Employers In Relation To The ... vs Their Workmen Being Represented ...
2023 Latest Caselaw 2224 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                            W.P.(L) No. 1018 of 2010

          Employers in relation to the management of Gopalichack Colliery
          under Putkee Balihari Area of M/s. Bharat Coking Coal Limited,
          P.O.- Kusunda, P.S.- Putkee, district- Dhanbad, Pin-828116, through
          Sri Surendra Singh, Son of Sri Ramashish Singh, General Manager,
          P.B. Area of M/s. BCCL, resident of G.M. Bunglow, Kendua, P.O.-
          Kusunda, P.S.- Putkee, district- Dhanbad, Pin-828116
                                                ...      ...    ...    Petitioner
                                   -Versus-
          Their workmen being represented by the Area Secretary, Rashtriya
          Colliery Mazdoor Sangh, P.O.- Kusunda, P.S. Putkee, district-
          Dhanbad, Pin-828116                   ...      ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Anoop Kumar Mehta, Advocate Mr. Manish Kumar, Advocate For the Respondents : Mr. Sarju Prasad, Advocate Mr. Tejo Mistri, Advocate Mr. Pradeep Chandra Poddar, Advocate Ms. Aulia Begum, Advocate

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17/03.07.2023 Heard the learned counsel for the parties.

2. This writ petition has been filed for the following reliefs:

For quashing the Award dated 20/10/2009 of the Central Government Industrial Tribunal No.1, at Dhanbad (hereinafter referred to as the Tribunal) in Ref. No. 101/1995 (Annexure-3) whereby and whereunder the said Tribunal has been pleased to answer the reference in favour of the Respondent directing the petitioner management to regularize the services of Sri Jiban Kumar Sarkar and 63 others (as per list annexed) with 50% back wages from the date of their stoppage from service."

3. The terms of reference was -

"Whether the claim of Rashtriya Colliery Mazdoor Sangh, Dhanbad for regularisation of services of Shri Jiban Kumar Sarkar and 63 others (as per list annexed) by the management of Gopalichuk Colliery of M/s. BCCL, Dhanbad is justified? if not, to what relief are the concerned workmen entitled?"

4. It is not in dispute that a cooperative society namely, Janvikash Labour Cooperative Society Limited was registered in the year 1989 and work orders were issued to the said society by the petitioner from time to time right from 12.12.1989 till 20.01.1991 for different value and after 01.04.1991, no work order was issued. All the work was of miscellaneous nature.

5. On 25.04.1991, some of the persons raised an industrial dispute stating that they had been working since 16.10.1989 for more than 190

- 240 days and therefore, they were entitled to be regularized in Gopalichack Colliery of BCCL. Ultimately, the dispute was referred for adjudication vide order dated 25.08.1995 which was numbered as Reference Case No. 101 of 1995.

6. Both the parties filed their respective written statement.

7. The union raised specific plea in the written statement that the workers were working continuously since 1989 performing miscellaneous nature of work and were directly employed under the management to perform permanent and perennial nature of job under the prohibited category under the registered cooperative society for more than 190 days of attendance in a calendar year and the society did not have the license under the Contract Labour (Regulation and Abolition) Act, 1970 and that the workers were under direct control, supervision and guidance of the management and were also paid by the management of BCCL.

8. On the other hand, the management filed their written statement denying the relationship of employer and employee and took a specific stand that the cooperative society was registered which used to be awarded work orders for the work which were purely temporary in nature and for a few days only. The contract job was petty in nature and engagement of such large number of workmen was denied. Work was awarded to the cooperative society and was not prohibited under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970. It was denied that the workmen were working regularly and continuously since 1989 and it was claimed by the management that the work hardly required 8 to 10 persons at a time. There was no requirement to obtain any license under the aforesaid Act of 1970 and the concerned workmen had not put in attendance for more than 190 days in a calendar year.

9. On behalf of the workmen, altogether five witnesses were examined and the management produced altogether two witnesses. The documentary evidences were also exhibited before the learned court below.

10. The learned court below ultimately passed the impugned award by recording a finding at Paragraph-11 that the workmen were

working with the respondent since 1989 and as per the evidence produced by the management, it showed that the concerned workmen were doing the job of permanent and perennial nature since 1989. The other persons were regularized by the management, but the present workmen were not regularized and therefore, the learned Tribunal held that the concerned workmen are entitled for regularization. Consequently, direction to regularize Jiban Kumar Sarkar and 63 others was passed with 50% back wages from the date of their stoppage from service within 30 days from the date of publication of the award.

Arguments on behalf of the Petitioner

11. The learned counsel for the petitioner, while assailing the impugned award, submitted that the impugned order is perverse and cannot be sustained in the eyes of law. He submitted that there is no evidence on record to show that the workmen had worked since 1989.There is no evidence to show as to the number of days the workmen had worked. He submitted that the only document which was produced in connection with the so-called attendance of the workmen was produced by the workmen marked as Exhibit- W-1 which was a letter written by the superintendent of Gopalichak Colliery to the Deputy Chief Personnel Manager, Potkee Area for attendance of the concerned workmen sending attendance register of the concerned workmen prepared and the said letter had an enclosure, but the enclosure which was produced was a photocopy which was never marked as exhibit. It was marked as 'x' for identification.

12. The learned counsel for the petitioner further submitted that apart from the so-called document marked as 'x', there is no evidence to show as to for how many days any of the workmen had worked with the management. The learned counsel submitted that the award except at Paragraph-11, does not record any evidence or any finding that these workmen were working continuously since 1989. He submitted that the finding is there that they were doing the work of perennial nature since 1989 , but there is no discussion in the body of the award with regard to the period for which they were working and the learned tribunal has straightaway jumped to the conclusion at

Paragraph-11 without any evidence that these workmen were working since 1989.

13. The learned counsel also submitted that the learned court below did not frame any issue much less the issue of employer-employee relationship, or any issue with regard to number of days each of the workmen had worked and in view of the aforesaid fact there is no specific finding on the said points and therefore also the impugned order is perverse. He also submitted that although it was claimed that the workmen were issued identity cards, but even the identity cards were not exhibited by the workmen before the learned court below.

14. The learned counsel further submitted that no notification, if any, issued under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 was produced before the learned court below and therefore, the contention of the respondent that the workmen were engaged under prohibited category of work under Contract Labour (Regulation and Abolition) Act, 1970 was also not proved. The learned counsel submitted that in case there is any violation of the aforesaid Act of 1970, the consequences of such violation has been provided under the said act itself. Merely because there is alleged violation, that by itself does not entitle the workmen to claim regularization.

15. The learned counsel also submitted that it has come in the evidence that payment was made through cheque to the cooperative society and there is no finding that the workers were paid any amount by the petitioner.

16. The learned counsel for the petitioner further submitted that the basic scrutiny in connection with control and supervision has not been done by the learned court below, rather one of the tests as to who paid the salary / remuneration, was apparently against the respondent.

17. The learned counsel also submitted that the respondent- workmen were not on the rolls and were not working on the date of reference and therefore, otherwise also they were not entitled for regularization. In support of his submissions, he referred to the judgment passed by the Hon'ble Supreme Court reported in (2015) 4 SCC 71 (Oshiar Prasad and Others Vs. Employers in Relation to

Management of Sudamdih Coal Washery of M/s Bharat Coking Coal Limited, Dhanbad, Jharkhand).

18. He also submitted that the onus was upon the workmen to prove as to the period for which they claimed to have been working continuously and this burden has not been discharged by the workmen. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court in the case of "Manager, Reserve Bank of India, Bangalore -vs- S. Mani and Others" reported in (2005) 5 SCC 100 to submit that no adverse inference can be drawn against the management and it was for the workmen to take steps for the production of the necessary documents to establish their case. The learned counsel further submitted that the union had examined only one witness regarding working of 64 persons, instead of examining each of the concerned persons, particularly when the specific case of the management was that not more than 8 to 10 persons could have worked at a time. The learned counsel has relied upon the judgement reported in 2014 (4) JCR 477 (Jhr) (Their Workman, Bihar Colliery Kamgar Union -vs- M/s. Bharat Coking Coal Limited & Anr. (Paragraph-19).

Arguments on behalf of the Respondent

19. The learned counsel appearing on behalf of the respondent, on the other hand, opposed the prayer of the petitioner and submitted that there is no perversity or illegality in the impugned order calling for any interference under writ jurisdiction. He also submitted that there is no scope for re-appreciating the materials on record and coming to a different finding by this Court. The learned counsel further submitted that the materials on record clearly indicate that the workmen were continuously working on perennial nature of work and the work orders were issued right from 1989 and therefore, the impugned award by which a finding has been recorded at Paragraph-11 that the workmen were working since 1989 and the consequent direction to regularize all 64 workmen, does not call for any interference.

20. The learned counsel further submitted that a petition was filed before the learned court below calling for the document and a copy of which was handed over to the management, but ultimately, the

management did not produce the records and consequently, the impugned award holding that the workmen were working since 1989 has been passed and there is no perversity in recording of such finding.

21. The learned counsel has relied upon his counter-affidavit and has referred to the judgment passed by the Hon'ble Supreme Court in Civil Appeal No. 3962 of 2006 decided on 18.11.2009. He has submitted that the case of the present workmen is squarely covered by the said judgement. In the said case also, there was engagement through cooperative society and the matter related to regularization of total 76 workmen by the management of BCCL. The learned counsel has also relied upon the judgement passed in LPA No. 426 of 2010 which has followed the aforesaid judgement passed in Civil Appeal No. 3962 of 2006. The learned counsel submitted that so far as the judgement reported in 2014 (4) JCR 477 (Jhr) (Supra) is concerned, the said judgement has not yet attained finality and the matter is still pending before the Hon'ble Supreme Court.

22. However, during the course of hearing, it is not in dispute that the document which was marked as 'x' for identification was just a photocopy of the document. It is not in dispute from the side of the respondent that on the date the reference was made, the workmen were not working.

Rejoinder argument of the Petitioner

23. In response, the learned counsel for the petitioner submitted that merely because any petition was exchanged between the learned counsel for the petitioner and the respondent before the learned court below regarding production of any document, the same is not sufficient to draw any adverse inference against the petitioner. He submitted that the entire order-sheet of the learned court below indicates that no direction was ever issued by the learned court below asking the management to produce any document and it appears that the petition, if any was never pressed. He also submitted that no adverse inference has been drawn against the management by the learned court below to draw any finding on account of non-production of any document from the side of the management. He submitted that

even in the impugned award, although the document for identification 'x' has been mentioned, but the same has not been relied upon by the learned court below to come to any finding.

24. Arguments are concluded.

25. Post this matter day after tomorrow i.e. on 05.07.2023 for further dictation.

(Anubha Rawat Choudhary, J.) Pankaj