Orissa High Court
Sobhan Kumar Mishra vs Management Of Sail on 31 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. Nos.394 of 2016 and 256 of 2015
W.A. No.394 of 2016
Sobhan Kumar Mishra ....
Appellant
Mrs. Kiran Rout, Advocate
-versus-
Management of SAIL, Rourkela and .... Respondents
Another
Mr. D.P. Nanda, Senior Advocate
AND
W.A. No.256 of 2015
The Management of SAIL, Rourkela ....
Appellant
Mr. D.P. Nanda, Senior Advocate
-versus-
Sobhan Kumar Mishra .... Respondent
Mrs. Kiran Rout, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
ORDER
Order No. 31.08.2021
Dr. S. Muralidhar, CJ.
14. 1. The challenge in both the writ appeals; one by the Management
and another by one Workman is to the same impugned judgment
dated 10th April, 2015 of the learned Single Judge in W.P.(C)
Nos.17543 to 17548 of 2010.
2. This litigation appears to have a long history. The workman was
admittedly engaged by an agency M/s. Mishra Enterprises to work
in the establishment of the Central Power Training Institute
(CPTI), a Unit of Rourkela Steel Plant (SAIL) to carry out certain
job contract. The contract was awarded to M/s. Mishra Enterprises
with effect from 16th July, 1993. A new tender was awarded with
effect from 24th October, 1997 and according to the Management,
M/s. Mishra Enterprises was no longer engaged by CPTI.
3. At the instance of ten workmen, an industrial dispute was raised
and the following reference was made by the State Government
under Section 12(5) read with Section 10 (1) of the Industrial
Disputes Act, 1947 (I.D. Act) to the Labour Court:
"3. The appropriate Government under Section
10(1) read with Section 12(5) of the I.D. Act, vide
its Memo No.3321(7), dated 06.03.2000, made the
following Reference for adjudication by the
Presiding Officer, Labour Court, Sambalpur.
"Whether the action of the Management of M/s.
Mishra Enterprises and M/s. Jai Maa Santoshi
Enterprises terminating the services of Sri B.B.
Chatriya, A. Bag, P.K. Rout, B. Mohanty, S.
Mishra, P.K. Tandi, C. Suna and B. Mahakud
(workers of M/s. Mishra Enterprises) and Sri D.R.
Sen and Sri S. Samal (workers of Jai Maa Santoshi
Enterprises) is legal and justified. If not, what relief
they are entitled to and whether they can be regular
employees of Central Power Training Institute ?"
xx xx xx
4. The Labour Court framed the following two issues for
consideration:
"(1) Whether the action of the Management of M/s.
Mishra Enterprises and M/s. Jai Maa Santoshi
Enterprises terminating the services of Sri B.B.
Chatriya, A. Bag, P.K. Rout, B. Mohanty, S.
Mishra, P.K. Tandi, C. Suna and M. Mahakud
(workers of M/s. Enterprises and Sri D.R. Sen and
Sri S. Samal (workers of Jai Maa Santoshi
Enterprises) is legal and justified?
(2) To what relief they are entitled to and whether
they can be regular employees of Central Power
Training Institution?"
5. On 6th March, 2000 the Labour Court passed an Award
declaring that the termination of the services of the workmen by
M/s. Mishra Enterprises to be illegal and unjustified and that
Section 25-F of the I.D. Act had been violated. The said agency
was directed to pay the unpaid wages and all other legal dues of
the workmen along with a consolidated sum of Rs.5,000/- to each
of the workmen towards interests and litigation expenses.
6. Challenging the aforementioned Award, M/s. Mishra
Enterprises filed W.P.(C) No.6275 of 2002 in this Court and the
workmen filed W.P.(C) No.4163 of 2003. A learned Single Judge
of this Court passed a common order in both the writ petitions
setting aside the impugned Award of the Labour Court and
remanding the matter to it for a fresh adjudication and decision in
accordance with law.
7. On remand, the Labour Court passed a fresh Award dated 30th
September, 2009 in which it came to the conclusion that the action
of M/s. Mishra Enterprises was justified and legal. Answering the
second issue, the Labour Court held that the workmen were not the
regular employees of the C.P.T.I. and were not entitled to
reinstatement as such.
8. Aggrieved by the above Award, the aforementioned writ
petitions were filed by the workmen in this Court. The learned
Single Judge noticed that the Labour Court had not addressed the
issue whether there was a notification under Section 10 (1) of the
Contract Labour (Regulation and Abolition) Act, 1970 (CLRA
Act) despite the Management having specifically raised the issue.
The learned Single Judge then concluded in para 16 and 17 of the
impugned judgment, as under:
"16. In the present case though learned Labour
Court has given a finding that prohibition
notification under Section 10(1) of the C.L.R.A.
Act has not yet been issued in respect of C.PT.I., no
material on that point has been discussed. The
reference quoted in para-3 of the judgment clearly
shows that there are two limbs in the reference; the
first limb refers to action of M/s. Mishra
Enterpr4ises etc. in terminating the services of the
petitioners, and the second limb reflects on the
entitlement of the petitioners to claim regularization
under the C.P.T.I. the petitioners being admittedly
employees of M/s. Mishra Enterprises, a Labour
Contractor, the question which could have been
decided was whether the contract between C.P.T.I.
and M/s. Mishra Enterprises is a sham contract,
and whether the petitioners can be regular
employees of the C.P.T.I. Learned Labour Court
has not at all addressed this issue. This being a pure
question of fact cannot also be decided in a writ
petition. The parties may be required to adduce
evidence also on this point.
17. In view of such fact, I feel constrained to
remand the matter for decision of the Labour Court
on the aforesaid point. The petitioners are without
job since 1997. They must be fighting litigations
with much pain and financial stringency. Taking
into consideration the plight of the petitioners, I
direct the Management of C.P.T.I. to pay
Rs.30,000/- (rupees thirty thousand) to each of the
petitioners within 15 (fifteen) days of the
appearance of the parties before the Labour Court,
Sambalpur or within such further time as extended
by the learned Labour Court on proper application
being filed to that effect. The aforesaid payment
shall be over and above the payment to be made by
M/s. Mishra Enterprises. Parties are directed to
appear before the Labour Court, Sambalpur on
30.04.2015. Learned Labour Court is directed to
dispose of the proceeding on the issue, as aforesaid,
within six months from the date of filing of
additional pleadings, if any, by the parties."
9. It appears that on the appointed date before the Labour Court on
remand, the Management of CPTI paid Rs.30,000/- to each of the
workmen. However, it simultaneously filed W.A. No.256 of 2015
in this Court challenging the order of the learned Single Judge.
10. On 30th June, 2016 this Court admitted the appeal and stayed
the order passed by the learned Single Judge on the submission of
learned counsel for the Management that the learned Single Judge
had expanded the scope of the reference which was not permissible
in law. As a result, the proceedings before the Labour Court has
not proceeded for over six years now.
11. Thereafter, the workman was constrained to file a separate writ
appeal i.e. W.A. No.394 of 2016 which obviously was delayed.
Both the writ appeals were clubbed for being heard together.
12. The Court has heard the submissions of Mr. D.P. Nanda,
learned Senior Counsel for the Management and Mrs. Kiran Rout,
learned counsel for the workman.
13. Considering that the dispute did arise in the context of
engagement of M/s. Mishra Enterprises by the CPTI for providing
workers to attend to the cleaning job in CPTI, the workman in
question was certainly a contract labourer. The question whether
such contractual employment was specifically prohibited under the
CLRA Act or not vi-a-vis CPTI and what would be the legal
consequences in either situation was certainly a question that was
required to be discussed by the Labour Court in arriving at a
conclusion in respect of the first issue framed by it. To that extent,
this Court is unable to hold that the impugned order of the learned
Single Judge is beyond the scope of the reference made to the
Labour Court. Undoubtedly the Labour Court has to confine itself
to the terms of the reference made to it but in answering the issues
arising therefrom, it was not prevented from examining the legal
implication of contract labour being prohibited or not under
Section 10 (1) of the CLRA Act.
14. In that view of the matter, while not expressing any view
whatsoever on the merits of the contentions of either the
Management or the Workman, the Court declines to interfere in
the impugned order of the learned Single Judge.
15. The reference shall now stand revived before the Labour Court,
Sambalpur and be listed there on 4th October, 2021 for directions.
The Labour Court record be returned forthwith by a Special
Messenger along with a certified copy of this order. It will be open
to both the counsel for the Management and the Workman to
produce the certified copy of this order before the Labour Court on
the said date. The Labour Court will proceed to dispose of the
reference in accordance with law preferably within a period of four
months thereafter.
16. The writ appeals are disposed of in the above terms.
17. An urgent certified copy of this order be issued as per rules.
( S. Muralidhar )
Chief Justice
( B.P. Routray )
Judge
S.K. Jena/P.A.
