The Vice President vs Project Officer

S. Chandrashekhar, J.—Aggrieved by award dated 15.03.2013 in Reference Case Nos. 13, 14 and 15/2007, the present writ petition has been filed.

The brief facts stated in the writ petition are that, the union namely, C.C.L. Janta Mazdoor Sangh raised an industrial dispute for regularization of the concerned workmen, in which the appropriate Government passed order dated 07.03.2007 under Section 10(1)(d) of the Industrial Disputes Act, 1947 vide, Ref. No. 13/2007, Ref. No. 14/2007 and Ref. No. 15/2007. Before the Industrial Tribunal, the attendance-sheet for the year, 2001 and 2002 were produced and, an application dated 20.04.2011 was filed seeking a direction upon the Management of M/s. C.C.L to produce the entire attendance register of the concerned workmen. However, the Industrial Tribunal did not call for the record of the concerned workmen and passed award dated 15.03.2013 whereby, the aforesaid references have been answered against the workmen.

The learned counsel for the petitioner submits that on an erroneous construction of Section 25F of the Industrial Disputes Act, the Industrial Tribunal has recorded a finding that since the concerned workmen did not work for 240 days in a calendar year, they are not entitled for an order directing the Management of M/s. C.C.L to regularize their services. It is further submitted that in view of the decision of the Hon''ble Supreme Court in Gangadhar Pillai Vs. Siemens Ltd., (2007) 112 FLR 152 : (2006) 10 JT 265 : (2006) 11 SCALE 635 : (2007) 1 SCC 533 : (2007) 1 SCC(L&S) 346 : (2006) 8 SCR 900 Supp , the law is by now settled that it is not a requirement in law that a workman must have completed 240 days of continuous service in one calendar year so as to entitle the workman for regularization. In view of the fact that the attendance register for the year, 2001 and 2002 discloses that the concerned workmen worked for 146 days and 104 days in two calendar year, the reference should have been answered in favour of the concerned workmen. It is further submitted that since the Management of M/s. C.C.L did not produce the attendance register of the concerned workmen, an adverse inference should have been drawn against the Management and a direction for regularization of the concerned workmen be passed by the Industrial Tribunal.

From the materials brought on record, it is apparent that on behalf of the concerned workmen in support of their claim that they have been in continuous service under M/s. C.C.L, attendance registers for the year, 2001 and 2002 have been produced. The finding recorded by the Industrial Tribunal that the concerned workmen worked for a period of 146 days in the year, 2001 and for a period of 104 days in the year, 2002, has not been disputed by the petitioner-Union. The contention raised on behalf of the petitioner-Union that since the attendance register was not produced by the Management of M/s. C.C.L, an adverse inference should have been drawn against the Management, is liable to be rejected. In the present case, on behalf of the workmen attendance registers for the years, 2001 and 2002 were produced. Employees of M/s. CCL who have allegedly signed the registers produced by the Union, were not examined. The Labour Court has found that the register for the year, 2001 was for the period from 07.01.2001 to 28.04.2001 and it contained shift-wise duty on the working days such as, 4/12. The attendance register written as "Pilot Guard Register" is for the period between 09.12.2001 and 27.04.2002 and it also does not reflect regular work by the workmen. The Management has taken a stand that the coal products are mechanically loaded with the help of Pay Loader Machines at the R.C.M. sliding. The coal is loaded at about 10 kms. away from the project. In the pleading the workmen claimed that they were working for the past 12 years whereas, the witness (WW1) stated in the court that the workmen were working for the last more than 15 years. No substantial piece of evidence was produced on behalf of the workmen to establish their engagement with M/s. CCL. In view of the specific stand taken by the management and the paucity of evidence produced on behalf of the workmen, the Industrial Tribunal rightly refused to draw adverse inference against the management. It was for the Union to produce cogent and reliable evidence in support of the claim that the concerned workmen had been working for the past 12/15 years and only after the case of the workman is found probable, a direction could have been issued by the Industrial Tribunal to M/s. CCL to produce the attendance register. It was for the Union to plead and prove its case and by drawing adverse inference an award against the management of M/s. CCL cannot be made, directing M/s. CCL to regularise the service of the concerned workman. It has been held by the Hon''ble Supreme Court that it is for the workmen to produce the materials substantiating their claim of continuous service under the Management. The Management of M/s. C.C.L is not excepted to produce evidence in support of the claim of the concerned workmen rather, it was for the petitioner-Union to produce such record.

The learned counsel for the petitioner-Union has referred to provision under Section 25(B)(2)(b)(ii) to contend that if a workman has worked for 120 days it is sufficient for regularization. The said provision under Section 25 only defines the expression "continuous service". In Section 25(B)(2)(b)(ii), the period of continuous service under an employer would be deemed to be continuous for a period of six months if the workman during the period of six calender months has worked for 120 days. In the present case admittedly, the concerned workmen worked for 146 days in the year, 2001. The claim of regularization after working for merely 146 days in one calendar year has rightly been refused by the Industrial Tribunal. The workmen, it is claimed that, were performing the job relating to dumping of coal to R.C.M. sliding and loading of coal on the wagon for the last 12 years. It is stated that the job of loading and transporting of coal is continuous and permanent in nature. The management of CCL has been paying the workman @ Rs. 48 per day for each wagon through intermediaries which is much below the rate prescribed in NCWA. It is noticed from the award dated 15.03.2013 that on behalf of the concerned workmen no other evidence was produced. During the trial, the witnesses examined on behalf of the workmen have stated that they were neither given appointment letter nor identity card. It is further admitted by the witnesses on behalf of the concerned workmen that they were not given pay-slip for wages nor any written order was given to them for working outside the project for loading the coal on the wagons. The petitioner-Union has filed the documents alongwith supplementary affidavit dated 24.03.2015, however, I do not find any piece of evidence which supports the case of the concerned workmen.

The management of CCL categorically denied that the workmen were ever engaged or paid wages by the CCL for any work at R.C.M. sliding. It is stated that M/s. CCL being a Government Company is duty bound to observe the mandate of Article 14 and 16 of the Constitution of India. It is also stated that the CCL has formulated Recruitment Rules for appointment of workmen. It is alleged that the workmen''s Union enrolled the job seekers and raised a false industrial dispute for inducting them in the employment of M/s. CCL. It is well-settled that only because a person has been working for more than 240 days, he does not derive any legal right to be regularised in service. In Dhampur Sugar Mills Ltd. Vs. Bhola Singh, AIR 2005 SC 1790 : (2005) 3 ESC 319 : (2005) 104 FLR 999 : (2005) 2 JT 98 : (2005) 1 LLJ 1084 : (2005) 2 SCC 470 : (2005) SCC(L&S) 292 : (2005) 1 SCR 1123 : (2005) 2 SLJ 225 : (2005) AIRSCW 1572 : (2005) 1 Supreme 948 , it has been held that;

"18. "When a workman is appointed in terms of a scheme on daily wages, he does not derive any legal right to be regularised in his service. It is now well known that completion of 240 days of continuous service in a year may not by itself be a ground for directing regularisation particularly in a case when the workman had not been appointed in accordance with the extant rules."

Considering the materials brought on record on behalf of the concerned workmen, the Industrial Tribunal has answered reference against the concerned workmen. The Management of M/s. C.C.L has taken a specific plea of violation of provisions under Article 14 and 16 of the Constitution of India. The learned counsel for the petitioner-Union has contended that the Industrial Tribunal has recorded an erroneous finding in as much as, it has rejected the claim of the concerned workmen on the ground that the concerned workmen have not completed 240 days which is a pre-requisite under Section 25B2(a)(ii) of the Industrial Disputes Act. In "Gangadhar Pillai" case, the Hon''ble Supreme Court has held as under;

"28. "It is not the law that on completion of 240 days of continuous service in a year, the employee concerned becomes entitled to for regularisation of his services and/or permanent status. The concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25-F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. In the event a violation of the said provision takes place, termination of services of the employee may be found to be illegal, but only on that account, his services cannot be directed to be regularised. Direction to reinstate the workman would mean that he get back the same status."

I do not find any reason to interfere with award dated 15.03.2013 and accordingly, the writ petition is dismissed.