Allowed

Management of Bokaro Steel Plant of Steel Authority of India Limited Thr Its Mr J T Kongari v. the General Secretary Bokaro Karamchari Panchayat and Anr.

Jharkhand HC27 Feb 2020LPA/97/2017

Case brief

AI extract

What is this about?

The High Court set aside a Labour Court Award and a High Court writ judgment that granted reinstatement and regularization to football players who were not in service at the time of the adjudication. The court held that the Labour Court exceeded its jurisdiction by ordering reinstatement without a specific reference on retrenchment legality and cannot award regularization when the employment relat

What did the court decide?

The Labour Court Award dated 17th January, 2001 and the Writ Court Judgment dated 9th September, 2016 are set aside and the Letters Patent Appeal is allowed.

Management of Bokaro Steel Plant of Steel… — Labour and Industrial Disputes | Jharkhand HC (2020)

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L.P.A. No. 97 of 2017

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 97 of 2017

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With

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I.A. Nos. 2534 and 9466 of 2019

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Management of Bokaro Steel Plant, of Steel Authority of India Limited, Bokaro Steel City, Bokaro.

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..... … Appellant

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Versus

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The General Secretary, Bokaro Karmchari Panchayat, Bokaro.

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The Presiding Officer, Labour Court, Bokaro. ..... … Respondents

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CORAM : HON’BLE MR. JUSTICE H. C. MISHRA : HON’BLE MR. JUSTICE DEEPAK ROSHAN -------For the Appellant : Mr. Indrajit Sinha, Advocate Mr. Bibhash Sinha, Advocate For the Respondents : Mr. Saurabh Shekhar, Advocate --------

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09/ 27.02.2020 Heard learned counsel for the appellant Management of Steel Authority of India Limited, (hereinafter referred to as the ‘Management’) and learned counsel for the respondent No.1 Bokaro Karamchari Panchayat (hereinafter referred to as the ‘Union’).

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The appellant Management is aggrieved by the impugned Judgment dated 9^th September, 2016, passed by the Hon’ble Single Judge, in W.P.(L) No. 3925 of 2002, whereby the writ application filed by the appellant Management challenging the Award dated 17^th January, 2001, passed by the Labour Court, Bokaro, in Reference Case No. 15 of 1998, holding the concerned workmen entitled to be reinstated and regularized in services of the appellant Management with all back wages and consequential benefits, has been disposed by the Writ Court, moulding the Award to the effect that regularization of the concerned workmen shall be considered from the date of availability of the sanctioned vacant post commensurate with their qualification in the proper grade, with only 25% back wages from the date of regularization.

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The facts of this case lie in a short compass. The concerned workmen were football players and were engaged by the Sports Council of the Management on stipend since the Year 1991. There is no dispute to the fact that there is evidence on record to the effect that since May 1991 up to 26^th May, 1995, they were engaged by the Management on the stipend

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L.P.A. No. 97 of 2017

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basis, and industrial dispute was raised by them for the regularization of service in the Bokaro Steel Plant, (hereinafter referred to as the ‘Company’), claiming parity with one or few of such players whose services were regularized. The evidence before the Labour Court had been adduced to the effect that one such player namely, Anil Kumar was regularized pursuant to an Award passed by the Labour Court, which was upheld up to the Hon’ble Apex Court. It is also an admitted fact that after 26^th May, 1995, the names of the concerned workmen were struck off from the rolls of Company, but it is claimed that as and when there was any football tournament, they were engaged by the Management on stipend basis for playing the tournaments.

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Since a short question has been raised in this appeal, we are confining ourselves to that question only. It is submitted that the Award passed by the Labour Court was beyond the scope of reference made to it, and accordingly, the Award cannot be sustained in the eyes of law. In view of the point raised in this appeal, the reference made to the Labour Court by the appropriate Government is required to be looked into. The Government of Bihar, vide its notification dated 21^st July, 1998, made the following reference for adjudication before the Labour Court, Bokaro:-

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“Whether not to regularize the service of the Football Players: 1)Shri Mahendra Rana, 2) Habibulla 3) Ravi Kumar 4) Anil Kumar 5) Sanjiv Kumar 6) Sunil Kr. 7) Rohit Mukherjee 8) Paban 9) Ram Bahadur 10) Lal Bahadur and 11) Rajesh Kumar of Bokaro Steel Plant, Bokaro Steel City by the Management is justified? If not what relief the players are entitled to”.

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The relevant portion of the Award which has been answered by the Labour Court, in favor of the concerned workmen reads as follows:-

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“22. Under the aforesaid facts and circumstances the concerned workmen deserve to be held entitled to reinstatement and regularized in the services of the Company with suitable designation commensurate with their qualification as was done in the case of the football players whose services were regularized earlier, and taking into consideration the services rendered by them prior to the date when the demand dt. 26.5.95 was raised by the union the regularization of their service equitably deserves to be done with effect from the aforesaid date with payment of back wages and other consequential benefits.”

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L.P.A. No. 97 of 2017 - 3 -

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The said Award was challenged in this Court in W.P.(L) No. 3925 of 2002, and the Hon’ble Single Judge while adjudicating the matter disposed of the Writ application moulding the Award, in the following terms:-

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“26. ---------------. Therefore in order to effect a just resolution of the situation faced, it is considered appropriate to mould the relief granted by the learned Labour Court. The petitioner-Management would therefore consider the regularization of the workmen in question from the date of availability of sanctioned vacant post commensurate with their qualification in the proper grade. This exercise should be undertaken within a period of 16 weeks from the date of a certified copy of this order. This Court is also of the view that in the totality of facts and circumstances therefore the direction to grant the entire back wages and other consequential benefits also requires to be modified. The individual workmen would be entitled to the back wages to the extent of 25% only from the date of regularization. However, for the purpose of fixation of their salary and other post retiral benefits, they would be treated to be in continuous service from the date of their regularization. This would meet the ends of justice.

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27. The writ petition is accordingly disposed of with the aforesaid observations and directions.”

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It may be stated at this place itself that so far as the moulding of the Award by the Writ Court is concerned, the concerned workmen have not challenged this part of the Judgment passed by the Writ Court.

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Aggrieved by the said decision, the present Letters Patent Appeal has been filed. Learned counsel for the appellant Management has taken a short point, that it was the definite case of the workmen that they had put in more than 240 days of continuous service prior to 26^th May, 1995 and their case is also that their retrenchment was bad in law and void ab-initio, for non-compliance of the provisions of Section 25F of the Industrial Disputes Act. Learned counsel has pointed out that the admitted retrenchment of the concerned workmen was never the subject matter of the reference before the Labour Court, and accordingly, the Award of the Labour Court directing for their 'reinstatement' and regularizing the service cannot be sustained in the eyes of law.

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In support of his contention, learned counsel for the appellant

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has placed reliance upon a decision of the Hon’ble Apex Court in Oshiar Prasad & Ors. Vs. Employers in relation to Management of Sudamdih Coal Washery of M/s Bharat Coking Coal Limited, Dhanbad , Jharkhand , reported in (2015) 4 SCC 71 , wherein where the law has been laid down as follows:-

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"22. It is thus clear that the appropriate Government is empowered to make a reference under Section 10 of the Act only when “industrial dispute exists” or “is apprehended between the parties”. Similarly, it is also clear that the Tribunal while answering the reference has to confine its inquiry to the question(s) referred and has no jurisdiction to travel beyond the question(s) or/and the terms of the reference while answering the reference. A fortiori, no inquiry can be made on those questions, which are not specifically referred to the Tribunal while answering the reference.

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*** *** ***

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24. Indeed a dispute regarding the appellants’ absorption was capable of being referred to in reference for adjudication, had the appellants been in the services of the Contractor or/and BCCL. But as said above, since the appellants’ services were discontinued or/and retrenched (whether rightly or wrongly) long back, the question of their absorption or regularisation in the services of BCCL, as claimed by them, did not arise and nor could this issue have been gone into on its merits for the reason that it was not legally possible to give any direction to absorb/regularise the appellants so long as they were not in the employment.

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25. It is a settled principle of law that absorption and regularisation in service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and the employer. Once it comes to an end either by efflux of time or as per the terms of the contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination."

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(Emphasis supplied).

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Learned counsel for the appellant has also placed reliance upon the decision of the Hon’ble Apex Court in Management of the Barara Cooperative Marketing-cum-Processing Society Ltd. Vs. Workman Pratap Singh , reported in (2019) 2 SCC 743 , wherein the law has been laid down as follows:-

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L.P.A. No. 97 of 2017

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“20. In our view, there lies a distinction between the expression ‘employment’ and ‘regularization of the service”. The expression ‘employment’ signifies a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that the employee, who is already in service, his services are regularized as per service regulations.”

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Placing reliance on these decisions, it is submitted by learned counsel for the appellant that in absence of any reference by the appropriate Government on the question of the admitted retrenchment of the concerned workmen, the Labour Court, could not have gone beyond the scope of reference directing for the reinstatement of the concerned workmen in service. It is further submitted that the question of regularization could have been considered only when the concerned workmen were already in service, but in the present case, as the concerned workmen were out of engagement since the year 1995 itself, the direction of their regularization in service could not be given by the Labour Court.

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Learned counsel for the Union, on the other hand has submitted that there is no illegality in the Award passed by the Labour Court and even in the Judgment passed by the Writ Court. In fact so far as the moulding of the Award by the Writ Court is concerned, the concerned workmen are satisfied even by that, as they have not challenged this part of the Judgment passed by the Writ Court. Learned counsel submitted that the concerned workmen were in service of the Company till 26^th May, 1995, and their names were struck off from the rolls of the Company once the industrial dispute was raised by them. It is submitted by learned counsel that since the industrial dispute was raised when the concerned workmen were still in service, and the reference was made to the Labour Court by the appropriate Government, there is no illegality in the Award directing the regularization of the services of the concerned workmen with effect from the date when the industrial dispute was raised by them. Learned counsel further submitted that as regards the retrenchment of the concerned workmen and their reinstatement in service, the Hon’ble Single Judge has dealt with this aspect of the matter in the Judgment, holding as follows:-

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"23. However, on the perusal of the impugned Award, even

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after leaving aside the observation relating to the retrenchment, the materials adduced during the industrial adjudication independently are sufficient to support its answer to the

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reference in question."

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It is submitted by learned counsel for the Union that the Hon’ble Single Judge, thus clearly opined that in spite of the retrenchment of the concerned workmen the case of regularization of service was made out, and the writ application was disposed of moulding the Award to the effect that the concerned workmen would be regularized in service, as and when the vacancy in the sanctioned post, commensurate to their qualification in the proper grade, arises. Learned counsel accordingly, submitted that there is no illegality either in the impugned Award passed by the Labour Court, or in the impugned Judgement passed by the Writ Court.

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Having heard learned counsels for both the sides and upon going through the record, we find that in the reference made by the appropriate Government to the Labour Court, only the question of regularization of service was referred. Even though the reference was made on 21^st July, 1998, by which time the names of the concerned workmen were already struck off the rolls of the Company about three years ago, on 26^th May, 1995, and even according to case of the concerned workmen that they were wrongly retrenched in violation of the provisions of Section 25F of the Industrial Disputes Act, but there was no reference of the question by the appropriate Government to the Labour Court, as to whether their retrenchment was in violation of Section 25F of the Industrial Disputes Act. If that reference was not made by the appropriate Government, it is well settled that the Labour Court had no jurisdiction to travel beyond the reference and to have answered the Award in terms of reinstatement of the concerned workmen in service. Furthermore, since the concerned workmen were not continuing in engagement on the date of the Award, even the regularization of service could not have been Awarded by the Labour Court. The case in hand is fully covered by the decisions of the Hon’ble Apex Court in Oshiar Prasad's case (supra), and the Workman Pratap Singh's case (supra), cited by the learned counsel for the appellant.

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Accordingly, we find and hold that the impugned Award passed by the Labour Court, Bokaro, cannot be sustained in the eyes of law. In our considered view, even the Hon’ble Single Judge has erred in law while moulding the Award, in order to give the relief that as and when the vacancy on the sanctioned post commensurate to the qualification of the

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concerned workmen arises, they would be given the benefit of regularization of service. This also clearly shows that the concerned workmen were out of engagement, and as such, the question of their regularization of service does not arise, and in any event, the question of the regularization of service cannot arise from an uncertain date, against the posts falling vacant sometime in future. Accordingly, the impugned Judgment passed by the Writ Court also, cannot be sustained in the eyes of law.

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For the foregoing reasons, the impugned Award dated 17^th January, 2001, passed by the Labour Court, Bokaro, in Reference Case No. 15 of 1998, as also the Judgment dated 9^th September, 2016, passed by the Writ Court in W.P.(L) No. 3925 of 2002, are hereby, set aside. 16. This appeal accordingly succeeds and is hereby, allowed. Pending interlocutory applications also stand disposed of.

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(Deepak Roshan, J.)

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Pramanik-Amardeep/-

Management of Bokaro Steel Plant of Steel Authority of India Limited Thr Its Mr J T Kongari v. the General Secretary Bokaro Karamchari Panchayat and Anr.

Case brief

What is this about?

What did the court decide?

Management of Bokaro Steel Plant of Steel Authority of India Limited Thr Its Mr J T Kongari v. the General Secretary Bokaro Karamchari Panchayat and Anr.

Case brief

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