Their Workmen represented by - Jharkhand High Court

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

C. Rev. No.85 of 2012

With

I.A. No.5751 of 2018

------

Their Workmen represented by Surendra Rai Area Secretary, Rastriya

Colliery Mazdoor Sangh .... …. Petitioner

Versus

Employer in Relation to the Management of Sudamdih Colliery of M/s

Bharat Coking Coal Limited .... .... Respondent

With

C. Rev. No.86 of 2012

With

I.A. No.2270 of 2016

Their Workmen represented by Surendra Rai Area Secretary, Rastriya

Colliery Mazdoor Sangh .... …. Petitioner

Versus

Employer in Relation to the Management of Sudamdih Colliery of M/s

Bharat Coking Coal Limited .... .... Respondent

------

CORAM : HON’BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

------ For the Petitioners : Mr. Kalyan Roy, Advocate

For the Resp.-BCCL : Mr. Anoop Kumar Mehta, Advocate

------

C.A.V. on 19.12.2019 Delivered on 07/04/2020

Per Sujit Narayan Prasad, J.

I.A. No.5751 of 2018 in C. Rev. No.85 of 2012 and

I.A. No.2270 of 2016 in C. Rev. No.86 of 2012

Mr. Kalyan Roy, learned counsel appearing for the review petitioners

prayed to pass appropriate order in these two interlocutory applications

since according to him, the relief sought for in these two applications are

having significance for proper appreciation of the grounds agitated in the

review petitions.

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2. Learned counsel appearing for the respondent BCCL is fair enough to

agree for disposal of the interlocutory applications on their own merit.

3. Accordingly, this Court has thought it proper to first deal with the

relief sought for in the interlocutory applications before going into the merit

of the issue raised in the review petitions.

4. These two interlocutory applications have been filed for calling upon

certain documents i.e. attendance registers, which according to the review

petitioners, are necessary for proper adjudication of the issue.

The ground upon which the interlocutory applications have been filed

seeking a direction to call upon the relevant documents at this stage has

seriously been opposed by the learned counsel appearing for the

management BCCL. It has been submitted on behalf of learned counsel

appearing for the BCCL that the documents, at this stage, would not be

proper to be appreciated by this Court that too when the question of review

of an order passed by the Division Bench of this Court in L.P.A. No. 33 of

2007 and L.P.A. No. 55 of 2007 is in issue.

It has further been submitted that the document is to be seen on the

basis of the nature of dispute. According to him, the question, which has

been agitated herein by the review petitioners, is to consider the action of

the respondent management in taking work through the contractor as

camouflage and sham but the reference is altogether different and as such,

according to him, when the issue does not pertain to an adjudication with

respect to a declaration about camouflage and sham transaction in case of

work taken by the contractor for the principal employer, i.e., the

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management BCCL, a specific reference was required to be made and only

then the relevance of the documents could be considered.

In that view of the matter, the relief sought for in these two

interlocutory applications was opposed by making a submission for its

rejection.

5. This Court, after having heard learned counsel for the parties and

after appreciating their submission and, after going across the pleadings

made in these two interlocutory applications, deem it fit and proper first to

refer to the terms of reference in order to assess the nexus of the said

document with the dispute.

The dispute pertains to two reference cases, first being Reference

Case No. 32 of 1989 and another is Reference Case No. 35 of 1989. The

following references have been made in both the reference cases, which

reads hereunder as :-

“Whether the action of the management of Sudamdih Colliery of M/s

BCCL in denying employment to Shri Karma Rout and 21 others with

effect from 09.07.1977 is justified? If not, to what relief the concerned

workmen are entitled?”

The aforesaid reference has been numbered as Reference Case No.32

of 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 clearing mazdoors is justified? If not, to what reliefs are the

workmen entitled?”

This reference has been numbered as Reference Case No.35 of 1989.

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It is evident from the terms of reference that the Industrial

Adjudicator was required to give a finding with respect to justification of

denying employment to workmen from 09.07.1977.

There is no reference about a declaration by the Industrial

Adjudicator about camouflage and sham transaction, in view of the

allegation made by the workmen that the work has been taken from them

through the contractor but for the principal employer and as such, the same

is camouflage and sham and hence the workmen are entitled to be absorbed

in service.

The law is settled with respect to the fact as to whether the Labour

Court can travel beyond the terms of reference. In the case of Mukand

Limited Vs. Mukand Staff and Officers [(2004) 10 SCC 460, the Hon’ble

Supreme Court held that the labour court cannot travel beyond the terms of

reference. The relevant paragraph of the judgment is reproduced hereunder

as :-

“36. We, therefore, hold that the reference is limited to the dispute between

the Company and the Workmen employed by them and that the Tribunal,

being the creature of the reference, cannot adjudicate matters not within

the purview of the dispute actually referred to it by the order of

Reference.”

In the case of SAIL Vs. Union of India and Others [2006 (9) Scale

597, the Hon’ble Apex Court has observed as under:-

“The 1970 Act is a complete code by itself. It not only provides for

regulation of contract labour but also abolition thereof. Relationship of

employer and employee is essentially a question of fact. Determination of

the said question would depend upon a larger number of factors.

Ordinarily, a writ would not go into such a question. In State of

Karnataka and Ors. v. KGSD Canteen Employees' Welfare Association

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and Ors., [(2006) 1 SCC 567] the Hon’ble Apex Court held – “Keeping in

view the facts and circumstances of this case as also the principle of law

enunciated in the above-referred decisions of this Court, we are, thus, of the

opinion that recourse to writ remedy was not apposite in this case”.

In view of the above settled position of law, it is evident that neither

the Labour Court nor the writ court could determine the question as to

whether the contract labour should be abolished or not, the same being

within the exclusive domain of the Appropriate Government. A decision in

that behalf undoubtedly is required to be taken after following the procedure

laid down in Sub-section (1) of Section 10 of the Act. A notification can be

issued by an Appropriate Government prohibiting employment of contract

labour if the factors enumerated in Sub-section (2) of Section 10 of the Act

are satisfied. When, however, a contention is raised that the contract entered

into by and between the management and the contractor is a sham one, in

view of the decision of this Court in Steel Authority of India Limited

(supra), an industrial adjudicator would be entitled to determine the said

issue. The industrial adjudicator would have jurisdiction to determine the

said issue even if it be held that the contract purportedly awarded by the

management in favor of the contractor was really a camouflage or a sham

one, the employees appointed by the contractor would, in effect and

substance, be held to be direct employees of the management.

Therefore, it requires to consider as to whether the workmen had

raised any contention that the contract entered into between the contractor

and the management was a sham.

It is evident from the terms of reference, as reflected hereinabove, as

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also the allegations leveled in the depositions by the witnesses, either of the

workmen or of the management, the contention of the workmen was that

they were employees of the respondent management but have been denied

employment with effect from 09.07.1977 and, therefore, there was no

occasion for the Industrial Adjudicator to travel into the question whether

the contract was sham or not because no such reference was made to the

Labour Court.

As has been discussed above, the reference made to the Industrial

Tribunal was – whether the action of the management in denying

employment was justified?

We, therefore, are of the view that the writ petitioners should have

initially raised a proper dispute. They should have pleaded that they were

employees of the contractor and the contract should be declared as sham

and camouflage and they should be considered as employees of the

principal employer, but this fact nowhere discussed.

It is settled law that the Labour Court or the Industrial Tribunal being

creature of Statute and is required only to deal with mattes referred to it. It

cannot go beyond the terms of reference except that the questions which are

incidental to the dispute and those, which go to the root of the matter.

This Court, after going through the terms of reference, has found that

the dispute does not pertain to a declaration about camouflage and sham

transaction by taking work from the workmen and hence the document

which is now being sought for consideration by this Court under Article 226

of the Constitution of India that too under the jurisdiction of review, would

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not be required to be seen since the same is altogether different from the

context of the terms of reference.

The other grounds raised in these two interlocutory applications are

also not fit to be allowed for the reason that even the Hon’ble Apex Court in

the case of Steel Authority of India Ltd. And Others Vs. National Union

Waterfront Workers and Others reported in (2001) 7 SCC 1, has decided

the ratio about the power of adjudication with respect to a declaration of

camouflage and sham to the Industrial Adjudicator, as would be evident

from paragraph 126 thereof which reads hereunder as :-

“126. We have used the expression “industrial adjudicator” by design as

determination of the questions aforementioned requires inquiry into

disputed questions of facts which cannot conveniently be made by High

Courts in exercise of jurisdiction under Article 226 of the Constitution.

Therefore, in such cases the appropriate authority to go into those issues

will be the Industrial Tribunal/Court whose determination will be

amenable to judicial review.”

Therefore, this Court is of the view that the subject which was not

before the tribunal cannot be allowed to be agitated before this Court, that

too, in review.

6. In view of the discussions made hereinabove, the relief sought for in

these two interlocutory applications cannot be allowed. Accordingly, both

the interlocutory applications stand dismissed.

C.Rev. No. 85 of 2012 and C.Rev. No. 86 of 2012

7. Both the review petitions arise out of the order passed by the

Division Bench of this Court in intra court appeal being L.P.A. No.33 of

2007 with L.P.A. No.55 of 2007 disposed of on 24.11.2011.

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8. Both the review petitions have been heard together and are being

disposed of by this common order.

9. The case has got chequered history. The workmen working under the

Management of Sudamdih Colliery of M/s BCCL, Dhanbad have been

denied employment, against which, reference has been made which have

been quoted hereinabove.

The Central Government Industrial Tribunal vide common Award

dated 16.01.1992 disposed of both the reference cases directing the

Management to reinstate the workmen with 75 per cent back wages and

passed the following direction in Reference Case no.32 of 1989. The

operative part of the order is quoted hereinbelow:-

“The action of the management of Sudamdih Colliery of M/s

BCCL in denying employment to Shri Karma Rout and 21 others, as

mentioned above, with effect from 09/07/1977 is not justified. The

Management is directed to reinstate them in service within one month

from the date of publication of the awards and to pay them wages as

per N.C.W.A. and 75% of back wages from the date of reference

(16.03.1989) till they are allowed to resume duty.”

By the said Award the following direction was made by the Central

Government Industrial Tribunal in Reference Case No.35/1989:-

“The action of the Management of Sudamdih Area of M/s

BCCL in denying employment to S/Shri Sapan Banerjee, Karan Sahi

and Shanti Thakur is not justified. The Management is directed to

reinstate them in service within one month from the date of publication

of the award and to pay them wages as per N.C.W.A. and 75% back

wages from the date of reference (20.03.1989) till they are allowed to

resume their duties.”

The workmen were directed to report for duties within one month

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from the date of publication of the Award.

The common Award of both the aforesaid reference cases were

challenged before this Court under its writ jurisdiction by filing two

separate writ applications being CWJC No.856/1993(R) (arising out of

Reference Case No.32/1989) and CWJC No.859/1993(R) (arising out of

Reference Case No.35/1989), by the Management of Sudamdih Colliery.

This Court vide common judgment dated 10.08.1998 dismissed both

the writ applications and the Management was directed to reinstate the

workmen covered by Reference Case Nos.32/1989 and 35/1989 within six

weeks from the date of the judgment and to pay the back wages as directed

in the said judgment.

The management preferred two Letters Patent Appeal against the said

judgment of the learned Single Judge being L.P.A. Nos.424/1998 and

425/1998. The Division Bench of this Court, by a common judgment dated

17.05.1999 dismissed both the letters patent appeals.

The management, thereafter, filed two Special Leave Petitions before

the Hon’ble Supreme Court. The Special Leave was granted and cases were

registered as Civil Appeal No.1902/2000 and Civil Appeal No.1903/2000.

The aforesaid appeals have been decided by the Hon’ble Supreme

Court vide its judgment dated 16.01.2006, wherein it has been ordered as

hereunder:-

“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

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(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.”

In pursuance to the order of remand, both the writ petitions were

heard afresh and were disposed of vide judgment delivered on 20.12.2006

setting aside the Award passed by the Industrial Tribunal in Reference Case

Nos.32/1989 and 35/1989.

The workmen preferred intra court appeals against the judgment

dated 20.12.2006 passed in CWJC Nos.856/1993(R) and 859/1993(R)

which was decided vide judgment dated 24.11.2011 by dismissing the

appeals.

The workmen had preferred Special Leave to Appeal before the

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Hon’ble Supreme Court being Special to Appeal (Civil) Nos.8788-

8799/2012 which was dismissed as not pressed, however, with the liberty to

prefer a review, which is being reproduced hereinbelow:-

“Learned counsel for the petitioner seeks leave to withdraw the

special leave petitions, stating that the petitioner would like to file a

review application before the High Court. Accordingly, the special

leave petitions are dismissed as not pressed. It goes without saying

that we have not expressed any opinion on the merits of the

submissions made by the learned counsel insofar as the review of the

impugned order is concerned. As and when the review application is

filed, it will be considered on its own merits.”

The present review applications have been filed by the workmen in

pursuance to the order passed by the Hon’ble Supreme Court in Special

Leave to Appeal (Civil) Nos.8788-8789/2012.

The grounds for filing review as has been reflected from the memo of

review petitions are that the Division Bench of this Court while dismissing

the appeals being L.P.A. Nos.33 of 2007 and 55 of 2007 did not take into

consideration the fact that even if it is held that the settlement set up by the

respondent is illegal and the delay is not fatal, in peculiar facts and

circumstances of the case and employment through contractor may be

camouflage, even then the basic finding which could have been the only

basis for relief to the claimants, had not been recorded by the learned

Tribunal and the learned Single Judge.

The consideration about the works which were being rendered by the

workmen which was for the Principal Employer i.e, the BCCL through the

Contractor namely one Bhagwan Singh but the same has not been taken into

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consideration by not examining the fact about camouflage and sham

transaction.

10. Mr. Kalyan Roy, learned counsel appearing for the workmen/review

petitioner has submitted vehemently that the issue of camouflage and sham

transaction has not been decided either by the learned Single Judge or by

the Division Bench in Intra Court Appeal and as such, the issue of remand

by the judgment of the Hon’ble Supreme Court dated 16.01.2006 passed in

Civil Appeal Nos.1902 of 2000 and 1903 of 2000, has not been appreciated

properly and hence, the present review petitions have been filed.

Learned counsel for the petitioner has relied upon the judgment

rendered by the Hon’ble Supreme Court in the case of Secretary, H.S.E.B.

Vrs. Suresh & Ors., reported in (1993) 3 SCC 601.

11. Mr. Anoop Kumar Mehta, learned counsel appearing for the

respondent-BCCL has submitted that the day when reference was made at

that time, the judgment of the Hon’ble Supreme Court in the case of Air

India Statutory Corporation Vrs. United Labour Union and Ors.,

reported in (1997) 9 SCC 377, was a good law but after the judgment by the

Constitution Bench of the Hon’ble Supreme Court in the case of Steel

Authority of India Ltd. & Ors. Vrs. National Union Waterfront

Workers & Ors., reported in (2001) 7 SCC 1, overruling the ratio laid

down in Air India Statutory Corporation Vrs. United Labour Union and

Ors. (supra) by holding that there cannot be any ipso-facto reinstatement or

absorption or regularization unless the fact about taking the work through

the Contractor, if decided by the Industrial Adjudicator to be camouflage

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and sham transaction. Therefore upon consideration of the appeals preferred

before the Hon’ble Supreme Court after the judgment passed by the learned

Single Judge in CWJC Nos.856/1993(R) and 859/1993(R) which were

affirmed by the order passed in L.P.A. Nos.424/1998 and 425/1998, after

taking into consideration the judgment pronounced by the Hon’ble Supreme

Court in the case of Steel Authority of India Ltd. & Ors. Vrs. National

Union Waterfront Workers & Ors. (supra), the matters were remitted

back to be examined afresh.

Pursuant thereto, the learned Single Judge as well as the Division

Bench of this Court, have examined the facts and specific finding has been

recorded to the effect that the plea of camouflage was not even pleaded.

Further, this Court while declining to interfere with the order passed

by the learned Single in CWJC Nos.856/1993(R) and 859/1993(R) has

considered the aforesaid aspect of the matter which has been assailed before

the Hon’ble Supreme Court by the review petitioner, however, leave was

sought to withdraw the Special Leave petitions by not pressing the same,

with the liberty to file a review application before the High Court for

obvious reasons. The Hon’ble Supreme Court has been pleased to observe

that the review would be decided on its own merits.

It has been contended that power of review since is very limited, it

cannot be entertained like an appeal.

Learned counsel for the petitioners has relied upon the judgment

rendered by the Hon’ble Supreme Court in the case of Director, Steel

Authority of India Limited Vrs. Ispat Khadan Janta Mazdoor Union,

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reported in (2019) 7 SCC 440.

12. This Court has heard the learned counsel for the parties at length.

13. Since this Court is considering the review application, therefore, it

requires to refer herein the power and scope of review.

It is not in dispute that the power of review is the creation of a statute.

It must be conferred by law either specifically or by necessary implication.

Review is not an appeal in disguise. However, at the same time, it cannot be

denied that justice is a virtue which transcends all barriers and the rules or

procedures or technicalities of law cannot stand in the way of administration

of justice. Law has to bend before justice. If the Court finds that the error

pointed out in the review petition was under mistake and the earlier

judgment would not have been passed but for erroneous assumption which

in fact did not exist and its perpetration had resulted in miscarriage of

justice, then certainly this can be a good ground for review, but the mere

fact that different views on the same subject are possible, cannot be said to

be a ground to review the earlier judgment passed by a Court of Law.

The Hon’ble Apex Court has considered the width and scope of

power of review in Moran Mar Basselios Catholicos and Anr. Vrs. Most

Rev. Mar Poulose Athanasius and Ors., reported in AIR 1954 SC 526

particularly at paragraph-32 which read as hereunder:-

“32. Before going into the merits of the case it is as well to

bear in mind the scope of the application for review which has given

rise to the present appeal. It is needless to emphasis that the scope of

an application for review is much more restricted than that of an

appeal. Under the provisions in the Travancore Code of Civil

Procedure which is similar in terms to Order XL VII, Rule I of our

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Code of Civil Procedure, 1908, the Court of review has only a limited

jurisdiction circumscribed by the definitive limits fixed by the

language used therein. It may allow a review on three specified,

grounds, namely (i) discovery of new and important matter or

evidence which, after the exercise of due diligence, was not within the

applicant’s knowledge or could not be produced by him at the time

when the decree was passed, (ii) mistake or error apparent on the face

of the record and (iii) for any other sufficient reason.”

In the case of Shivdev Singh Vrs. State of Punjab, reported in AIR

1963 SC 1909, in a review petition filed under Order 47, Rule 1 C.P.C., the

Supreme Court held that the power of review of its own order by the High

Court inheres in every Court of plenary jurisdiction, to prevent miscarriage

of justice or to correct grave and palpable errors committed by it. In doing

so, the Court was only upholding the principles of natural justice. This

decision indicates that the Court’s power of review while exercising

jurisdiction under Article 226 of the Constitution extends to correct all

errors to prevent miscarriage of justice. The judgment rendered by Hon’ble

Apex Court in the case of Sow. Chandra Kanta and Anr. Vrs. Sheik

Habib, reported in AIR 1975 SC 1500 wherein it has been held that:-

“A review of a judgment is a serious step and reluctant resort

to it is proper only where a glaring omission or patent mistake or like

grave error has crept in earlier by judicial fallibility. A mere repetition

through different counsel of old and overruled arguments, a second

trip over ineffectually covered ground or minor mistakes of

inconsequential import are obviously insufficient.”

14. It is the settled proposition as has been settled by Hon’ble Apex Court

in the judgment discussed hereinabove that the scope of review can only be

done in case of discovery of new and important matter or evidence which,

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after the exercise of due diligence, was not within the applicant’s

knowledge or could not be produced by him at the time when the decree

was passed, mistake or error apparent on the face of the record and for any

other sufficient reason and in the light of this legal position the fact of these

review petitions need to be appreciated.

15. This Court is to see the present context “as to whether the review

petitioner has been able to make out a case for review of the order passed by

this Court.”

16. The admitted position herein is that the Contract Labour (Regulation

and Abolition) Act, 1970 has been enacted with the object and intent to

abolish the Contract Labour vis.-a-viz. to regulate it.

To achieve the aforesaid object, certain statutory provision has been

enacted i.e., registration of certain establishments as provided under Section

7, the effect of non-registration as provided under Section 9, prohibition of

employment of contract labour as provided under Section 10 and licensing

of contractors as provided under Section 12.

The reference of these provisions are being made since the same is

necessary for the present.

17. It is evident from the provision of Section 7 which requires such

registration to certain establishments under which the Registering Authority

on completion of the formalities has provided therein to register the

establishment and issue to the principal employer of the establishment, a

certificate of registration containing such particulars as may be prescribed.

Under Section 8, power to revoke registration has been enacted to the

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Registering Officer, if he satisfied with the registration of any establishment

has been obtained by misrepresentation or suppression of any material fact,

but after giving opportunity of hearing to the principal employer of the

establishment.

Section 10 contains the provision of prohibition of employment of

contract labour for which, appropriate Government is required to issue

notification in the Official Gazette but before issuing any notification under

sub-section (1), appropriate Government shall have regard to the conditions

of work and benefits provided for the contract labour in that establishment.

Section 12 contains the provision to provide licensing of contractors,

in absence thereof, the contractor cannot be allowed to execute any work

through contract labour.

18. The Hon’ble Supreme Court has considered the effect of the Contract

Labour (Regulation and Abolition) Act, 1970 in the case of Air India

Statutory Corporation Vrs. United Labour Union and Ors. (supra), wherein

it was held that on abolition of contract labour system from any

establishment under Section 10 of the Act by the appropriate Government,

the logical and legitimate consequences were that the erstwhile regulated

contract labourer covered to be treated as direct employee of the employer

on whose establishment they were earlier working and they would be

entitled to be treated as regular employees from the day on which the

contract labour system in the establishment for the work which they were

doing gets abolished.

19. Ratio laid down by the Hon’ble Apex Court in the case of AIR India

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Statutory Corporation Vrs. United Labour Union and Ors. (supra), has been

examined by the Constitution Bench of the Hon’ble Supreme Court in the

case of Steel Authority of India Limited (supra), wherein it was held that

there is no provision under the CLRA Act whether expressly or by

necessary implication which provides for automatic absorption of contract

labour on issuance of a notification by the appropriate Government under

Section 10(1), prohibiting employment of contract labour in any process,

operation or other work in any other establishment and overruled the

judgment in AIR India Statutory Corporation Vrs. United Labour Union and

Ors. (supra) making it clear that neither Section 10 nor any other provision

in the CLRA Act provides for automatic absorption of contract labour on

issuance of a notification by the appropriate Government under Section

10(1) of the CLRA Act.

20. According to the case of the present workmen, they were working

under the Management but were denied employment from 09.07.1977

which was the subject matter of reference and dispute and answered in

favour of the workmen by holding the workmen were entitled for absorption

treating them the workmen of the principal employer i.e., the Management

taking into the consideration the provision of Sections 7, 9 and 12 of the

Contract Labour (Regulation and Abolition) Act, 1970.

21. In the initial stage the same has been affirmed by this Court by the

learned Single Judge and in the Intra Court Appeal but in the meanwhile,

since the Hon’ble Apex Court by its Constitution Bench has overruled the

judgment pronounced in the case of AIR India Statutory Corporation Vrs.

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United Labour Union and Ors. (supra), therefore, remitted the matter for

fresh hearing on the basis of the principle laid down in the SAIL case which

is to be decided by the Industrial Adjudicator in view of the ratio laid down

at paragraph-125 and 126 of the said judgment which reads as hereunder:-

“125. The upshot of the above discussion is outlined thus:

(1) (a) Before January 28, 1986, the determination of the question whether

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;

(b) 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 (i) the concerned Central

Government company/undertaking or any undertaking is included therein eo

nomine, or (ii) any industry is carried on (a) by or under the authority of the

Central Government, or (b) by railway company; or (c) by 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.

(2) (a) 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

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Section 10;

(b) inasmuch as the impugned notification issued by the Central

Government on December 9, 1976 does not satisfy the afore-said

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.

(3) 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 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 concerned

establishment;

(4) We over-rule the judgment of this court in Air Indias case (supra)

prospectively and declare that any direction issued by any industrial

adjudicator/any court including High Court, for absorption of contract

labour following the judgment in Air India’s case (supra), 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.

(5) 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 of 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 concerned establishment subject to the conditions as may be

specified by it for that purpose in the light of para 6 hereunder.

21

(6) If the contract is found to be genuine and prohibition notification under

Section 10(1) of the CLRA Act in respect of the concerned establishment 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.

126. We have used the expression industrial adjudicator by design as

determination of the questions afore-mentioned requires inquiry into

disputed questions of facts which cannot conveniently be made by High

Courts in exercise of jurisdiction under Article 226 of the Constitution.

Therefore, in such cases the appropriate authority to go into those issues

will be industrial tribunal/court whose determination will be amenable to

judicial review.”

22. Learned Single Judge on its remand has considered the entire aspect

of the matter afresh and after close scrutiny of the evidence recorded by the

Industrial Tribunal has come to the conclusive finding that the plea of

camouflage has not been pleaded hence no finding on the same issue. The

learned Single Judge has examined the evidence and after going through the

evidence of MW-1 to MW-4 as well as the documents, marked as Ext. M-1

to M-9/1 as also the statement of the witnesses, examined on behalf of the

workmen, i.e., WW-1 to WW-3 and the documents adduced in evidence on

behalf of the workmen as Ext. W-1 to W-6, from which, it was established

that the contractor was engaged in the year 1976-1977 and thereafter, his

engagement was discontinued and no workman was engaged in permanent

and prohibited category of job.

22

It has further been found by the learned Single Judge, while reversing

the finding recorded by the Industrial Tribunal in CWJC Nos.856/1993(R)

and 859/1993(R), that after the workmen were stopped from work from

09.07.1977, discussions were held and then an agreement in the form of

record note of discussions being Ext. M-3 dated 13.10.1978 and Ext. M-4

dated 10.04.1980 was prepared. As such, it is apparent that the said

agreement was arrived at in the year 1980 but the dispute was raised and

referred after nine long years i.e., in the year 1989 or even after 12 years

from the date the concerned workmen were stopped from work on

09.07.1977 and as such, the conclusive findings have been arrived at that

the Tribunal has travelled beyond the record.

Further, no specific plea about the camouflage has been agitated

before the Industrial Tribunal.

The Division Bench of this Court has considered the entire aspect of

the matter in detail while dealing with the entire aspects of the matter, and

has gone one step forward by making difference of claim sought for on the

basis of rendering 240 days of continuous service.

It is not in dispute that the regular discharge of continuous service of

240 days is to be taken into consideration in a case of Section 25-F of the

Industrial Disputes Act, 1947 i.e., the consequence of the order of

retrenchment if the workmen have discharged the continuous duty of 240

days and if any dispute would be raised, the consideration of continuous

period of service as provided under Section 25-B of the Industrial Disputes

Act, is to be considered but so far as the question of

23

regularization/absorption in pursuance to the provision of the Contract

Labour (Regulation and Abolition) Act, 1970, the primary thing is required

to be seen is that if in spite of issuance of prohibitory notice under Section

10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, if any

work having perennial in nature, if taken through the Contractor, the same if

established as camouflage and sham transaction, the conclusion would be

the order of absorption, irrespective of period of service whether it is 240

days, more than that or less than it.

Therefore, even if review petitioners would have been found to had

rendered continuous service of 240 days, it will be of no aid as even if the

conclusion would be arrived at of discharging service of 240 days, there

cannot be regularization/absorption unless it is established that the work

taken through contractor was camouflage and sham one as has been held in

the case of Steel Authority of India Limited (supra).

23. The learned Single Judge as also the Division Bench of this Court has

considered the entire aspect of the matter in detail and thereafter has come

to conclusive finding that in the absence of any pleading about camouflage

and sham transaction, there cannot be any automatic absorption after the

judgment rendered by the Hon’ble Apex Court in the Steel Authority of

India Limited (supra) which has overruled the ratio laid down in the case

of Air India Statutory Corporation (supra).

24. The Hon’ble Apex Court has again considered the issue in the

judgment rendered in the case of Director, Steel Authority of India

Limited Vrs. Ispat Khadan Janta Mazdoor Union (supra), wherein at

24

paragraph-44, 46, 47 and 48 it has been laid down which reads as

hereunder:-

“44. In our considered view, the finding recorded by the High Court under

the impugned judgment is not sustainable for the reason that effect of the

prohibition notification under Section 10(1) of CLRA Act has been settled by

the Constitution Bench of this Court in Steel Authority of India Ltd. and

Others (supra) and this Court has made it clear that neither Section 10 nor

any provision in the CLRA Act provides for automatic absorption of contract

labour on issuance of prohibition notification by the appropriate

Government under Section 10(1) of the CLRA Act and the Tribunal in the

first place being the fact finding authority has extensively examined the

documentary and oral evidence which came on record and also the

relationship of principal employer, contractor and contract labour and the

fact that their services were terminated by the contractor after the contract

labour proceeded on a strike in April 1996.

46. To test it further, apart from the statutory compliance which every

principal establishment is under an obligation to comply with, its

non−compliance or breach may at best entail in penal consequences which

is always for the safety and security of the employee/workmen which has

been hired for discharge of the nature of job in a particular establishment.

The exposition of law has been further considered in International Airport

Authority of India case (supra) where the contract was to supply of labour

and necessary labour was supplied by the contractor who worked under the

directions, supervision and control of the principal employer, that in itself

will not in any manner construe the contract entered between the contractor

and contract labour to be sham and bogus per se.

47. Thus, in our considered view, if the scheme of the CLRA Act and other

legislative enactments which the principal establishment has to comply with

under the mandate of law and taking note of the oral and documentary

evidence which came on record, the finding which has been recorded by the

CGIT under its award dated 16th September, 2009 in absence of the finding

of fact recorded being perverse or being of no evidence and even if there are

two views which could possibly be arrived at, the view expressed by the

Tribunal ordinarily was not open to be interfered with by the High Court

under its limited scope of judicial review under Article 226/227 of the

Constitution of India and this exposition has been settled by this Court in its

various judicial precedents.

25

48. It is true that judgment in Dena Nath and Others (supra) is in reference

to failure of compliance of Section 7 and 12 and not in reference to Section

10(1) of the CLRA Act but if we look into the scheme of CLRA Act which is a

complete code in itself, non−compliance or violation or breach of the

provisions of the CLRA Act, it result into penal consequences as has been

referred to in Sections 23 to 25 of the Act and there is no provision which

would entail any other consequence other than provided under Section 23 to

25 of the Act.”

The instant review petitions have been filed mainly to consider after

calling upon the relevant records as per the relief sought for in the

interlocutory applications.

This Court while dealing with the interlocutory applications has

already rejected the plea to call upon the relevant documents by making

elaborate discussions as above.

This Court, on the basis of the elaborate discussion made above and

scope of review, has come to following conclusions :-

(i) The consideration by the adjudicator depends upon the terms of

reference. The tribunal cannot be allowed to travel beyond the

terms of reference. If any issue is not subject matter of dispute,

the same cannot be expected to be answered.

Herein, the terms of reference is not for absorption by

declaring the engagement through contractor as camouflage

and sham and hence the documents upon which petitioners

now sought to rely is quite foreign to such issue.

Further, the subject matter of review is only to test the

transaction as camouflage and sham, but when it is not the

terms of reference, the same cannot be examined by this Court

26

at this stage under Article 226 of the Constitution of India.

(ii) The documents i.e. Attendance Register, even though a proof

of discharge of duty for a period of 240 days, cannot of any aid

for the reason that unless there is determination by the

Industrial Adjudicator about camouflage and sham, mere on

account of period of service, there cannot be absorption of the

workmen.

(iii) It is settled position of law that in review no new plea can be

allowed to be agitated that too, herein, the plea of camouflage

and sham has never been an issue and if it will be allowed, it

will nothing but travelling beyond the terms of reference.

The learned Single Judge has discussed this aspect of the matter and

has found that no such plea was agitated, as would be apparent from the

extract of the order as referred herein below:-

“21. In view of the direction of the Supreme Court, I have

examined and scrutinized the evidences led by the parties before

the Tribunal. After going through the evidences of MW-1 to MW-4

as well as the documents, which were marked as Ext. M-1 to M-9/1

as also the statement of the witnesses, examined on behalf of the

workmen, i.e. WW-1 to WW-3 and the documents adduced in

evidence on behalf of the workmen as Ext. W-1 to W-6, I find from

he evidence that it was established that the contractor was engaged

in the year 1976-77 and, thereafter, his engagement was

discontinued and no workman was engaged in permanent and

prohibited category of job. From the materials on record, I find that

the plea of camouflage was not even specifically pleaded nor the

learned tribunal gave any specific finding on the said point on the

basis of the materials of record.”

Under the scope of review as has been dealt with hereinabove, there

27

cannot be a fresh consideration of matter after calling upon fresh

documents, if not agitated before the Industrial Adjudicator. In the present

factual aspect, the plea of camouflage and sham has never been agitated by

the review petitioners and the occasion has not come for that for the reason

that the terms of reference was altogether different as has been discussed in

detail while dealing with the interlocutory applications, as above and if the

power of review is exercised at this stage by this Court, the same will be

nothing but a futile exercise as in the absence of any reference to that effect,

there cannot be any adjudication even by the Industrial Adjudicator.

The review petitioners are seeking indulgence of this Court under the

power of review to review the order passed by the Division Bench of this

Court on the basis of absolutely fresh documents and the plea which is

beyond the terms of reference.

25. This Court, in view of the detailed discussion made hereinabove and

taking into consideration the submission made on behalf of the learned

counsel for the writ petitioner as also the ground of review, is of the view

that the grounds upon which the order passed by the Division Bench of this

Court is sought to be reviewed, are not falling under the principle to

exercise the power of review as has been laid down by the Hon’ble Apex

Court in the case of Moran Mar Basselios Catholicos and Anr. Vrs. Most

Rev. Mar Poulose Athanasius and Ors. (supra), wherein it has been laid

down that power of review as per the provision as contained under Order

XL VII, Rule I of the C.P.C., 1908, the Court of review has only a limited

jurisdiction circumscribed by the definitive limits fixed by the language

28

used therein.

It may allow a review on three specified grounds, namely (i)

discovery of new and important matter or evidence which, after the exercise

of due diligence, was not within the applicant’s knowledge or could not be

produced by him at the time when the decree was passed, (ii) mistake or

error apparent on the face of the record and (iii) for any other sufficient

reason.

The same thing has been reiterated again by the Hon’ble Apex Court

in the judgment rendered in the cases of Shivdev Singh Vrs. State of

Punjab (supra) and Sow. Chandra Kanta and Anr. Vrs. Sheik Habib

(supra).

26. Before parting with the order, this Court requires to discuss about the

judgment upon which reliance has been placed by the learned counsel for

review petitioners.

The judgment referred in the case of Secretary, H.S.E.B. Vrs.

Suresh & Ors. (Supra) is not applicable on fact since in that case no ratio

has been laid down and further the deposition of A.K. Choudhary could not

disclose whether the Contractor was licensed Contractor or not. In that

pretext an opportunity was provided to produce certain documents.

However, in the case in hand, no such statement in the deposition was made

nor was such point raised before the Industrial Tribunal rather the specific

case therein is that from 09.07.1977, the management had stopped taking

work from the workmen and the said fact has not been rebutted, hence in

the present set of facts, the aforesaid judgment would not be applicable.

29

27. This Court has found no plausible ground for exercising the power of

review.

28. In the result, both the review applications stand dismissed.

29. Pending I.As also stand disposed of.

I agree (Dr. Ravi Ranjan, C.J.)

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad,J.)

Rohit/Birendra

N.A.F.R.