1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(L) No. 527 of 2005 with W.P.(L) No. 4963 of 2007 In W.P.(L) No. 527 of 2005 ……… Employers in relation to the management of M/s. TISCO Ltd., P.O. - Jamadoba, District – Dhanbad through its constituted Attorney Ms. Meena Lall for Tata Iron & Steel Co. Ltd., Jamshedpur. … Petitioner [In W.P.(L) No. 527 of 2005] Versus The concerned Workmen Rameshwar Pandey, son of Sri Shankar Pandey through the Organising Secretary, Rashtriya Colliery Mazdoor Sangh, Dhanbad. … Respondent [In W.P.(L) No. 527 of 2005] In W.P.(L) No. 4963 of 2007 The Workman - Rameshwar Pandey, son of Late Shankar Pandey, resident of – House No. 162-D, Road No. - 4D, Ashok Nagar, P.O. and P.S. - Argora, District – Ranchi … Petitioner [In W.P.(L) No. 4963 of 2007] Versus Employers in relation to the management of M/s. TISCO Ltd., P.O. - Jamadoba, District – Dhanbad through its constituted Attorney Ms. Meena Lall for Tata Iron & Steel Co. Ltd., Jamshedpur. … Respondent [In W.P.(L) No. 4963 of 2007] CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK For TISCO : Mr. Rajiv Ranjan, Sr. Advocate. Mr. Manish Mishra, Advocate. For the Workman : Mr. K.M. Verma, Advocate. Mr. Lalan Kumar Singh, Advocate C.A.V. on 16/06/2017 Pronounced on 24/11/2017 Dr. S.N.Pathak, J.
Heard learned counsel for the parties.
2. As common question is involved in both these writ petitions, they have been taken up together and are decided by this common order.
3. Petitioner in W.P.(L) No. 527 of 2005, the employer-Management, has prayed for quashing the Award dated 20.07.2004, passed by Central Government Industrial Tribunal No. 1 at Dhanbad in Reference Case No. 156 of 2001 whereby and whereunder the Award of reinstatement with 25% backwages has been awarded in favour of the concerned workman with effect from 08.02.1997 and reference has been answered against the petitioner – Management. RC2Respondent in W.P.(L) No. 527 of 2005, the workman, has filed W.P.(L) No. 4963 of 2007 with a prayer for a direction upon the respondent-Management to pay full pay/ backwages from the date of termination from service till the date of actual payments with interest so fixed by this Court and other consequential benefits upon re-instatement in service in pursuance of Award dated 20.07.2004 in Reference No. 156/2001, passed by the Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad. Petitioner-workman has further prayed for quashing last part of the Award dated 20.07.2004, passed in Reference No. 156/2001 by Central Government Industrial Tribunal No. 1, Dhanbad whereby only 25% backwages has been allowed upon re-instatement of the petitioner-workman in service from the date of stoppage of the petitioner-workman from service i.e. 08.02.1997 in view of the fact that Tribunal has held retrenchment/ termination of the workman from service of the respondent as illegal.
4. The case of the workman is that he was appointed as Category-I Mazdoor from 16.05.1994 and continued in service for almost three years (without break) but he was disengaged from service with effect from 01.03.1996. Being aggrieved, the workman claimed compensation under Section 25F of the Industrial Disputes Act even though the Management kept him as a temporary worker and claiming reinstatement. An industrial dispute was raised and the matter was referred by the Central Government before the Central Government Industrial Tribunal No. 1, Dhanbad vide its Notification dated 02.02.2000 for adjudication on the following matter: “Whether the action of the management of TISCO in stopping the employee Sri Rameshwar Pandey from work is justified? If not, to what benefit is he entitled?”
5. The parties appeared before the Central Government Industrial Tribunal No. 1 and filed their written statements. The Management denied claim of the workman and it was specifically contended that the workman was given temporary employment as a Mazdoor for one year vide letter dated 16.05.1994. He joined his duties on 05.07.1994 and was disengaged with effect from 04.07.1995. Thereafter, he was given temporary employment/ contractual employment for various periods i.e. (i) From 01.09.1995 to 01.03.1996 (6 months); (ii) From 08.03.1996 to 08.06.1996 (3 months); (iii) From 02.09.1996 to 01.10.1996; (iv) From 03.10.1996 to 02.11.1996; (v) From 09.01.1997 to 07.02.1997. RC3After the concerned workman worked up to 07.02.1997, his contract was not renewed.
6. The Central Government Industrial Tribunal No. 2, after considering facts and circumstances, written statements filed by the parties, deposition of witnesses as well as documentary evidence on record and hearing the parties came to a finding that the workman was engaged in a temporary nature of work and he continued there through various appointment letters with intervening gap. The workman worked under the Management for one year in the first occasion, on the second occasion for the period of 10 months, 3rd occasion for the period of 8 months and 4th occasion for a period of 2 months, as mentioned in 6 appointment letters, as has been given to the workman and the appointment is not contractual but on the temporary basis. The Tribunal came to a finding that those appointment letters had to be considered as a camouflage and, therefore, the Management has failed to establish that the concerned workman was given contractual job for a limited period and, therefore, violation of Section 25F of the Industrial Dispute Act has been occurred and, therefore, reinstatement with 25% backwages has been given.
7. Mr. Rajiv Ranjan, learned Sr. Counsel appearing for the Management assisted by Mr. Manish Mishra, submitted that the workman was employed from time to time as a temporary workman on the basis of renewal of contract of employment and as such, he cannot demand for continuous employment after non- renewal of contract with effect from 07.02.1997. It is not a case of stopping him from his duties but it is purely a case of non-renewal of contract of employment given to him from time to time as temporary worker in category-I. Learned Sr. Counsel further submitted that considering nature of employment, the workman has no right to claim for further employment. Learned Sr. Counsel further submitted that after modernisation and adopting modern techniques as well as deploying machines in mining operations as well as in production sector, the manpower requirement got reduced and permanent workmen became surplus to the requirements and as such, management adopted several Schemes for voluntary retirements of the permanent employees. In such circumstances, there is no scope for making temporary workers permanents and as a result, the temporary workers could not be engaged any further. Learned Sr. Counsel submitted that the Tribunal has wrongly held that the services of the concerned workman were extended from time to time without any break and his services were terminated without following the provisions of Section 25(F) of the Industrial Disputes Act and as such, impugned Award is fit to be quashed. Learned Sr. Counsel further submitted that the impugned Award directing for reinstatement with 25% backwages is unjustified and improper in a situation when the terms of RC4employment of the workman itself suggests that the employment was temporary in nature and was a tenure appointment for specific period and upon expiry of the period of the employment, the workman automatically ceased to be in employment and as such, the impugned Award is fit to be quashed. Learned Sr. Counsel further submitted that it is settled principle of law that a temporary employment comes to an end at the end of the period of tenure as prescribed and it cannot be ispo-facto as a matter of right be renewed and/or regularised. The relationship of employer and employee is governed by the terms of employment and nature of employment of the workman being temporary in nature and for a specified period, the employment of concerned workman ceased to exist on expiry of the tenure. Mere continuance of workman by virtue of successive letters cannot simply waives condition of fixed terms appointment and cannot provide ground for any expectation against non- extension of period of employment. Every letter of extension was a fresh letter of appointment for a specified period wherein tenure/ period of employment was specifically prescribed. The temporary employment for a fixed period cannot make the employer liable for the regularisation of service of the concerned workman nor does it give to the concerned workman a right of permanent employment in the establishment. Learned Sr. Counsel further submitted that finding of the Tribunal to the extent that services of workman was terminated without any notice or chargesheet or enquiry, is perverse as it is not a case of retrenchment or termination but merely a case of non-renewal of contract. Learned Sr. Counsel further submitted that while dealing with similar situation, the Hon'ble Supreme Court has held that in case of temporary/ fixed employment, the employment comes to an end after flux of time and, therefore, Section 25F is not applicable. The reinstatement cannot be ordered for violation of Section 25F of the Act since said Section considers grant of compensation only and, therefore, in such cases reinstatement is not a consequence of the findings of the fact given for Section 25F of the Act. Issue of contract being camouflage, is not relevant since it is not a case of employment through contract labour under the Contract Labour Act. Section 25F deals with the conditions precedent to retrenchment of workmen. It would not apply to para-3-A because of the definition of retrenchment in Section 2(oo)(bb) which expressly excludes. “termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein.” RC5In order to buttress his arguments, learned Sr. Counsel places heavy reliance on the Judgment passed in the case of Harmohinder Singh Vs. Kharga Canteen Ambala Cantt., reported in (2001) 5 SCC540 learned counsel submitted that contracts of service for a fixed term are, therefore, excluded. The principles of natural justice are not applicable where termination takes place on the expiry of the contract. Direction to reinstate the workman would mean that he gets back the same status. Thus, case of temporary employment is not covered by the findings of camouflage under the Contract Labour Act and Section 25F would not apply as has been held by Hon'ble Supreme Court in a case reported in 2007(2) SCC428 Learned Sr. counsel has also placed reliance in the cases reported in (i) 2001(5) SCC540 (ii) 2007(1) SCC533 (iii) 2006(3) JCR432Jhr.) (iv) 2006(3) SCC81 (v) 2007(2) SCC428 (vi) AIR2007SC631 (vii) 2007(1) SCC408 8. Per contra counter affidavit has been filed by the workman in W.P.(L) No. 527 of 2005 who has also preferred W.P.(L) No. 4963 of 2007. Mr. K.M. Verma, learned counsel assisted by Mr. Lalan Kumar Singh submitted that the Award dated 20.07.2004, has been passed by the Central Government Industrial Tribunal No. 1 at Dhanbad in Reference Case No. 156 of 2001 in favour of the workman holding that termination of the workman is illegal. Learned counsel further submitted that in view of arriving at the conclusion that termination of the workman is illegal, the Tribunal should have passed a direction upon the Management to pay full pay/ backwages from the date of termination from service till the date of actual payments with interest so fixed by this Court along with other consequential benefits upon re-instatement in service. Learned counsel further submitted that the last part of the Award dated 20.07.2004, passed in Reference No. 156/2001 by Central Government Industrial Tribunal No. 1, Dhanbad is fit to be quashed whereby only 25% backwages has been allowed upon re-instatement of the workman in service from the date of stoppage of the workman from service i.e. 08.02.1997 in view of the fact that Tribunal has held retrenchment/ termination of the workman from service of the respondent is illegal. Learned counsel further submitted that the Tribunal, after taking into consideration evidences, oral as well as documentary, has come to a definite conclusion that the workman had worked under the Management for more than 190 days as an underground miner in each year till he was in employment and RC6Management should have complied the mandatory provisions of Section 25-F of the Industrial Disputes Act before his retrenchment but the Management has failed to do so and, accordingly, stoppage of the workman from the service and non-payment of wages is illegal and as such, workman is entitled for full back wages. Justifying the impugned order learned counsel further argued that the Management failed to establish that appointment of the concerned workman was purely on contractual basis rather rather it has been established that the concerned workman was allowed to work continuously at the choice of the Management without any break and the workman worked for more than 190 days as an underground miner and as such, the Management is duty bound to comply with the provisions of Section 25F of the Industrial Disputes Act. Mr. K.M. Verma, learned counsel further argued that there is sufficient scope to say that the concerned workman was allowed to work continuously from August, 1994 to June, 1995 and from September, 1995 to June, 1996 and accordingly, there is reason to believe that all the appointment letters are to be considered as the camouflage as the Management did not act relying on the same. Learned counsel emphatically argued that the appointment under the Management of TISCO has not been challenged rather it has been admitted by the Management of TISCO and on appreciation of legal evidence, the Tribunal has come to a definite conclusion that the workman has continuously worked for more than 190 days as underground miner and his retrenchment/ stoppage of work is in violation of the provisions of Section 25F of the Indjustrial Disputes Act, the re-instatement of the workman by the Tribunal is just, legal and valid and fit to be upheld with an order for payment of full back wages. Learned counsel further pointed out that Award of the Labour Court is final as has been held by the Apex Court that Award of the Labour Court is final and the High Court can exercise the writ jurisdiction only if the finding is perverse and not based on legal evidence. Learned counsel further submitted that finding of the Tribunal is based on appreciation of legal evidence on record to the effect that the workman has continuously worked for more than 190 days as an underground miner and therefore, the application of Section 25F of the Industrial Disputes Act was mandatory and violation thereof has made the workman entitled for reinstatement with backwages.
9. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that no case is made out for interference in the impugned Award as the same is fully justified. I find no illegality or infirmity in the impugned Award. It has been clearly held by the Tribunal that the Management, in spite of getting sufficient scope, have failed to establish that the appointment of the RC7concerned workman was on contractual basis. It has been clearly established that though time to time for a limited period another letter of appointment on each occasion was given to the concerned workman, he was allowed to work continuously at the choice of the Management without any break. Moreover, it has been held that the workman worked under the Management more than 190 days as underground miner in each year till he was in employment. It was mandatory on the part of the Management to comply with the provisions of Section 25F of the Industrial Disputes Act before his retrenchment from service as the said was not complied. The retrenchment is illegal and the workman should be reinstated in service from the date of his retrenchment. Tribunal has rightly held that the workman is entitled for 25% backwages as he was illegally retrenched by the management for violation of Section 25F of the Industrial Disputes Act. The impugned Award needs no interference. The Hon'ble Apex Court in the case of H. Singh Vs. Punjab State Ware Housing Corporation reported in (2010) 3 SCC192and in the case of Anup Sharma Vs. Public Health Division reported in (2010) 5 SCC497has held that the Labour Court did not commit any illegality while ordering reinstatement of the appellants because his service was terminated in clear violation of Section 25F of the Industrial Disputes Act. In Swarn Singh Vs. State of Punjab reported in (1976) 2 SCC868 the Hon'ble Apex Court reiterated the limitation of certiorari jurisdiction indicated in Sazad Yakub Vs. Radhakrishn reported in AIR1964SC477wherein, in para-13, it has been held that
“13. In regard to finding of fact recorded by an inferior Tribunal, writ of certiorari can be issued only if in recording of such finding the Tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence or if the finding in not supported by any evidence at all because in such cases, the error amounts to an error of law. The writ jurisdiction extends only in cases were orders are passed by inferior courts or Tribunal in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.” So far prayer of the workman in W.P.(L) No. 4963 of 2007 for payment of full backwages is concerned, I find Tribunal has rightly held that the workman is entitled for payment of back wages at the rate of 25% of the wages which he drew on the last date of his work till the date of his joining after implementation of the Award with consequential benefits. It is an admitted fact that during the period the workman was out of management, the management did not take any service from him. In the circumstances, the prayer for enhancement of backwages is rejected. RC810. As a cumulative effect of the aforesaid rules, guidelines, judicial pronouncements, this Court is not inclined to interfere into the impugned Award. Resultantly, the impugned Award dated 20.07.2004 in Reference No. 156/2001, passed by the Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad needs no interference.
11. As a result, W.P.(L) No. 527 of 2005 preferred by Management and W.P.(L) No. 4963 of 2007 preferred by the workman are dismissed. However, in the facts and circumstances, there shall be no order as to costs. (Dr. S.N. Pathak, J.) High Court of Jharkhand at Ranchi Dated: November 24, 2017 RC RC