Jharkhand High Court
Dhanbad Colliery Karamchari ... vs Employers In Relation To The ... on 21 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A. No. 262 of 2021
Dhanbad Colliery Karamchari Sangh, Patherdih Coal Washery Branch through
its Branch Secretary through Sohan Chandra Pandey, aged about 4 years, S/o
Late Gupteshwar Pandey, R/o E-9, P.O. & P.S.-Patherdih, District- Dhanbad
... ... Appellant
Versus
1. Employers in relation to the management of the Patherdih Coal washery of
BCCL through its General Manager, Patherdih coal washery BCCL, P.O. & P.S.
- Patherdih, District-Dhanbad
2. Project Officer, Patherdih, P.O. & P.S. Patherdih, District- Dhanbad
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Ms. Sonali Bhattacherjee, Advocate
For the Respondents : Mr. Anoop Kumar Mehta, Advocate
Mr. Manish Kumar, Advocate
---
ORDER
st
21 August 2023
Per, Shree Chandrashekhar, J.
The Dhanbad Colliery Karamchari Sangh, Patherdih Coal Washery
Branch has challenged the order dated 10th February 2021 by which W.P.(L)
No.3881 of 2018 challenging the legality of award dated 21st April 2017 has
been rejected.
2. Before the writ Court, the judgments in "Pepsico India Holding
(P.) Ltd. vs. Krishnakant Pandey" (2015) 4 SCC 270; "BSNL vs. Bhurumal"
(2014) 7 SCC 177 and "Bhuvnesh Kumar Dwivedi vs. Hindalco Industries Ltd."
(2014) 11 SCC 85 were relied upon on behalf of Bharat Cocking Coal Limited
(in short "BCCL").
3. Mr. Anoop Kumar Mehta, the learned counsel for the BCCL has
referred to the judgment in "UOI and Others vs. Vartak Labour Union" (2011) 4
SCC 200 to submit that mere long period of work is not sufficient to hold that
the workman is entitled for regularization. The submission raised at the Bar is
that the burden lies on the workman to prove that he actually worked for 240
days in one calendar year so as to make him entitled for regularization.
4. The reference before the Central Government Industrial Tribunal
No. 1 was in two parts which are in the following terms:
(i) to identify the workmen who worked under the contractor at Patherdih
Coal Washery in transportation of middling grade slurry and
(ii) the workmen who actually worked for 240 days but were not
regularized by the BCCL.
5. The case pleaded on behalf of the workmen by the Karamchari
Sangh was that a large number of workmen were working in washery of the
BCCL where a large amount of slurry shall be deposited which is commonly
known as middling. The workmen were engaged since 1988 through different
contractors but they continued to work for the BCCL for lifting slurry etc. and
completed 240 days in one calendar year. In the award, there is a reference of as
many as 55 documents which were laid in evidence by the Karamchari Sangh
vide Exhibit W-1 to W-55 some of which are; letters written between Personnel
Manager of the BCCL to M/s Shivpur Kharikabad Kalajor Sramik Sahyog
Samiti Ltd.; memorandum of settlement between the Coal Washery Workers
Union of Patherdih Coal Washery and M/s Shivpur Kharikabad Kalajor Sramik
Sahyog Samiti Ltd. dated 28th April 1990 and; several other letters and note
sheets from the officials of the BCCL.
6. The Industrial Tribunal has however not even adverted to those
documents and recorded a finding that a photocopy of the attendance sheet
which was filed on behalf of the workmen was not legible and therefore
doubtful. Such a finding by the Industrial Tribunal is patently absurd. There is
no law of universal application that a document which is not legible shall be
considered as doubtful. There is no discussion by the Industrial Tribunal as to
why the said document was not reliable. Even otherwise, section 65 of the
Evidence Act provides that secondary evidence in place of the original shall be
admitted in evidence subject to conditions under section 63. Just to indicate, that
copy of the original made by mechanical processes is admissible as secondary
evidence under section 63. The Industrial Tribunal could have asked the
Karamchari Sangh to produce a legible copy of the attendance sheet or issued
notice under section 66 to the BCCL to produce the original, if the same was in
its possession.
7. This is by now well settled that a finding which is not based on
materials on record or which is based on irrelevant considerations or which has
been rendered ignoring material evidence shall be considered absurd. Not only
that, one of the grounds on which award dated 21st April 2017 is based seems to
be the findings recorded by the Industrial Tribunal in paragraph no.18 in respect
of WW3 who according to the Industrial Tribunal was aged about only 13 years
on the date of his engagement in the washery and, therefore, not on account of
his age at which he could not have been engaged as a workman, he was not a
reliable witness. No doubt the strict rules of evidence shall not be applied in the
proceeding before the Industrial Tribunal, but, just for the sake of fullness this
needs to be indicated that section 118 of the Evidence Act does not put any age
bar on competence of a witness. In our opinion, the Industrial Tribunal applied a
wrong yardstick to test the veracity of evidence tendered by WW3.
8. The findings in paragraph nos.15 to 18 of the award dated 21st April
2017 read as under:
"15. Here before me workmen also failed to prove from which previous year they
completed 240 days works in the management they failed to produce any identity
card either signed by the contractor or management. They have filed the
photocopy of attendance sheet which are illegible and doubtful. Since the identity
of the workman is doubtful and they unable to produce any appointment letter,
identity Card and salary slip, this Tribunal is not convinced that the workmen
rendered service to BCCL for more than 240 days in a calendar year so that they
will be regularise.
16. It appears from records that the order of reference relate to 157 workmen but
during proceeding of this case the Sponsoring Union files only 46 workmen's
photograph with their affidavit alongwith voter I.D Card, and the Union also
submits that rest workmen's documents are not available. The voter I.D Card is
not relevant for this purpose.
17. On perusal of cross examination WW-1 it is says that the workmen were
working in the colliery through Kalajor Co-operative Society, but I have no idea
regarding that Co-operative Society whereas in the cross examination of WW-2
says that I do not have any appointment letter, ID Card or pay slip of the
management. But it is a fact that the pay slip I have filed of co-operative society. I
have not filed any paper that I am member of co-operative society.
18. The cross examination of WW-3 is very contradictory, he says that I enrolled
as Advocate in Dhanbad Bar in 2004 as regular student of Dhanbad Law College.
He passed in 2003, but he also says that he passed BA as regular student in 2006.
He says that, I was a member of that society from 1988 but I have no identity
Card. On close scrutiny, it is found that he was 39 years as on 21.08.2014 that on
calculation, in 1988 he was only 13 years on that point of time, and he says he was
working in slurry pond of washery. It creates doubt. Evidence of all the witnesses
of the sponsoring Union are very contradictory with each other."
9. In the order dated 10th February 2021, the writ Court has merely
referred to judgments of the Court and dismissed the writ petition on the ground
that the Management never issued appointment letter to the workmen and no
document has been produced by the workmen to establish that they worked for
continuous 240 days in a calendar year.
10. Just to indicate, the writ Court was required to consider merits of
the award dated 21st April 2017 and whether or not the findings recorded by the
Industrial Tribunal that the workmen were not engaged for continuous 240 days
in a calendar year is based on the materials laid before it. However, the
consideration by the writ Court to the aforesaid aspects of the matter is seriously
flawed in law. Having regard to the failure on the part of the Industrial Tribunal
to consider the documents produced by the Karamchari Sangh, this was not the
scope of enquiry before the writ Court to record the findings as aforesaid and,
that too, without any consideration on the issues germane to the reference before
the Industrial Tribunal.
11. This is too well settled a law that the award made by the inferior
Tribunal is liable to be set-aside not only on the ground of an error apparent on
the face of the award but also on the ground that the reasons given in the award
are based upon a legal proposition which is erroneous. The award of the inferior
Tribunal would also not sustain the scrutiny in law if the award has been made
ignoring the material evidence brought before the Tribunal. In "Moffett Vs.
Gough" (1878) 1 LR 1r 331 the Court has observed that a perverse verdict may
probably be defined as one that is not only against the weight of evidence but is
altogether against the evidence. In the present case, the Industrial Tribunal has
failed to discharge a duty enjoined upon it to record its opinion about each piece
of the document and evidence and render its decision thereon. An award made
on the basis of the decision which does not take into account each and every
material rather is based on piecemeal examination of the materials cannot be
countenance in law.
12. In view of the patent illegality and absurdity in the award
dated 21st April 2017, the writ Court's order cannot be countenance in law
and, accordingly, is set-aside. Consequently, the award dated 21st April 2017 is
set-aside. The matter is remitted back to the Industrial Tribunal for a fresh
consideration on the basis of the materials already available before it.
13. L.P.A. No. 262 of 2021 is allowed.
(Shree Chandrashekhar, J.)
(Anubha Rawat Choudhary, J.)
Binit/Mukul
