M/S.B.C.C.L. Vs. their Workmen and anr - Court Judgment

SooperKanoon Citationsooperkanoon.com/1008349
CourtJharkhand High Court
Decided OnJul-19-2013
AppellantM/S.B.C.C.L.
Respondenttheir Workmen and anr
Excerpt:
w.p. (l) no. 3015 of 2001 --- an application under article 226 of the constitution of india ---- m/s. bharat coking coal limited ...petitioner -versus- their workmen represented by the secretary, bihar colliery kamgar union, jharnapara, hirapur, dhanbad & anr. ..respondents. --- for the petitioner : mr. a. k. mehta, adv. for the respondents : mr. s.k.laik, adv. --- present hon'ble mr. justice aparesh kumar singh reserved on 11.07.2013 pronounced on 19 / 07 /2013 aparesh kumar singh, j.heard learned counsel for the parties. the award dated 26th december, 2000, passed by the central government industrial tribunal no.1, dhanbad in reference case no. 28 of 1992, is under challenge by the management-writ petitioner, whereby it has been directed to regularize 27 concerned persons in the employment of loyabad coke plant, however, with no back wages. according to the petitioner-management, on 28th march, 1986, work order was issued for cleaning settling tanks and throwing out dust at a reasonable distance. later on 20th september, 1989, work order was issued to m/s. kamgar sharamik sahyog samitee limited for cleaning of settling tanks. these workmen claim to be the members of the co-operative society, namely, kamgar sharamik sahyog samitee limited having its registration no. idhn 198 within the district of dhanbad. prior to 1989, the same nature of work was awarded to shri muslim mian for doing certain contract jobs in the coke plant at loyabad. the loyabad coke plant manufactures hard coke and bye products by feeding raw coal after crushing into the coke ovens unto the surface for the purpose of quenching the same with the help of pumped water. the coke breeze produced in the process of manufacture of coke and quenching of the same is allowed to flow along with the water and settle on the small tanks constructed for that purposes. in that process, the tanks get filled up to different heights. these settling tanks are required to be cleaned once or twice in a week depending upon the quantity of coke breeze produced in the process of manufacturing and quenching coke and the work is done by engaging contractor workers. according to the petitioner-management in the year 1989 because of some grievances raised by the concerned workmen against the said muslim mian, 2. the management agreed to give a contract to the said co-operative society for executing the same work. it has been further stated that the nature of job is intermittent and casual in nature according to requirement on the basis of jobs available from time to time. however, the concerned persons through their union raised an industrial dispute seeking regularization of their services in the roll of loyabad coke plant of petitioner-m/s. bharat coking coal limited. on 26th march, 1992, the ministry of labour, government of india referred the following dispute for adjudication: whether the demand of bihar colliery kamgar union for regularization of sri sunder dusadh and 26 others on the roll of loyabad coke plant of m/s. bharat coking coal ltd. is justified? if so, to what relief the workmen are entitled? the respondent-union on being noticed filed its written statement contending that they have been performing the permanent and perennial nature of job since long and hence they are entitled for regularization. the written statement is annexed as annexure-1. it is contended in their written statements that the alleged intermediary is neither supervising the job of the concerned workmen nor supplying any implement to the concerned workmen. the management has been following anti-labour policy in refusing to regularize the workmen and forcing them to form an alleged co-operative as the employees are employed by the management and the arrangement is only a camouflage. the management had also filed its written statement vide annexure-2 on 30th october, 1992, contending that the work orders have been issued to the contractor of the co-operative society for cleaning of setting tanks as already indicated hereinabove. they took a stand that the work was casual, temporary and intermittent in nature, which does not require regular jobs. however, by the impugned award the learned tribunal has directed the management to regularize the services of the concerned persons. learned counsel for the petitioner has assailed the impugned award by submitting that the learned tribunal has proceeded to hold that the petitioner-management had not filed any registration certificate under section 7(2) of contract labour (regulation & abolition) act, 1970, to show that it has got the establishment registered for engagement of contractor under the act of 1970. they have also not filed any document to show that the alleged co-operative society is a licensee under the act of 1970, therefore, the learned tribunal proceeded to hold that in view of the settled principle of law by honble supreme court, it must be said that the concerned persons are the workmen of the management and the arrangement made by the management is nothing but to camouflage the real issue. learned counsel 3. for the petitioner further submits that thereafter the learned tribunal proceeded to hold that after lifting of veil, it is clear that the concerned persons are working under the direct control and supervision of the management and therefore the concerned persons are the workmen of the management. the learned tribunal also considered the volume of work to be rs. 1,37,909.07 cft and the rate of cleaning to be rs. 30/- per cft which indicates that the volume of work is long duration. the learned tribunal also made an adverse inference against the management for failing to produce attendance register and for which no explanation was furnished by the management. learned counsel for the petitioner has assailed the aforesaid findings as being serious errors of law. learned counsel further submits that the findings of the learned tribunal that since the management had not filed any registration certificate under section 7(2) of the act of 1970 as also no license of the co- operative society under the same act was filed and therefore the arrangement of the management is camouflage leading to the inference that the concerned persons are workmen of the management, is in clear teeth of the judgment rendered by honble supreme court in the case of dena nath & others-vs.-national fertilizers ltd. reported in (1992) 1 scc 69.para 22. he also relies upon the judgment of honble supreme court rendered in the case of municipal corporation of greater mumbai-vs.- k.v.shramik sangh & others reported in (2002) 4 scc 60.paras 19 & 20. according to the petitioner-management, the honble supreme court in the aforesaid judgments have categorically held that the effect of non- compliance of the provisions of c.l.r.a. act of 1970 i.e. non-registration of the establishment under section 7 of the said act and not possessing license under section 12 would not result in regularization of the concerned workmen rather it would result in prosecution under sections 23/24 of the c.l.r.a. act, 1970. therefore, the learned tribunal could not have concluded that the contract labour system is sham or camouflage. it is submitted that the findings to the effect that upon lifting of veil, the management has been found to have control and supervision over the concerned employees in the nature of employer and employee relationship is also based upon error of record and amounts to an error of law. in support of his submission, he has relied upon the judgment of honble supreme court rendered in the case of general manger (osd)-vs.- bharat lal reported in (2011”635. scc paras 10-13, where, according to him, it has been held that in order to examine whether the contract is sham and camouflage what is to be seen is whether the principal employer pays the salary instead of contractor and 4. whether the principal employer controls and supervises the work. there is no finding on both these issues. the work was awarded to the contractor, who used to raise the bills and payments were made on the basis of volume of work executed through cheques in the name of contractor co-operative society. the work awarded was for removal of sludge from settling tanks which was supervised by the contractor. referring to the calculations made by the learned tribunal, it is also submitted that they are erroneous and the applicable rate of cleaning is rs. 30/- per hundred cft and not rs. 30/- per cft. and therefore the work was of short duration and hence not permanent and perennial in nature rather it was casual nature. learned counsel for the petitioner-management has further assailed the findings of an adverse inference by relying upon the judgment of honble supreme court rendered in the case of manager, rbi-vs.- s.mani reported in (2005) 5 scc 10.paras 21 to 26. it is submitted on his behalf that for drawing adverse inference, a party to the case is required to make an application directing the other party to produce documents and the court/tribunal has to pass an order for production of such documents. only on failure to produce the document so ordered, the same would result in drawing of adverse inference. in the instant case, no such order was passed by the tribunal and only an application was made by the workmen/union, therefore, no adverse inference could have been drawn. learned counsel for the petitioner also relies upon the judgment of constitution bench of honble supreme court rendered in the case of sail vs.- national union waterfront workers reported in (2001) 7 scc 1.to submit that the engagement of the contractor in the instant work was not prohibited by issuance of notification under section 10(1) of the c.l.r.a. act and therefore the workmen are not entitled to regularization. he also relies upon the judgment of honble supreme court rendered in the case of state of karnataka-vs.- uma devi reported in (2006) 4 scc 1 as also the judgment of honble supreme court rendered in the case of accounts officer-vs.- k.v.ramana reported in (2007) 2 scc 324.in order to submit that mere completion of 240 days does not by itself give rise to a claim of permanence as has been held by learned tribunal in the impugned award. learned counsel for the petitioner has, therefore, submitted that the impugned award suffers from serious error of law and findings of fact which are based upon no evidence and adverse inference has wrongly been drawn against it which renders the entire award vitiated in the eye of law. it therefore deserves to be quashed.5. on the other hand, learned counsel for the workmen submits that the reference has been made in respect of 27 workmen who were working in permanent nature of job within the precincts and premises of loyabad coke plant of m/s..bccl. these workmen have been performing their job under the direct control and supervision of the management and all the implements for execution of job are being supplied by the management. all these workmen have worked for more than 240 days in each calendar year and therefore they are regular employees of the management. the management is camouflaging the real issue and refusing to regularize them on their rolls. it is submitted by learned counsel for the workmen that learned tribunal found that they are in violation of c.l.r.a act, 1970, as the management is not a registered establishment under section 7(2) of the act of 1970 nor any license of the co-operative society was filed before the court below. in such circumstances, the arrangement made by the petitioner was a paper arrangement only to avoid treating the workmen as their regular employees. therefore, once the management has found that the workmen act is a sham and camouflage, the tribunal is right in coming to a conclusion that these workmen are under the direct control and supervision and employment of the management of bccl and deserve regularization. learned counsel for the respondents also supports the findings recorded by the learned tribunal on the second issue relating to the engagement of these workmen for a period of more than 240 days since their engagement in a calendar year. it is submitted that the workmen witness i.e. w.w.1, hiralal paswan clearly deposed before the tribunal that the work which they performed is of permanent nature, of 8 hours duty on daily basis and is in the nature of cleaning of breeze settling tanks. they are also entrusted with other works of electrician or cleaning work whenever it is required. learned counsel further submits that on the basis of exhibits produced by the management being a work order as ext. m2/1 which is for a period from 24th july, 1982 to 31st march, 1990 i.e. for a period of 8 months and 7 days, the learned tribunal after making calculation of the volume of work of rs. 1,37,909.07 cft and the rate of cleaning of rs. 30/- per cft found that volume of work is for more than rs. 40,00.000/-. he submits that learned tribunal based upon the aforesaid calculation and wage-sheet filed by the management, came to a conclusion that all these 27 persons are employed for 20 days in a month approximately and therefore the claim of the management that the work is of a casual nature is done only three and four times in a week is refuted. he further submits that once the workmen witness on behalf of the union has categorically deposed that they were working for more than 240 days, the burden 6. of proof shifted upon the management to rebut the same by bringing such necessary documents on record and through other oral evidence which they have failed to do. therefore, the tribunal is justified in arriving at an adverse inference against them since they also failed to produce the attendance register. in the background of the aforesaid circumstances, when the learned tribunal has rendered findings on both issues in favour of the workmen, and found that they have worked for more than 240 days in a calendar year, they are entitled for regularization in permanent roll of loyabad coke plant under the management of bccl. the impugned award is therefore wholly just, proper and does not require any interference. learned counsel for the respondents in support of his submission relied upon the judgment of honble supreme court rendered in the case of hussainbhai, caligut-vs.- the alath factory tejhila union and others reported in air 197.sc 141.paras 5 to 7, to submit that honble supreme court has clearly laid down the criteria under which a person is to be treated as a workman. learned counsel for the petitioner has also relied upon the judgment of division bench of this court rendered in the case of employees in relation to the management of angar pathra collierty of m/.s. bharat coking coal limited-vs.- presiding officer, central government industrial tribunal (no.2) reported in (2002)3 jcr 39.para 12, which according to him has been affirmed by honble supreme court as well. he submits the division bench had held that when a finding has been arrived at that the engagement of contractor is merely camouflage the workmen are entitled to be regularized. learned counsel for the petitioner has also relied upon the judgment of honble supreme court in the case of g.m. o.n.g.c.-vs.- o.n.g.c. contractual workers union reported in 2008 air scw 399.paras 16 to 18. he also relies upon the judgment of honble supreme court rendered in the case of director, fisheries terminal division-vs.- bhikhubhai meghji bhai reported in 2010 air scw 542.so far as question relating to burden of proof is concerned. according to the petitioner, once the workman has deposed that he has worked for 240 days, burden of proof shifts upon the employer to show that he has not done so. learned counsel for the petitioner has also relied upon the judgments of honble supreme court rendered in the case of r.k.panda and others-vs.- steel authority of india and others reported in (1994) 5 scc 30.para 7, and in the case of kanpur electricity supply company limited-vs.- shamim mirza reported in (2009) 1 scc page 20. he also relied upon the judgment of honble 7. supreme court rendered in the case of bank of baroda-vs.- ghemarbahi h.rabari reported in 2005(10) scc 792.according to learned counsel for the petitioner, once the learned tribunal has found that these persons are workmen engaged by the management through a sham arrangement of a contractor and they were performing 240 days of work in a calendar year they are entitled to be allowed regularization in their services as the job which they performed is of a perennial nature and the order therefore does not require any interference as it does not suffer from any error of law. i have heard learned counsel for the parties at length and gone through the impugned award as also the materials on record. learned tribunal after introducing the case of the parties as aforesaid has framed two issues. (i) whether the concerned persons are really a contractors workers or the management has tried to camouflage the issue by branding them as contractors workers? (ii) whether the job which the concerned persons are performing is of a permanent nature and their attendance was more than 240 days is a calendar year? while answering the issue no.1, after discussing the rival evidence adduced on behalf of the parties as also the pleadings on their part contended in their written statements, the learned tribunal came to a finding that the management has not filed any registration certificate of its establishment being registered under c.l.r.a. act, 1970 nor any document or license granted to the alleged co-operative society under the said act. it thereafter proceeded to come to a conclusion that since establishment of the management is neither registered nor the so-called contractor, kamgar sharamik sahyog samitee limited is a licensee under the act of 1970, in view of the settled principle of law by honble supreme court, it must be said that the concerned persons are the workmen of the management and the arrangement made by the management is nothing but to camouflage the real issue. these findings arrived at by the learned tribunal on the issue no.1, however, is clearly in teeth of the law laid down by honble supreme court rendered in the case of dena nath & others-vs.- national fertilizers ltd. reported in (1992) 1 scc 69.para 22 (supra) as also in the case of municipal corporation of greater, mumbai-vs.- k.v.shramik sangh & others reported in (2002) 4 scc 60.para 22 (supra). the opinion of honble supreme court contained in para 22 rendered in the case of dena nath & others-vs.- national fertilizers ltd. reported in (1992) 1 scc 69.is being quoted herein above:8. para-22: it is not for the high court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not. it is a matter for the decision of the government after considering the matter, as required to be considered under section 10 of the act. the only consequences provided in the act where either the principal employer or the labour contractor violates the provision of section 9 (sic7) and 12 respectively is the penal provision, as envisaged under the act for which reference may be made to sections 23 and 25 of the act. we are thus of the firm view that in proceedings under article 226 of the constitution merely because contractor or the employer had violated any provision of the act or the rules, this court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer. we would not like to express any view on the decision of the karnataka high court or of the gujrat high court(supra) since these decisions are under challenge in this court, but we would place on record that we don not agree with the aforequoted observations of the madras high court about the effect of non-registration of the principal employer or the non-licensing of the labour contractor nor with the view of bombay high court in the aforesaid case. we are of the view that the decisions of the kerala high court and delhi high court are correct and we approve the same. (underline not part of original text, are supplied to add emphasis) the honble supreme court has clearly held that the effect of non- compliance of the provisions of c.l.r.a.act i.e. non-registration of the establishment under section 7 and not possessing license under section 12 would not result in regularization rather it would result in prosecution under sections 23/24 of the c.l.r.a. act. therefore, the learned tribunal was not correct in arriving at an inference that in absence of the registration and the license, the arrangement made by the management to execute the work through a contractor is a sham and camouflage. it is not in dispute that the nature of work performed through the said contractor has not been prohibited by any notification issued by the appropriate government under section 10(1) of the act of 1970. on issuance of such notification, the industrial adjudicator on a reference made on a dispute raised by the concerned workmen, has to arrive at a finding whether such arrangement is a sham and camouflage in view of the law laid down by the constitution bench of honble supreme court rendered in the case of sail-vs.- national union waterfront workers reported in (2001) 7 scc 1 paras 125 and 126. therefore, the aforesaid findings are clearly in teeth of the judgment rendered by honble supreme court and are bad in law. so far as second issue relating to engagement of workmen for more than 240 days under the management of the petitioner-bccl is concerned, the leaned tribunal has arrived at a finding that all these 27 workmen were in the regular employment of the management for more than a period of 240 days in a 9. calendar year. this finding is based upon the sole evidence of only one workmen witness w.w.1, hiralal paswan. learned counsel for the petitioner on being asked has however failed to satisfy as to any evidence brought on record by the concerned workmen witness to establish that apart from him the other 26 workmen who were also seeking regularization under the same reference had been engaged for a considerable length of time of more than 240 days for execution of such nature of work. there is no evidence on record in respect of each individual workmen in respect of their engagement for a particular period ext. m2/1 is only a work order issued to the contractor for a period from 24th july, 1983 to 31st march, 1990. on the one hand, it is the case of the management that the work is of a casual and intermittent nature and at no point of time all the workmen are required to do the job. in fact, according to them, the job is done only three and four times in a week. in the wake of such clear denial, it was incumbent that evidence of performance of work on a regular basis for a period of 240 days in a calendar year in respect of each workmen were required to be brought on record to enable the learned tribunal to arrive at a finding in respect of regular engagement of each of 27 workmen as also the perennial nature of work performed by them. learned tribunal only on the basis of one witness w.w.1 and that too on his oral evidence has come to a finding that all these 27 workmen were engaged for more than 240 days in a particular calendar year, which also does not appear to be based upon any proper scientific calculation. the learned tribunal had indulged in a calculation of the volume of work treating the rate of work at rs. 30/- per cft which according to the management is clearly erroneous in view of the fact that the rate applicable is rs. 30/- per 100 cft in 1989. the total cost of work as calculated by the tribunal should come to rs. 40,000/- instead of rs. 40 lakhs. therefore, these calculations are only speculative and does not seem to be based upon proper facts. learned tribunal has proceeded to draw an adverse inference against the management for failure to produce the attendance register of the concerned persons, though no order was passed against the management on the application of the workmen to produce such register. such an adverse inference drawn by the learned tribunal is therefore also in teeth of judgment of honble supreme court in the case of manager, rbi vs.- s. mani reported in (2005) 5 sc 10.paras 21 to 26. the petitioner management had not been called upon to produce the attendance register in question, therefore, the tribunal was clearly in error in drawing such an inference against him.10. in the aforesaid facts and circumstances, therefore, it appears that learned tribunal has come to an erroneous findings on both issues framed by it. failure to comply the provisions of sections 7 and 12 of the act of 1970 does not lead to inescapable conclusion that the workmen concerned are to be regularized under the services of the management for violation of the said provisions. there are other penal consequences which arise for such violation. in the instant case merely upon such finding the learned tribunal has gone to hold that the arrangement of the management to execute the work through a contractor was sham and camouflage. on the other hand, the learned tribunal on the basis of oral evidence of sole workman witness w.w,.1 has come to a finding that all 27 workmen were engaged in a perennial nature of work for 240 days or more in a calendar year under the management of loyabad coke plant of bccl and are therefore entitled for regularization. the aforesaid finding is also clearly not based upon cogent evidence to that effect. in the wake of the aforesaid facts and circumstance and the totality of the reasons, the judgments relied upon by the respondents workmen, do not come to their aid as the findings of the learned tribunal are clearly in teeth of the well settled law. the proposition of law relating to the test for determining a workman as laid down in the case of hussainbhai, caligut-vs.- the alath factory tejhila union and others reported in air 197.sc 141.as also reported in (1978) 4 scc 257.is well settled. the question in the present case, framed for adjudication by the industrial tribunal was whether the concerned persons were really contractor's workers or of the management. for determination of this issue the learned industrial tribunal had to arrive at a finding after appraisal of cogent evidence adduced during the proceedings of the reference case which the tribunal has failed to do. the conclusion drawn by the learned tribunal in the impugned award relating to this issue that the engagement of the workmen through a contractor was a mere camouflage as already discussed hereinabove is based upon the inference drawn from the findings recorded by it that the management did not have a registration as required under section 7(2) of the act of 1970 nor co-operative society i.e. contractor have a license under section 12 of the said act. this conclusion however is clearly erroneous in view of the judgment rendered in the case of dena nath & others-vs.- national fertilizers ltd. (supra) as quoted hereinabove. therefore, the judgment relied upon by the workmen as reported in (2002) 3 jcr 39.(supra) is also not applicable to the present facts. the impugned award is contrary to the law laid down by hon'ble supreme court in the case of dena nath & others-vs.- national fertilizers 11. ltd. reported in (1992) 1 scc 695.therefore, the judgment relied upon by the petitioner rendered in the case of general manager, oil and natural gas commission, silchar-vs.- oil and natural gas commission contractual workers union reported in (2008) 12 scc 275.does not support the case of the workmen rather it supports the case of the management petitioner. the tribunal on account of violation of the provisions of section 7(2) and 12 of the act of 1970 had drawn an inference that the arrangement made by the management was a camouflage. it does not appear to have made any serious efforts to lift the veil to find out that the engagement of these workmen were in the nature of a camouflage or ruse employed by the management through a contractor. in the instant case, the workman had adduced sole witness i.e. w.w. 1 and no evidence in respect other 26 workmen were on record of their regular employment of the management for more than a period of 240 days in a calender year. the tribunal had not passed any order for production of any attendance register by the management, but had without any legal basis or justification drawn an adverse inference against the management for non-production of the attendance register contrary to the law laid down by hon'ble supreme court as referred to the earlier part of the judgment. therefore, the reliance of the petitioner on the judgment of apex court in the case of director, fisheries terminal division- vs.- bhikhubhai meghji bhai (supra) reported in 2010 air scw 54.is once again misplaced. the judgment relied upon by the workmen in the case of r.k.panda and others-vs.- steel authority of india and others reported in (1994) 5 scc 30.is once again of no help to the petitioner as even by the opinion expressed at para 7 of the said judgment, it was the duty of the industrial adjudicator to determine the very question of fact whether the workmen were employees of the principal employer engaged through a contractor and that it is a mere camouflage and a smokescreen. this question of fact had to be established by the contract labourers on the basis of requisite material which the workmen have failed to establish in the present case. the judgment in the case of kanpur electricity supply company limited-vs.- shamim mirza reported in (2009) 1 scc as also in the case of bank of baroda-vs.- ghemarbhai harjibhai rabari reported in (2005) 10 scc 79.relied upon by the respondents workmen on the question of burden of proof is of no aid, as the evidence adduced by the workmen through sole witness i.e. w.w.1 could not prima facie establish that all these 27 workmen were in the regular employment of the management for a period of more than 240 days in a calender year, so as to place the onus upon the employer to rebut the same.12. in such circumstances, as aforesaid the judgments relied upon by the respondents workmen do not come to their aid as the findings of the learned tribunal are in the teeth of well settled law and not based upon any cogent evidence. in the circumstances, the impugned award therefore suffers form serious errors of law and findings of fact which goes to the root of the matter and therefore cannot be sustained in law and is accordingly quashed. the writ petition is accordingly allowed. (aparesh kumar singh, j) jharkhand high court, ranchi the 19th / july /2013 jk/nafr
Judgment:

W.P. (L) No. 3015 of 2001 --- An application under Article 226 of the Constitution of India ---- M/s. Bharat Coking Coal Limited ...Petitioner -Versus- Their workmen represented by the Secretary, Bihar Colliery Kamgar Union, Jharnapara, Hirapur, Dhanbad & anr. ..Respondents. --- For the Petitioner : Mr. A. K. Mehta, Adv. For the Respondents : Mr. S.K.Laik, Adv. --- PRESENT HON'BLE MR. JUSTICE APARESH KUMAR SINGH Reserved on 11.07.2013 Pronounced on 19 / 07 /2013 Aparesh Kumar Singh, J.

Heard learned counsel for the parties. The Award dated 26th December, 2000, passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference Case No. 28 of 1992, is under challenge by the Management-writ petitioner, whereby it has been directed to regularize 27 concerned persons in the employment of Loyabad Coke Plant, however, with no back wages. According to the petitioner-Management, on 28th March, 1986, work order was issued for cleaning settling tanks and throwing out dust at a reasonable distance. Later on 20th September, 1989, work order was issued to M/s. Kamgar Sharamik Sahyog Samitee Limited for cleaning of settling tanks. These workmen claim to be the members of the Co-operative Society, namely, Kamgar Sharamik Sahyog Samitee Limited having its Registration no. IDHN 198 within the district of Dhanbad. Prior to 1989, the same nature of work was awarded to Shri Muslim Mian for doing certain contract jobs in the Coke Plant at Loyabad. The Loyabad Coke Plant Manufactures Hard Coke and bye products by feeding raw coal after crushing into the Coke Ovens unto the surface for the purpose of quenching the same with the help of pumped water. The Coke breeze produced in the process of manufacture of coke and quenching of the same is allowed to flow along with the water and settle on the small tanks constructed for that purposes. In that process, the tanks get filled up to different heights. These settling tanks are required to be cleaned once or twice in a week depending upon the quantity of Coke breeze produced in the process of manufacturing and quenching coke and the work is done by engaging Contractor workers. According to the petitioner-management in the year 1989 because of some grievances raised by the concerned workmen against the said Muslim Mian, 2. the management agreed to give a contract to the said Co-operative Society for executing the same work. It has been further stated that the nature of job is intermittent and casual in nature according to requirement on the basis of jobs available from time to time. However, the concerned persons through their Union raised an industrial dispute seeking regularization of their services in the roll of Loyabad Coke Plant of petitioner-M/s. Bharat Coking Coal Limited. On 26th March, 1992, the Ministry of Labour, Government of India referred the following dispute for adjudication: Whether the demand of Bihar Colliery Kamgar Union for regularization of Sri Sunder Dusadh and 26 others on the roll of Loyabad Coke Plant of M/s. Bharat Coking Coal Ltd. is justified? If so, to what relief the workmen are entitled? The Respondent-Union on being noticed filed its written statement contending that they have been performing the permanent and perennial nature of job since long and hence they are entitled for regularization. The written statement is annexed as Annexure-1. It is contended in their written statements that the alleged intermediary is neither supervising the job of the concerned workmen nor supplying any implement to the concerned workmen. The management has been following anti-labour policy in refusing to regularize the workmen and forcing them to form an alleged co-operative as the employees are employed by the management and the arrangement is only a camouflage. The management had also filed its written statement vide Annexure-2 on 30th October, 1992, contending that the work orders have been issued to the contractor of the Co-operative Society for cleaning of setting tanks as already indicated hereinabove. They took a stand that the work was casual, temporary and intermittent in nature, which does not require regular jobs. However, by the impugned Award the learned Tribunal has directed the Management to regularize the services of the concerned persons. Learned counsel for the petitioner has assailed the impugned Award by submitting that the learned Tribunal has proceeded to hold that the petitioner-Management had not filed any registration certificate under Section 7(2) of Contract Labour (Regulation & Abolition) Act, 1970, to show that it has got the establishment registered for engagement of contractor under the Act of 1970. They have also not filed any document to show that the alleged Co-operative Society is a licensee under the Act of 1970, therefore, the learned Tribunal proceeded to hold that in view of the settled principle of law by Honble Supreme Court, it must be said that the concerned persons are the workmen of the management and the arrangement made by the management is nothing but to camouflage the real issue. Learned counsel 3. for the petitioner further submits that thereafter the learned Tribunal proceeded to hold that after lifting of veil, it is clear that the concerned persons are working under the direct control and supervision of the management and therefore the concerned persons are the workmen of the management. The learned Tribunal also considered the volume of work to be Rs. 1,37,909.07 cft and the rate of cleaning to be Rs. 30/- per cft which indicates that the volume of work is long duration. The learned Tribunal also made an adverse inference against the management for failing to produce attendance register and for which no explanation was furnished by the management. Learned counsel for the petitioner has assailed the aforesaid findings as being serious errors of law. Learned counsel further submits that the findings of the learned Tribunal that since the management had not filed any registration certificate under Section 7(2) of the Act of 1970 as also no license of the Co- operative Society under the same Act was filed and therefore the arrangement of the management is camouflage leading to the inference that the concerned persons are workmen of the management, is in clear teeth of the judgment rendered by Honble Supreme Court in the case of Dena Nath & Others-Vs.-National Fertilizers Ltd. reported in (1992) 1 SCC 69.Para 22. He also relies upon the judgment of Honble Supreme Court rendered in the case of Municipal Corporation of Greater Mumbai-Vs.- K.V.Shramik Sangh & others reported in (2002) 4 SCC 60.Paras 19 & 20. According to the petitioner-Management, the Honble Supreme Court in the aforesaid judgments have categorically held that the effect of non- compliance of the provisions of C.L.R.A. Act of 1970 i.e. non-registration of the establishment under Section 7 of the said Act and not possessing license under Section 12 would not result in regularization of the concerned workmen rather it would result in prosecution under Sections 23/24 of the C.L.R.A. Act, 1970. Therefore, the learned Tribunal could not have concluded that the contract labour system is sham or camouflage. It is submitted that the findings to the effect that upon lifting of veil, the management has been found to have control and supervision over the concerned employees in the nature of employer and employee relationship is also based upon error of record and amounts to an error of law. In support of his submission, he has relied upon the judgment of Honble Supreme Court rendered in the case of General Manger (OSD)-Vs.- Bharat Lal reported in (2011”

635. SCC paras 10-13, where, according to him, it has been held that in order to examine whether the contract is sham and camouflage what is to be seen is whether the principal employer pays the salary instead of contractor and 4. whether the principal employer controls and supervises the work. There is no finding on both these issues. The work was awarded to the contractor, who used to raise the bills and payments were made on the basis of volume of work executed through Cheques in the name of contractor Co-operative Society. The work awarded was for removal of Sludge from settling tanks which was supervised by the contractor. Referring to the calculations made by the learned Tribunal, it is also submitted that they are erroneous and the applicable rate of cleaning is Rs. 30/- per hundred cft and not Rs. 30/- per cft. and therefore the work was of short duration and hence not permanent and perennial in nature rather it was casual nature. Learned counsel for the petitioner-management has further assailed the findings of an adverse inference by relying upon the judgment of Honble Supreme Court rendered in the case of Manager, RBI-Vs.- S.Mani reported in (2005) 5 SCC 10.Paras 21 to 26. It is submitted on his behalf that for drawing adverse inference, a party to the case is required to make an application directing the other party to produce documents and the Court/Tribunal has to pass an order for production of such documents. Only on failure to produce the document so ordered, the same would result in drawing of adverse inference. In the instant case, no such order was passed by the Tribunal and only an application was made by the workmen/union, therefore, no adverse inference could have been drawn. Learned counsel for the petitioner also relies upon the judgment of Constitution Bench of Honble Supreme Court rendered in the case of SAIL Vs.- National Union Waterfront Workers reported in (2001) 7 SCC 1.to submit that the engagement of the contractor in the instant work was not prohibited by issuance of notification under Section 10(1) of the C.L.R.A. Act and therefore the workmen are not entitled to regularization. He also relies upon the judgment of Honble Supreme Court rendered in the case of State of Karnataka-Vs.- Uma Devi reported in (2006) 4 SCC 1 as also the judgment of Honble Supreme Court rendered in the case of Accounts Officer-Vs.- K.V.Ramana reported in (2007) 2 SCC 324.in order to submit that mere completion of 240 days does not by itself give rise to a claim of permanence as has been held by learned Tribunal in the impugned Award. Learned counsel for the petitioner has, therefore, submitted that the impugned Award suffers from serious error of law and findings of fact which are based upon no evidence and adverse inference has wrongly been drawn against it which renders the entire Award vitiated in the eye of law. It therefore deserves to be quashed.

5. On the other hand, learned counsel for the workmen submits that the reference has been made in respect of 27 workmen who were working in permanent nature of job within the precincts and premises of Loyabad Coke Plant of M/s..BCCL. These workmen have been performing their job under the direct control and supervision of the management and all the implements for execution of job are being supplied by the management. All these workmen have worked for more than 240 days in each calendar year and therefore they are regular employees of the management. The management is camouflaging the real issue and refusing to regularize them on their rolls. It is submitted by learned counsel for the workmen that learned Tribunal found that they are in violation of C.L.R.A Act, 1970, as the management is not a registered establishment under Section 7(2) of the Act of 1970 nor any license of the Co-operative Society was filed before the Court below. In such circumstances, the arrangement made by the petitioner was a paper arrangement only to avoid treating the workmen as their regular employees. Therefore, once the management has found that the workmen act is a sham and camouflage, the Tribunal is right in coming to a conclusion that these workmen are under the direct control and supervision and employment of the management of BCCL and deserve regularization. Learned counsel for the respondents also supports the findings recorded by the learned Tribunal on the second issue relating to the engagement of these workmen for a period of more than 240 days since their engagement in a calendar year. It is submitted that the workmen witness i.e. W.W.1, Hiralal Paswan clearly deposed before the Tribunal that the work which they performed is of permanent nature, of 8 hours duty on daily basis and is in the nature of cleaning of breeze settling tanks. They are also entrusted with other works of electrician or cleaning work whenever it is required. Learned counsel further submits that on the basis of exhibits produced by the management being a work order as Ext. M2/1 which is for a period from 24th July, 1982 to 31st March, 1990 i.e. for a period of 8 months and 7 days, the learned Tribunal after making calculation of the volume of work of Rs. 1,37,909.07 cft and the rate of cleaning of Rs. 30/- per cft found that volume of work is for more than Rs. 40,00.000/-. He submits that learned Tribunal based upon the aforesaid calculation and wage-sheet filed by the management, came to a conclusion that all these 27 persons are employed for 20 days in a month approximately and therefore the claim of the management that the work is of a casual nature is done only three and four times in a week is refuted. He further submits that once the workmen witness on behalf of the Union has categorically deposed that they were working for more than 240 days, the burden 6. of proof shifted upon the management to rebut the same by bringing such necessary documents on record and through other oral evidence which they have failed to do. Therefore, the Tribunal is justified in arriving at an adverse inference against them since they also failed to produce the attendance register. In the background of the aforesaid circumstances, when the learned Tribunal has rendered findings on both issues in favour of the workmen, and found that they have worked for more than 240 days in a calendar year, they are entitled for regularization in permanent roll of Loyabad Coke Plant under the management of BCCL. The impugned Award is therefore wholly just, proper and does not require any interference. Learned counsel for the respondents in support of his submission relied upon the judgment of Honble Supreme Court rendered in the case of Hussainbhai, Caligut-Vs.- The Alath Factory Tejhila Union and others reported in AIR 197.SC 141.paras 5 to 7, to submit that Honble Supreme Court has clearly laid down the criteria under which a person is to be treated as a workman. Learned counsel for the petitioner has also relied upon the judgment of Division Bench of this Court rendered in the case of Employees in Relation to the Management of Angar Pathra Collierty of M/.s. Bharat Coking Coal Limited-Vs.- Presiding Officer, Central Government Industrial Tribunal (No.2) reported in (2002)3 JCR 39.para 12, which according to him has been affirmed by Honble Supreme Court as well. He submits the Division Bench had held that when a finding has been arrived at that the engagement of contractor is merely camouflage the workmen are entitled to be regularized. Learned counsel for the petitioner has also relied upon the judgment of Honble Supreme Court in the case of G.M. O.N.G.C.-Vs.- O.N.G.C. Contractual Workers Union reported in 2008 AIR SCW 399.paras 16 to 18. He also relies upon the judgment of Honble Supreme Court rendered in the case of Director, Fisheries Terminal Division-Vs.- Bhikhubhai Meghji Bhai reported in 2010 AIR SCW 542.So far as question relating to burden of proof is concerned. According to the petitioner, once the workman has deposed that he has worked for 240 days, burden of proof shifts upon the employer to show that he has not done so. Learned counsel for the petitioner has also relied upon the judgments of Honble Supreme Court rendered in the case of R.K.Panda and others-Vs.- Steel Authority of India and others reported in (1994) 5 SCC 30.para 7, and in the case of Kanpur Electricity Supply Company Limited-Vs.- Shamim Mirza reported in (2009) 1 SCC page 20. He also relied upon the judgment of Honble 7. Supreme Court rendered in the case of Bank of Baroda-Vs.- Ghemarbahi H.Rabari reported in 2005(10) SCC 792.According to learned counsel for the petitioner, once the learned Tribunal has found that these persons are workmen engaged by the management through a sham arrangement of a contractor and they were performing 240 days of work in a calendar year they are entitled to be allowed regularization in their services as the job which they performed is of a perennial nature and the order therefore does not require any interference as it does not suffer from any error of law. I have heard learned counsel for the parties at length and gone through the impugned Award as also the materials on record. Learned Tribunal after introducing the case of the parties as aforesaid has framed two issues. (i) Whether the concerned persons are really a Contractors workers or the management has tried to camouflage the issue by branding them as contractors workers? (ii) Whether the job which the concerned persons are performing is of a permanent nature and their attendance was more than 240 days is a calendar year? While answering the Issue No.1, after discussing the rival evidence adduced on behalf of the parties as also the pleadings on their part contended in their written statements, the learned Tribunal came to a finding that the management has not filed any registration certificate of its establishment being registered under C.L.R.A. Act, 1970 nor any document or license granted to the alleged Co-operative Society under the said Act. It thereafter proceeded to come to a conclusion that since establishment of the management is neither registered nor the so-called contractor, Kamgar Sharamik Sahyog Samitee Limited is a licensee under the Act of 1970, in view of the settled principle of law by Honble Supreme Court, it must be said that the concerned persons are the workmen of the management and the arrangement made by the management is nothing but to camouflage the real issue. These findings arrived at by the learned Tribunal on the Issue No.1, however, is clearly in teeth of the law laid down by Honble Supreme Court rendered in the case of Dena Nath & Others-Vs.- National Fertilizers Ltd. reported in (1992) 1 SCC 69.para 22 (Supra) as also in the case of Municipal Corporation of Greater, Mumbai-Vs.- K.V.Shramik Sangh & others reported in (2002) 4 SCC 60.para 22 (Supra). The opinion of Honble Supreme Court contained in para 22 rendered in the case of Dena Nath & Others-Vs.- National Fertilizers Ltd. reported in (1992) 1 SCC 69.is being quoted herein above:

8. Para-22: It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not. It is a matter for the decision of the government after considering the matter, as required to be considered under Section 10 of the Act. The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Section 9 (sic

7) and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25 of the Act. We are thus of the firm view that in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the rules, this Court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer. We would not like to express any view on the decision of the Karnataka High Court or of the Gujrat High Court(supra) since these decisions are under challenge in this Court, but we would place on record that we don not agree with the aforequoted observations of the Madras High Court about the effect of non-registration of the principal employer or the non-licensing of the labour contractor nor with the view of Bombay High Court in the aforesaid case. We are of the view that the decisions of the Kerala High Court and Delhi High Court are correct and we approve the same. (Underline not part of original text, are supplied to add emphasis) The Honble Supreme Court has clearly held that the effect of non- compliance of the provisions of C.L.R.A.Act i.e. non-registration of the Establishment under Section 7 and not possessing license under Section 12 would not result in regularization rather it would result in prosecution under Sections 23/24 of the C.L.R.A. Act. Therefore, the learned Tribunal was not correct in arriving at an inference that in absence of the registration and the license, the arrangement made by the management to execute the work through a Contractor is a sham and camouflage. It is not in dispute that the nature of work performed through the said contractor has not been prohibited by any notification issued by the appropriate Government under Section 10(1) of the Act of 1970. On issuance of such notification, the industrial adjudicator on a reference made on a dispute raised by the concerned workmen, has to arrive at a finding whether such arrangement is a sham and camouflage in view of the law laid down by the Constitution Bench of Honble Supreme Court rendered in the case of SAIL-Vs.- National Union Waterfront Workers reported in (2001) 7 SCC 1 paras 125 and 126. Therefore, the aforesaid findings are clearly in teeth of the judgment rendered by Honble Supreme Court and are bad in law. So far as second issue relating to engagement of workmen for more than 240 days under the management of the petitioner-BCCL is concerned, the leaned Tribunal has arrived at a finding that all these 27 workmen were in the regular employment of the management for more than a period of 240 days in a 9. calendar year. This finding is based upon the sole evidence of only one workmen witness W.W.1, Hiralal Paswan. Learned counsel for the petitioner on being asked has however failed to satisfy as to any evidence brought on record by the concerned workmen witness to establish that apart from him the other 26 workmen who were also seeking regularization under the same reference had been engaged for a considerable length of time of more than 240 days for execution of such nature of work. There is no evidence on record in respect of each individual workmen in respect of their engagement for a particular period Ext. M2/1 is only a work order issued to the contractor for a period from 24th July, 1983 to 31st March, 1990. On the one hand, it is the case of the management that the work is of a casual and intermittent nature and at no point of time all the workmen are required to do the job. In fact, according to them, the job is done only three and four times in a week. In the wake of such clear denial, it was incumbent that evidence of performance of work on a regular basis for a period of 240 days in a calendar year in respect of each workmen were required to be brought on record to enable the learned Tribunal to arrive at a finding in respect of regular engagement of each of 27 workmen as also the perennial nature of work performed by them. Learned Tribunal only on the basis of one witness W.W.1 and that too on his oral evidence has come to a finding that all these 27 workmen were engaged for more than 240 days in a particular calendar year, which also does not appear to be based upon any proper scientific calculation. The learned Tribunal had indulged in a calculation of the volume of work treating the rate of work at Rs. 30/- per cft which according to the management is clearly erroneous in view of the fact that the rate applicable is Rs. 30/- per 100 cft in 1989. The total cost of work as calculated by the Tribunal should come to Rs. 40,000/- instead of Rs. 40 lakhs. Therefore, these calculations are only speculative and does not seem to be based upon proper facts. Learned Tribunal has proceeded to draw an adverse inference against the management for failure to produce the attendance register of the concerned persons, though no order was passed against the management on the application of the workmen to produce such register. Such an adverse inference drawn by the learned Tribunal is therefore also in teeth of judgment of Honble Supreme Court in the case of Manager, RBI Vs.- S. Mani reported in (2005) 5 SC 10.paras 21 to 26. The petitioner management had not been called upon to produce the attendance register in question, therefore, the Tribunal was clearly in error in drawing such an inference against him.

10. In the aforesaid facts and circumstances, therefore, it appears that learned Tribunal has come to an erroneous findings on both issues framed by it. Failure to comply the provisions of Sections 7 and 12 of the Act of 1970 does not lead to inescapable conclusion that the workmen concerned are to be regularized under the services of the management for violation of the said provisions. There are other penal consequences which arise for such violation. In the instant case merely upon such finding the learned Tribunal has gone to hold that the arrangement of the management to execute the work through a contractor was sham and camouflage. On the other hand, the learned Tribunal on the basis of oral evidence of sole workman witness W.W,.1 has come to a finding that all 27 workmen were engaged in a perennial nature of work for 240 days or more in a calendar year under the management of Loyabad Coke Plant of BCCL and are therefore entitled for regularization. The aforesaid finding is also clearly not based upon cogent evidence to that effect. In the wake of the aforesaid facts and circumstance and the totality of the reasons, the judgments relied upon by the respondents workmen, do not come to their aid as the findings of the learned Tribunal are clearly in teeth of the well settled law. The proposition of law relating to the test for determining a workman as laid down in the case of Hussainbhai, Caligut-Vs.- The Alath Factory Tejhila Union and others reported in AIR 197.SC 141.as also reported in (1978) 4 SCC 257.is well settled. The question in the present case, framed for adjudication by the Industrial Tribunal was whether the concerned persons were really contractor's workers or of the management. For determination of this issue the learned Industrial Tribunal had to arrive at a finding after appraisal of cogent evidence adduced during the proceedings of the reference case which the Tribunal has failed to do. The conclusion drawn by the learned Tribunal in the impugned Award relating to this issue that the engagement of the workmen through a contractor was a mere camouflage as already discussed hereinabove is based upon the inference drawn from the findings recorded by it that the management did not have a registration as required under Section 7(2) of the Act of 1970 nor Co-operative Society i.e. contractor have a license under Section 12 of the said Act. This conclusion however is clearly erroneous in view of the judgment rendered in the case of Dena Nath & Others-Vs.- National Fertilizers Ltd. (Supra) as quoted hereinabove. Therefore, the judgment relied upon by the workmen as reported in (2002) 3 JCR 39.(Supra) is also not applicable to the present facts. The impugned Award is contrary to the law laid down by Hon'ble Supreme Court in the case of Dena Nath & Others-Vs.- National Fertilizers 11. Ltd. reported in (1992) 1 SCC 695.Therefore, the judgment relied upon by the petitioner rendered in the case of General Manager, Oil and Natural Gas Commission, Silchar-Vs.- Oil and Natural Gas Commission Contractual Workers Union reported in (2008) 12 SCC 275.does not support the case of the workmen rather it supports the case of the management petitioner. The Tribunal on account of violation of the provisions of Section 7(2) and 12 of the Act of 1970 had drawn an inference that the arrangement made by the management was a camouflage. It does not appear to have made any serious efforts to lift the veil to find out that the engagement of these workmen were in the nature of a camouflage or ruse employed by the management through a contractor. In the instant case, the workman had adduced sole witness i.e. W.W. 1 and no evidence in respect other 26 workmen were on record of their regular employment of the management for more than a period of 240 days in a calender year. The Tribunal had not passed any order for production of any attendance register by the management, but had without any legal basis or justification drawn an adverse inference against the management for non-production of the attendance register contrary to the law laid down by Hon'ble Supreme Court as referred to the earlier part of the judgment. Therefore, the reliance of the petitioner on the judgment of Apex court in the case of Director, Fisheries Terminal Division- Vs.- Bhikhubhai Meghji Bhai (Supra) reported in 2010 AIR SCW 54.is once again misplaced. The judgment relied upon by the workmen in the case of R.K.Panda and others-Vs.- Steel Authority of India and others reported in (1994) 5 SCC 30.is once again of no help to the petitioner as even by the opinion expressed at para 7 of the said judgment, it was the duty of the Industrial Adjudicator to determine the very question of fact whether the workmen were employees of the principal employer engaged through a contractor and that it is a mere camouflage and a smokescreen. This question of fact had to be established by the contract labourers on the basis of requisite material which the workmen have failed to establish in the present case. The judgment in the case of Kanpur Electricity Supply Company Limited-Vs.- Shamim Mirza reported in (2009) 1 SCC as also in the case of Bank of Baroda-Vs.- Ghemarbhai Harjibhai Rabari reported in (2005) 10 SCC 79.relied upon by the respondents workmen on the question of burden of proof is of no aid, as the evidence adduced by the workmen through sole witness i.e. W.W.1 could not prima facie establish that all these 27 workmen were in the regular employment of the management for a period of more than 240 days in a calender year, so as to place the onus upon the employer to rebut the same.

12. In such circumstances, as aforesaid the judgments relied upon by the respondents workmen do not come to their aid as the findings of the learned tribunal are in the teeth of well settled law and not based upon any cogent evidence. In the circumstances, the impugned Award therefore suffers form serious errors of law and findings of fact which goes to the root of the matter and therefore cannot be sustained in law and is accordingly quashed. The writ petition is accordingly allowed. (Aparesh Kumar Singh, J) Jharkhand High Court, Ranchi The 19th / July /2013 Jk/NAFR