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Judgment
Ashoke Kumar Dasadhikari, J.—The subject-matter of challenge in this writ petition is the award impugned passed by the Central Government Industrial Tribunal, Asansol on a reference made u/s 10(1)(d)(2A) of the Industrial Disputes Act, 1947. The Central Mines Planning and Design Institute Ltd., hereinafter referred to as ''the Company'', has come up before this Court questioning the award which has gone against them. The reference was made by the Central Government, Ministry of Labour before the Central Government Industrial Tribunal No. 1, Dhanbad. The reference reads as follows:--
Whether the demand of the Bihar Colliery Kamgar Union for regularisation of Shri Subhas Banerjee as Pump Operator from the management of M/s. CMPDIL is justified? If so, to what relief is the concerned workman entitled and from what date?
The fact of this case is that the workman, Subhas Banerjee, has been working as pump operator under the management of M/s. CMPDIL since 1st April, 1997 and a demand was made by the Union before the management to regularise him in service as pump operator. The company did not accept the same and the union raised the dispute, which was referred before the Tribunal for adjudication.
The case of the union as briefly stated is that the workman has been working as a pump operator for supply of water in the office of the company building and the workman concerned was also doing the job of plumber, such as repairing/replacing water taps, repairing pipeline etc. in the office building of the company Officers'' bungalow, staff quarter and guesthouse since 1997 continuously. The work of pump operator along with other works are being performed by the workman continuously which are permanent in nature and the work of the workman is under direct control and supervision of the management. The union claimed that the worker is doing his job regularly and continuously and his attendance was more than 240 days in each calendar year. The nature of jobs performed by the workman is rendered to and beneficial for the management although the job is of permanent in nature and the workman concerned doing uninterrupted service was paid wages below the rate of National Coal Wages Agreement on the ground that the workman is a contractor.
It was further case of the union that the management has been forcing the workman concerned to submit tender and to quote rate for the work and also to submit the bills to receive his monthly wages and also to pose the workman as a contractor only with a view to camouflage the real issue.
According to union, the management is practically paying wages to the workman on monthly basis against the bills which the workman was forced to prepare and submit. The actions of the management posing the workman as contractor and forcing himself to submit tender and bills are only paper transaction to conceal the real state of affairs and camouflage the real issues. The management of the company has been paying the workman Rs. 1,600/- per month from 1st April, 1997 to 31st March, 1998 and thereafter the monthly wages was decreased to Rs. 1,400/- per month from 1st April, 1998 to 31st March, 2000. From 1st April, 2000 to 30th June, 2001 the management has been paying wages at the rate of Rs. 1,199/- per month and thereafter from 1st July, 2001 the management has been paying Rs. 1,149/- per month and the wage being paid to the workman is below the rate of minimum wages applicable in the State. The management is taking benefit of unemployment of the workman and has been exploiting him most illegally. The workman concerned made several representations before the company''s management for his regularisation and payment of wages as per National Coal Wage Agreement but his prayer was not considered by the management.
Having found no other alternative the union raised the dispute before the Assistant Labour Commissioner (Central) Dhanbad for conciliation. During conciliation the workman was threatened by the management to be removed from service and thereafter, also the management forced the workman to submit tender and bills in the capacity of purported contractor, although he is working as a regular employee. The conciliation proceeding failed and thereafter the dispute was referred to the Tribunal.
According to union, refusal to regularise the workman in service as pump operator and non-payment of wages as per National Coal Wage Agreement is illegal, arbitrary and unjustified. Accordingly, the prayer was made to answer the reference in favour of the workman and direct the company to regularise the workman as pump operator with retrospective effect and with arrear of salary and other consequential benefits.
The case of the management in brief is that the reference is not legally maintainable. The company invited quotations for supervision and operation of 10 H.P. pump in the office of the company at Dhanbad and several parties including M/s. Subhas Enterprise submitted their qualification in the form of tender since the tender of M/s. Subhas Enterprise was found suitable, work order was issued in their favour and on that basis the workman was performing the job. It was also stated that the workman namely, Subhas Banerjee reported himself as workman of the aforementioned firm, M/s. Subhas Enterprise and has been performing the job of running and maintenance of 10 H.P. pump and other incidental work connected with operation of pump.
It was contended by the management that the workman was given contract for a period of one year only at a time and after expiry of one year the said contract was used to stand terminated automatically and fresh quotations were invited and thereafter a fresh contract was awarded. According to management, the workman was performing his job on behalf of M/s. Subhas Enterprises year to year basis according to work order issued in favour of the firm and the said workman was merely a contract worker and not the worker of the management.
It was also contended that there was no relationship of employer-employee between the management of the company and the concerned workman and therefore, the prayer for regularisation as made by the union is not legal and the workman is not entitled to be regularised. The workman approached the sponsoring union with ulterior motive with a view to get himself inducted in the employment of the management by way of regularisation, etc.
Union filed rejoinder and denied the statements and allegations made by the management and they reiterated their stand taken in the written statement. The union also contended that the management has falsely alleged that the employee-employer relationship do not exist between the workman and the employer. Both the parties adduced oral and documentary evidence on their behalf. The union and the management both examined only one witness each. The respondent No. 5, Subhas Banerjee, the workman has been examined by union as WW-1 whereas Sri A.K. Chakravarty, Dy. Chief Engineer (E & M) of CMPDIL, Dhanbad has been examined on behalf of management as MW-1.
Out of documentary evidence adduced on behalf of union Exhibit W-1 series are the letters, Ext. W-2 is the copy of register of complaint, Ext. W-3 are slips said to be issued to the workman by Sri G.K. Bhagat, Civil Dy. Engineer by which the workman was being entrusted to visit the quarters for the purpose of repairing and maintenance and Exhibit W-4 series are copies of receipts showing purchase of materials for the purpose of repairing and maintenance and Exhibit W-5 is the copy of letter dated 19th April, 1997 sent to the workman by Sri A.K. Ghosh, Dy. Chief Engineer (E & M).
On the side of the management, documentary evidence adduced, Exhibit M-1 is photo copy of a letter showing submission of quotation, exhibit M-2 series are photo copies of bills of different dates submitted by M/s. Subhas Enterprises, Exhibit M-2/1 series are photo copies of vouchers of different dates of CMPDIL showing payment of wages to the workman, Exhibit M-3 series are photo copies of tender notices in different dates and Exhibit M-4 is photo copy of a paper taking decision of tender committee accepting a particular tender. Both parties adduced their evidence and the arguments were also advanced before the Central Government Industrial Tribunal No. 1 and thereafter by order of the Central Government Ministry of Labour this case was transferred to the Central Government Industrial Tribunal, Asansol.
On consideration of the pleadings of the parties and the submission made on their behalf following issues were framed for consideration and adjudication:--
(i) Does the relationship of employee and employer between the said workman and the management exist?
(ii) Whether the plea of the management that the said workman is a contract labour is a camouflage or actually he is a contract labour?
(iii) Whether the demand of the union for regularising Subhas Banerjee as Pump Operator from the management is justified? And if so, to what relief he is entitled to and from what date?
Since all three issues are interconnected and interlinked with each other, the Tribunal considered and decided all the said three issues altogether.
After careful consideration of all the facts and materials available before it, the Tribunal came to a conclusion that the contract is a mere camouflage and the workman concerned is really working as pump operator directly under the company. It was categorically held that it is not a genuine case of the contract labour rather camouflage and a sham transaction. Accordingly, the Tribunal passed the award impugned on 16th April, 2003 in favour of the workman. On that basis the workman is entitled to be regularised from the month of September, 2001 and all consequential benefits of the job of regular pump operator were to be given to the employment concerned.
Mr. Soumya Majumdar, learned Counsel appearing for the petitioner-company submits that the petitioner is a public undertaking and a Government company invited quotations for supervision/operation and maintenance of its 10 H.P. pump for supply of water and also for maintaining and repairing the pipeline as and when necessary. M/s. Subhas Enterprise, a proprietorship firm of which Subhas Banerjee is the proprietor submitted his quotation and was awarded the work initially by an order dated 26/27th March, 1997 on the terms and conditions referred to in the invitation for quotation and the work order was issued for a period of one year with effect from 1st April, 1997 till 31st March, 1998 at a fixed of Rs. 1,600/- per month.
According to Mr. Soumya Majumdar, the work was not permanent in nature and the work was being carried out under the job contract as agreed by and between the parties. Bill for work done used to be submitted month by month by M/s. Subhas Enterprise which on scrutiny was passed for payment. Mr. Soumya Majumdar submitted that this way the company invited tender and the petitioner-company, a successful bidder was given a contract work for operational and maintenance of pump and pipeline till 2007. Thereafter he was not awarded any contract although the award was passed in the year 2003 holding that the workman concerned is entitled to be regularised on and from September, 2001 with all consequential benefits.
According to Mr. Soumya Majumdar it is purely a contractual matter and the service condition of the workman was not applicable to him. He submitted in the month of July, 1998 dispute was sought to be raised by Subhas Banerjee and the matter was referred to the Tribunal. The Tribunal failed to appreciate the material facts and also failed to consider the documents showing the contract awarded to the proprietorship firm M/s. Subhas Enterprise.
Mr. Soumya Majumdar submitted that this was a yearly contract and the reduction of monthly payments were made on account of paying income tax and also security deposit which was not returned.
Mr. Soumya Majumdar submitted there is complete lack of documentary evidence, which was not appreciated properly by the Tribunal. According to him, presumption of the Tribunal is not based on any evidence. Tribunal erroneously failed to appreciate the relevant documents namely, invitation for award of contract, bills raised by the contractor himself.
According to Mr. Soumya Majumdar, wrong tests were applied for coming to a conclusion that the workman concerned was not a contractor rather it is a mere camouflage to evade various beneficial legislation. Mr. Majumdar also submitted that the SAIL''s judgment which was relied by the Tribunal is not at all applicable in the facts and circumstances of this case and SAIL''s judgment was on contract labour. According to him, the SAIL''s judgment was not at all applicable.
Mr. Majumdar also cited following decisions in support of his arguments:--
(1) Bhilwara Dugdh Utpadak Sahakari S. Ltd. Vs. Vinod Kumar Sharma Dead by L.Rs. and Others,
(2) U.P. Power Corporation Ltd. and Another Vs. Bijli Mazdoor Sangh and Others,
(3 Food Corporation of India Vs. Central Government Industrial Tribunal, Asansol and Others,
(4) Employees in relation to the Management of Central Mine Planning and Design Institute Ltd. Vs. Presiding Officer, Central Govt. Industrial Tribunal No. 1 and Another,
(5 Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another,
(6) Moti Lal Saraf Vs. State of Jammu and Kashmir and Another,
According to Mr. Majumdar, the Tribunal misdirected itself and failed to consider the relevant documents available before it and also applied wrong tests to come to such a conclusion. According to him, the award passed by the Tribunal is contrary to the principle of law applicable in this regard and perverse.
Mr. R.N. Majumdar, learned Counsel appearing in support of the workman submits that the Tribunal upon consideration of the relevant facts as well as the materials, documentary evidence produced by the respective parties before the Tribunal, have come to a definite conclusion that taking undue advantage of unemployment of the workman, the management has been forcing him to create the paper in support of purporting contract which is merely paper transaction to conceal the real fact and it was specifically held by the Tribunal that the contract and/or award of contract was practically a camouflage and since beginning the petitioner became the principal employer of the concerned workman.
It was specifically held that the relationship of employee and employer between the workman viz., Subhas Banerjee and the management of the company exists. It was also found that the workman is performing the job of pump operator continuously from 1st April, 1997 without any break and he has completed 240 days in each calendar year up to 2007.
Mr. Majumdar also submitted that most illegally and unfairly the company terminated the service of the petitioner in 2007 even in spite of the fact this Court passed an interim order in favour of the workman concerned and the workman concerned was continuing on that basis till 2007. After being removed by the management of the company the workman filed contempt application which was pending and it could not be disposed of in view of complicated court''s proceeding as well as for some other reasons.
According to Mr. Majumdar, this Hon''ble Court passed an interim order on 29th October, 2003 to the effect that pending decision on the jurisdictional point status quo as on date shall be maintained. It was also made clear by the Hon''ble Court that in the event respondent No. 5, the workman, has been in employment in any capacity on the date of passing the award, he would remain in employment. If he is not in employment then he cannot enforce the aforesaid award.
Mr. Majumdar submitted it is an admitted fact that the concerned workman was in employment till 2007. Thereafter the company clearly violated the order of the learned Single Judge of this Hon''ble Court. The writ petitioner was removed from service most illegally and unfairly and also in clear contravention and violation of the order passed by this Hon''ble Court.
Mr. Majumdar submitted the tribunal after careful consideration of the entire matter has come to a definite conclusion that it is not a genuine case of contract labour rather merely a camouflage and a sham transaction. According to the Tribunal, the workman concerned is performing his job and getting the wages in the capacity of a worker.
Mr. Majumdar submitted that in similar such circumstances the Hon''ble High Court at Ranchi refused to interfere in the award dated April 24, 1997 passed by Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad.
Mr. Majumdar submitted that the writ petitioner company in the present case was the writ petitioner before the Jharkhand High Court. They questioned the Tribunal award challenging that the finding of the Tribunal about the relationship of employee and employer between the parties but failed. The said decision is reported in Employees in relation to the Management of Central Mine Planning and Design Institute Ltd. Vs. Presiding Officer, Central Govt. Industrial Tribunal No. 1 and Another, which was affirmed by the Division Bench decision reported in Employers in relation to the Mgt. of Central Mine Planning and Design Institute Ltd. Vs. The Presiding Officer, Central Govt., Industrial Tribunal No. 1 and Another,
Mr. Majumdar submitted when there is no perversity in the award passed by the Tribunal, no inference should be made by the writ court. The case cited by Mr. Soumya Majumdar contending that the case of Uma Devi is applicable, according to Mr. Majumdar is not at all correct.
Mr. Majumdar referred to a decision in support of his contention which is reported in G.M. ONGC, Shilchar Vs. ONGC Contractual Workers Union, According to Mr. Majumdar, in similar circumstances when the Hon''ble Apex Court considering the regularisation of workmen of Electricity Board who were working from before 4th May, 1990 held that the case of Uma Devi is to be read in conformity with Article 14 of the Constitution and it cannot be read in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution. According to him, the case of Uma Devi is standing on a different footing, which relates to contract of casual labour regularisation. According to Mr. Majumdar the case of Uma Devi is not at all applicable in the facts and circumstances of this case.
Mr. Majumdar laid emphasise on paragraphs 9 and 13. It was submitted by Mr. Majumdar that the Hon''ble Supreme Court in similar such circumstances held that when no perversity or patent illegality in the Award of the Industrial Tribunal is found the Court sitting in writ jurisdiction should not interfere save and except only if the award is perverse or patently illegal.
Mr. Majumdar submitted that the case of Uma Devi was cited mechanically without looking at the facts of this case. Therefore, it has no manner or application. Mr. Majumdar also cited another decision reported in International Airport Authority of India Vs. International Air Cargo Workers'' Union and Another,
Mr. Majumdar also cited three other Supreme Court decisions wherein International Airport Authority (supra) was relied upon. Those decisions are reported in:--
(1) Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others,
(2) Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others,
(3) Kaushalya Devi and Others Vs. Bachittar Singh and Others,
According to Mr. Majumdar, the findings of the Tribunal are based on consideration of all factual matters. This Hon''ble Court sitting in a writ jurisdiction should not interfere in such findings unless and until it is shown that the findings are all perverse.
According to Mr. Majumdar, Contract Labour (Regulation and Abolition) Act, 1970 has no manner of application in the instant case. According to him, as per Section 1(4)(a) of the said Act requires 20 or more workers to be registered u/s 7 of that Act. But here the case is totally different and the consideration and/or determination of the Tribunal was sought for whether the alleged contract was a camouflage or not, whether there was employer-employee relations between the parties or not, whether the writ petitioner was a regular employee of the company or not, all these questions are answered positive in the award allowing compensation in favour of the workman concerned. Therefore, this writ petition must fail.
Mr. Soumya Majumdar in reply submitted that the judgments cited by Mr. R.N. Majumdar are delivered on different set of facts and the tests applied in those cases are not at all applicable in the facts and circumstances of the case.
According to him, in the instant case proper tests which were to be applied for determination of the issues involved were not applied by the Tribunal and the Tribunal has come to a conclusion without taking note and/or considering the material evidence placed before it.
According to Mr. Soumya Majumdar, the cases cited by Mr. R.N. Majumdar are of no help or do not support the case of the workman concerned.
Mr. Soumya Majumdar submits that the writ petition should be allowed and the award passed by the Tribunal should be set aside.
Heard the learned Counsel appearing for the parties and considered their submissions as well as the materials available on record. It appears that the dispute referred before the Tribunal was whether the Union claimed for regularisation of the workman as pump operator is justified and if so what relief the concerned workman is entitled and from what date.
The Tribunal after careful consideration of the pleadings, formulated three questions whether employee-employer relationship exists, whether the workman is a contract labour or the alleged contract is camouflage, whether the claim of the union for regularisation of the employee is justified. All three issues were taken together and considered by the Tribunal. The Tribunal very carefully examined the facts of the case and found to the following effect:--
(i) It is admitted that it is statutory liability of the management to supply water to the officers and the employees of the establishment for drinking and other use.
(ii) It is admitted fact that the management has been providing water in the office of the establishment for the use of officers and the employees by operating 10 H.P. pump.
(iii) It is admitted fact that Subhas Banerjee is doing the job of Pump Operator for supply of water for use of the officers and the employees of the establishment continuously since 1.4.1997.
(iv) It is natural that till the establishment will run by the officers and other staff there will be requirement of supply of water in the office of the establishment for their use and naturally the job of Pump Operator is of permanent nature.
(v) It is admitted fact that since 1.4.1997 no other person has been performing the job of Pump Operator and this job is being performed continuously by Subhas Banerjee.
(vi) There is nothing on the record to show that Subhas Banerjee is doing the job on behalf of any person said to be a contractor, rather from the facts on the record it is clear that Subhas Banerjee himself is being behaved like a contractor and naturally if it is a case of contract labour Subhas Banerjee alone can be said to be playing the role of contractor and worker both,
(vii) It is admitted fact that M/s. Subhas Enterprises is not a registered firm and this aspect probabilises the plea of the union that the firm known and styled as M/s. Subhas Enterprises is a creation of the management itself.
(viii) From the evidence of the management itself it is clear that in the year 1997 monthly wage of the workman was Rs. 1600/- whereas the amount of monthly wage is being decreased every year and the same decreased to the extent of Rs. 1149/-. If Subhas Banerjee was actually a contractor it does not appear probable that he would agree to give service to the management for the amount decreasing every year.
(ix) The management has not brought on record any other person to show that along with Subhas Banerjee any other person participated in the contract, if it was a really contract. In this regard only Ext. M-4 has been brought by the management which is said to be acceptance of tender of Subhas Banerjee by Tender Committee but except this no other paper has been shown.
From the aforementioned findings, the Tribunal held that taking undue advantage of the employee concerned the management has been forcing him to create the paper in support of purporting contract and the papers are merely paper transaction to conceal the real fact. The Tribunal also took note of the case of similarly situated employees where the Tribunal also passed the award and the Hon''ble Jharkhand High Court did not interfere in the award passed by the concerned Tribunal and held that High Court in writ jurisdiction has no power to reappreciate the evidence laid before the Tribunal. It was also held there that the Tribunal passed the award considering the entire evidence along with arguments that were advanced. The order of the learned Single Judge was tested before the Hon''ble Division Bench and the Hon''ble Division Bench also concurred the views expressed by the learned Single Judge. After going through the award it appears to this Court that the root question involved in this case was whether the alleged contract/awarding contract for service is realty a contract or it is a camouflage in the beginning and continued for so many years.
After going through the award it appears that the Tribunal after careful consideration of the facts involved in this case, after consideration of the evidence laid by both sides and documentary evidence produced by either side factually found that the concerned workman is performing his job and getting wages neither in the capacity of a contractor nor in the capacity of a contract worker rather as an employee of the company since 1997 onwards till 2007. While considering the matter the Tribunal has come to a conclusion. That the management has created the paper in support of purporting contract and the contract was practically a camouflage since the beginning and therefore, the petitioner became the principal employer of the workman. Thus it is clearly established the employee and employer relationship between the employee and the employer keeping in mind, all these facts and findings, I do not have any hesitation to hold that the award passed by the Tribunal is lawful and valid.
It is pertinent to mention, in a similar case the Hon''ble Jharkhand High Court refused to interfere in the award passed by the Tribunal. The Company also implemented the award, after having lost before the Tribunal.
In considered view the judgments cited by Mr. Soumya Majumdar are not at all applicable in this case.
I also do not find any perversity and/or illegality in the findings of the Tribunal. In my view, the award passed by the Tribunal is lawful one. Accordingly, there is no scope to interfere in the award passed by the Tribunal.
The writ petition is dismissed.
The management is directed to implement the award and to pay the consequential benefits to the concerned workman within four weeks from the date of communication of this order. There would be no order as to costs.