Management
of Dandakaranya Project, Koreput Vs. Workman & ANR [1997] INSC 10 (7
January 1997)
S.C.
AGRAWAL, G.B. PATTANAIK
ACT:
HEADNOTE:
PATTANAIK.
J.
Leave
granted.
This
appeal by special leave is directed against the award passed by the Industrial
Tribunal, Bhubaneshwar in Industrial Disputes Case No. 13 of 1988 and the
judgment of the Orissa High Court in O.J.C.No.2502 of 1990, whereunder the Orissa
High Court refused to interfere with the award of the Industrial Tribunal in
exercise of power under Article 226 of the constitution. Though the award
relates to different items of demand but in this appeal Mr.Reddy, the
Additional Solicitor General restricted his submissions to the direction of the
Tribunal to regularise 425 N.M.R. workers union.
The
Government of India in the Ministry of Labour in exercise of the powers
conferred upon them under clause (d) of sub-section(1) and sub-section (2)(a)
of section 10 of the Industrial Disputes Act referred the dispute for
adjudication by the Industrial Tribunal to the following effects:
"Whether
the following demands raised by Rehabilitation Employees` Union of the management of Dandakaranya Project, Koraput ,
are justified, if so, to what relief the concerned workmen are entitled to and
from what date." Demands No.1 and 3 with which we are concerned are as
under|-
1. Regularisation
of all muster roll workers who have been working from 1958 onwards after
completion of 240 days with all consequential benefits of such regularisation.
3.
Stoppage of retrenchment of all workers of Dandakaranya Project and absorption
of all muster roll workers after their regularisation in other Central
Government Surplus Cell as is done in case of regular employees of Dandakaranya
Project." The appellant management took the stand before the Tribunal that
the reference itself was incompetent as the Dandakaranya Project is not an
industry. So far as the demands of the N.M.R. workers are concerned, the
management took the stand that the project itself having been wound up and
there being no necessity for further continuance of the project which had been
taken up by the Government of India on humanitarian consideration for
rehabilitation of the refugees from Pakistan the question of regularisation of
the N.M.R. workers does not arise. The Union
on the other hand took the stand that the plea of the management that no work
is available for the N.M.R. workers is not correct and as such, N.M.R. workers
are being employed in several construction and irrigation works and, therefore,
the project authorities have the obligation of regularising the service who
have been working since 1950. The Inustrial Tribunal negatived both the
contentions raised on behalf of the management and came to hold that the
project is an Industry. It further came to hold that the claim for regularisation
of 425 N.M.R. employees is justified and they would not be retrenched and the
project authorities through the Government of India should find out the ways
and means to regularise them either under the Central Government or the
concerned state Governments or under Public Sector Undertakings of the Central
Government. When the award of the Tribunal was assailed in the High Court by
moving an application under Article 226 of the Constitution, the High Court
came to the conclusion that award does not contain any error of law which could
be corrected by issuance of writ of certiorari in exercise of power under
Article 226 of the Constitution and accordingly the writ petition filed by the
management stood dismissed.
Mr. V.R.Reddy,
learned Additional Solicitor General appearing for the appellant contends that
the rehabilitation project undertaken by the Government of India to rehabiliate
the refugees from Pakistan was in discharge of the sovereign function of the
Government and, therefore, cannot be held to be an industry and consequently
neither the reference was competent nor the Tribunal had any jurisdiction to
examine the demands raised by the employees union. Having examined the
aforesaid contention of Mr.Reddy, learned Additional Solicitor General and
having scrutinised the materials on record and the nature of duties discharged
by the workers and in view of the decision of this Court in Bangalore Water
Supply case it is difficult for us to accept the contention raised by learned Additional
Solicitor General. Bearing in mind the dominant nature of the activities of the
project and the nature of duties discharged by the workers in the project we
are of the considered opinion that the Dandakaranya Project is an industry
within the meaning of section 2(i) of the Industrial Disputes Act and the
conclusion of the Tribunal in this respect is unassailable.
Mr.
Reddy, learned Additional Solicitor General then contended that the project was
for the limited purpose of rehabilitating the refugees from Pakistan and the
said purpose having been achieved and the project itself having been wound up
and its assets and liabilities having been passed on to the State of Orissa and
State of Madhya Pradesh there do not exist regular posts with the project
authorities so as to consider the question of regularisation of 425 N.M.R.
workers and therefore, the ultimate conclusion of the Tribunal on this score is
wholly unsustainable in law.
Ms. Indira
Jaisingh, learned senior counsel appearing for the respondent workers, on the
other hand argued with vehemence that these N.M.R. workers having spent their
major part of life in serving under the project, it is the constitutional
obligation of the project authorities or the Government of India to get these
workers absorbed in some departments of the Government of India or in any
Public Sector Undertakings and, therefore, the impugned direction of the
Tribunal is wholly justified. The learned senior counsel further urged that
even in the project itself there exist sufficient vacancies against which these
N.M.R. workers could be regularised and the appellant therefore, is not
justified in contending that there do not exist any vacancies for considering
the regularisation of these N.M.R. workers.
Before
we examine the correctness of the rival submissions it would be appropriate to
notice that when this matter came up before this Court on 18.9.95 the Court had
called upon the appellant to explore the possibility of the 425 N.M.R.
employees being adjusted in any other project of the Governments of India or in
the concerned State Government. The aforesaid direction had been given bearing
in mind the nature of direction given by the Tribunal.
Pursuant
to the aforesaid direction of this Court the appellant as well as the Government
of India took certain steps for exploring the possibilities of regularising the
N.M.R. workers in any other projects and a detailed affidavit has been filed
indicating the inability of the Union Government to absorb these N.M.R. of the
Union Government to absorb these N.M.R. workers on regular basis in any other
department of Government of India or in any Public Sector Undertakings. After
going through the affidavits filed on behalf of the appellant as well as the
Government of India we are satisfied that steps authorities of the project as
well as the competent authority of the Government of India and inspite of their
best efforts and persuation it has not been possible to absorb 425 N.M.R. workers
in any of the department of the Government or in any Public Sector
Undertakings, in view of the situation prevailing in those organisations. In
this view of the matter the only question which requires consideration by this
Court is whether the impugned direction of the Tribunal in the circumstances as
found by it are at all sustainable in law.
The
Tribunal after elaborately discussing the evidence on record came to the
conclusion as under|-
"(a)
At present there 425 N.M.R. employees in the employment of the D.D.A. for whom
there is no sufficient work for absorption as regulars.
(b)
The Dandakarayna Development Authority is in the process of being wound up
since it has completed its work of rehabilitating displaced persons in the
project area.
(c)
The assets of the project have been transferred by the D.D.A. to the concerned
States, namely, the State Governments of Madhya Pradesh and Orissa.
(d)
The 425 employees have been working in the project since many years and most of
most of them would not be eligible to ensure fresh employment elsewhere.
(e)
All the work charged employees after an agitation made by them were regularised
while the N.M.R.
employees
were not regularised.
(f)
The bulk of the N.M.R.
employees
do not have any work in the project through the works in which had been engaged
are continuing under the respective State Government by the State Government
did not take them alongwith the works." Even after coming to the
conclusion that the project has been wound up and there are no employment
facilities for these N.M.R. workers for regular absorption yet the Tribunal
issued the direction requiring the project authorities to find out work for the
N.M.R. workers who have been working in the project continuously for more than
240 days. It may be stated that even though the project has been wound up and its
assets and liabilities have been transferred to the State of Orissa and State
of Madhya Pradesh yet on account of an interim order passed by this Court the
425 NMR workers are sitting idle and getting wages to the tune of Rs.1.50 lacs
per month which is undoubtedly an unnecessary financial strain on the public
exchequer. It is no doubt true that in the interest of these N.M.R. workers who
have spent a considerable period of their absorption on regular basis should be
explored but even after exploring such possibility if the concerned authorities
failed in their attempt. in our considered opinion it would not be appropriate
for a Court to issue mandamus in that regard and thus the Tribunal was wholly
in error in issuing the impugned direction. As has been stated earlier, while
the matter was pending in this Court pursuant to the interim direction of this
Court the concerned authorities explored the possibility of absorption of these
N.M.R. workers either under the Central Government or under any Public Sector
Undertakings or in the respective State Governments of Orissa and Madhya
Pradesh but affidavit has been filed indicating how they failed in their
attempt to get these N.M.R. workers absorbed on regular basis and we have
already held that the attempt was bonafide made and yet the authorities have
failed to get these N.M.R. workers absorbed on regular basis.
Ms Indira
Jaisingh, the learned senior counsel, however, in course of her argument relied
upon a decision of this Court in the case of G.Govinda Rajulu vs Andhra Pradesh
State Construction Corporation Limited and another [1986(Supp) Supreme Court
Cases 651] wherein this Court had issued direction to the employees of the
Andhra Pradesh State Construction Corporation Limited whose services stood
terminated on account of closure of the Corporation. But in the aforesaid case
neither there has been any discussion on any question of law nor any
circumstances have been indicated under which the direction was given. This
being the position the aforesaid decision cannot be of universal applications
in all cases where there has been a closure of the project which resulted in
termination of the employees.
Under
the Industrial Disputes Act if an industry is closed the employees thereof are
entitled to compensation as provided under Section 25(fff) of the Industrial
Disputes Act. During the pendency of this appeal on behalf of the Union a Scheme has been framed seeking 100 months' full
pay as compensation, the scheme being called the Golden Handshake Scheme, but
even the said scheme was found to be unworkable and the concerned Ministry
filed an affidavit indicating the reasons for not implementing the said scheme.
On the
admitted position that the Dandakaranya Project has been completely wound up
since 1990 and these N.M.R. workers would have been otherwise retrenched but
for the interim order of this Court in consequence of which the project
authorities have been paying every month to these workers to the tune of
Rs.1.50 lacs without getting them engaged in any work, we think that any
direction to pay compensation in terms of the Scheme will not be in the
interest of justice.
But,
however, the workers would be entitled to their rightful dues on account of
closure of the project as envisaged under Section 25(fff) of the Industrial
Disputes Act.
In the
circumstances we hold that the direction issued by the Tribunal to regularise
425 N.M.R. workers is wholly unsustainable in law and we accordingly set aside
the same.
The
High Court committed an error in not interfering with the aforesaid direction
of the Tribunal. The award of the Industrial Tribunal. So far as it relates to
425 N.M.R.
workers
is accordingly set aside and we hold that these N.M.R. workers should be
entitled to compensation as provided under Section 25 (fff) of the Industrial
Disputes Act. The interim order passed by this court in relation to these
N.M.R. workers stands vacated. The appeal is accordingly allowed. But in the
circumstances there will be no order as to costs.
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