appearing for
the respondents.
5. The issues which fall for consideration in this appeal are
as follows:-
A) Whether the learned Tribunal committed procedural
irregularity in not considering the merits of the
dispute, which was referred for a decision before it?
B) Whether the appellants / workmen had been afforded
adequate opportunity to lead oral and documentary
evidence before the Tribunal?
C) Whether the decision of the Tribunal was confined
only to the preliminary point raised by the
management or does the award deals with the merits as
well?
D) Whether the learned Writ Court had adjudicated the
correctness of the award, i.e. on the preliminary
issue as well as on the merits or otherwise?
E) Whether the preliminary issue raised by the
management contending that the remedy for the workmen
is not before the Tribunal but before the appropriate
authority under the provisions of the Contract Labour
(Regulation and Abolition) Act, 1970 is sustainable ?
6. After we have elaborately heard the first appellant
appearing in person and the learned Advocate appearing for the
respondent / management, we propose to answer above five
questions conjointly as the facts cannot be spilt up to deal
each one of the questions in an independent fashion.
7. The first issue is whether the preliminary objection raised
by the respondent / management was justified or not. The
contention of the respondent / management is that earlier the
workmen had moved writ petitions before this Court and in the
light of the orders passed therein, the reference before the
Industrial Tribunal is not sustainable any longer as in those
writ petitions, an observation has been made that the reference
before the industrial Tribunal would be of no effect since the
Court had directed the workmen to approach the appropriate
authority for their permanent absorption and the workmen cannot
file writ petitions.
8. We have perused the order passed in the earlier writ
petitions dated 4th October, 1991 in Civil Order No.13592(W) of
1990. The law on the subject has been clearly explained in
several decisions of the Hon'ble Supreme Court and one of such
decisions being in the case of Steel Authority of India Vs.
National Workers' Association reported at (2001) 7 SCC 1. In
paragraph 125 and 126 of the decision, the Court has culled out
the legal principles and interpreted Section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970. The ratio laid
down in the said decision is that even assuming the contract
labour is to be abolished by passing an order in terms of
Section 10 that would not enure the benefit of automatic
regularisation of such employees. On a reading of the order
passed in the earlier decision dated 4th October, 1991, which
also refers to another order passed earlier by this Court, what
weighed in the mind of the learned Writ Court was that earlier
there was a direction upon the workmen / union to approach the
appropriate authority and the reference before the Tribunal
would have no effect.
9. However, the Court has not recorded any finding to the
effect that the order of reference ceased to exist and the
Tribunal cannot adjudicate the same. If we read the order
passed in the writ petition dated 4 th October, 1991 in its
entirety, it is clear that the learned Writ Court held that the
remedy of the workmen is not before the Writ Court but
elsewhere. In any event, whether a workman is entitled to be
absorbed as a permanent workman or not, is a matter, which is to
be concluded after industrial adjudication. Therefore, we are
clear in our mind to hold that the preliminary objection raised
by the management based on the orders passed in the earlier writ
petitions is devoid of merits. Accordingly, we hold that the
order of reference is sustainable and the Tribunal would have
enough jurisdiction to adjudicate the matter and pass an award.
Thus the preliminary issue raised by the Management is answered
against them and in favour of the workman.
10. Having held so, the next issue, which we have to consider
is as to whether the submission of Mr. Suresh Thakur that there
was gross violation of principles of natural justice and no
opportunity was granted to the appellants to laid evidence or
to mark documents or cross-examine the witnesses is justified or
not. On this aspect, Mr. Banerjee has made elaborate submissions
and has drawn our attention to the copies of the order sheets of
the Tribunal. From the said order sheets, it is seen that on
14th September, 1982, the Tribunal directed the parties to come
ready for hearing of the case on the preliminary point as well
as on merits. Subsequently, the Court has permitted filing of
the documents and it appears that the management has led oral
evidence and also marked documents as exhibits M-1 to M-12(f).
From the order dated 1st February, 1989, it is seen that one of
witness on the side of the workmen, namely, W.W.1 Baijnath
Mahato was present before the Tribunal. The order does not
indicate as to whether he was examined-in-chief or whether he
was cross-examined by the management's counsel. The order
further records that the submission of the union leader that
other witnesses are to be examined could not come on the said
date (01.02.1989) and an adjournment was sought for.
11. It may not be necessary for us to refer to the orders
passed by the Tribunal on a day-to-day basis but suffice it to
note that initially the Tribunal was of the view that it will
hear the parties on the preliminary issue as well as on merits
by order dated 27th September, 1994. The earlier order dated 8 th
September, 1983 was modified. The effect being that the matter
will be heard only on the preliminary point.It is the submission
of Mr. Thakur that by virtue of this order dated 27 th September,
1994, the entire proceedings which were done by the Tribunal are
deemed to be set aside.
12. We are not convinced with the said submission because the
management has marked as many as 12 documents and one witness
has been examined. However, there has been no sufficient
opportunity granted to cross-examine the management's witness.
That apart, the order sheet does not indicate that the witnesses
on the side of the workmen were examined-in-chief. We find that
no opportunity was granted to mark documents as exhibit numbers
have not been recorded in the order sheet.
13. Be that as it may, the orders, which have been passed after
22nd November, 1994 clearly show that the tribunal was adjourning
the matter from time to time to hear the parties on the
preliminary issue. Ultimately, the Tribunal had passed the
award dated 19th March, 1996 in Reference No.57 of 1982. The
workmen had filed a miscellaneous application to set aside the
said award and the matter could be reheard on merits. This
application was rejected by the Tribunal on the ground that the
Tribunal has got no jurisdiction as the award was published on
4th May, 1996. The Tribunal may be right in coming to such a
conclusion as it would become functus officio after the said
date of publication of the award. Nevertheless, the writ
petition, which was filed by the workmen not only challenged the
order dated 2nd February, 2005 rejecting the application for
setting aside the award but also challenged the award dated 19 th
March, 1996.
14. Thus, the duty enjoined upon the learned writ Court was not
only to examine the correctness of the order dated 2nd February,
2005 but also the award dated 19th March, 1996.
15. Before we examine as to whether such an exercise was done
by the learned Writ Court, we need to consider as to whether the
Tribunal had rendered a finding on merits of the matter or the
award was passed only on preliminary issue. The award is a
brief award consisting of 10 paragraphs. The first six
paragraphs deals with the facts of the matter and Court has
referred to a decision in the case of R. K. Panda & Ors. Vs.
Steel Authority of India & Ors. reported at (1994) 5 SCC 304.
Thereafter, in paragraphs 7 to 9, it has recorded the
submissions wherein the Tribunal held that the management
witness was examined, no steps were taken by the workmen to
cross-examine him and ultimately, in paragraph 10, the Tribunal
has come to the conclusion that number of documents have been
filed both by the management and the workmen and about 16
documents have been marked on behalf of the management whereas
the workmen have exhibited no documents on their behalf.
16. Further, the Tribunal holds that most of the documents are
not necessary for a decision of the case and no reliance is
placed on any of the documents at the time of argument and that
they are merely vouchers showing payment. Accordingly, the
tribunal came to the conclusion that there was no evidence on
the side of the workmen to establish their case and the
reference was rejected. To say the least, the award of the
Tribunal is utterly perverse. From the order sheets, we have
seen that though the management had marked the documents as M-1
to M-12(f), the evidence of the said witness is said to have
been closed on the same date and it is not clear as to when the
cross-examination was permitted to be done of the management
witness.
17. On the next date of hearing, the Tribunal records the
submissions of the union leader that time has to be granted to
produce the witnesses. The Tribunal on the subsequent dates
records the submissions of the union leader that the WW-1 has to
be recalled. Thus, the finding rendered by the Tribunal is
contrary to the record and the Tribunal has dealt with the
matter in a slipshod fashion forgetting the duty enjoined upon
it and as to how the matter has to be adjudicated. Thus, the
award passed by the Tribunal would definitely calls for
interference.
18. When we consider the order passed in the writ petition, it
appears that the learned Writ Court was more concerned about the
power of the Tribunal to set aside its orders by referring to
Rule 22 of the Industrial Disputes (Central) Rules, 1957 and the
decision in Grindlays Bank Ltd. (supra) and in the last
paragraph of the order dated 11th September, 2018, the learned
Writ Court has observed that on perusal of the award dated 19th
March, 1996, it does not appear that the said award was made ex
parte, the workmen had laid evidence, which however was found
"as did not establish their right or entitlement". We are not
clear about the ultimate conclusion of the learned Writ Court
but all that we can say is that the order does not give a clear
finding as to whether it approves the award of the Tribunal on
the preliminary point or on the jurisdiction to entertain a
miscellaneous application after publication of the award or on
the merits of the claim of the workmen.
19. On perusal of the order passed by the learned writ Court
earlier that is on 3rd September, 2019 also does not show that
the Court was hearing the parties on the preliminary issue with
regard to power of the Tribunal to set aside its award.
Therefore, the learned writ Court had not gone into the merits
of the matter, did not consider any of the grounds which have
been raised by the writ petitioners, more particularly that the
Tribunal did not hear the parties on merits, did not permit the
workmen to cross-examine the management witness, evidence of the
workmen witnesses were not recorded, no documents were exhibited
by the workmen and the entire proceedings stood concluded.
20. Thus, when perversity is writ large on the face of the
award, this Court exercising jurisdiction under Article 226 of
the Constitution is entitled to interfere with such award as we
have come to the clear finding that the award suffers from
perversity.
21. As pointed out, the learned writ Court also appears to have
not noticed these factors and it is not clear as to whether the
order sheets were placed before the learned writ Court. In any
event we find the order passed in the writ petition to be a non-
speaking order and, therefore, it would also call for
interference.
22. For all the above reasons, the appeal is allowed. The
order passed in the writ petition is set aside. Consequently,
the writ petition is allowed and the award dated 19th March,1996
in Reference Case No.57 of 1982 is set aside and the matter is
restored to the file of the Industrial Tribunal for fresh
adjudication. So far as the preliminary point is concerned, we
have taken a decision that the reference is maintainable and
therefore the management cannot raise the said issue and the
Tribunal shall permit the parties to lead oral and documentary
evidence after which the parties shall be given sufficient
opportunity to make their submission and a reasoned award be
passed on merits and in accordance with law.
23. Considering the fact that the issue is lingering for
several decades, the Tribunal is requested to assign an early
date for conclusion of the proceeding.
24. There shall be no order as to costs.
25. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/RAJA(AR.C)
