Employers Inrelation Managemen Vs Their Workmen

W.P.(L) No.1444 of 2007

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(L) No.1444 of 2007

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Employers in relation to the management of Dugda Coal Washery of M/s. Bharat Coking Coal Limited, P.O., P.S. Dugda, district- Bokaro, through Sri Rajendra Kumar Sinha, son of Late Shyam Kishore Narayan, General Manager, Western Washery Zone, residing at G.M.’s Bunglow, 20/21 Pits colliery, P.O. P.S. Mohuda, districtDhanbad … Petitioner

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Versus

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Their workmen, represented by the Secretary, Bihar Colliery Kamgar Union, resident of Jharnapara, Hirapur, P.O. P.S. and district… Dhanbad Respondent

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For the Petitioner : Mr. Anoop Kumar Mehta, Advocate For the Respondent : Mr. Saibal Kumar Laik, Advocate ------

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Writ Petition has been filed under Article 226 of the Constitution of India inter alia with a prayer to quash the award dated 21.08.2006 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No.15 of 1993, the copy of which has been kept at Annexure-4 of this Writ Petition.

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The brief facts of the case is that the Central Government referred the following dispute for adjudication to the Central Government Industrial Tribunal No.1, Dhanbad:-

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“Whether the management in relation to Dugda Coal Washery of M/s. BCCL is justified in denying absorption and regularisation of the 14 contract labourers in regular employment? If not, to what relief the said workmen are entitled?”

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W.P.(L) No.1444 of 2007

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The case of the respondent- workmen is that inter alia the 14 workmen whose matter has been referred in the aforesaid reference, had been working continuously at Dugda Coal Washery as Plant Cleaning Mazdoor till the year 1993. They were engaged in plant cleaning job which has been declared prohibited category of job for contract labourers with effect from August, 1983. The writ petitioner- Management instead of directly making payment of their wages were ensuring that their wages are paid in the name of two different contractors. The workmen became the employees of the management from the date of prohibition of plant cleaning job by contract labourers. The respondentworkmen further contended before the learned tribunal that with an ulterior motive and to victimize the concerned workmen, the arrangement of payment was done through intermediaries. The management neither issued them any authentic documents in support of their engagement in plant cleaning job nor maintained any record with the sole intention to deprive the poor workmen.

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The management on the other hand, denied that the 14 workmen against whom reference was made, were ever employed by the writ petitionermanagement either directly or through any contractor and the respondentworkmen could not produce any document regarding their employment by the petitioner-management.

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In support of its case, the management examined one witness namely Jitendra Swarup Srivastava being management witness M.W. No.1 who was the Superintending Engineer of Dugda Coal Washery on the date of his deposition in the tribunal on 30^th August, 1996. In his cross-examination, the M.W.1 has categorically admitted that some workmen were working in

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W.P.(L) No.1444 of 2007

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washery as slurry cleaning mazdoor, plant cleaning mazdoor and magnite charging mazdoor who have been regularized in services as per the orders of the tribunal, were also the contract workmen and no ID Card and pay slip was issued by the management to them. He further, inter alia admitted that the cleaning work comes under the prohibited category job. Hence, contractor’s work is under prohibitory category of job; so no license is given to them.

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It is crystal clear from this admission of M.W.1 that the writ petitionermanagement used to get the plant cleaning work done through contract workers though the same was prohibited but in order to avoid the legal complications in engaging of labourers through a prohibited category of job, no license was given to them. So, obviously no documentary proof was created to be used anywhere to the detriment of the management that they used to engage contract labourers under the prohibited category of jobs.

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From the side of the respondent-workmen, Baijnath Kewat was examined as W.W.1. He has proved certain documents regarding employment of the workmen whose reference has been made. He has also stated that though the respondent-workmen were working in Dugda-2 Plant, but no any ID Card was issued to them nor any pay slip was given to them and payment was made to them by payment sheets which was not bearing the signature of the workmen.

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One of the 14 workmen namely Dhiren Shaw was also examined as W.W.2 and he deposed on behalf of all the workmen in respect of whom the reference was made. The W.W.2 in his deposition has categorically stated that he along with others workmen in whose respect the reference was made were working at Dugda Coal Washery as Plant cleaning mazdoor from the year 1980 to 1993. This testimony of the W.W.2 has remained unchallenged in his cross-

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examination. There is no other material in the record to discard or disbelieve the said testimony of the W.W.2.

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The learned tribunal considering the materials in the record found that the 14 concerned workmen in respect of whom reference was made, were working as plant cleaning mazdoor from 1980 to February, 1993. The job of plant cleaning was prohibited category of work, hence, the said 14 workmen in respect of whom reference was made, must be deemed to be the workmen of the management and they are entitled for absorption and regularization with all benefits of a permanent workman and answered the reference by holding that the management in relation to the Dugda Coal Washery of M/s. BCC Limited is not justified in denying absorption and regularization of Mugali Devi and 13 other contract labourers in regular employment and they are entitled for benefits of wages and other facilities as that of permanent workmen of the washery and further directed the management to reinstate, absorb and regularize all those 14 workmen whose case has been referred to the learned tribunal by order of reference in question within 30 days from the publication of the award failing which they shall be entitled for wages of Category-I General Mazdoor thereafter on expiry of 30 days.

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Mr. Anoop Kumar Mehta- learned counsel for the petitioner submits that the learned tribunal has committed a perversity by failing to take note of the fact that the workman has failed to absolutely bring any evidence in record of their engagement as contract labourers more so when they themselves claim even in their written-statement that they were directly engaged by the management. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Range Forest Officer vs. S.T.

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W.P.(L) No.1444 of 2007

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Hadimani reported in (2002) 3 SCC 25 wherein in the facts of that case in a case of retrenchment when the tribunal places onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination and in which case the claim of the claimant that he worked for more than 240 days was denied by the appellant, the Hon’ble Supreme Court of India held that filing of an affidavit is only the own statement of the workman in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that that a workman had, in fact, worked for 240 days in a year and submits that in this case, the sole testimony of the W.W.2 to the effect that he and other workmen in respect of whom the reference was made, used to work under the writ petitioner-management since 1980 to 1993 by itself without any additional evidence and it cannot be sufficient to establish the fact that such workmen were engaged as contract labourers by the writ petitionermanagement. Hence, it is submitted that the impugned award dated 21.08.2006 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No.15 of 1993, being a perverse one, be quashed and set aside.

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Mr. Saibal Kumar Laik- learned counsel for the respondent, on the other hand, vehemently opposes the prayer for quashing the impugned award dated 21.08.2006 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No.15 of 1993. Learned counsel for the respondent relies upon the judgment of the Hon’ble Supreme Court of India in the case of Chemical Mazdoor Panchayat vs. Indian Oil Corporation Limited & Others reported in (2018) 16 SCC 25 paragraph-3 of which reads as under:-

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“3. Firstly, on the ground that only one witness of a particular class of worker had been examined. As such, their deposition is liable to be

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W.P.(L) No.1444 of 2007

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rejected. In our opinion, it could not have been a valid ground to discard the evidentiary value of the deposition of the witnesses. It is not the number of witnesses in such kind of matters but what is material is evidentiary value and cross-examination which has been made. Examination of the single witness to prove a fact may be enough in such cases. Thus, the approach of the High Court is not permissible.” (emphasis supplied)

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and submits that it is a settled principle of law that it is not the number of witness which is what matters but what matters is evidentiary value and crossexamination which has been made. An examination of a single witness to prove a fact may be enough in such cases.

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Mr. Laik further relies upon the judgment of the Hon’ble Supreme Court of India in the case of Post Master General, Kolkata & Others vs. Tutu Das

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(Dutta) reported in (2007) 5 SCC 317 paragraph-16 of which reads as under:

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“16. The short order which was the subject-matter of decision of this Court in Debika Guha [(2000) 9 SCC 416 : 2001 SCC (L&S) 90] also stood overruled in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] . We may at this stage also notice that the concept of 240 days to be the cut-off mark for the purpose of regularisation of services came up for consideration of this Court in Madhyamik Shiksha Parishad v. Anil Kumar Mishra [(2005) 5 SCC 122 : 2005 SCC (L&S) 628 : AIR 1994 SC 1638] wherein it was clearly laid down that the completion of 240 days of continuous service in a year would be attracted only in a case where retrenchment has been effected without complying with the provisions contained in Section 25-F of the Industrial Disputes Act, but would not be relevant for regularisation of service.” (Emphasis supplied)

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and submits that the completion of 240 days of continuous service in a

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year would be attracted only in a case where retrenchment has been effected to without complying with the provisions contained in Section 25-F of the Industrial Disputes Act, 1947 but would not be relevant for in the cases of regularization of service.

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It is next submitted that the undisputed testimony of the W.W.2 wherein

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he has categorically stated that he and the other workmen in respect of whom

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W.P.(L) No.1444 of 2007

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the reference was made, had been working as cleaning job mazdoor since 1980 to 1993, has remained unchallenged and no question has been put to him in his cross-examination in respect of that particular statement of the W.W.2. Hence, the same is to be accepted as truth. Under such circumstances, there was no way out for the learned tribunal; except to accept the same to be a truth, which was what the learned tribunal has done exactly and in view of this ample evidence in the record, it is submitted that no illegality has been committed by the Central Government Industrial Tribunal No.1, Dhanbad in passing the impugned award. Hence, it is submitted that this Writ Petition, being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, so far as the judgment of the Hon’ble Supreme Court of India in the case of Range Forest Officer vs. S.T. Hadimani (supra) is concerned, the facts of that case are entirely different from the facts of this case in the sense that in that case no deposition of any witness was recorded rather instead an affidavit was filed. Certainly, an affidavit cannot be put at par with a deposition of the witness in a judicial/quasi-judicial proceeding where the witness concerned is cross-examined because after such cross-examination, the testimony of the witness becomes substantive evidence but in the case of Range Forest Officer vs. S.T. Hadimani (supra) when there was no substantive evidence, the Hon’ble Supreme Court of India; in the facts of that case held that the same is not sufficient to establish the fact that the workman worked for 240 days in any calendar year.

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Now, coming to the facts of this case, as has rightly been reiterated by the Hon’ble Supreme Court of India in the case of Chemical Mazdoor Panchayat

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W.P.(L) No.1444 of 2007

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vs. Indian Oil Corporation Limited & Others (supra) that it is a settled principle of law that it is not the number of the witness rather the quality of the witness and the evidential value of the witness and the cross-examination which has been made, is the relevant factors which are to be considered by a court or tribunal in verifying the trustworthiness and reliability of the evidence in the record.

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Now, as has already been indicated in the foregoing paragraphs of this judgment, the testimony of the W.W.2 that he is deposing on behalf of all the workmen in respect of whom the reference has been made and that all of them were working at Dugda Coal Washery as Plant Cleaning Mazdoor since 1980 to 1993, has remained unchallenged in his cross-examination; as no question was put to him in his cross-examination to discard or disbelieve his such testimony.

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Though the provisions of the Evidence Act is not strictly applicable to a proceeding before a tribunal still because of his unchallenged testimony which cannot be compared with an affidavit filed by a person, the learned tribunal has rightly relied upon and accepted the fact that the 14 workmen in respect of whom the reference was made, were engaged as Plant Cleaning Mazdoor from 1980 to 1993 under the writ petitioner- management to be established. Similarly, because of the other evidence available in record, the tribunal has arrived at a conclusion that such, workmen were engaged through the intermediary known as contractor for which admittedly the management was not maintaining any record to avoid the legal complications for engaging contract labourers for the prohibited nature of plant cleaning jobs; as deposed by witness being M.W.1 of the petitioner himself.

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W.P.(L) No.1444 of 2007

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Accordingly, this Court do not find any illegality in the finding of fact arrived at by the tribunal in the impugned award dated 21.08.2006 passed by the Central Government Industrial Tribunal No.1, Dhanbad in Reference No.15 of 1993.

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Accordingly, this Writ Petition, being without any merit, is dismissed.

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Let a copy of this judgment along with the trial court records be sent to the learned Central Government Industrial Tribunal No.1, Dhanbad forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 13^th of February, 2024 AFR/ Animesh

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Employers Inrelation Managemen v. Their Workmen

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Employers Inrelation Managemen v. Their Workmen

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