OSHIAR PRASAD Vs EMP.IN REL.TO MGT.OF S.C.WASHERY JHARKHA
Bench: FAKKIR MOHAMED IBRAHIM KALIFULLA,ABHAY MANOHAR SAPRE
Case number: C.A. No.-001389-001389 / 2015
Diary number: 29658 / 2011
Advocates: S.K. SINHA Vs
ANUPAM LAL DAS
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 19
Page 20
Page 21
Page 22
Page 23
Page 24
Page 25
Page 26
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1389 OF 2015 (Arising out of SLP(C) No.33509/2011)
Oshiar Prasad and Others Appellant(s)
VERSUS
The Employers in relation to Management of Sudamdih Coal Washery of M/s BCCL, Dhanbad, Jharkhand Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This civil appeal is filed by the unsuccessful
1
Page 2
writ petitioners against the judgment and order
dated 17.06.2011 passed by the High Court of
Jharkhand at Ranchi in L.P.A. No. 447 of 2009
which arises out of the order dated 03.09.2009
passed by the learned single Judge of the High
Court in C.W.J.C. No. 616 of 1999(R).
3. By impugned judgment, the Division Bench
dismissed the appellants’ intra court appeal and
upheld the order of the writ court, which had
dismissed the appellants’ writ petition and in
consequence upheld the award dated 21.12.1998
passed by the Labour Court in Reference Case No.
75 of 1995.
4. In order to appreciate the controversy
involved in this appeal, it is necessary to set out
the facts in detail.
5. The respondent - M/s Bharat Coking Coal Ltd
(hereinafter referred to as “the BCCL”) is a
2
Page 3
Government of India undertaking. It is engaged in
the business of manufacture and sale of various
kinds of coal. It has a colliery at Dhanbad,
Jharkhand known as "Sudamdih Coal Washery”.
6. On 24.07.1974, the BCCL invited tenders for
construction of Washery on Turnkey basis for
running the colliery. The contract was awarded to
one Company - M/s MC Nelly, Bharat Engineering
Company Ltd. (hereinafter referred to as “the
Contractor"). An agreement was accordingly
executed between the BCCL and the Contractor on
29.01.1976. Since the execution of the work was
to be done on turnkey basis, the Contractor was
required to do every thing to make the Washery
operational. The work included the complete
design of the Washery, supply of materials
required for construction of plant, building,
installation of machinery, all kinds of construction
3
Page 4
of the structures of Washery etc.
7. Pursuant to the contract, the Contractor
started the work in 1977 by employing several
skilled and unskilled workers and completed the
same by December 1979. After completion of the
work, the Contractor terminated the employment
of all the workers and offered them retrenchment
compensation as per the provisions of Section 25
of Industrial Disputes Act, 1947 (in short “the Act”)
except 39 skilled workers, who were retained to
look after the maintenance work of Washery after
it was made operationalized. These 39 workers
continued to work. After retaining their services
for about one year, the Management terminated
the services of these 39 employees in January,
1981. These 39 employees raised a dispute
demanding their absorption and continuation in
service with the BCCL. Since their demands were
4
Page 5
not accepted, a reference was made under Section
10 of the Act to Industrial Tribunal No. 3 Dhanbad
vide Reference Case No. 58 of 1981 to answer the
following question:
“Whether the management of Sudamdih Coal Washery of M/s Bharat Coking Coal Ltd., P.O. Sudamdih, Dist. Dhanbad are justified in not absorbing Sarvashri Gorakh Sharma and 38 others as their regular employees? If not, to what relief are the said workmen entitled?”
8. The Industrial Tribunal by its award dated
03.03.1983 answered the reference in workers’
favour and directed that 39 workers be absorbed
by the BCCL in their employment as their regular
employees and they be given all such
consequential benefits to which they were entitled
to claim due to their regularization in the services
of BCCL. The BCCL did not challenge the award
and implemented the directions by absorbing and
regularizing these 39 workers in their
5
Page 6
employment.
9. It may be mentioned that five workers
(including the appellants herein), who claimed to
be working in the same project, filed Title Suit No.
51/1980 against the BCCL in the Court of Munsif
2nd Dhanbad under Order I Rule 11 of the Code of
Civil Procedure, 1908 for declaration that they are
entitled to continue in their services under the
BCCL and prayed that their services be absorbed
and regularized in the services of BCCL with all
consequential benefits. They also prayed for an
injunction restraining the BCCL from terminating
their services pending civil suit.
10. The Trial Court, however, on contest declined
to grant the temporary injunction to the plaintiffs.
It is not in dispute that during the pendency of the
suit, the services of these workers were
discontinued. They were, therefore, no more in the
6
Page 7
employment.
11. By judgment and decree dated 27.05.1983,
the trial Court decreed the suit and held that the
plaintiff's are entitled to continue in services of
BCCL.
12. Felt aggrieved, the BCCL filed Title Appeal
No. 71 of 1983 before the Appellate Court. The
Appellate Court by judgment and order dated
16.12.1986 dismissed the appeal and confirmed
the judgment and decree of the Trial Court.
13. The BCCL pursued the matter further and
filed an appeal being Second Appeal No.23 of
1987(R) before the High Court. The High Court, by
judgment and order dated 05.03.1993 allowed the
Second Appeal and set aside the judgment and
decree of the two Courts which had decreed the
plaintiffs’ suit. It was held that the suit was not
maintainable in the light of provisions of Labour
7
Page 8
laws.
14. Against the aforesaid judgment, the plaintiffs
(workers) filed Special Leave Petition being Special
Leave Petition (C) No. 4495 of 1994 before this
Court. By order dated 14.11.1994, this Court,
after granting leave, dismissed the appeal (C.A.
No.8403/1994) with a liberty to the
plaintiffs/appellants to approach the Industrial
Tribunal for claiming any appropriate relief, if so
advised.
15. It is with this background, the plaintiffs (five
workers) approached the Central Government
under Section 10 of the Act and also on behalf of
as many as 150 workers espousing their cause in
representative capacity for their absorption and
regularization and prayed for making an industrial
reference to the Industrial Tribunal for its
adjudication. The Government acceded to their
8
Page 9
request and accordingly made the following
reference to the Industrial Tribunal to adjudicate:
“Whether the management of Sudamdih Coal Washery of M/s Bharat Coking Coal Ltd., P.O. Sudamdih, Dist. Dhanbad are justified in not absorbing Ainuel Haque and 150 others (as in the list annexed) as their regular employees? If not, to what reliefs are the said workmen entitled?”
16. The Industrial Tribunal by award dated
21.12.1998 answered the reference against the
workers. It was held that they were not entitled to
seek their absorption in the Services of BCCL as
their regular employees. The workers, felt
aggrieved, filed C.W.J.C.No. 616 of 1999(R) before
the High Court. The learned single Judge by orders
dated 03.09.2009 dismissed the writ petition and
upheld the award passed by the Tribunal. The
workers pursued the matter and filed intra Court
appeal being L.P.A. No. 447 of 2009. The Division
Bench by impugned judgment dismissed the
appeal finding no fault in the award. Challenging
9
Page 10
the said order, the workers filed this appeal by
way of special leave before this Court.
17. While assailing the legality and correctness of
the impugned judgment, Mr. R.P. Bhatt, learned
Senior Counsel for the appellants mainly urged
two points. His first submission was that the
Courts below erred in not answering the reference
in favour of the appellants and thereby Courts
below erred in not granting them the relief for
which the reference was made. His second
submission was that since the identical reference
(Reference Case No.58/1981) made at the
instance of 39 workers alike the appellants was
answered in workers’ favour vide award dated
03.03.1983, a fortiori, the present reference being
identical in nature should also have been
answered in favour of the appellants to maintain
the parity. In other words, the submission was that
10
Page 11
if one set of workers got the benefit earlier in point
of time from the Court, the other set of workers
similarly placed too should have been granted the
same benefits. In the alternative, learned Senior
Counsel urged that in any event, the appellants
were not paid any retrenchment compensation, for
which otherwise they were entitled to get from the
Contractor or/and BCCL as per the provisions of
Section 25 of the Act read with the provisions of
Contract Labour Prohibition and Regulation Act,
1970 and hence to this extent, this Court can still
direct either Contractor or the BCCL or both, as the
case may be, to pay the retrenchment
compensation to the appellants.
18. In Contra, learned Counsel for the
respondent-BCCL supported the impugned order
and contended that no case is made out by the
appellants to interfere in the impugned order and
11
Page 12
hence the appeal merits dismissal.
19. Having heard the learned counsel for the
parties and on perusal of the record of the case,
we find no merit in the main submissions of the
appellants but find substance in the alternative
submission.
20. Before we examine the factual matrix of the
case in hand, we consider it apposite to take note
of law laid down by this Court regarding the
powers of the appropriate Government in making
reference under Section 10 of the Act and the
jurisdiction of the Tribunal while answering the
reference. Indeed it is well settled and remains no
more res integra.
21. One of the questions which fell for
consideration by this Court in Delhi Cloth and
General Mills Co. Ltd. vs. The Workmen and
Others (AIR 1967 SC 469) was that what are the
12
Page 13
powers of the appropriate Government while
making a reference and the scope and jurisdiction
of Industrial Tribunal under Section 10 of the Act.
22. Justice Mitter, speaking for the Bench, held
as under:
“(8) ……Under S. 10(1)(d) of the Act, it is open to the appropriate Government when it is of opinion that any industrial dispute exists to make an order in writing referring "the dispute or any matter appearing to be connected with, or relevant to the dispute, …..to a Tribunal for adjudication" under s. 10(4) "where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto."
(9) From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental
13
Page 14
thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary : "happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated :"
"Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct to it…..”
23. The same issue came up for consideration
before three Judge Bench in a case reported in
Pottery Mazdoor Panchayat vs. Perfect
Pottery Co. Ltd. and Another, (1979) 3 SCC
762. Justice Y.V. Chandrachud - the learned Chief
Justice speaking for the Court laid down the
following proposition of law:
“10. Two questions were argued before
14
Page 15
the High Court: Firstly, whether the tribunals had jurisdiction to question the propriety or justification of the closure and secondly, whether they had jurisdiction to go into the question of retrenchment compensation. The High Court has held on the first question that the jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and that the Tribunal cannot go beyond the terms of the reference made to it. On the second question the High Court has accepted the respondent’s contention that the question of retrenchment compensation has to be decided under Section 33-C(2) of the Central Act. 11. Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent’s decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references being limited to the narrow question as to whether the closure was proper and
15
Page 16
justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management.”
24. The abovesaid principle of law has been
consistently reiterated in M/s Firestone Tyre &
Rubber Co. of India (P) Ltd. vs. The Workmen
Empoloyed, represented by Firestone Tyre
employees’ Union AIR 1981 SC 1626, National
Engineering Industries Ltd. vs. State of
Rajasthan & Ors., (2000) 1 SCC 371, Mukand
Ltd. vs. Mukand Staff & Officers’ Association,
(2004) 10 SCC 460 and State Bank of Bikaner
& Jaipur vs. Om Prakash Sharma, (2006) 5 SCC
123.
25. 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
16
Page 17
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.
26. Coming now to the facts of this case, it is an
admitted case that the services of the appellants
and those at whose instance the reference was
made were terminated long back prior to making
of the reference. These workers were, therefore,
not in the services of either Contractor or/and
BCCL on the date of making the reference in
question. Therefore, there was no industrial
dispute that "existed" or "apprehended" in relation
to appellants’ absorption in the services of the
17
Page 18
BCCL on the date of making the reference.
27. 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 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 regularization in the services of
BCCL, as claimed by them, did not arise and nor
this issue could have been gone into on its merits
for the reason that it was not legally possible to
give any direction to absorb/regularize the
appellants so long as they were not in the
employment.
28. It is a settled principle of law that absorption
and regularization in the service can be claimed
or/and granted only when the contract of
18
Page 19
employment subsists and is in force inter se
employee and 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.
29. In our considered opinion, the only industrial
dispute, which existed for being referred to the
Industrial Tribunal for adjudication was in relation
to termination of appellants’ employment and -
whether it was legal or not? It is an admitted fact
that it was not referred to the Tribunal and,
therefore, it attained finality against the
appellants.
30. In our considered opinion, therefore, the
19
Page 20
reference, even if made to examine the issue of
absorption of the appellants in the services of
BCCL, the same was misconceived.
31. Apart from this infirmity noticed in this case,
we have also not been able to find any parity in
the facts of the earlier reference (R.C.No.58/81)
and the case in hand. As noted above, the earlier
reference was made to decide the absorption of 39
workers in the BCCL. This could be made because
they were in the service. So far as the present
case is concerned, the appellants were not in
service.
32. It can safely be noted that merely because
the workers in both the references were working in
one project by itself was not enough to give them
any right to claim parity with the claim of others.
So long as, the parity was not proved on all the
relevant issues arising in the case, no worker
20
Page 21
whether individual or collectively was entitled to
claim the relief only on the basis of similarity in
the status qua employer.
33. In the light of foregoing discussion, we are of
the considered opinion that the reference made to
examine the issue of appellants’ absorption qua
the BCCL was incapable of being referred to on the
said question and in any event, it was incapable
of being answered in favour of the appellants.
34. That apart, when three Courts, despite this
infirmity, went into the facts and held that the
appellants were not entitled to claim any
absorption in the services qua the BCCL, then in
our considered opinion, they were right in holding
so and we do not find any good ground to go into
the factual issues de novo in our appellate
jurisdiction. The factual findings recorded by the
three Courts are binding on this Court.
21
Page 22
35. We, therefore, find no ground to set aside the
impugned order and accordingly uphold the same.
36. This takes us to the next question as to
whether the appellants are entitled to claim the
relief of payment of retrenchment compensation.
Having given our anxious consideration to this
issue, we are of the considered view that having
regard to the peculiar facts of this case and the
reasons, which we have set out hereinbelow, we
are inclined to hold that the appellants are entitled
to claim the retrenchment compensation from the
Contractor/BCCL.
37. It is for the reason that firstly, the respondent
in their written statement filed before the Tribunal
have offered to pay the retrenchment
compensation to all such workers in accordance
with the provisions of Section 25F of the Act.
Secondly, no documents were filed by the
22
Page 23
respondent to show that any such compensation
was paid to the appellants or to any worker till
date by the respondent and lastly, more than
three decades have passed and yet the issues of
absorption, and/or payment of compensation has
not attained finality.
38. Indeed, in similar circumstances, this Court in
the case of Pottery Mazdoor Panchayat’s case
(supra) had directed payment of retrenchment
compensation to the workers and made the
following pertinent observations in the concluding
paras:
“17. It is unnecessary to consider the second question as regards the payment of retrenchment compensation and we will, therefore, express no opinion as to whether the Tribunals had jurisdiction to go into that question. Happily, the parties have arrived at a settlement on that question under which, the respondent agrees to fix within a period of six months from today the retrenchment compensation payable to the retrenched workers in accordance with the provisions of Section 25FFF of the Central Act, namely, the Industrial Disputes Act, 1947,
23
Page 24
without the aid of the proviso to that section. After the retrenchment compensation is so fixed, a copy of the decision fixing the compensation payable to each of the worker will be sent by the respondent to the appellant Union. The workers or their legal representatives, as the case may be, will then be entitled to receive the retrenchment compensation from the respondent, which agrees to pay the same to them. The respondent will be entitled to set off of the amounts of retrenchment compensation already paid to the workers against the amounts found due to them under this settlement. On receiving the retrenchment compensation the workers concerned shall withdraw the applications, if any, filed by them for relief in that behalf.
18. We would only like to add that the compensation which will be paid to the workers will be without prejudice to their right, if any, to get employment from the respondent in the new business as and when occasion arises.”
39. Following the course adopted by this Court in
Pottery Mazdoor Panchayat (supra), we direct
the Industrial Tribunal to verify the case of the
appellants (150 or so) for deciding each worker’s
claim for payment of retrenchment compensation
to him/her as per the provisions of Section 25F of
24
Page 25
the Act and accordingly he/she be paid
retrenchment compensation. In case any worker
has expired then his/her compensation amount be
paid to his/her legal representative after making
proper verification of the case.
40. We, however, make it clear that the
respondent would not raise any objection about
the maintainability of workers’ claim nor would
raise any objection on merits before the Tribunal
and the inquiry would only confine to determine
the quantum of retrenchment compensation
payable to each worker.
41. The appellants and respondents would
appear before the Tribunal on 16.02.2015 and file
necessary documents to enable the Tribunal to
verify the claim of each worker for determining the
quantum of compensation. The Tribunal would
issue notice to the Contractor to enable them to
25
Page 26
participate in the proceedings in the light of
provisions of Contract Labour Prohibition and
Regulation Act, 1970. The appellants and all such
workers can be represented through recognized
Union before the Tribunal.
42. The entire exercise should be completed and
payment be made to the workers within six
months.
43. With these directions, the appeal stands
disposed of.
…………….…. ……...................................J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
……….. ………………..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi; February 02, 2015.
26