M/S Bharat
Coking Coal Ltd. Vs. Rashtriya Colliery Mazdoor Sangh [2006] Insc 23 (16 January 2006)
Arijit
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
Appellant
calls in question the legality of the judgment rendered by a Division Bench of
the Patna High Court upholding the judgment of the learned Single Judge. By the
said judgments certain persons were held to be workmen of the appellant.
Factual
background in a nutshell is as follows:
The
Central Government in exercise of power under Section 10 of the Industrial
Disputes Act, 1947 (in short the 'Act') referred the following two disputes for
adjudication to the Central Government Industrial Tribunal No.1, Dhanbad
(hereinafter referred to as the 'Tribunal'): Reference No.32 of 1989 dated 16th
March, 1989:
-
"Whether
the action of the management of Sudamdih Colliery of M/s in denying employment
to Shri Karma Rout and 21 others with effect from 9.7.1977 is justified? If
not, to what relief the concerned workmen are entitled" and Reference
No.35 of 1989 dated 20th
March, 1989:
-
"Whether
the action of the management of Sudamdih Area of M/s BCCL in denying employment
to Shri Bhagwat Singh and 3 others, viz. Shri Sapan, Karan Sahi and Shanti Thakur,
who were engaged as sump cleaning mazdoors is justified? If not, to what relief
are the workmen entitled"? As the controversy involved in both the cases
was the same, the Tribunal heard them analogously and answered the references
in favour of the workmen declaring them to be workmen of the principal
employer, namely, the Management of M/s. Bharat Coking Coal Ltd. (hereinafter
referred to as the 'management') and directing for their reinstatement in service
with effect from the dates of references with 75% back wages.
Being
aggrieved by the said combined Award, the management filed two writ petitions
before the Patna High Court, being CWJC No.859/1993 (R) and CWJC No. 856/1993
(R), which were dismissed by the learned Single Judge on 10th August, 1998. Not being satisfied with the
judgment of the learned single Judge, the management has filed two appeals
under clause 10 of the Letters Patent.
Relying
on a decision of this Court in Air India Statutory Corporation etc. v. United Labour
Union and others (AIR 1997 SC 645) the Division Bench held that the decision of
the learned Single Judge was unexceptionable. Reference was also made to a
decision of this Court in Secretary, Haryana State Electricity Board v. Suresh
& Ors. etc. (JT 1999 (2) SCC 435) to hold that where the engagement of
workmen by a contractor is a camouflage to conceal the real relationship
between principal employer and the workmen, then also the workmen employed
through unlicensed contractor are liable to be treated as workmen of the
principal employer.
Mr. Ajit
Kumar Sinha, learned counsel for the appellant submitted that the view
expressed by the learned Single Judge and the Division Bench cannot be
sustained in view of the Constitution Bench judgment of this Court in Steel
Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. (2001
(7) SCC 1). It was pointed out that though dispute purportedly relating to the
period 1976-77 was raised long after i.e. about a decade and on that score
alone the claimants were not entitled to any relief. There was a settlement
arrived at which was binding. But the Tribunal and the High Court did not take
note of the same. Additionally, in the reference names of the workmen were not
given and it was not clear as to whose cause was being espoused by the union.
For the first time in the statement filed before the Tribunal by the Union, the names were indicated. The reference was,
therefore, incompetent, but the Tribunal had lightly brushed it aside.
Mr.
S.B. Upadhyay, learned counsel for the respondent on the other hand submitted
that the decision in Steel Authority's case (supra) applies to the present case
as the so-called contractor was introduced as a camouflage. This aspect has
been noticed by the Tribunal.
Additionally,
the respondents were not inactive and they were making all the efforts to get the
matter settled. Merely because the names were not given, that did not render
the reference incompetent. Further, the settlement referred to had no legal
sanction.
In
order to appreciate the rival submissions observations of this Court in various
cases need to be noted.
In
Steel Authority's case (supra) it was observed, inter alia, as follows (at para
125): "125 - The upshot of the above discussion is outlined thus:
-
-
Before
28-1-1986, the determination of the question whether the Central Government or
the State Government is the appropriate Government in relation to an
establishment, will depend, in view of the definition of the expression
"appropriate Government" as stood in the CLRA Act, on the answer to a
further question, is the industry under consideration carried on by or under
the authority of the Central Government or does it pertain to any specified
controlled industry, or the establishment of any railway, cantonment board,
major port, mine or oilfield or the establishment of banking or insurance
company ? If the answer is in the affirmative, the Central Government will be
the appropriate Government; otherwise in relation to any other establishment
the Government of the State in which the establishment was situated, would be
the appropriate Government;
-
After
the said date in view of the new definition of that expression, the answer to
the question referred to above, has to be found in clause (a) of Section 2 of
the Industrial Disputes Act; if
-
the Central
Government company/undertaking concerned or any undertaking concerned is
included therein eo nominee, or
-
any industry is
carried on
-
by or under the authority of the
Central Government, or
-
by a railway company; or
-
by a specified controlled industry,
then the Central Government will be the appropriate Government; otherwise in
relation to any other establishment, the Government of the State in which that
other establishment is situated, will be the appropriate Government.
-
-
A
notification under Section 10(1) of the CLRA Act prohibiting employment of
contract labour in any process, operation or other work in any establishment
has to be issued by the appropriate Government: (1) after consulting with the
Central Advisory Board or the State Advisory Board, as the case may be, and (2)
having regard to (i) conditions of work and benefits provided for the contract labour
in the establishment in question, and (ii) other relevant factors including
those mentioned in sub-section (2) of Section 10;
-
Inasmuch as the impugned notification issued by the Central Government on
9-12-1976 does not satisfy the aforesaid requirements of Section 10, it is
quashed but we do so prospectively i.e. from the date of this judgment and
subject to the clarification that on the basis of this judgment no order passed
or no action taken giving effect to the said notification on or before the date
of this judgment, shall be called in question in any tribunal or court including
a High Court if it has otherwise attained finality and/or it has been
implemented.
-
Neither Section
10 of the CLRA Act nor any other provision in the Act, whether expressly or by
necessary implication, provides for automatic absorption of contract labour on
issuing a notification by the appropriate Government under sub-section (1) of
Section 10, prohibiting employment of contract labour, in any process,
operation or other work in any establishment. Consequently the principal
employer cannot be required to order absorption of the contract labour working
in the establishment concerned.
-
We overrule the
judgment of this Court in Air India case (Air India Statutory Corpn. v. United Labour
Union, (1997) 9 SCC 377 prospectively and declare that any direction issued by
any industrial adjudicator/any court including the High Court, for absorption
of contract labour following the judgment in Air India case (Air India
Statutory Corpn. v. United Labour Union, (1997) 9 SCC 377 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.
-
On issuance of
prohibition notification under Section 10(1) of the CLRA Act prohibiting
employment of contract labour or otherwise, in an industrial dispute brought
before it by any contract labour in regard to conditions of service, the
industrial adjudicator will have to consider the question whether the
contractor has been interposed either on the ground of having undertaken to
produce any given result for the establishment or for supply of contract labour
for work of the establishment under a genuine contract or is a mere
ruse/camouflage to evade compliance with various beneficial legislations so as
to deprive the workers of the benefit thereunder. If the contract is found to
be not genuine but a mere camouflage, the so-called contract labour will have
to be treated as employees of the principal employer who shall be directed to regularise
the services of the contract labour in the establishment concerned subject to
the conditions as may be specified by it for that purpose in the light of para
6 hereunder.
-
If the contract
is found to be genuine and prohibition notification under Section 10(1) of the
CLRA Act in respect of the establishment concerned has been issued by the
appropriate Government, prohibiting employment of contract labour in any
process, operation or other work of any establishment and where in such
process, operation or other work of the establishment the principal employer
intends to employ regular workmen, he shall give preference to the erstwhile
contract labour, if otherwise found suitable and, if necessary, by relaxing the
condition as to maximum age appropriately, taking into consideration the age of
the workers at the time of their initial employment by the contractor and also
relaxing the condition as to academic qualifications other than technical
qualifications." In a later case in Nitinkumar Nathalal Joshi and Ors. v.
Oil and Natural Gas Corporation Ltd. and Ors. (2002 (3) SCC 433), it was noted
in paragraph 8 as follows:
"8-In
the present case, the appellants were not absorbed by the principal employer.
Therefore, it cannot be said that the decision in Steel Authority of India Ltd.
case ((2001) 7 SCC 1) cannot be applied. The directions issued by the learned
Single Judge were modified by the Division Bench of the High Court and never
given effect to. Therefore, the directions issued by this Court in Steel
Authority of India Ltd. case ((2001) 7 SCC 1) are applicable on all
fours." So far as delay in seeking the reference is concerned, no formula
of universal application can be laid down. It would depend on facts of each
individual case.
However,
certain observations made by this Court need to be noted. In Nedungadi Bank
Ltd. v. K.P. Madhavankutty and Ors. (2000 (2) SCC 455) it was noted at
paragraph 6 as follows:
"6.
Law does not prescribe any time-limit for the appropriate Government to
exercise its powers under Section 10 of the Act. It is not that this power can
be exercised at any point of time and to revive matters which had since heel)
settled. Power is to be exercised reasonably and in a rational manner. There
appears to us to be no rational basis on which the Central Government has
exercised powers in this case after a lapse of about seven years of the order
dismissing the respondent from service. At the time reference was made no
industrial dispute existed or could be even said to have been apprehended. A
dispute which is stale could not be the subject-matter of reference under
Section 10 of the Act. As to when a dispute can be said to be stale would
depend on the facts and circumstances of each case. When the matter has become
final, it appears to us to be rather incongruous that the reference be made
under Section 10 of the Act in the circumstances like the present one. In fact
it could be said that there was no dispute pending at the time when the
reference in question was made. The only ground advanced by the respondent was
that two other employees who were dismissed from service were reinstated. Under
what circumstances they were dismissed and subsequently reinstated is nowhere
mentioned. Demand raised by the respondent for raising an industrial dispute
was ex-facie bad and incompetent." In S.M. Nilajkar and Ors. v. Telecom
District Manager, Karnataka (2003 (4) SCC 27) the position was reiterated as
follows: (at para 17) "17. It was submitted on behalf of the respondent
that on account of delay in raising the dispute by the appellants the High
Court was justified in denying relief to the appellants. We cannot agree. It is
true, as held in M/s. Shalimar Works Ltd. v. Their Workmen (supra) (AIR 1959 SC
1217), that merely because the Industrial Disputes Act does not provide for a
limitation for raising the dispute it does not mean that the dispute can be
raised at any time and without regard to the delay and reasons therefor. There
is no limitation prescribed for reference of disputes to an industrial
tribunal, even so it is only reasonable that the disputes should be referred as
soon as possible after they have arisen and after conciliation proceedings have
failed particularly so when disputes relate to discharge of workmen wholesale.
A delay of 4 years in raising the dispute after even reemployment of the most
of the old workmen was held to be fatal in M/s. Shalimar Works Limited v. Their
Workmen (supra) (AIR 1959 SC 1217), In Nedungadi Bank Ltd. v. K.P. Madhavankutty
and others (supra) AIR 2000 SC 839, a delay of 7 years was held to be fatal and
disentitled to workmen to any relief. In Ratan Chandra Sammanta and others v.
Union of India and others (supra) (1993 AIR SCW 2214, it was held that a casual
labourer retrenched by the employer deprives himself of remedy available in law
by delay itself, lapse of time results in losing the remedy and the right as
well. The delay would certainly be fatal if it has resulted in material
evidence relevant to adjudication being lost and rendered not available.
However, we do not think that the delay in the case at hand has been so
culpable as to disentitle the appellants for any relief.
Although
the High Court has opined that there was a delay of 7 to 9 years in raising the
dispute before the Tribunal but we find the High Court factually not correct.
The employment of the appellants was terminated sometime in 1985-86 or 1986-87.
Pursuant
to the judgment in Daily Rated Casual Employees Under P&T Department v.
Union of India (supra) (AIR 1987 SC 2342), the department was formulating a
scheme to accommodate casual labourers and the appellants were justified in
awaiting the outcome thereof. On 16-1-1990 they were refused to be accommodated in the scheme. On 28-12-1990 they initiated the proceedings under the Industrial Disputes
Act followed by conciliation proceedings and then the dispute was referred to
the Industrial Tribunal cum-Labour Court. We do not think that the appellants
deserve to be non suited on the ground of delay." It appears that the
Tribunal and the High Court did not consider the factual position in the
background of the legal position as noted above. Of course at the point of time
when the matter was decided Air India's case (supra) held the field. But, in view of the pronouncement of the
Constitution Bench in Steel Authority's case (supra) the matter needs to be
re-examined by the High Court. Though it was submitted by Mr. Upadhyay that
there is a finding about the appellant having adopted a camouflage, there is no
definite finding by the Tribunal and/or the High Court in this regard. Mere
reference to certain observations of this Court would not suffice without
examination of the factual position.
Additionally,
the effect of omitting the names of the claimants whose cause was being
espoused by the Union has not been considered by the High
Court in the proper perspective. Similar is the position regarding purported
settlement. In these peculiar circumstances, it would be appropriate for the
learned Single Judge of the High Court to re-consider the matter. Accordingly,
the matter is remitted to the High Court so that learned Single Judge can
consider the matter afresh taking into account the principles set out above and
consider their applicability to the background facts on the issues raised by
the appellant. As the matter is pending since long, learned Chief Justice of
the High Court is requested to allot the matter to a learned Single Judge who
shall make an effort to dispose of the matter afresh within a period of six
months from the date the matter is allotted by the learned Chief Justice.
The
appeals are allowed to the aforesaid extent without any order as to costs.
Back