Delhi High Court
Bharat Heavy Electricals Ltd vs Udaibir Singh & Ors. on 29 December, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.C No. 4119/2014 and CM PPL.8270/2014, 22870/2017
and 47013/2017
Judgment reserved on : 03.04.2018
Date of decision : December 29th, 2018
BHARAT HEAVY ELECTRICALS LTD...... Petitioner
Through: Mr. Sandeep Sethi, Senior
Advocate with Mr. A.K.Roy,
Advocate
versus
UDAIBIR SINGH & ORS. ..... Respondents
Through: Ms. Asha Jain Madan,
Advocate for R-1 to 164
Mr. R.K. Saini, Adv. for R-165-
166.
Mr. Arun Bhardwaj, CGSC for
R-167-168.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner Bharat Heavy Electricals Ltd. vide this petition
under Articles 226 & 227 of the Constitution of India seeks the setting
aside of the Reference made vide order no. L-42011/55/2013-IR (DU)
dated 25.07.2013 vide which the Central Government opined that an
industrial dispute exists between the employer in relation to the
management of the BHEL House and their workmen in respect of the
matter specified in the Schedule annexed with the order which read to
the effect:-
"Whereas the action of the management of BHEL is not
regularizing the employment of Shri Udaibir Singh and 163
others and engagement of the said workers through M/s. Arron
Aviation Services Pvt. Ltd. and M/s Oynx Management Services
Pvt. Ltd. as per annexure, is legal and justified? To what relief
the workmen are entitled to?"
and thus referred the said dispute in terms of Section 10(1)(d) and
Section 10(2A) of the Industrial Disputes Act, 1947 which were
referred for adjudication to the Central Government Tribunal-cum-
Labour Court No.2, New Delhi calling upon the Tribunal to give its
award within three months.
2. The petitioner also thus sought that the consequential
proceedings in ID No.94/13 pending adjudication before the Central
Government Industrial Tribunal-cum-Labour Court-II, KKD be also
quashed and sought that the entire records of the conciliation
proceedings before the Additional Labour Commissioner in ALC-1.8
(35) 2011 and the documents which formed the basis of the Reference
be called for.
3. There are 168 respondents arrayed to the present petition with
respondent nos.1 to 164 being workers represented through Shri Jagdish
Prasad, President of the Delhi State General Workers Congress and M/s
Aroon Aviation Services Ltd. and M/s Oynx Management Services Pvt.
Ltd. arrayed as respondent nos.165-166 to the present petition and the
Union of India represented through the Office of Regional Labour
Commissioner (Central), Ministry of Labour and Employment is
arrayed as respondent no.167 and the respondent no.168 is the
Secretary, Government of India, Ministry of Labour and Employment.
4. This reference has arisen out of the failure report of conciliation
dated 01.04.2013 passed by the Assistant Labour Commissioner
(Central), Office of the Regional Labour Commissioner (Central) in
ALC-1.8 (35) 2011. The said notice was issued by the Labour
Commissioner to the petitioner to attend the proceedings fixed on
17.10.2011 in order to hold conciliation and arrive at an amicable
settlement of the dispute referred by the Delhi State General Workers
Congress for regularization of Jagdish Prasad and others.
5. It was further submitted on behalf of the petitioner that the notice
dated 13.09.2011 received from the Office of the Divisional Labour
Commissioner (Central) had a copy of statement of claim containing
the names of 167 workmen who were as follows:
S.No. Name
1 Jagdish
2 Raju
3 Ramesh Chand
4 Ram Niwas
5 Vinod Kumar
6 Radhey Lal
7 Lallan Tiwari
8 Bhogi Lal
9 Birender Singh
10 Jagdir Singh
11 Ali Jan
12 Bal Mukand
13 VS Ganeshan
14 Ramesh
15 Sheesh Pal
16 Kali Charan
17 Naresh Kumar
18 Ram Prasad
19 Raj Kumar
20 Shiv Shankar
21 Hari Kishan
22 Ganga Das
23 Padam Singh
24 Vijay Kumar
25 Ashok Kumar
26 Ranbir Singh
27 Kishan Pal
28 SP Singh
29 AP Singh
30 Ranbir Singh Ch.
31 Manoj Kumar
32 S Andawar
33 Satish Kumar Suri
34 Shankar
35 Hari Singh
36 Ram Veer
37 VP Singh
38 Bhole Ram
39 Kanta
40 Kandaswamy
41 Mani Ram
42 Mahesh Babu
43 Naresh Panwar
44 Panchi Ram
45 Yashoda
46 V Bomiah
47 SN Roy
48 Thakur Das
49 Joginder Singh
50 Jaswant Singh
51 Jagdish Chandar
52 Girjanand
53 Nand Lal
54 Akbar
55 Shakeena
56 Narayan Bhura
57 MI Yadav
58 Deepak Kumar Mahto
59 Surender Singh
60 Prem Pal
61 Chandra Pal
62 Satyaner Pal
63 Rajender Singh Bisht
64 Parmesh Tyagi
65 Sri Chand
66 Umed Singh
67 Ashok Tyagi
68 Prabhu Dayal
69 S Shanmugam
70 Shiva
71 Liyak Ali
72 Kali Charan
73 Baleshwar Tyagi
74 Lalsa
75 Ram Babu
76 Vijay Pal Singh
77 VS Murgen
78 Ratan Pal
79 Daya Chand
80 Rakesh
81 Shvoraj
82 Anil Massey
83 RS Tyagi
84 Ramesh Kumar
85 Birender Kumar
86 Ram Kumar
87 Ram Lal
88 Ganesh Murgan
89 Soran
90 Prem Singh Yadav
91 Udaibeer Singh
92 Yashwant Singh
93 Kailash Chand
94 Kishor Deen
95 Devi Charan
96 Balewhwar Dayal
97 ID Prasad
98 DK Tyagi
99 Mahender
100 Kiran Pal
101 Kishan Chand
102 R Nagenderan
103 Ram Babu
104 Mohan Lal
105 Mohan Kumar
106 Nirakar Das
107 Ramesh Gupta
108 Narayan Singh
109 Bhuban Prasad
110 Ashok Chopra
111 Umesh Kumar Singh
112 A Mani
113 Raj Pal Sehrawat
114 Daya Ram
115 Indira Lal
116 Vinod Kumar
117 Chinta Mani
118 Ram Khiladi
119 Veer Pal
120 MS Baskharan
121 Lakhi Ram
122 Raja Singh
123 Ram Lal Sharma
124 Ram Kumar
125 Rajender Singh
126 Ramavtar
127 Harish Chand
128 Babu Lal
129 M Thriuvasugam
130 Jayanti
131 Somnath
132 Veeru
133 Sukhbir Singh
134 Briendra Kumar
135 Suresh
136 BP Singh (I)
137 Lalit Prasad
138 Mahender Singh
139 Naresh Kumar
140 Lal Shah
141 Ram Babu
142 Rajesh
143 Ashok Kumar
144 Naresh Kumar
145 Sulekh Chand
146 Laxmi
147 Kamla
148 Jyoti Swaroop
149 Devendra Kumar Tyagi
150 Mahender Singh
151 Ram Kishan
152 Kishan Chand
153 Balwant Singh
154 Garib Chand
155 K Channa Durai
156 KK Mukandan
157 Tejpal Singh
158 Prem Singh Yadav
159 Inder Dev Prasad
160 Baleshwar Dayal
161 Rakesh
162 Ishwar Deen
163 Gyan Singh Rawat
164 TV Thapa
165 Balbir Singh Rawat
166 K Shanmugan
167 M Shiva Kumar
The said notice apart from being addressed to the petitioner was also
addressed to Goyal Services and O.P. & Associates (Contractors).
6. The petitioner further submitted that the statement of claim had
been signed by five persons and that the petitioner no.4 herein was in
the capacity of an alleged and unrecognized union by the name of
Jagdish Prasad and that there was nothing to show that the President
and the signatory of the statement of claim were duly authorized by
other persons as listed in the statement of claim.
7. The petitioner thus submitted that the very initiation of
proceedings was without any authorization and authentication. It was
further submitted on behalf of the petitioner that the petitioner had
participated in the conciliation proceedings and filed a detailed written
statement dated 14.10.2011 challenging the claims of the respondent
concluding that the claim of the respondents/workmen was barred by
the principle of resjudicata and submitted that the said written statement
was submitted during the conciliation proceedings on 18.10.2011. The
petitioner has further submitted that the President of the Union moved
an application dated 23.03.2011 before the Conciliation Officer for
deletion/addition of the names of the workers in the list as filed in the
statement of claim and in the said application, the grounds raised for
deletion was that certain workers were working against their own
interest and were no longer members of the Union and thus the Union
and other workers decided to delete the name of such workers and the
Union sought the deletion of the names of 13 workers and addition of
seven workers in its place. It has been submitted on behalf of the
petitioner that this application was not allowed by the Conciliation
Officer nor was there any amendment ever directed to be carried out.
The said application for deletion/addition of names of workers in the
list of workers filed with the statement of claim as submitted before the
Assistant Labour Commissioner (Central) states that:
"That the claimant had raised the above Industrial Dispute for
the regularization of the services of the workers named in
Annexure P-1 attached there to. It is submitted that since the
workers named here under in this para had been working against
the interest of the workers and since they are no more the
members of the above union, the union and the other claimant
workers have decided to remove the names of the following
workers from the array of parties/list of workers:
69. S Shanmugam
70. Shiva
75. Lalsa
93. Yashwant Singh
96. Devi Charan
141. Lalshah
149. Jyoti Swarioop
150. Devendra
Kumar Tyagi
156. K Channa Dural
157. KK Mukandan
158. Tejpal Singh
165. TB Thapa
168 M Shiva Kumar
and further stated vide para-2 to the effect that:
"The union and the other workers have also decided to implead
the names of the following workers who were unfortunately left
out from being included in the list of workers due to typographical
error
66. Vikram Chander Pal Singh
156. Lalit Prasad Girja Dutt
158. Ch. Mahinder Late Chaman Lal
Singh
159. Shashi Rawat Late Shri Balbir
Rawat
160. Davki Banola Late Anant Singh
Banola
161. Bhram Pal Late Shri Bhule
Ram
162. Vinod Shri Kashmiri Lalo
8. The said application thus stated that the final list covered in the
Industrial Dispute was as per the amended list of workers to the effect:
S.N Name Father's Name Date of Salary
o. Joining
1 Jagdish Nanne 11.02.2003 11400.00
2 Raju Kalu Ram 01.03.1980 11400.00
3 Ramesh Chand (15) Sohan Pal 01.01.1980 11400.00
4 Ramesh (Sup.) Late Lohre 06.01.1982 12000.00
5 Ram Niwas Shambhu Lal 07.04.1981 11400.00
6 Vinod Kumar (CC) Som Dutt 15.06.1989 11400.00
7 Radhey Lal Nanak Chand 01.11.2003 11400.00
8 Lallan Tiwari Gauri Shankar 15.06.1987 11400.00
9 Bhogi Lal Man Singh 16.06.1981 11400.00
10 Virender Singh Tora Ram 26.03.1982 11400.00
11 Jagdir Singh Sube Singh 01.01.1982 11400.00
12 Ali Jan Chhuda Khan 01.06.1989 11400.00
13 Bal Mukand Harihar Prasad 10.10.1980 11400.00
14 VS Ganeshan V. Subramani 15.05.1982 11400.00
15 Sheesh Pal Nanuha 01.07.1989 11400.00
16 Kali Charan Nanha Singh 13.05.1990 11400.00
17 Naresh Kumar Shri Shyam Lal 01.04.1984 11400.00
18 Ram Prasad Nanuha 01.04.1990 11400.00
19 Shiv Shankar Kalu Chand 17.10.1993 11400.00
20 Hari Kishan Namraj 24.06.1986 11400.00
21 Ganga Das Bansi Das 21.06.1981 11400.00
22 Padam Singh Rattan Lal 08.11.1981 11400.00
23 Vijay Kumar Hari Bajan 10.01.1990 11400.00
24 Ashok Kumar Hemraj 20.06.1981 11400.00
25 Ranbir Singh Mulayam Singh 01.01.1986 12000.00
26 Kishan Pal Joravar 01.07.1987 11400.00
27 SP Singh Jagbhadur Singh 25.11.1985 11400.00
28 AP Singh Ghanshyam Pd. 02.01.2001 11400.00
Singh
29 Ranbir Singh Ch. JM Singh 01.04.1982 12000.00
30 Manoj Kumar Lat. A Chitya 15.06.1982 12000.00
31 S Andawar Subramaniam 15.06.1980 11400.00
32 Satish Kumar Suri Jaswant Singh 29.10.1982 11400.00
33 Shankar Laxman 01.07.1981 11400.00
34 Hari Singh Late Suraj Bhan 15.06.1982 11400.00
35 Ram Veer Ganesh 15.06.1982 11400.00
36 BP Singh Lal Mohar Singh 01.01.1983 11400.00
37 Bhule Ram Totla Ram 01.01.1980 11400.00
38 Kanta Usi Masi 09.03.1981 11400.00
39 M Kandaswamy Muthu 15.06.1980 11400.00
40 Mani Ram Perumal 01.01.1980 11400.00
41 Mahesh Babu Shri Ram Charan 03.11.1983 11400.00
42 Naresh Panwar Panu 01.17.1980 11400.00
43 Panchi Lal Late Jai Ram 17.02.1981 11400.00
44 Yasoda Lt. Chanden 15.06.1979 11400.00
Singh
45 V Bhomia VV Villigiri 01.01.1980 11400.00
46 SN Roy Ram Vilas Roy 01.01.1981 12000.00
47 Baleshwar Tyagi Babu Ram Tyagi 01.07.1981 11400.00
48 Anil Massey Lt. Banne Massey 01.12.1982 11400.00
49 Mohan Kumar Jagat Singh 03.03.1981 11400.00
50 Mohan Lal Raj Kumar 15.06.1980 11400.00
51 Ashok Chopra Shri SP Chopra 15.06.1980 11400.00
52 Vinod Kumar Kishan Chand 15.06.1980 11400.00
Sharma
53 M Silva Raj Muttu Virappan 24.07.1998 11400.00
54 Naresh Kumar Malkhan Singh 15.06.1996 11400.00
55 Raghvinder Singh Shri Mishri Lal 15.06.1982 11400.00
56 Tajwar Singh Trilok Singh 15.06.1980 11400.00
Rawat
57 S. Pandian Lt. Shri 01.05.1995 11400.00
Shankaran
58 Bablu Lt. Sh. Bachha 15.06.1979 11400.00
Yadav
59 Sant lal Lt. Shri Nath 01.05.1982 11400.00
60 Sneh Jain Lt. Shri VK Jain 09.10.1979 11400.00
61 Ram Pal Mahuya Ram 15.061983 11400.00
62 Mahender Singh Chidha Lal 15.06.1982 11400.00
63 Kishan Gopal Lt. Kalka Gopal 15.06.1982 11400.00
64 NB Joshi Sh. Chinta Mani 15.061982 11400.00
Joshi
65 Raj Kumar Lt. Ram Pat 28.11.1982 11400.00
66 Vikram Chander Pal 15.06.1980 11400.00
Singh+D142
67 Narayan Singh Hira Singh 18.01.1981 11400.00
68 Udaibir Singh Lt. Babu Singh 15.06.1979 11400.00
69 Ashok Kumar Sh. Shiv Charan 15.06.1982 11400.00
Lal
70 Rajesh Kumar Sh. Murgesh 15.06.1979 11400.00
71 Joginder Singh Sh. Mange Ram 15.06.1970 11400.00
72 Jaswant Singh Lt. Sh. Ved Ram 15.06.1982 11400.00
73 Jagdish Chander Sh. Tara Dutt 15.06.1980 11400.00
74 Girjanand Sh. Hira Lal 15.06.1976 11400.00
Vishkarma
75 Nand Lal Sh. Chetu Nishad 15.06.1980 11400.00
76 Akbar Shekh Kalu 15.06.1979 12000.00
77 Shakeena w/o Shekh Akbar 15.06.1983 11400.00
78 ML Yadav Roshan Lal 15.061980 12000.00
79 Deepak Kumar Lt. Gopal Mahto 15.061983 11400.00
Mahto
80 Surender Singh Sh. Babu Singh 15.061980 11400.00
81 Prem Pal Lt. Sh. Bhupi Ram 15.061979 12000.00
82 Narain Singh Bahura Ghanshyam 01.05.1982 12000.00
Bahura
83 M Murgeshan Lt. Sh. 15.06.1982 11400.00
Muthuswami
84 Khudi ram Lt. Sh. 01.01.1979 11400.00
Panchanand
85 RS Tyagi Lt. Sh. AS Tyagi 10.06.1982 12000.00
86 Shyam Raj Lt. K. Bhaskaran 08.07.1982 12000.00
87 Sheikh Mohmd. Shri Shekh Akbar 01.01.1981 11400.00
88 Gokul Chand Sh. Dhamodar 01.01.1982 12000.00
Padhi
89 Chander Pal Lt. Tika Ram 01.01.1980 11400.00
90 Satyaner Dev Pawar Lt. VD Paawar 15.06.1980 11400.00
91 Rajender Singh Bisht Pan Singh 04.06.1981 11400.00
92 Parmesh Tyagi Lt. S. Swroup 15.11.1981 11400.00
93 Siri Chand Ganda Lal 01.05.1980 11400.00
94 Umed Singh Dev Dass 02.04.1982 11400.00
95 Ashok Tyagi Lt. Rajinder Singh 01.05.1982 11400.00
96 Prabhu Dayal Ram Piyre 01.01.1992 11400.00
97 Vijay Pal Singh Ram Ratan 01.05.1990 11400.00
98 VS Murgan V. Subramani 06.06.1981 11400.00
99 Ratan Pal Prem Singh 02.02.1982 11400.00
100 Dayachand Lt. Ratan Singh 01.05.1988 11400.00
101 Rakesh Lt. Sumer Chand 01.01.1981 11400.00
102 Naresh Kumar Lt. Sh. Laxmi 01.01.1982 11400.00
Narayan
103 Shyoraj Kripal Singh 01.05.1979 11400.00
104 Ram Babu Krishan Pal 02.04.1982 11400.00
105 Garib Chand Jodha Ram 02.01.1982 12000.00
106 Ram Kumar RG Singh 01.01.1979 11400.00
107 Ram Lal Pashu Ram 01.05.1995 11400.00
Sharma
108 K Shanmugam Shri Kandswamy 15.06.1980 11400.00
109 Liyak Ali Asrafali 15.06.1980 11400.00
110 Kali Charan Shri Sabdi Ram 15.06.1980 11400.00
111 M Laxmi w/o Lt. S. 24.07.1998 11400.00
Murugan
112 Kamla Devi Nand Lal 15.06.1996 11400.00
113 Soran Singh Sh. Sabdi Ram 15.06.1982 11400.00
114 Prem Singh Yadav Sh. Kalyan Singh 15.06.1980 11400.00
Yadav
115 Suresh Chand Shankar Lal 01.05.1995 11400.00
116 Balwant Singh Harbans 09.10.1979 11400.00
117 Kailash Chand Chhitarpal 15.06.1983 11400.00
118 Baleshwar Dayal Shri Jhandu Singh 15.06.1982 11400.00
119 ID Prasad Ram Sahaay 15.06.1982 11400.00
Mehto
120 Mahinder Singh Shri Kishanchand 28.11.1982 11400.00
121 Kiran Pal Singh Lt. Hari Ram 15.06.1980 11400.00
Singh
122 Krishan Chand Shri Hari Om 18.01.1981 11400.00
123 Sulekh Chand Ghyasi Ram 15.06.1979 11400.00
124 Balbir Singh Rawat Lt. Trilok Singh 15.06.1982 11400.00
Rawat
125 Prem Singh Ranna Hoshiyar Singh 15.06.1979 11400.00
Rana
126 Rakesh Sh. Gaina Singh 15.06.1982 11400.00
127 Ram Kishan Shri Sanna Ram 15.06.1980 11400.00
128 VS Murgan V. Subramani 15.06.1980 11400.00
129 R. Nagenderan Shri K. 15.06.1983 11400.00
Ramaswamy
130 Gyan Singh Shri. Khushyal 15.06.1980 11400.00
Singh
131 Birender Kumar Lt. Kidarnah 15.06.1982 11400.00
132 Nirakaar Dass Lt. Birgidass 01.01.1979 11400.00
133 Ramesh Gupta Lt. Moti Ram 10.06.1982 11400.00
Gupta
134 Narayan Singh Lt. Prem Singh 08.07.1982 11400.00
135 Bhuban Prasad Lt. Raghu Singh 01.01.1981 12000.00
136 Umesh Kr. Singh Lt. Chandeshwer 01.01.1982 11400.00
137 A.Mani Lt. Rugam 01.01.1980 11400.00
138 Raj Pal Sehrawat Lt. Rai Singh 15.06.1980 11400.00
139 Daya Ram Ghenda Ram 04.06.1981 11400.00
140 Indira Lal Ghasitasram 15.11.1981 11400.00
141 Chinta Mani Lt. Gunanand 01.05.1980 11400.00
142 Ram Khiladi Lt. Ram Dayal 02.04.1982 11400.00
143 Veer Pal Lt. Chote Lal 01.05.1982 11400.00
144 MS Bhaskaran Lt. S Satyar 01.01.1992 11400.00
145 Lakhi Ram Lt. Bhadiya Ram 01.05.1990 11400.00
146 Raja Singh Lt. Laxman Singh 06.06.1981 11400.00
147 Rajinder Singh Lt. Khem Singh 02.02.1982 11400.00
148 Ramavtar Sh. Chhatnu Ram 01.05.1988 11400.00
149 Harish Chand Lt. Nanak Chand 01.01.1981 11400.00
150 Babu Lal Lt. Kalidin 01.01.1982 11400.00
151 M Thriuvasugam M. 01.06.1980 11400.00
Muthumalayam
152 Jyanti Naneh Lal 01.05.1979 11400.00
153 Somnath Lt. Gathia 02.04.1982 11400.00
154 Veeru Lt. VK Lal 02.01.1982 11400.00
155 Sukhveer Singh Lt. Sukha Singh 01.01.1979 11400.00
156 Suresh Chhantaru 01.05.1995 11400.00
157 Lalit Prasad Girja Dutt 05.06.1982 11400.00
158 Ch. Mahinder Singh Lt. Chaman Lal 01.01.1979 11400.00
159 Shashi Rawat Lt. Shri Balbir 15.10.2001 11400.00
Rawat
160 Davki Banola Lt. Annat Singh 20.10.2001 11400.00
Banola
161 Braham Pal Lt. Shri Bhola 18.10.1985 11400.00
Ram
162 Vinod Shri Kashmiri Lal 01.01.1980 11400.00
163 Surender Pal Singh Lt. Sh. Peetam 03.03.1981 11400.00
Singh
9. The petitioner submitted that vide this application, the Union had
sought to delete the names of thirteen workers and to add seven workers
in its place and this application was never allowed by the Conciliation
Officer nor was there any amendment ever directed to be carried out.
Inter alia the petitioner submitted that the application sought deletion
in the list in which the name of one person Lalsa appeared twice and it
was further submitted that in the amended list of workers submitted with
the application for deletion/addition of names of the workers in the list
of workers filed with the statement of claim serial no.73 was missing
from the list and the name of Lalsa appeared at serial no.75 and 141 of
the said list.
10. Inter alia the petitioner submitted that the President of the
respondent's Union vide another application dated 23.03.2012
requested the Conciliation Officer to implead the names of the new
contractors by the name of M/s. Aroon Aviation Services (Pvt.) Ltd. and
M/s Oynx Management Services Pvt. Ltd. Through this application
dated 23.03.2012, it was stated by the claimant/workers through Jagdish
Prasad, President of the Delhi State General Workers Congress to the
effect:
"It is stated that it is the BHEL who had initially engaged the
claimant workers directly and after few years the workers were
shown to have been engaged through its different agencies. It is
also reiterated that the claimant workers were already working for
the BHEL management when the present agencies of BHEL was
engaged by the BHEL Management and the services of the
claimant workers are continued without any break by the above
management in-spite of the repeated change or the agents. After
the engagement of the present agencies by the management of
BHEL, the claimant workers, who were earlier shown to have been
engaged through the earlier agents i.e. M/s Goel Services are now
shown to have been engaged through the new agencies namely M/s
Aroon Aviation Services (Pvt.) Ltd. and M/s Oynx Management
Services Pvt. Ltd., both c/o BHEL, BHEL House, Siri Forth, New
Delhi-110049. (registered office)
That in order to facilitate the conciliation proceedings and to make
it more meaningful, it is necessary that the present agencies of the
BHEL through whom it has engaged the claimant workers, be also
impleaded as party Respondents. Both the agencies have to be
served at the address of the BHEL management.
In the premises mentioned above, it is most respectfully prayed
that this Hon'ble commission be pleased to implead the present
agencies of BHEL as party Respondents to the above conciliation
proceedings."
and the petitioner submitted that the contractors are independent and
have their own addresses as mentioned in the memo of parties of the
present petition.
11. Vide notice dated 10.05.2012, the Assistant Labour
Commissioner (Central) issued notice to the existing contractors i.e.
M/s Oynx Management Services Pvt. Ltd. and M/s. Aroon Aviation
Services (Pvt.) Ltd. apart from O.P. & Associates and M/s Goel
Services.
12. M/s. Aroon Aviation Services (Pvt.) Ltd. submitted its written
statement before the Assistant Labour Commissioner stating that it had
recruited the claimant worker w.e.f. 01.07.2011 for the period of the
contract. The petitioner has further submitted that the respondent
workmen vide their rejoinder dated 22.08.2012 submitted a further
amended list of workers comprising 161 workmen.
13. The petitioner has further submitted that on a perusal of the
records and after protracted discussion, the conciliation proceedings
failed and the Office of the Regional Labour Commissioner thus
submitted its report of failure of conciliation proceedings to the
Secretary, Government of India, Ministry of Labour and Employment
on 01.04.2013 and for the first time without allowing any application
for deletion/addition of names of workmen, the cause title of the failure
report was altered as follows:
"Sub: Industrial Dispute raised by Shri Udaibir Singh, Deepak
Kumar etc. through Shri Jagdish Prasad, President, Delhi State
General Workers Congress against the management of Bharat
Heavy Electricals Limited and its contractors."
It has been submitted by the petitioner that such material alteration
could not have been made in the final report without allowing
addition/deletion of names and without accepting any particular list as
the conclusive list before the Conciliation Officer. The petitioner further
submitted that an office memorandum no.L-42011/55/2013 - IR(DU)
dated 10.06.2013 was issued by the Under Secretary, Government of
India, Ministry of Labour stating therein that upon consideration of the
facts and circumstances of the case and the contention of the parties, it
was proposed to refer the dispute to the Industrial Tribunal for
adjudication on the following terms of reference:
"Whether the action of the management of B.H.E.L in not
regularizing the employment of Shri Udaibir Singh and 163
others and engagement of the said workers through M/s. Aroon
Aviation Services Pvt. Ltd. and M/s. Oynx Management Services
Pvt. Ltd., as per annexures, is legal and justified? To what relief
the workmen are entitled to?"
It was also stated in the said adjudication proposal dated 10.06.2013 to
the effect:
"M/o Heavy Industries & Public Enterprises are requested
kindly to advise the management to settle the dispute amicably
by discussion with the concerned union/workmen and/ or furnish
their comments to this Ministry within a period of 30 days, failing
which it will be presumed that they have no objection to the
dispute being referred for adjudication."
14. Vide order dated 25.07.2013 as already adverted to elsewhere
hereinabove, the Central Government opined that an industrial dispute
exists between the employers in relation to the management of BHEL
House and their workmen and referred the matter to adjudication as
already adverted to elsewhere hereinabove to the CGIT-cum-Labour
Court.II.
15. The petitioner further submitted that apart from the factum that it
was not served with any statement of claim with the notice calling upon
him to appear before the CGIT, the cause title of the claim read as:
"Shri Udaibair Singh & 163 others
C/o Sh. Jagdish Prasad,
President, Delhi State General Workers Congress,
8/425, Trilok Purl
Delhi-110091
Versus
1. The CMD
Bharat Heavy Electricals Ltd.,
BHEL House, Siri Fort, ,
New Delhi-49
2. M/s Arron Aviations Services Ltd.,
C/o Bharat Heavy Electricals Ltd.,
BHEL House, Siri Fort,
New Delhi-49
3. M/s Oynx Management Services Pvt. Ltd.
C/o Bharat Heavy Electricals Ltd.,
BHEL House, Ski Fort,
New Delhi-49."
16. The petitioner further submitted that whereas this first title at the
stage of conciliation read as 'Shri Udaibir Singh & 163 others', the
notice issued by the CGIT was issued to the petitioner in the name of
Jagdish Prasad and Others. The petitioner submitted that the letter of
authority filed along with the statement of claim does not bear the
signatures of the workmen alleged to have been parties to the
proceedings and the list of names furnished as claimants do not bear
any particulars of the claimants, the nature of the jobs performed by
them and the name of the contractor who was the employer of such
workmen and there was material alteration and random
deletion/addition of names resulting in huge variation even in the name
of the workmen from the list that was submitted by the workmen/union
which was annexed as Annexure-P to the petition with the names of the
workmen at serial nos.1 to 164 being to the effect:
S.No Name
.
1 Udaibir Singh
2 Raju
3 Ramesh Chand (15)
4 Ramesh (Sup.)
5 Ram Niwas
6 Vinod Kumar (CC)
7 Radhey Lal Ranga
8 Lallan Tiwari
9 Bhogi Lal
10 Virender Singh
11 Jagdir Singh
12 Ali Jan
13 Bal Mukand
14 VS Ganeshan
15 Shesh Pal
16 Kali Charan
17 Naresh Kumar
18 Ram Prasad
19 Shiv Shankar
20 Hari Kishan
21 Ganga Das
22 Padam Singh
23 Vijay Kumar
24 Ashok Kumar
25 Ranbir Singh
26 Kishan Pal
27 SP Singh
28 AP Singh
29 Ranbir Singh Ch.
30 Manoj Kumar
31 S Andawar
32 Satish Kumar Suri
33 Shankar
34 Hari Singh
35 Ram Veer
36 BP Singh
37 Bhule Ram
38 Kanta
39 M Kandaswamy
40 Mani Ram
41 Mahesh Babu
42 Naresh Panwar
43 Panchi Lal
44 Yasoda
45 V Bhomia
46 SN Roy
47 Baleshwar Tyagi
48 Anil Massey
49 Mohan Kumar
50 Mohan Lal
51 Ashok Chopra
52 Vinod Kumar Sharma
53 M Silva Raj
54 Naresh Kumar
55 Raghvinder Singh
56 Tajwar Singh
57 S. Pandian
58 Bablu
59 Sant lal
60 Sneh Jain
61 Ram Pal
62 Mahender Singh
63 Kishan Gopal
64 NB Joshi
65 Raj Kumar
66 Vikram
67 Narayan Singh
68 Jagdish
69 Ashok Kumar
70 Rajesh Kumar
71 Joginder Singh
72 Jaswant Singh
73 Jagdish Chander
74 Girjanand
75 Nand Lal
76 Akbar
77 Shakeena
78 ML Yadav
79 Deepak Kumar Mahto
80 Surinder Singh
81 Prem Pal
82 Narain Singh Bahura
83 M Murgeshan
84 Khudi ram
85 RS Tyagi
86 Shyam Raj
87 Shekh Mohmd.
88 Gokul Chand
89 Chander Pal
90 Satyaner Dev Pawar
91 Rajender Singh Bisht
92 Parmesh Tyagi
93 Siri Chand
94 Umed Singh
95 Ashok Tyagi
96 Prabhu Dayal
97 Vijay Pal Singh
98 VS Murgan
99 Ratan Pal
100 Dayachand
101 Rakesh
102 Naresh Kumar
103 Shyoraj
104 Ram Babu
105 Garib Chand
106 Ram Kumar
107 Ram Lal
108 K Shanmugam
109 Liyakan Ali
110 Kali Charan
111 M Laxmi
112 Kamla Devi
113 Soran Singh
114 Prem Singh Yadav
115 Suresh Chand
116 Balwant Singh
117 Kailash Chand
118 Baleshwar Dayal
119 ID Prasad
120 Mahinder Singh
121 Kiran Pal Singh
122 Krishan Chand
123 Sulekh Chand
124 Balbir Singh Rawat
125 Prem Singh Ranna
126 Rakesh
127 Ram Kishan
128 VS Murgan
129 R. Nagenderan
130 Gyan Singh
131 Birender Kumar
132 Nirakaar Dass
133 Ramesh Gupta
134 Narayan Singh
135 Bhuban Prasad
136 Umesh Kr. Singh
137 A. Mani
138 Raj Pal Sehrawat
139 Daya Ram
140 Indira Lal
141 Chinta Mani
142 Ram Khiladi
143 Veer Pal
144 MS Bhaskaran
145 Lakhi Ram
146 Raja Singh
147 Rajinder Singh
148 Ramavtar
149 Harish Chand
150 Babu Lal
151 M Thriuvasugam
152 Jyanti
153 Somnath
154 Veeru
155 Sukhveer Singh
156 Suresh
157 Lalit Prasad
158 Ch. Mahinder Singh
159 Shashi Rawat
160 Davki Banola
161 Braham Pal
162 Vinod
163 Surender Pal Singh
164 Harish Kumar
17. The petitioner submitted that it filed an application dated
19.03.2014 before the CGIT for furnishing of better particulars
including that of authorization by the listed persons in their favour and
also sought therein that the claimant be directed to suitably amend the
list of claimant workers in the statement of claim as filed in the
conciliation proceedings. It was further submitted on behalf of the
petitioner that however, the CGIT directed the workmen to file reply to
the said application but directed the petitioner herein to file its written
statement and in the absence of any detail being furnished by the
respondent workmen, thus the petitioner was left with no option but to
file a provisional written statement dated 30.04.2014 and sought to file
a detailed written statement at an appropriate stage.
18. The petitioner has submitted that the claimants had deliberately
manipulated the documents and had gone to the extent of even changing
the names of the workmen in the conciliation proceedings and in the
present reference and that the irregularities and illegalities were so
manifest and arise out of an administrative order of which there can be
no positive directions issued by the Labour Court and thus the petitioner
had filed the present petition in as much as the reference is patently
illegal in the light of the conciliation proceedings which forms the very
basis for initiation of an industrial dispute and there is an error apparent
on the records of the failure report filed by the Conciliation Officer,
wherein an incorrect list of workmen had been furnished, some of
whom were never a party to the conciliation proceedings and that even
the cause title of the Reference had been altered at the behest of the
workmen without any rhyme or reason. The petitioner has thus
submitted that the illegality is not only apparent but is bound to
culminate in miscarriage of justice if the order of reference is not set
aside.
19. The respondent no.166 arrayed to the present petition i.e. M/s
Oynx Management Services Pvt. Ltd. who stated that it was an
independent contractor of the petitioner supported the claim of the
petitioner and submitted that there was an alteration in the name of
workmen in the Memo of Parties in the original memorandum
submitted before the ALC in the conciliation proceedings and the final
list of names submitted by the ALC to the appropriate government with
the failure report for making a reference and that the Conciliation
Officer had not passed any order in favour of the workmen to amend
the memo of parties and names of workmen and submitted that such
alteration could not have been made in the final report without allowing
deletion/addition of the names and without accepting any particular list
as the conclusive list before the Conciliation Officer.
20. The counter affidavit of the respondent no.165 M/s Aroon
Aviation Services Pvt. Ltd. was to similar effect and likewise supported
the contention of the petitioner to similar effect as of the respondent
no.166 M/s Oynx Management Services Pvt. Ltd.
21. The respondent nos.167 to 168 to the present petition i.e. Union
of India and the Secretary, Government of India, Ministry of Labour
and Employment through the counter affidavit of Shri SK Das,
Regional Labour Commissioner (Central) who is working with
respondent no.168 stated vide para 1 & 2 of the counter affidavit to the
effect:
"1. The workmen numbering 167 engaged by two contractors of
Bharat Heavy Electricals Ltd. raised an industrial dispute against
the management of BHEL on 13.09.2011 through Delhi State
General Worker's Congress under the Industrial Disputes Act,
1947 before the-then Assistant Labour Commissioner(C) and
Conciliation Officer claiming regularisation in the services of
Bharat Heavy Electricals Ltd.
2.Although the list of the workmen raising the dispute contained the
name of Sh. Jagdish Prasad at SI. No. 1, the representation was
signed by four workmen namely Sh. Udaybir Singh, Sh. Deepak
Kumar, Sh. Mahendra Singh and Sh. Ramesh Kr. Gupta, all
belonging to the Union, Delhi State Workers Congress. As such the
title of the dispute was subsequently changed from Jagdish Prasad
and others Vs. BHEL' to 'Udaibir Singh and others Vs. BHEL', as
the same did not materially change the dispute or claim of the
workmen in any way."
and further submitted to the effect that:
5. The union thereafter submitted two applications both dated
23.03.2012 addressed to Conciliation Officer, which was received
in the office on 23.03.2012, under the signatures of Sh. Udaibir
Singh and 3 others. In one application the union requested for
deletion of 13 workmen on the ground that they no more owed
allegiance to the union and simultaneously requested to add 7
workmen on the ground that it was a typographical mistake on the
part of the union not to have included their names in the list earlier
submitted by them. However, the consolidated list of workmen
submitted by the union marked as 'Annexure A' to their application
contained 164 names of the workmen. This is to add that in the list
submitted by the union to the Conciliation Officer along with their
application, the details of 164 workmen including their father's
names, dates of joining and salary drawn were mentioned.
The Second application contained a request from the union to
implead two contractors namely M/s Aroon Aviation Services (P)
Ltd. and M/s Oynx Management Services Pvt. Ltd. as additional
parties.
6. However, the conciliation officer had already issued a notice to
M/s Aroon Aviation Services (P) Ltd. amongst others on
23.02.2012. Taking cognizance of the request of the union as
mentioned above, the conciliation officer issued a notice also to M/s
Oynx Management Services Pvt. Ltd. on 10.05.2012 amongst
others.
22. Inter alia the counter affidavit for the respondent nos.167- 168
vide para-7, 8 & 9 states to the effect:
"7) Although it is not clear from the conciliation proceedings as
to whether the union's application along with the list of 164
workmen were passed on to the management, generally during
the conciliation proceedings the communications made by the
parties are exchanged between them.
8) M/s Oynx Management Services Pvt. Ltd and M/s Aroon
Aviation Services (P) Ltd. submitted their respective written
statements in response to which the union submitted rejoinders
enclosing there with a list of 161 workmen.
9) It is observed from the proceedings and the concerned file
maintained by the then conciliation officer, different lists of
workmen consisting of names of 167,164, 162, 163, 161 workmen
have been submitted."
23. Inter alia through the said counter affidavit submitted for
respondent nos.167 & 168 vide para-10 thereof it was submitted to the
effect that :
"10) Although there is no specific proceeding in regard to
allowing the union for amendment of the list of 167 workmen
initially submitted by them, the facts of the mention of the no. of
workmen as 164 in the proposed terms of reference as well as in
the 'subject' on the body of the report and also the submission of
the list of 164 workmen with the report on FOC by the
Conciliation Officer to the Government imply that the request of
the union in this regard was acceded to by the Conciliation
Officer. It may be mentioned here, that there was no other list
submitted by the Conciliation Officer to the govt. which consisted
164 names. The objective of conciliation proceeding is to
persuade both the parties to arrive at an amicable settlement.
During the course of conciliation, the parties submit their
respective points of view both in writing as well as orally. The
Conciliation Officer is often not in a position to record each and
every statement made by the parties during conciliation. There
is no specific proceeding about impleading additional parties in
the dispute, but having taken cognizance of the request of the
union, the two contractors namely M/s Oynx Management
Services PVt. Ltd. and M/s Aroon Aviation Pvt Ltd. had been
included as parties and notices were issued to them."
24. The respondent nos.167 to 168 had further submitted through
parawise reply to the petition to the effect that:
"The allegations levelled by the petitioner in this paragraph are
true only to a very limited extent. The dispute between the
management of BHEL and its workmen revolves around the
issue of regularization of their services in the company as they
have been working in the organization through contractors for
years. The moot question to be decided in the dispute is whether
the workmen deserve to be regularized. On this core issue the
petitioner did never come out with clear submissions either
during the course of conciliation or afterwards in the CGIT in
as much as in this instant writ petition there is no whisper from
the side of the petitioner about the claim of the workmen for
regularization. Assuming but not admitting that the list of 164
workmen submitted by the-then Conciliation Officer to the
Government with the report on Failure of Conciliation (FOC)
and thereafter by the Government to the CGIT is wrong, the
petitioner has not mentioned anywhere in this W.P. as to what
exactly was wrong in the list of workmen or as to what should
have been the correct number of workmen with their details. The
petitioner also preferred not to provide the correct list it wanted
to rely on even to the CGIT. Further, in the instant petition the
petitioner has pointed out just two irregularities observed by it
in the list of workmen that the name of one workman has been
mentioned twice at SI. No. 75 & 141 in the list containing the
names of 168 workmen and further that the SI. No. 73 is missing
in the same list. However, as this list was not considered finally
by the Conciliation Officer as is evident from the report on
Failure of Conciliation submitted by the Conciliation Officer to
the Government, there appears to be no reason for the
Petitioner to raise this issue. Thus it is crystal clear that the
petitioner has not come with clean hands in filing this Writ
Petition before this Hon'ble Court. It is also clear that the
petitioner did not deliberately want the lapse, if any, on the part
of the conciliation officer to be corrected and as such refrained
from submitting the correct list of workmen to the conciliation
officer. Had the petitioner submitted the same before the
conciliation officer, this litigation would not have at all arisen.
The Government before referring the dispute for
adjudication to Industrial Tribunal had even vide their letter
no.L- 42011/55/2013-IR(DU) dated 10.06.2013 (marked as
Annexure P-10 in the W.P. by the Petitioner) conveyed the
proposed terms of reference to the petitioner for their comments
meaning thereby the petitioner had an opportunity to raise the
issue as has been raised in this petition at that point of time
which could have prevented this litigation from arising. The list
of workmen not being objected to by not communicating
anything whatsoever to the Government at that time, the list was
genuinely deemed to have been accepted by the petitioner. The
illegalities and irregularities as alleged to have been
perpetuated by the respondents do not hold base as through
submissions, depositions, etc. and by leading evidence in the
tribunal the discrepancies, if any, could have been removed. The
CGIT is well within its powers to change only a few of the names
say 2 or 3 in a list of about 164 workmen through depositions
and evidences while deciding the moot terms of reference on the
issue of regularization of such a huge no. of workmen. Such a
small change on the part of the Tribunal would not have
amounted to changing the terms of reference. The whole
exercise by the petitioner through this petition appears to have
been done only in order to deviate from the main issue and delay
dispensation of justice to the poor workmen."
25. The said respondent nos.167 to 168 have further placed reliance
on the verdict of this Court in WP (C) 12602/2006 dated 24.09.2008 to
contend that a mere reference under Section 10(1) of the ID Act, 1947
does not affect anyone's right and no writ petition ordinarily can be
entertained against the mere reference under Section 10(1) of the ID
Act, 1947 and as such the petition is premature and that a writ petition
lies only when the rights of some party had been adversely affected.
Reliance was also placed on behalf of the respondent nos.167 to 168 on
the observations of the Hon'ble Surpeme Court in the case DP
Maheshwari Vs. Delhi Administration and Ors. AIR 1984 SC 153
wherein it was observed to the effect that:
"It was just the other day that we were bemoaning the
unbecoming devices adopted by certain employers to avoid
decision of industrial disputes on merits. We noticed how they
would raise various preliminary objections, invite decision on
those objections in the first instance, carry the matter to the High
Court under Art. 226 of the Constitution and to this Court
under Art. 136 of the Constitution and delay a decision of the
real dispute for years, sometimes for over a decade. Industrial
peace, one presumes, hangs in the balance in the meanwhile. We
have now before us a case where a dispute originating in 1969
and referred for adjudication by the Government to the Labour
Court in 1970 is still at the stage of decision on a preliminary
objection. There was a time when it was thought prudent and
wise policy to decide preliminary issues first. But the time
appears to have arrived for a reversal of that policy. We think it
is better that tribunals, particularly those entrusted with the task
of adjudicating labour disputes where delay may lead to misery
and jeopardise industrial peace, should decide all issues in
dispute at the same time without trying some of them as
preliminary issues. Nor should High Courts in the exercise of
their jurisdiction under Art. 226 of the Constitution stop
proceedings before a Tribunal so that a preliminary issue may
be decided by them. Neither the jurisdiction of the High Court
under Art. 226 of the Constitution nor the jurisdiction of this
Court under Art. 136 may be allowed to be exploited by those
who can well afford to wait to the detriment of those who can
ill afford to wait by dragging the latter from Court to Court for
adjudication of peripheral issues, avoiding decision on issues
more vital to them. Art. 226 and Art. 136 are not meant to be
used to break the resistance of workmen in this fashion."
(emphasis supplied)
26. Apart from refuting the contention of the petitioner that the claim
of the workmen was barred by res judicata, the respondent nos.167-168
denied that the statement of claim of the workers was not submitted with
due authority submitting to the effect that the workmen vide letter dated
02.09.2011 in the letterhead of the Delhi State General Worker
Congress authorized their union represented by Shri Jagdish Prasad to
espouse their case. The respondent nos.167-168 had further stated that
the oral cause title before the Conciliation Officer qua the dispute was
'Sh. Jagdish & Others' and the cause title mentioned in the FOC was
'Udaibir Singh & Others' which cause title was changed by the
Conciliation Officer as signatories to the initial application and
subsequent correspondences bore the signature of Shri Udaibir Singh
and two others although the name of Shri Jagdish Prasad was mentioned
at serial no.1 in the list of workmen and it was submitted on behalf of
the respondent nos.167-168 that the change of the cause title as
mentioned did not materially change the substance of the dispute in any
manner whatsoever.
27. Inter alia the respondent nos.167-168 further stated through the
counter affidavit that the proposed terms of reference along with all
enclosures was sent to the petitioner by the Ministry of Labour, Union
of India vide letter no.L-42011/55/2013-IR(DU) dated 10.06.2013 and
there was an opportunity to the petitioner to raise objection, if any, by
responding to that letter and by the fact that the petitioner did not at that
stage avail of the opportunity this aspect could not be now availed vide
the writ petition.
28. Inter alia it was submitted by the Regional Labour Commissioner
(Central) vide his affidavit dated 05.12.2014 submitted on behalf of the
respondent nos.167-168 to the effect that the terms of the reference were
not needed to be changed and what may be required to be changed to a
very limited extent is the list of workmen and such a minor change in
the list of workmen is well within the powers of the Labour Court to
carry out by leading evidence.
29. The respondent nos.1-164 through the counter affidavit of the
respondent no.51 Shri Ashok Chopra refuted the contentions of the
petitioner submitting to the effect that the petition is barred by laches in
as much as the impugned reference had been made on 10.06.2013 and
the petition had been filed after gap of a year after completion of
proceedings before the industrial adjudicator.
30. Inter alia the respondent nos.1-164 submitted that even M/s.
Aroon Aviation Services (Pvt.) Ltd., one of the agencies of the
petitioner management had not raised any dispute as regards the
discrepancies in the list of workmen filed with the statement of claim.
The respondent nos.1-164 thus submitted that there was duplication of
names in the list of workmen filed with the statement of claim and with
the permission of the ALC, the workmen had filed the correct list as
under:
Name of the Father's name Serial Submission
person Nos.
Lal Mohar Singh 37 & 137 S.No.137 was duplicate
B.P. Singh
Kedar Nath/ 86 & 135 S.No.135 was duplicate
Birendra Kumar Kidarnath Gupta therefore deleted in the
amended list and
correct workman name
is at S.No.131
Devi 95 & 163 Deleted in the amended
Ishwar Deen Charan/Devicharan list as not interested
Krishan 104, 142 S.No.142 & 76 deleted
Ram Babu Lal/Kishori Lal & 76 in the amended list.
Hari Ram 102 & S.No.153 deleted in
Krishan Chand 153 amended list &
S.No.102 correct name
at S.No.122
Salekh 99 & 150 Both the names have
D.K. Chander/Chandra been deleted in the
Tyagi/Devender amended list.
Kumar Tyagi
Ram Saneh/ Saney 98 & 160 S.No.160 deleted in the
I.D. Prasad/Inder Mahato amended list.
Dev Prasad
Late Jhandu Singh 97 & 161 S.No.161 was duplicate
Baleshwar Dayal therefore deleted in the
amended list.
Workman name is at
S.No.118
S.N. Upadhay 75 & 141 Both numbers deleted
Lalsa/Lalsah in the amended list.
Raghvinder Singh/ 87 & 125 S.No.125 was duplicate
Ram Kumar Late Raghuveer therefore deleted in the
Singh amended list and
correct workman name
is at S.No.106
Kishan Chand 100 & S.No.151 was duplicate
Mahinder Singh/ 151 therefore deleted in the
Mahender Singh amended list and the
name now exist at
No.120
31. The respondent nos.1-164 thus submitted that errors in the
original list were thus rectified in the amended list that was filed on
23.03.2012 with 163 names of workmen and since there was a
photocopying error in the list, the workmen were compelled to file
another correct list and since the name of Harish Kumar had erroneously
got deleted while preparing the list dated 23.03.2012, the fresh list had
been filed including that name also thus totalling to 164 workmen and
thus it was submitted by the respondent nos.1-164 that there was no
illegality in the said list. Inter alia the respondent nos.1-164 also
submitted that the notice dated 13.09.2011 referred to the name of
Jagdish as having the first workman in the statement of claim and Shri
Udaibir Singh was also a party at S.No.92 and that in the reference dated
25.7.2013 the name of Udaibir Singh was mentioned only because
Udaibir was the first signatory amongst the five workmen who were
authorized to sign the statement of claim.
32. To the counter affidavit of the respondent no.167-168, the
petitioner submitted that the core issue remains that there was a gross
discrepancy in the names in the various lists as a consequence of which
the authenticity of the claimants cannot be determined which was
brought forth through the counter affidavit of the respondent no.166
M/s Oynx Management Services Pvt. Ltd. The petitioner also submitted
that the factum of irregularities and inconsistency in the various list of
workmen with varying stages showing names of workmen to be 167,
164, 162, 163, 161 itself indicated the irregularities and inconsistency
in the reference and that the theory of implication is not permissible to
contend that the Conciliation Officer had taken the amended list
impliedly on the record and it was thus submitted on behalf of the
petitioner that a deliberate fraud had been perpetuated by the workmen
and sought to place reliance on the verdict of the Hon'ble Supreme
Court in Chengalvaraya Naidu (Dead) by LR's Vs. Jagannath (Dead)
by LR's and Ors. AIR 1994 SC 853 to contend that fraud or
concealment of facts by a party at whatever stage vitiates the entire
proceedings. Inter alia reliance was also placed on behalf of the
petitioner on the verdict of Hon'ble Supreme Court in MCD Vs. State
of Delhi & Anr. 2005 SCC (Crl.) 1322 to submit that where a litigant
withholds a vital document or suppresses the material facts in order to
get an advantage in the case, the case can be summarily thrown out at
any stage and that thus the respondent nos.1-164 were not entitled to
any relief. The petitioner has further submitted that discrepancies in the
list of workmen are to the effect:
"CHANGE OF CAUSE TITLE
Notice from the RLC in conciliation proceedings dated
13.9.2011 bears the cause title Jagdish & Ors. Vs. BHEL &
Ors.. Annexure PI to the Statement of Claim bears a list of
Petitioners with SI. No. 1-16 Report of failure of conciliation
dated 1.4.2013 (Page 93), Office Memorandum dated
10.6.2013 (Page 107) and notice and Statement of Claim in ID
No. 94/2013 (page 110-124) reads as
Udaibir Singh & 163 Ors. Vs. CMD BHEL & Ors. (Page 110).
b. In the first list attached with the conciliation proceedings,
LIST-A, at Page 42 of the present petition, SI. No. 73 is
missing. Thus, total number of claimants is 167 and not 168.
c. In LIST -A, there are various names that appear twice or
even thrice. The names of such persons with the SI. No. is
mentioned as under:
Name of the Father's name Serial Nos.
person
Lal Mohar Singh 37 & 137
B.P. Singh
Kedar Nath/ 86 & 135
Birendra Kumar Kidarnath Gupta
Devi 95 & 163
Ishwar Deen Charan/Devicharan
Krishan 104, 142 &
Ram Babu Lal/Kishori Lal 76
Hari Ram 102 & 153
Krishan Chand
D.K. Salekh 99 & 150
Tyagi/Devender Chander/Chandra
Kumar Tyagi
I.D. Prasad/Inder
Ram Saneh/ Saney 98 & 160
Dev Prasad Mahato
Baleshwar Dayal Late Jhandu Singh 97 & 161
Lalsa/Lalsah S.N. Upadhay 75 & 141
Ram Kumar Raghvinder Singh/ 87 & 125
Late Raghuveer
Singh
Mahinder Singh/ Kishan Chand 100 & 151
Mahender Singh
d. Since, there are Twelve names that repeat itself in LIST A,
the effective number in the List remains as 167-12= 155.
e. In the application filed by the Claimants for
addition/deletion of names of workers at Annexure P-4, no
order allowing impleadment was passed. The application was
never allowed. This has been admitted by the Respondent in
the Counter Affidavit. Yet, the I.D. bears the names of such
persons. Thus, the Reference is not maintainable in its present
form.
f. Together with the application at Page 60, two amended lists
were filed which is denoted as LIST-B. First list has SI. 1-163
and the Second list has SI.1-164 (Page 62-67) and typed list
(Page 68-74).
g. As per the list for deletion at Page 60, the name of 13
persons was requested for deletion, but, effectively, it relates
to 12 persons. The name Lalsa/Lalsha appears twice, as
pointed out earlier.
Thus, 155 - 12 = 143
h. As per the list requesting for addition, at Page 60, the name
of 7 persons was requested for addition. Thus, the total
number of claimants in the event of application for
deletion/addition having been allowed would have been 143 +
7 = 150.
i. In the two amended lists referred at Page 62 to 67, Five
additional names have been included, which was not even a
part of the amendment application.
At SI. No. 73 - Jagdish Chander
At SI. No. 75 - Nandlal
At SI. No. 141- Chinta Man
At SI. No. 163- Surender Pal Singh
At SI. No. 164- Harish Kumar
j. The application seeking addition/deletion is dated 23.3.2012
(Page 60) and the rejoinder filed by Claimant is dated
22.8.2012. Even in the rejoinder, certain names have been
altered. Admittedly, therefore, since no Order for
addition/deletion was passed, an attempt was again made for
manipulation of names. Together with this rejoinder, a third
list was filed, namely, LIST-C which contains SI.No.l- 161.
There is again a difference of names between LIST-A, B & C
as follows:-
LIST -A LIST- B LIST-C
Sl.Nos. SI.Nos. SI.Nos.
35. Hari Singh 34. Hari Singh Name Absent
145. Naresh 54. Naresh Name Absent
Kumar Kumar
98. I.D. Prasad 119. I.D. Prasad Name Absent
113. A. Mani 137 A. Mani Name Absent
Name Absent Name Absent 134. Ajay
Prakash
118. Chinta 141. Chinta Name Absent
Mani Mani
Name Absent Name Absent 160. Ram Lal
48. Thakur Das Name Absent 161. Thakur Das
k. As per the application at Page 60, the prayer was for
addition of the following names, which was never allowed,
however, these names also appear in the I.D.
66. Vikram
157. Lalit Prasad
158. Ch. Mahinder Singh
159. Shashi Rawat
160. Devki Banola
161. Brham Pal
162. Vinod
l. The name Udaibir Singh at SI. No. 92 of LIST-A (Page 42),
SI. No. 68 LIST-B (Page 66) has been named as the Petitioner
No.l in the ID and the name of Jagdish, i.e. the original
Petitioner has been put at SI. No. 68 of ID.
m. Thus, there is a difference of about 27-30 names in the
present I.D from that of the List that was filed by the Claimants
along with the Statement of Claim for Conciliation (page 41-
44), which also is full of irregularities as pointed out above."
33. Inter alia it has been submitted on behalf of the petitioner that
there can be no amendment/rectification of the list before the CGIT
because it is a settled legal principle that neither the Labour Court nor
the Tribunal can amend or alter the terms of reference in any manner
and it was immaterial whether the amendment sought in the term of
reference was big or small and it is also a settled legal principle that no
prejudice or bias can be caused to any party to the dispute in the name
of dispensation of justice and it was submitted by the petitioner that the
list of incorrect workmen was being attempted to be thrusted upon the
petitioner in any manner whatsoever without even verification of the
list which was a gross illegality which needs to be redressed. Inter alia
the petitioner denied that any list or enclosure was sent with letter dated
10.06.2013 to it with the proposed terms of reference.
34. Vide order dated 09.10.2014, the proceedings before the CGIT
had been stayed till further orders.
35. During the course of present proceedings, CM APPL.47013/2017
was filed on behalf of the respondent nos.1-164 under Section 151 of
the CPC, 1908 seeking directions to the petitioner to pay the wages of
respondents/workers which were withheld from 01.07.2017 and to
continue to pay the same during the course of the pendency of the
industrial dispute submitting to the effect that the matter being reserved
in the present petition, the respondents/workers have been unable to get
any relief from the Labour Officer vide their proceedings dated
25.09.2017 and 16.11.2017. Inter alia it was submitted through the said
application on behalf of the respondent nos.1-164 that during the last 40
years, the petitioner/management had changed its contractor and it had
ensured that the incoming contractor did not terminate the services of
the workmen and that a clause had been inserted in the tender to the
effect that the successful contractor would have to retain all existing
contract workers under new job contracts but that in the tender floated
on 19.04.2017 for Delhi and Noida offices, the clause pertaining to
retention of the services of the respondent workmen had been
maliciously deleted and the new contractor who had come to the work
site w.e.f. 01.07.2017 did not allow the workers to join as they were
asked to sign on a set of papers including an application for temporary
appointment addressed to the new contractor namely Orion Security
Solutions Pvt. Ltd. which contained various clauses which were totally
contrary to the present terms and conditions of their service and were
not only adverse to the interest of the workmen but were also illegal. It
was sought through the said clauses by new contractor that:
a. That the workmen are agreeable to get minimum wages only
despite the fact that these workmen are working for over 3-4
decades continuously and are presently getting more than the
minimum wages;
b. That the workmen are asked to give an undertaking that their
appointment is purely temporary for a period of 6/3 months,
despite the fact that these workmen are working for the last
many decades for BHEL despite repeated change of
contractor.
36. Inter alia it was submitted on behalf of the respondent nos.1-164
that the workmen were not allowed to sign the said papers after making
the necessary deletions therefrom and also after recording that they
were signing without prejudice to their rights and contentions raised in
different Court cases. It is also submitted by the said respondents that
some of the workmen i.e. 10, 64, 73, 105, 108-118, 120-126 and 129
could not arrange for funds and were thus forced to agree for the
purpose of their survival. The respondent nos.1-164 thus submitted that
this action of the petitioner/management of changing the terms and
conditions of services of the respondents/workers and by not allowing
them to work and by making them work on holidays was illegal,
malafide and motivated to frustrate the respondent/workers and thus
sought the relief or direction to the BHEL to pay the wages of the
workers allegedly withheld illegally w.e.f. 01.07.2017 and to continue
to pay the same. The said application was vehemently opposed on
behalf of the petitioner submitting to the effect that no such order can
be passed thereon.
37. On a consideration of the rival submissions, though undoubtedly,
it is apparent as brought forth through the counter affidavit/ counter
reply filed on behalf of the respondents No. 167 and 168 i.e. the Union
of India, through the Office of the Regional Labour Commissioner
(Central) and the Secretary, Government of India, Ministry of Labour
and Employment, respectively, as submitted through the counter
affidavit of Mr. S.K.Das, Regional Labour Commissioner (Central),
dated 5.12.2014 that there are some discrepancies in the list of
workmen as submitted initially to the Conciliation Officer and the
subsequent list of 164 workmen with a report on the FO(C) by the
Conciliation Officer, coupled with the factum that it has been stated as
indicated vide paragraph 9 of the said affidavit of the Regional Labour
Commissioner (Central) vide paragraph 9 thereof that different lists of
workmen consisting of names of 167/164/163/162/161workmen had
been submitted, yet it cannot be overlooked that in the subsequent
reference of the dispute to the Industrial Tribunal as had been proposed
vide letter No. L-42011/55/2013- IR(DU) dated 10.6.2013 submitted as
annexure P-10 to the writ petition also by the petitioner, the
Government had put forth the annexure to the proposed reference and
that the petitioner thus had liberty to raise the issue as raised in the
present petition. The list of workmen with the proposed terms of
reference having not been objected to by the petitioner at that stage as
has rightly been contended by the respondent No. 167-168 is deemed to
have been accepted by the petitioner.
38. In any event as brought forth through the counter affidavit
submitted on behalf of the respondents No.1 to164 as well as submitted
on their behalf by the respondent No. 51 Sh. Ashok Chopra as has
already been adverted to elsewhere herein above, the final list before
the Conciliation Officer had 164 names and the list attached to the
reference also has 164 names. As regards the contention of the
petitioner as per ground m of the rejoinder to the counter affidavit of the
respondents No. 1 to 164 through paragraph 3 that there is a difference
of about 27 to 30 names in the present industrial dispute from that of
the list that was filed by the claimants along with the statement of the
claimant for conciliation, taking into account the factum that the
workmen had filed an application for amendment of the list of workmen
on record though no formal order on the same was passed by the ALC,
admittedly, the final reference made by the Government i.e. respondent
No. 167 is on the basis of the amended list. As rightly contended on
behalf of the respondents No. 167 and 168, the veracity of the claims of
the respondents now arrayed to the writ petition as 1 to 164 as being
those workmen in relation to whom the reference was made vide order
dated 25.7.2013 of the Central Government under Section 10(1) (d)
(2A) of the ID Act, 1947, relates to the reference made as per the
schedule to the said order dated 25.7.2013 as to whether the action of
the management of the BHEL in not regularizing the employment of
Sh. Udaibir Singh and 163 others and engagement of the said workers
through M/s Aroon Aviation Services Pvt. Ltd. And M/s Onyx
Management Services Private Limited as per the annexure annexed to
the said reference was legal and justified and to what relief the workmen
are entitled has undoubtedly to be adjudicated by the Industrial Tribunal
and all objections in relation to their claims as raised by the petitioners
can be adjudicated upon by the Industrial Tribunal. The factum that the
petitioner is aware of the list annexed as the annexure to the reference
made by the Central Government, thus provides, ample opportunity to
the petitioner to raise its contentions before the Industrial Tribunal in
relation thereto.
39. Undoubtedly, in terms of Section 10 (4) of the Industrial Disputes
Act 1947, it has been provided to the effect:
(4) Where in an order referring an industrial dispute to a
Labour Court, Tribunal or National Tribunal under this
section or in a subsequent order, the appropriate
Government has specified the points of dispute for
adjudication, the Labour Court or the Tribunal or the
National Tribunal, as the case may be shall confine its
adjudication to those points and matters incidental
thereto."
40. It is thus ordained that the Labour Court or the Tribunal or the
National Tribunal, as the case may be, has to confine its adjudication to
those points and matters incidental thereto in a reference made of an
Industrial dispute or in a subsequent order where the appropriate
Government has specified the points of dispute. The contention
submitted on behalf of the petitioner that the varying lists submitted by
the workmen before the Conciliation Officer taking into account the
factum that the application for amendment had not been explicitly
allowed vide a written order by the ALC cannot be taken into account
by the Industrial Tribunal, cannot be accepted, for ultimately the
reference that has been made to the Industrial Tribunal is in relation to
the annexures annexed to the reference made.
41. Apparently and essentially the Industrial Tribunal would thus
confine itself to the reference made in relation to the list attached to
the reference made and not beyond. Since it is the final list annexed
with the reference, the amendments sought by the workmen before the
Conciliation Officer have essentially to be deemed to have been
allowed.
42. The other aspect that cannot be overlooked significantly is that it
is not that the scope or ambit of the reference made to the Industrial
Tribunal vide the order dated 25.7.2013 that is sought to be expanded
by the Central Government in any manner and rather all that has been
done is that the proposed amended lists submitted by the workmen as
being the list of 164 persons i.e. Sh. Udaibir Singh and 163 others as
per the annexure attached to the reference is the dispute that has been
referred to the CGIT-cum-Labour Court-II and the said details in view
of the proposed reference having already been sent to the petitioner, the
petitioner has not been taken by any surprise despite the contention of
the petitioner that there was no annexure attached to the proposed office
memorandum dated 10.6.2013 in as much as nothing prevented the
petitioner from seeking that the annexure attached to the proposed
reference be supplied.
43. Furthermore, in the facts and circumstances of the instant case
where the reference was made on 20.7.2013 with the number of years
that have elapsed therefrom, as rightly contended on behalf of the
respondents No.1 to 164 they would be put to great prejudice if the
aspect of determination of the list of workmen is now remanded back
to the Conciliation Officer. In the facts and circumstances of the
instant case thus it is the reference which has been made by the
appropriate authority, i.e., the Central Government, vide order
dated 25.7.2013 with the annexure annexed thereto that is the scope
and ambit of the reference that has been made which is to be
adjudicated upon by the CGIT-Labour Court-II and the list
attached to the reference shall be deemed to be the list of workmen
in relation to which the dispute has been referred to in the facts and
circumstances of the instant peculiar case as also taking into
account the lapse of time since the date of the reference i.e.
25.7.2013.
44. As laid down by the Hon'ble Supreme Court in D.P.Maheshwari
V. Delhi Administration & Ors; AIR 1984 SC 153, Cooper
Engineering Ltd. v. P.P. Mundhe (1975) II LLJ 379 SC and in
National Council for Cement and Building Materials v. State of
Haryana & Ors.; (1996) II AD SC 594, pendency of the preliminary
issues which take long years to settle with proceedings in the reference
being stayed and thus the proceedings in the reference lying dormant
for a long time in relation to a preliminary issue getting held up, - is an
unhealthy and injudicious practice which delays the adjudication of the
industrial disputes for the resolution of which an informal forum and
a simple procedure has been devised for by the Industrial Disputes Act,
1947, with an object to keep them away from the dilatory practices of
the Civil Courts.
45. In view of the spirit of the judgments of the Hon'ble Supreme
Court in D.P. Maheshwari (Supra), Cooper Engineering Limited
(Supra) and National Council for Cement and Building Material
(Supra), it is held that the substantial reference made vide order
dated 25.7.2013 by the Central Government is the aspect where the
action of the management or the BHEL in not regularizing the
employment of the workmen engaged through M/s Aroon Aviation
Services Pvt. Ltd. And M/s Onyx Management Services Private
Limited which workmen have been described through the annexure
attached to the reference was legal and justified and as to what
relief they were entitled to. As to whether the workmen in the list
attached to the reference are entitled to any such claim and whether
they fall within the ambit of engagement through M/s Aroon
Aviation Services Pvt. Ltd. And M/s Onyx Management Services
Private Limited would be an aspect within the domain of the CGIT
concerned.
46. In the facts and circumstances of the instant case, there is no
ground for granting the prayers sought by the petitioner vide the writ
petition No. 4119/2014 and consequently thus there is no ground for
quashing the reference referred vide office memo dated 25.7.2013 No.
L-42011/55/2013-IR(DU) as issued by the Under Secretary,
Government of India, Ministry of Labour (Shram Mantralay) nor for
quashing any consequential proceedings in ID No. 94/13 pending
adjudication before the CGIT-cum-Labour Court-II. The petition and
the accompanying applications filed with this petition are thus
dismissed. The interim stay of proceedings before the CGIT-cum
Labour Court-II directed vide order dated 9.10.2014 in relation to the
ID No.94/13 is thus vacated.
47. The CGIT concerned is thus directed to proceed with the
Industrial Dispute referred to it vide order dated 25.7.2013 and in the
facts and circumstances of the instant case to deal with the dispute to be
in relation to the workmen who are listed in the annexure to the said
reference.
48. The parties to the present petition are thus directed to appear
before the CGIT concerned in relation to ID No. 94/13 on 21.1.2019 at
2:30 p.m.
CM APPL.47013/2017
49. As regards the prayer made by the workmen vide CM
No.47013/17 seeking a direction to the petitioner to pay to the
respondent's workers i.e. respondent nos.1 to 164 wages allegedly
withheld from July, 2017, the said determination also falls within the
ambit of the Industrial Tribunal and the prayers in relation thereto as
raised by the workmen through CM No.47013/17 filed before this Court
may be raised before the CGIT, i.e., the appropriate forum in relation
thereto, in view of the vacation of the stay of proceedings before the
CGIT as directed herein above.
ANU MALHOTRA, J.
th
DECEMBER 29 , 2018/vm/SV/mk
