The Management of Bharat Refractories Limited vs State of Jharkhand and Another

R.R. Prasad, J.—This writ application has been filed for quashing the notification No. 1/SHRAM-D-02-57/05L, E&T-1335 dated 25.7.2005 Issued by the State of Jharkhand whereby the dispute relating to regularization of the services of the contract labour and also the dispute relating to demands made by the Bihar Rajya Theka Kamgarh Union was referred to before the Presiding Officer, Labour Court, Bokaro Steel City for its adjudication.

The case of the petitioner is that Bharat Refractories Limited a Government Company within the meaning of Section 617 of the Companies Act having refractories plant at Bhandaridah is engaged in manufacturing fire bricks. The Company does engage contractors for carrying out the job through contract labour whose control always lies with the contractor. In the year 1993, one of the unrecognized Union, namely, Bihar Rajya Theka Kamgarh Union through a letter dated 30.3.1993 raised certain demands and one of the demands related to regularization of the services of the concerned workmen. A copy of the said letter was also forwarded to the Deputy Labour Commissioner-cum-Conciliation Officer, Bokaro Steel City. Thereupon with the intervention of the Conciliation Officer, a tripartite settlement arrived at on 28.2.1994 in between the contractors'' representative and the representative of the Union. In spite of that, the State of Bihar vide its notification dated 25.7.2005 referred the dispute for adjudication to the Labour Court, Bokaro Steel City. Terms of the reference are here under:

Whether not to grant the 11 points demand letter dated 30.3.1993 of Bihar Rajya Theka Kamgar Union by the Management of M/s. Bharat Refractories Limited, Bhandaridih Refectories Plant, Bokaro is justified?

Whether not to regularize the 55 contract labourers, list enclosed, working for a long time in perennial and permanent nature of jobs under four sections of the said Management and depriving them of the status and privileges of permanent workmen is justified ? If not, what relief the related workmen are entitled to?.

Upon receiving the term of reference, Reference Case No. 10 of 2005 was instituted. On being noticed, Management filed a written statement whereby validity of the reference was itself questioned on the ground that during the subsistence of tripartite settlement dated 28.2.1994, the reference in question becomes Incompetent and that apart, it was pleaded that the contract labours were never the workmen of the petitioner Company, rather they are the employees of a contractor and their services are under the control of the contractors and that contract labours were never employed to do perennial or any work of permanent nature and as such, when there is no relationship in between the employer (Management) and the employee, any reference to settle the dispute becomes wholly Incompetent.

Further case is that in spite of that objection being taken, labour court proceeded with the matter and, therefore, the petitioner was left with no option but to file this application as validity of the reference cannot be raised before the Presiding Officer, labour court who is not competent to decide that issue, rather it can only be decided by this Court in exercise of its Jurisdiction under Article 226 of the Constitution of India.

Learned Counsel appearing for the petitioner in support of his submission has referred to a decision rendered in a case of National Engineering Industries Ltd. Vs. State of Rajasthan and Others, .

However, contention of respondent No. 2, General Secretary of the Union is that this writ application is fit to be dismissed only on the ground that reference has been challenged after the delay of about 3 years and that too when the petitioner has subjected Itself to the jurisdiction of the labour court wherein the management has even examined his one witness and when in course of proceeding, the management was asked to produce certain documents, the management instead of producing those documents, which could have gone to establish that the labours were doing work permanently and have been engaged for doing job which is perennial in nature, came before the Court and has challenged the validity of the very reference. Further contention of the petitioner is that there has been no relationship of employer and employee In between the management and the workmen but this plea of engaging the workmen as contract labour through a contractor is camouflage. Thus, it was submitted that this writ application is fit to be dismissed.

Having heard learned Counsel appearing for the parties it does appear that the reference made by the State Government of the disputes existed in between the employer and the employee to the labour court for Its adjudication has been challenged before this Court mainly on the ground that when the parties had arrived at tripartite settlement, there was no occasion for the State Government to refer the dispute before the labour court: for its adjudication and secondly, that there has been no relationship of the employer and the employee in between the management and the workmen.

In the context of this submission, the provision as contained in Section 18 of the Industrial Dispute Act, 1947 needs to be noticed of. On a plain reading of Sub-sections (1) and (3) of Section 18 it appears that settlements are divided into two categories, (i) those arrived at outside the conciliation proceedings and (ii) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application as It merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all parties to the industrial dispute, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. Therefore, a settlement arrived at in the course of conciliation proceedings with a recognized majority'' union will be binding on all workmen of the establishment. That is why a settlement arrived at in course of conciliation proceedings is put at par with an award made by an adjudicatory authority."

Under this situation, where tripartite settlement arrived at in between the parties, then any reference related to the dispute which was subject matter of the settlement has teen held to be unwarranted. In this respect, reference may be made to a case of National Engineering Industries Limited v. State of Rajasthan and Ors. (supra).

But in the instant case, though statement has been made that there has been tripartite settlement on 28.2.1994 but nowhere it has been stated that the petitioner company was also party to it, rather wherever such statements about the tripartite settlements have been made, those have been made only with reference to the settlement in between the contractors'' representative and the representative of the Union and in that view of the matter, if it is so, then obviously the petitioner was not party to that settlement. In that view of the matter, if the dispute did exist, which in fact was found by Assistant Labour Commissioner, Bokaro to have been existing in between the petitioner company and the workmen, reference of such dispute to labour court for its adjudication can never be said to be Illegal. Thus, the plea taken by the petitioner of reference being incompetent does not have any substance. Further reference has also been challenged on the ground of non existence of relationship of employer and the employee in between the management and the workmen but from the statement made in the counter affidavit, it appears that Assistant Labour Commissioner, Bokaro Thermal conduced an enquiry into the dispute existing in between the petitioner company and the workmen and after holding enquiry submitted a report to the Deputy Labour Commissioner, Bokaro holding therein that the workmen are related directly to the work of production which is perennial In nature.

In that view of the matter, I do not find any illegality in the matter whereby dispute has been referred to Labour court, Bokaro for its adjudication. Moreover, the petitioner has already subjected itself to the jurisdiction of the labour court and has filed written statement and has even adduced one witness and thereupon, this writ application has been filed which, according to the respondents, is for the oblique purpose for dealing the dispute of the case and as such, on this ground alone the writ application is fit to be dismissed. dismissed.

Thus, I do not find any merit in this application. Accordingly, this writ application is dismissed at the admission stage itself.