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Cites 2 docs
Section 10(1) in The Income- Tax Act, 1995
Steel Authority Of India Ltd. & ... vs National Union Water Front ... on 30 August, 2001
Citedby 1 docs
Employers In Relation To The ... vs Presiding Officer, Central ... on 6 May, 2004

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Jharkhand High Court
Employers In Relation To The ... vs Presiding Officer, Central ... on 23 December, 2003
Equivalent citations: 2004 (1) JCR 360 Jhr
Author: M Eqbal
Bench: M Eqbal

JUDGMENT M.Y. Eqbal, J.

1. In this writ application the petitioner who is the management of Bhuli Town Administration of M/s. Bharat Coking Coal Limited has challenged the award dated 29.12.1997 passed by the Central Government Industrial Tribunal No. 2, Dhanbad in reference case No. 165 of 1993.

2. The Central Government vide its order dated 14.9.1993 referred the following dispute to the tribunal for adjudication. "Whether the action of the management of M/s. Bharat Coking Coal Ltd., Koyla Bhavan, Dhanbad in not giving employment to S/Shri Anil Kumar and 90 others is justified? If not, to what relief the concerned workmen are en-" titled?"

3. The case of the concerned workmen is that there is township of M/s. BCCL at Bhuli having quarters for coal workers, dispensaries, hospitals, schools etc. as offices under the direct supervision and control of BCCL. It consist of five blocks. The management of three blocks of that township was , transferred to BCCL in 1986. The concerned workmen were working in the newly constructed block D and F since October 1978 under BCCL. The concerned workmen while so working continuously for more than 240 days in a particular year, their union demanded regularization of their services. It was on 28.2.1986 the concerned workmen were removed without assigning any reason. The union therefore sought regularization of their services. The concerned workmen claimed to be the workmen directly under the control and supervision of management of BCCL.

4. The case of the petitioner management on the other hand is that Bhuli Town Administration has five blocks. So far block A, B and C are concerned those were in existence from before 1978 and were under the control of Coal Mines Labour Welfare Organization of the Central Government. The quarter situated therein were allotted to the workers of the management for which management used to pay rent to the welfare organization. The sanitation work, cleaning, sweeping etc. of quarters use to be done by the workers occupying the quarter. The quarter of block D and E were allotted to the worker and the management with the help of the contractor used to remove garbages from the road side dumps and one Shri Tarun Banerjee was appointed as contractor for that purpose who has been doing duties with the help of workmen numbering 35 since 1982. Thereafter, the management decided to abolish the contract system in the year 1986 when all five blocks came under the management and control of BCCL.

5. The tribunal formulated the following points for the purpose of deciding the reference :

(1) Whether there was any relationship of employer and employee between the management and the workmen concerned in respect of Bhuli Town Administration at any point of time and, (2) If so, if the workmen concerned are entitled to be employed by way of reinstatement?

6. The tribunal after considering the evidence, both oral and documentary, recorded a finding that the concerned workmen were serving at different blocks under the then Sr. Administration Officer, Town Ad-ministration. The tribunal however further came to a finding that even the worker engaged by the contractors was for the benefit of the management of M/s. BCCL it shall be presumed that there existed relationship of employer and employee between the management and the workmen. The tribunal therefore, held that the concerned workmen are entitled to be reinstated and regularized in employment.

7. Mr. A.K. Mehta learned counsel appearing for the management assailed the impugned award as being contrary to law and the facts on record. Learned counsel submitted that in view of the finding recorded by the tribunal no award of reinstatement or regularization could have been given by the tribunal. Learned counsel put heavy reliance on the decision of the Supreme Court in the case of Steel Authority of India Ltd. v. National Union Waterfront Workers, 2001 (7) SCC 1. Learned counsel also relied upon the judgment of this Court in the case of LPA No. 297 and 298 of 2001 and LPA No. 204 of 2001.

8. Mr. Kalyan Roy learned counsel appearing for the concerned workmen on the other hand submitted that on the basis of the finding recorded by the tribunal the award of reinstatement has rightly been passed. Learned counsel submitted that the award cannot be interfered with by this Court in the exercise of writ jurisdiction.

9. The tribunal after considering the entire facts of the case and the evidence brought on record recorded the following finding :

The oral evidence adduced by the respective parties are thus on extremeopposite poles. But the document produced by the respective sides, are there from which it can be safely said that in fact, the workmen as per list served under the management of BCCL by serving at Bhuli Township at different blocks under the then Sr. Administrative Officer, Town Administration since the year 1978 and for that purpose Ext. W-l, W-4. W-14 are some of the documents in support of the claims of the workmen although rest of the documents admitted in the evidence oh the side of the workmen are not less important. The learned Advocate on the side of the management during his lengthy submission has ar-.gued much about the grudge etc. of Sri R.K. Prasad, WW-1 describing him as dismissed employee of BCCL and at the same time about the corrupt practice of the then Sr. Administrative Officer Camp. O.P. Srivastava who as per submission of learned Advocate even after his removal from his service went on issuing such certificates after certificates to several persons with a view to show that in fact they worked under the management M/s. BCCL and that Ext. W-l is such a certificate. I however, after going through the respective documents of the parties admitted in the evidence cannot but hold that Ext. W-1 can never be treated as certificate alleged to have been granted by the then Sr. Administrative Officer Camp. O.P. Srivastava to any workman rather perusal of the same will show that it is a letter written in the year 1982 to Sri U. Mishra, Law Officer, Karmik Bhawan, BCCL in respect of several persons and mentioned in that letter by describing those persons as workers under contractor but for the Bhuli Township. Assuming for argument sake that Sri Srivastava adopted corrupt practices during his tenure at Bhuli Town Administration as Sr. Administrative Officer but it has never been disputed by the learned Advocate on the side of the management that after all O.P. Srivastava was an Officer of M/s. BCCL whatever Mr. Srivastava did as Sr. Administrative Officer of Bhuli Town Administration he did so in his official capacity and in that view of the matter even in case any importance is given to any such corrupt practice of Sri Srivastava in that case also the liability is of the management to allow such person to remain as Sr. Administrative Officer of any Town Administration and in the instant case Bhuli Town Administration. Secondly it is a well settled principle of law that even the workers engaged by the contractor but for the benefit of any concern and in the present case for M/s. BCCL in that case also in view of the decision of the Hon'ble Supreme Court when the benefit was derived by the management through the workers of the contractor it cannot but must be presumed that there existed relationship of employer and employee between the management of BCCL and the workmen as per list in the reference case. That being the position the workmen as per list are no doubt entitled to be reinstated in other words by way of employment. Both the above points are thus decided in favour of the workmen and against the management. The result is that the point for adjudication is liable to be decided by answering the same in negative. I do pass an award accordingly. The management is however, allowed three months time from the date of publication of this award to reinstate and provide the concerned workmen (as per list) with employment in the minimum category of NCWAS but without any back wages.

10. A Division Bench of this court considered a similar case in LPA Nos. 297 and 298 of 2001 observed as under :

"Mr. Mehta counsel for the appellant placed reliance on a Constitution Bench decision of the Apex Court in Steel Authority of India Ltd. and Ors. v. Union Waterfront and Ors., 2001 (7) SCC 1 and submitted that no doubt in the present case the concerned workmen, in view of the finding of the industrial tribunal, have to be treated as the employees of the principal employer,. M/s. BCCL and have to be regularized and, therefore, the direction of the Apex Court in paragraph 125(6) of the Steel Authority of India Ltd., (supra) be applied herein and, accordingly, as and when M/s. BCCL intends to employ regular workmen it -shall give preference to them, if otherwise found suitable and If necessary, by relaxing the condition as to the maximum age appropriately, taking into consideration their age at the time of their initial employment and also relaxing the condition as to academic qualifications other than technical qualifications."

11. In another LPA No. 309 of 1997 (R) a Division Bench of this court after considering the ratio decided by the Supreme Court in Steel Authority of India, case (supra) held as under :

"Even going by the findings of the tribunal, it is clear that the concerned were engaged by the contractor and there was no prohibition for engaging contract labour on the job of maintenance and repairing of hand pumps. Even if the said job was a regular one, there is no material to hold that the workmen were engaged/working continuously under the contractor. There is no finding that the contract in question was a camouflage. It is held in paragraph 120 of Steel Authority's case (supra) that, at various stages there is involvement of the principal employer, and that neither the provisions of the Act create a direct relationship of master and servant between the principal employer and the contract labourer nor can such relationship be implied, on issuing a prohibition notification under Section 10(1) of Act It was also held in paragraph 125(3) that there is no provision for automatic absorption of contract labour in issuing a prohibition notification. The Air India case (supra) on the basis of which the learned Single Judge has allowed the writ petition in part, has been over-ruled. However, any direction for absorption issued following the judgment of Air India case were saved in cases where such direction has been given effect to and has become final. In the present case, as the direction to regularize has not been given effect to and it has not become final in view of the pendency of these appeals, we are of the view that Steel Authority's case is applicable in the present case."

12. In the instant case also as noticed above the tribunal came to a finding that although the workers engaged by the contractors was for the benefit of the management of M/s. BCCL, it shall be presumed that there existed the relationship of employer and employee between the management and the workmen. On these finding the tribunal directed for reinstatement and regularization of the concerned workmen. In the light of the ratio decided by the Sup'reme Court in Steel Authority of India Ltd., case (supra) and also having regard to the two decisions of the Division Bench of this Court the impugned award of reinstatement is bound to be set aside. However it is directed that as and when the petitioner-management intends to employ regular workmen it shall give preference to the concerned workmen, if otherwise found suitable, and if necessary, by relaxing the contention as to the maximum age, taking into consideration their age at the time of their initial employment and also relaxing the condition as to academic qualification other than technical qualification.

13. For the aforesaid reason this writ application is allowed and the impugned award is quashed with the aforesaid direct.