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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.
2
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
3
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.
4
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
5
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
6
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
7
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.
8
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
9
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
10
(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
11
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
12
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
13
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,
14
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
15
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,
16
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
17
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
18
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.
19
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
20
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.