Jharkhand High Court
M/S. Bharat Coking Coal Limited vs Their Workmen Represented By Joint Area ... on 18 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
W.P.(L) No.5444 of 2001
With
W.P.(L) No.5461 of 2001
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.5444 of 2001
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M/s. Bharat Coking Coal Limited, a Government Company within
the meaning of Section 617 of the Companies Act, through the
management of its Jealgora colliery, P.O. Jealgora, district- Dhanbad.
... Petitioner
Versus
1. Their workmen represented by Joint Area Secretary, Bihar Colliery
Kamgar Union, Bhowra Area, P.O. Bhowra, district- Dhanbad.
2. The Presiding officer, Central Government Industrial Tribunal
No.1, Dhanbad ... Respondents
With
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M/s. Bharat Coking Coal Limited, a Government Company within
the meaning of Section 617 of the Indian Companies Act, through the
management of its Jealgora Colliery, P.O. Jealgora, district-
Dhanbad. ... Petitioner
Versus
1. Their workmen represented by Joint Area Secretary, Bihar Colliery
Kamgar Union, Bhowra Area, P.O. Bhowra, district- Dhanbad.
2. The Presiding officer, Central Government Industrial Tribunal
No.1, Dhanbad ... Respondents
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For the Petitioners : Mr. Anoop Kr. Mehta, Advocate
For the Respondents : None
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the learned counsel for the petitioners.
2. No one turns up on behalf of the respondents in spite of repeated calls.
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3. Both these writ petitions are disposed of by this common judgment
because both these writ petitions have been filed with a prayer to set aside the
common award dated 14.03.2001 passed by the Central Government Industrial
Tribunal No.1, Dhanbad in Reference No.54 of 1994 in respect of which W.P. (L)
No.5444 of 2001 has been filed and Reference No.117 of 1994 in respect of which
W.P. (L) No.5461 of 2001 has been filed.
4. The Schedule in Reference No.54 of 1994 and the Schedule in Reference
No.117 of 1994 are as under:-
THE SCHEDULE IN REFERENCE NO.54 OF 1994
"Whether the claim of Shri Bihari Prasad and 54 others
(as listed in the Annexure) engaged as contract Labour
at Jealgora Colliery of M/s. BCCL and the management
of M/s. IISCO. for regularisation of their services is
justified? If so, from what date?"
THE SCHEDULE IN REFERENCE NO.117 OF 1994
"Whether the demand of the union for regularization of
the contract workmen S/Shri Kuber Nath Ram and 44
others (as per attached annexure) through contractors
M/s. R.B. Traders and Shri R. P. Agarwal, contractors
of M/s. Bharat Coking Coal Limited is justified? If not
to what relief should be granted?"
5. The dispute in Reference No.54 of 1994 relates to the question of
regularisation of Shri Bihari Prasad and 54 others who are engaged as contract
labour in Jealgora Colliery of M/s. BCCL and the management of M/s. IISCO.
The dispute in Reference No.117 of 1994 relates to the question of regularisation
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of Shri Kubernath Ram and 44 others who were working through contractor
M/s. R.B. Traders and Shri R.P. Agrawal Contractors of M/s. BCCL. In both
reference cases there are three common persons namely Bholaram at serial
No.53, Kubernath Ram at serial No.54 and Bhim Manjhi at serial No.55 in
Reference No.54 of 1994 have their name in serial Nos.13, 1, 40 respectively in
Reference No.117 of 1994. It is the case of the workers who are sponsored by
their union that they were engaged to perform the duty for truck loading of
coal at the depot of Jealgora colliery in Lodna area of M/s. BCCL from where
coal is being transported through trucks to Lodna Coke Plant in Bhowra Area
in M/s. BCCL and washery of Chasnalla colliery of M/s. IISCO. It was
contended that the workmen were loading coal in the trucks which is
permanent and perennial nature of work within the premises of Jealgora
Colliery of M/s. BCCL continuously for more than 5 years and their attendance
in each calendar year is more than 240 days. The appropriate Government i.e.
the Central Government by notification under Section 10 of the Contract
Labour (Regularisation & Abolition) Act, 1970 has prohibited engagement of
contract labour for coal loading and unloading besides four other jobs by
Notification dated 01.02.1975. It is also contended by the workmen that despite
the appropriate government having prohibited the engagement of contractor or
contract labour; yet the management of M/s. BCCL and IISCO is getting the
work of loading of coal done in trucks by the concerned persons but their
wages is being paid through contractor, which is much less than the rate
prescribed by NCWA and they claim that they are the workmen of M/s. BCCL
and they are entitled for regularisation.
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6. The case of the management of BCCL which is the writ petitioner herein
is that no relationship of employer and employee exists between the concerned
persons and the management of BCCL as employer and workmen. It was
contended by the management of BCCL that M/s. IISCO has a steel plant at
Burnpur and in order to meet the requirement of coal for its steel plant at
Burnpur, the IISCO has got its own three captive mines at Chasnalla, Jitpur and
Ramnagar but IISCO requires some selected ROM coal from Jealgora colliery
coal seam for the purpose of blending with the washery grade coal and to
utilize the same for the manufacture of hard coke for feeding the same in its
steel plant. The management of M/s. BCCL has permitted to lift the selected
quality of coal from Jealgora Coal depot by M/s. IISCO which is being lifted by
M /s. IISCO by engaging its own supervisor and its own labour from the coal
dump of Jealgora colliery and got the same transported through the contractor
M/s R.B. Traders. The BCCL management also contended that the loading of
coal after picking and selection is mostly done by mechanical means and only
in the case of mechanical failure, the loading work is done manually by
engaging contract labour under the supervision and control of M/s. R.B.
Traders. Thus, the management of BCCL contended that they have nothing to
do with the employment of the concerned persons or any of them. Hence, they
do not have any obligation to regularise them because the BCCL has got its
own surplus labour.
7. The management of BCCL further pleaded that from June, 1991 to
September, 1991, the management of Lodna colliery engaged a contractor M/s.
R. P. Agrawala to transport coal from Jealgora colliery to meet the demand of
Lodna Coke Plant consequent upon an outbreak of fire and emission of
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poisonous and noxious gases from one district of mines which took about 3-4
months to bring down the situation to normal. Therefore, the job was not a
regular job and the contractor M/s. R.P. Agrawala engaged dumper which
were being loaded with coal at Jealgora by mechanical means and coal used to
be unloaded at Lodna Coke Plant with the help of hydraulic device fitted with
dumper and no manual labour was engaged on the job of loading and
unloading of coal in the process of transportation contract carried out between
from June, 1991 to September, 1991. The management of BCCL further pleaded
that by the notification dated 01.02.1975 prohibiting loading and unloading of
coal was modified by a subsequent notification No. SO 2053 dated 21.06.1989 in
which the engagement of contract labour was permitted on loading of coal
where there is a mechanical or electrical failure bringing a halt to the
mechanical loading of coal into trucks or railway wagons and also permitted
engagement of contract labour on loading of coal in case of irregular supply of
wagons by railways. Thus, the loading and unloading of coal was not
absolutely prohibited rather the same was relaxed by subsequent notification.
8. In its written statement, the management of IISCO pleaded that since the
claim of the concerned persons is for regularisation in the employment of M/s.
BCCL, hence, IISCO is unnecessarily been made a party. The management of
IISCO admitted that they have engaged transporting contractor for
transportation of coal from Jealgora colliery coal depot of BCCL to Chasnalla
coal washery but they have nothing to do with the loading of coal at Jealgora
Coal Depot. Thus, they deny the liability to regularise the concerned workmen
as loaded in the employment of M/s. IISCO or payment of wages in accordance
with the NCWA.
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9. The Central Government Industrial No.1, Dhanbad (hereinafter referred
to as the tribunal) formulated the following points to be considered:-
(i) Whether the concerned persons were engaged in permanent
or perennial nature of job of loading of coal in trucks i.e. the job in
which the engagement of contractor has been prohibited? If so,
whether they shall be deemed to be the workmen of BCCL?
(II) Whether the concerned persons are entitled for
regularisation as permanent employee of M/s. BCCCL/IISCO?
10. The tribunal considered the testimony of sole witness of the management
of BCCL being MW-1 Murlidhar Banerjee who was a senior sales officer at
Bhowra Area. The learned tribunal considered that the management has
suppressed the relevant papers and drew an adverse inference that had the
documents been produced the same would support the case of the workmen.
The learned tribunal also considered the cross-examination of MW-1 wherein
he stated that BCCL loaded coal on rail without charging F.O.R. (free on rail)
and inferred that the same must be applicable in case of loading of coal in
trucks for being transported to Chasnalla washery of M/s. IISCO. The tribunal
also considered that the loading work of the workmen was supervised by the
loading clerk of M/s. BCCL and they were also allotted work groupwise by
loading clerk. The tribunal further considered the admission of the
management of M/s. BCCL that it engaged transporting contractor M/s. R.P.
Agarwala for transportation of coal from Jealgora colliery of BCCL to Chasnalla
Coal washery from the month of June, 1991 to September, 1991 but the
management has not filed any paper regarding engagement of R.P. Agarwala.
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11. The learned tribunal relied upon the judgment of the Hon'ble Supreme
Court of India in the case of Air India Statutory Corporation & Others vs.
United Labour Union & Others reported in (1997) 9 SCC 377 and came to the
conclusion that only the persons who have submitted their bio-data through
their unions which has been marked as Ext. 1 to 1/88, must be deemed to be
the workmen of BCCL because it is the duty of the BCCL to get coal loaded free
on truck and went on to hold that relationship of employer and employee exist
between the concerned persons and the management of M/s. BCCL and held
that there are 89 workmen who are entitled to be absorbed and regularized as
permanent workmen of BCCL and they are also entitled for wages of Group III
as prescribed in NCWA and answered the reference by holding that the
demand of sponsoring union for regularisation of 89 persons out of 100 persons
whose name find place in the Reference order of both these Reference Case
No.54 of 1994 and 117 of 1994 in whose favour bio-data has been filed marked
Ext.W-1 to W-1/88 are entitled to be regularised in the employment of BCCL
without back wages within 30 days from the date of publication of the Award
failing which the concerned persons in whose favour biodata Ext.W-1 to W-
1/88 has been filed shall be entitled to claim wages as per NCWA from the date
of publication of the Award.
12. Mr. Anoop Kumar Mehta- the learned counsel for the petitioners relies
upon the judgment of the Hon'ble Supreme Court of India in the case of Steel
Authority of India Limited & Others v. National Union Waterfront Workers
& Others reported in (2001) 7 SCC 1 para-125 (4) of which reads as under:-
"125. (4) We overrule the judgment of this Court in Air India
case [(1997) 9 SCC 377 : 1997 SCC (L&S) 1344] prospectively and
declare that any direction issued by any industrial adjudicator/any
court including the High Court, for absorption of contract labour
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following the judgment in Air India case [(1997) 9 SCC 377 : 1997
SCC (L&S) 1344] shall hold good and that the same shall not be set
aside, altered or modified on the basis of this judgment in cases
where such a direction has been given effect to and it has become
final." (Emphasis supplied)
and submits that the very judgment based upon which the said award
was passed i.e., the judgment of the Hon'ble Supreme Court of India in the case
of Air India Statutory Corporation & Others vs. United Labour Union &
Others (supra) has been overruled by the constitutional Bench judgment albeit
prospectively but the rider is that such prospective effect is applicable to such
cases where a direction given by any Industrial Adjudicator/any court has
been given effect to and it has become final.
13. It is submitted by Mr. Mehta that in this case, the award passed by the
learned tribunal has neither become final because of the challenge of same
being made in filing this writ petition and consequently the operation of the
award has been stayed by this court nor the same has been given effect to as
none of such workmen has been regularized. It is next submitted that the
undisputed fact remains that the Central Government by its notification No. SO
2053 dated 21.06.1989 permitted loading of coal where there is a mechanical or
electrical failure bringing a halt to the mechanical loading of coal into trucks or
railway wagons and also permitted engagement of contract labour on loading
of coal in case of irregular supply of wagons by railways. Hence, it is submitted
that in view of this notification and in the absence of any prohibition as
envisaged under Section 10 of the prohibition of employment of contract
labourers, the right for regularisation of the workmen does not arise. It is then
submitted that learned tribunal committed a faux pass by ignoring the fact that
M/s. R. B. Traders are not the contractor of M/s. BCCL rather they are the
contractors of IISCO. It is next submitted that learned tribunal also committed a
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grave illegality by drawing an adverse inference against the management of
BCCL even though; it is the specific case of the management of BCCL that M/s.
Rajendra Prasad Agarwala was engaged from June, 1991 to September, 1991
and such testimony of the MW-1 has remained unchallenged. So, in view of the
unchallenged testimony of the MW-1 there was no necessity for the
management of BCCL to bring any document in support of that nor learned
tribunal ever directed the BCCL management to produce any document in
respect of that and in absence of that learned tribunal ought not have drawn
any adverse inference against the BCCL management. It is next submitted by
Mr Mehta that the tribunal also committed an error by using the testimony of
MW -1 regarding free of cost of loading of coal in railway wagons is applicable
to loading of coal in trucks also; though there is no such materials in the record
to draw such an inference.
14. It is further submitted by Mr. Mehta that under Rule 10 (B) 10 of the
Industrial Disputes (Central) Rules, 1957, the tribunal is required to pass the
award within 30 days from the date of argument and reserving the delivery of
the award but in this case though the arguments were concluded lastly on
20.01.2000 but the award was not made within 30 days from the date of
arguments and reserving the delivery of award. It is next submitted that the
award passed by learned tribunal is a fraudulent one, hence, the same be set
aside.
15. Having heard the submissions of the learned counsel for the petitioners
and after going through the materials available in the record, this Court finds
force in the submissions of the learned counsel for the petitioners that
overruling of the judgment of the Hon'ble Supreme Court of India in the case of
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Air India Statutory Corporation & Others vs. United Labour Union & Others
(supra) with prospective effect applies only to such directions issued by any
industrial adjudicator/any court; for absorption of contract labours following
the judgment in Air India Statutory Corporation & Others vs. United Labour
Union & Others (supra) in cases where such a direction has been given effect
to and it has become final.
16. Now, coming to the facts of the case way back in 19.10.2001, this Court
passed an order staying the operation of the impugned award. Hence, till date
the same has not been given effect to. Further, in view of the pendency of these
writ petitions, it cannot be said that the impugned award has become final.
Hence, this Court has no hesitation in holding that the award directing
absorption of the contract labourers having been made following the judgment
in Air India Statutory Corporation & Others vs. United Labour Union &
Others (supra), in view of the judgment of constitutional Bench of the Hon'ble
Supreme Court of India in the case of Steel Authority of India Limited &
Others v. National Union Waterfront Workers & Others (supra), the
impugned award dated 14.03.2001 passed by the Central Government
Industrial Tribunal No.1, Dhanbad in Reference No.54 of 1994 in respect of
which W.P. (L) No.5444 of 2001 has been filed and Reference No.117 of 1994 in
respect of which W.P. (L) No.5461 of 2001 has been filed, being not sustainable
in law, is liable to be quashed and set aside.
17. Besides, this Court finds that learned tribunal has committed a grave
illegality by overlooking the undisputed fact that vide S.O. No.2053 dated
21.06.1989 there was relaxation of the prohibition of the employment of contract
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labourers in the nature of work involved in this case under Section 10 of the
Contract Labour (Regulation and Abolition) Act, 1970.
18. Further, learned tribunal also committed an illegality by drawing an
adverse inference when the unchallenged testimony of MW-1 was to the effect
that M/s. R. P. Agarwala was engaged only from June, 1991 to September,
1991 that is much less than 240 days.
19. Under such circumstances, this Court is of the considered view that this
is a fit case where the impugned award dated 14.03.2001 passed by the Central
Government Industrial Tribunal No.1, Dhanbad in Reference No.54 of 1994 in
respect of which W.P. (L) No.5444 of 2001 has been filed and Reference No.117
of 1994 in respect of which W.P. (L) No.5461 of 2001 has been filed, be quashed
and set aside.
20. Accordingly, the impugned award dated 14.03.2001 passed by the
Central Government Industrial Tribunal No.1, Dhanbad in Reference No.54 of
1994 in respect of which W.P. (L) No.5444 of 2001 has been filed and Reference
No.117 of 1994 in respect of which W.P. (L) No.5461 of 2001 has been filed, is
quashed and set aside.
21. In the result, these Writ Petitions stand allowed.
22. Let a copy of this judgment along with the lower court records be sent
back to the learned tribunal concerned forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 18th of January, 2024
AFR/ Animesh
