M/S Orissa Industrial ... vs The Presiding Officer
2022 Latest Caselaw 7368 Ori

        IN THE HIGH COURT OF ORISSA, CUTTACK

                       WP(C) No.8856 of 2010
                        (Through hybrid mode)

     M/s Orissa Industrial Infrastructure .......          Petitioner
     Development Corporation, IDCO Tower,
     Bhubaneswar.
                                 -Versus-
     The Presiding Officer, Industrial Tribunal ....... Opposite Parties
     and another

     Advocates appeared in the case:

          For petitioner           -    Mr. S.P. Mishra,
                                        Senior Advocate

          For opposite parties     -   Mr. B. Satpathy,
                                       Advocate
                                   D. Mohanty,
CORAM:

          JUSTICE ARINDAM SINHA
          JUSTICE SANJAY KUMAR MISHRA

                            JUDGMENT

14.12.2022

ARINDAM SINHA, J.

1. The writ petition is of the management. It was moved before

this Bench on 9th November, 2022, when Mr. Mishra, learned senior

advocate appearing on their behalf had submitted, there had been

orders made by coordinate Benches, requiring affidavits being filed.

The requirement was because though there was direction for

regularization of 43 workmen, no particulars could be provided by the

union, at whose instance the reference was caused. His client has also

filed affidavit. We reproduce below paragraphs 3 and 4 from our said

order dated 9th November, 2022.

"3. We find, impugned is award dated 30th March, 2010. We have perused order of reference being whether 80 causal workers are entitled for regularization along with payment for equal pay on equal work. The tribunal found on facts, inter alia, 43 persons out of 80 workmen were seeking regularization. Particulars of the persons have been given in page-11 of the award. It goes on to record a further finding of fact that the management had regularized good number of Nominal Muster Roll (NMR) employees with approval of the Board of Directors. Those regularized stood in same footing as the 43. Hence, opinion of the tribunal that claim for regularization made by them merits consideration owing to them having rendered unblemished service under the corporation for more than 18 years. This too is a finding of fact.

4. The management will be heard on adjourned date regarding perversity on any one or more of above recorded findings of fact."

(emphasis supplied)

2. Today Mr. Mishra submits, perusal of impugned award dated

30th March, 2010 will reveal there was no evidence before the labour

Court to say that 43 workmen had been appointed/engaged by his

client. During pendency of the writ petition, several of the 43 have

WP(C) no.8856 of 2010 crossed the age of superannuation. One of them raised separate

industrial dispute, regarding which the reference is still pending. He

adds by reference to since set aside judgment dated 21st April, 2017 of

the learned Single Judge, earlier disposing of the writ petition that

three workers of the 43, against serial nos.34, 35 and 43, had no

document to support they ever having worked for his client.

3. Mr. Mishra refers to failure report dated 23rd September, 2008

of conciliation made under section 12(4) in Industrial Disputes Act,

1947. He submits, there was clear admission by the workmen that they

had been engaged through the contractors. This was the position on

compliance of specific direction made by the Managing Director on

circular dated 6th May, 1986. Text of the circular is reproduced below.

"Please recall that from time to time we have taken decisions not to engage N.M.Rs. without specific sanction from Managing Director and also disengage them on completion of the project for which N.M.Rs. were engaged. I hope, all are taking steps to review the position work-wise under your division and disengaging the N.M.Rs. when not required to reduce the burden of our Corporation, i.e. cannot survive unless all responsible office bearers are conscious that they have a moral duty to see that the Corporation finances are not overburdened due to our negligence. If we do not follow certain discipline, this organization will not be able to take the burden and as a consequence even the existing 1000 or so employees will face serious difficulty in retaining their jobs.

WP(C) no.8856 of 2010 I would, therefore, once again request you that no new hands should be taken as N.M.Rs. without specific approval from the Managing Director to ensure control on the number of staff. Copies of circular No.11994 dated 20.05.83, 3850 dated 23.02.1985 and No.2539 dated 3.2.1986 issued in this respect are enclosed for your ready reference. A list of person kept on DLR since 1.1.86 may please be intimated for my information."

4. He then refers to impugned award and submits, the workmen

could not tender a single document to show they had been appointed

/engaged by his client. His client had several ongoing projects at that

time and therefore, had obtained workers through contractors,

specifically for the projects. The work was not perennial in nature.

There had been no engagement. There is no question of whether such

engagement was made through contractors against posts, for

application of the exception declared by the Supreme Court in

Secretary, State of Karnataka v. Umadevi, reported in (2006) 4

SCC 1. He also relies on another judgment of said Court in Official

Liquidator v. Dayanand, reported in (2008) 10 SCC 1, paragraphs

59, 101, 115 and 116. Mr. Mishra submits, none of the 43 workmen

are at present working for his client in any of his client's projects.

Affidavit saying so has been filed. He submits, there be interference on

the award as containing findings based on no evidence.

WP(C) no.8856 of 2010

5. Mr. Satpathy, learned advocate appearing for the Union

(opposite party no.2) relies on impugned award. He submits, it was a

trial on evidence resulting in finding on facts. Opportunity was given

to the management and they adduced evidence. This being the writ

Court, as different from an appellate Court, on such an award there

should be no interference.

6. The writ petition was presented on 11th May, 2010 impugning

award dated 30th March, 2010. It was heard on several occasions and

as aforesaid, dealt with by the learned Single Judge on judgment dated

21st April, 2017. Said judgment was set aside in writ appeal by order

dated 4th April, 2019, on ground no.9 taken therein saying that the

judgment was passed after period of six years since date of argument

and therefore, vitiated due to inordinate delay. The Division Bench,

following judgments of the Supreme Court in Bhagwandas

Fatechand Daswani v. HPA International, reported in (2000) 2 SCC

13 and Kanhaiyalal v. Anupkumar, reported in (2003) 1 SCC 430,

set aside the judgment. There was a Special Leave Petition filed but

dismissed by the Supreme Court on order dated 19th August, 2019.

Hence, the writ petition is before us on remand.

WP(C) no.8856 of 2010

7. Perused impugned award. We find that particulars of the 43

workmen were given therein, as aforesaid. They have claimed to have

been employed in various divisions in years 1985 and 1992, to work as

casual workers in different posts such as Work Sarkar, Clerk, Fire

Guard, Electrical Helper, Supervisor, Pump Operator, Peon,

Watchman etc. On query from Court, it could not be shown from

impugned award that the workmen had made out a case in the labour

Court, of having been employed through contractors. On the contrary

there is record in impugned award that case of the workmen was, from

inception their employment was with the corporation and they had

rendered services to it. Only with a view to frustrate their claim, the

management has taken plea of their engagement through contractors.

8. On the side of the workmen two witnesses were examined.

They exhibited several documents, which were appreciated by the

labour Court to indicate their engagement by the management. The

Court below, however, recorded that the two witnesses were asked in

cross-examination and had admitted that managing director of the

corporation is the appointing authority in respect of Class-III and

Class-IV employees. It is clear from impugned award, the workmen

WP(C) no.8856 of 2010 could not produce any document of appointment issued by the

appointing authority.

9. The management also adduced evidence. They produced

documents of a contractor. The labour Court found that though the

management witness had produced contractor's document but

surprisingly, he himself did not know the contractor. Further finding of

the labour Court is that such documents were of year 1996 onwards

and not prior thereto, the workers claim of engagement in years 1985

and 1992, as aforesaid. We notice, the contractor himself/themselves

did not take the box as party witnesses of the management.

10. We extract and reproduce below the passage from failure

report dated 23rd September, 2008, relied upon on behalf of the

management.

"Though the payment was made through the contractors but they are working in the same place under direct control and supervision of the management since last five to six years. Further none of the contractor have work orders continuously for five to six years under the management as principal employer. So the management is paying wages to the workers through different contractors and supervision and control of their work is being done by the management.

Neither the principal employer has obtained registration for engagement of contractor to do the work of these workers through contractors nor the contractor have obtained licence for execution of

WP(C) no.8856 of 2010 work and engagement of these labourer from the appropriate Authority as per the provisions of Contract Labour (R&A) Act. Further none of the contractor have issued wage slips or service certificate to these workers in support of their engagement. Hence these daily rated workers can not be treated as contract labour in accordance with the Contract Labour (R &A) Act. It is only an after thought concept of the management to treat these workers as contract labour without any documentary in accordance with law."

(emphasis supplied)

The Conciliation Officer filed the report. Said officer was not a

witness in the labour Court. Above passage in the report being

appreciation of said officer regarding case of the parties or specifically

the workmen, same could not be relied upon as evidence in the labour

Court, unless the officer had been examined therein. Nevertheless, the

report can be said to be in favour of the workman. The appreciation of

the situation by the officer found confirmation by the findings on facts

in impugned award.

11. We made query to Mr. Satpathy regarding any document

relied upon by the labour Court in respect of the workmen against

serial nos.34, 35 and 43, respectively being Parsuram Pattanaik,

Dayananda Dehury and Prasnta Kumar Senapati. Nothing could be

shown.

WP(C) no.8856 of 2010

12. Impugned award contains findings of facts. Exhibit 1 relied

upon by the workmen is office order dated 8th May, 2008. We extract

subject passage from said order and reproduce it below.

"Pursuant to the decision taken by the Board of Directors in its 72nd meeting held on 28.1.2008 & 2.2.2008 vide Agenda No.19, the following NMR/DLR/NMR on Contract basis employees are hereby regularized in the posts and scale of pay as mentioned against their names each subject to the following terms conditions."

We are clear in our mind the tribunal relied on the documents

produced by the workmen. They had engagement from the

management, was inference drawn on trial upon having evidence laid

before the Court. In such a situation we have before us the contentions

of the management, on reliance upon above referred circular, of

embargo in engagement of workmen. Yet, the management by the

office order had regularized on 8th May, 2008, contract basis

employees in the posts and scales of pay as mentioned therein. This

regularization made indicates, the circular dated 6th May, 1986 was not

adhered to or complied with. Mr. Mishra submits, those workmen,

regularized by said office order, had been engaged prior to year 1986.

The position that emerges is, even contractual workers had been

regularized by the management and here, evidence before the labour

WP(C) no.8856 of 2010 Court was that some of the workmen had been engaged in year 1985,

prior to year 1986. The management produced documents of a

contractor to show engagement from year 1996 but the contractor did

not take the box to prove those documents.

13. Dayanand (supra) is of no aid to petitioner, having placed

reliance on paragraphs 59, 101, 115 and 116 of the judgment. The

Supreme Court in paragraph 59 said that creation and abolition of

posts, formation and structuring/re-structuring of cadres, prescribing

the source and mode of recruitment and qualification and criteria on

selection, etc. are matters, which fall within the exclusive domain of

the employer. There is no controversy regarding that in the case before

us. Here, petitioner has petitioned for judicial review over impugned

award directing regularization. Paragraphs 101,115 and 116 are on

legitimate expectation. Our appreciation of impugned award is that

regularization was directed thereby on findings of fact, of engagement

of the workmen by the corporation in various divisions and posts. In

those circumstances, case of the management that the workers had

been engaged through contractors was not accepted, to direct

regularization. Said direction was not made on finding that the workers

had a legitimate expectation to be regularized and, therefore, there

WP(C) no.8856 of 2010 should be direction accordingly. The workers had not claimed such on

basis of any assurance held out by the management. It was nobody's

case that the management had given assurance of absorbing the

workmen.

14. In view of above discussion we do not find reason to interfere

with impugned award. We are reminded of the declaration of law

made by the Supreme Court regarding interference with award on

industrial disputes made by the Supreme Court in Syed Yakoob v.

Radhakrishnan, reported in AIR 1964 SC 477.

15. The writ petition is dismissed.

(Arindam Sinha) Judge

(S. K. Mishra) Judge

P.C.Dash

WP(C) no.8856 of 2010