Full Judgment Text
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PETITIONER:
MANAGEMENT OF DANDAKARANYA PROJECT,KOREPUT
Vs.
RESPONDENT:
WORKMAN THROUGH REHABILITATIONEMPLOYEES UNION & ANR.
DATE OF JUDGMENT: 07/01/1997
BENCH:
S.C. AGRAWAL, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
PATTANAIK. J.
Leave granted.
This appeal by special leave is directed against the
award passed by the Industrial Tribunal, Bhubaneshwar in
Industrial Disputes Case No. 13 of 1988 and the judgment of
the Orissa High Court in O.J.C.No.2502 of 1990, whereunder
the Orissa High Court refused to interfere with the award of
the Industrial Tribunal in exercise of power under Article
226 of the constitution. Though the award relates to
different items of demand but in this appeal Mr.Reddy, the
Additional Solicitor General restricted his submissions to
the direction of the Tribunal to regularise 425 N.M.R.
workers union.
The Government of India in the Ministry of Labour in
exercise of the powers conferred upon them under clause (d)
of sub-section(1) and sub-section (2)(a) of section 10 of
the Industrial Disputes Act referred the dispute for
adjudication by the Industrial Tribunal to the following
effects:
"Whether the following demands
raised by Rehabilitation Employees‘
Union of the management of
Dandakaranya Project, Koraput , are
justified, if so, to what relief
the concerned workmen are entitled
to and from what date."
Demands No.1 and 3 with which we are concerned are as
under|-
1. Regularisation of all muster roll workers who have been
working from 1958 onwards after completion of 240 days with
all consequential benefits of such regularisation.
3. Stoppage of retrenchment of all workers of Dandakaranya
Project and absorption of all muster roll workers after
their regularisation in other Central Government Surplus
Cell as is done in case of regular employees of Dandakaranya
Project."
The appellant management took the stand before the
Tribunal that the reference itself was incompetent as the
Dandakaranya Project is not an industry. So far as the
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demands of the N.M.R. workers are concerned, the management
took the stand that the project itself having been wound up
and there being no necessity for further continuance of the
project which had been taken up by the Government of India
on humanitarian consideration for rehabilitation of the
refugees from Pakistan the question of regularisation of the
N.M.R. workers does not arise. The Union on the other hand
took the stand that the plea of the management that no work
is available for the N.M.R. workers is not correct and as
such, N.M.R. workers are being employed in several
construction and irrigation works and, therefore, the
project authorities have the obligation of regularising the
service who have been working since 1950. The Inustrial
Tribunal negatived both the contentions raised on behalf of
the management and came to hold that the project is an
Industry. It further came to hold that the claim for
regularisation of 425 N.M.R. employees is justified and they
would not be retrenched and the project authorities through
the Government of India should find out the ways and means
to regularise them either under the Central Government or
the concerned state Governments or under Public Sector
Undertakings of the Central Government. When the award of
the Tribunal was assailed in the High Court by moving an
application under Article 226 of the Constitution, the High
Court came to the conclusion that award does not contain any
error of law which could be corrected by issuance of writ of
certiorari in exercise of power under Article 226 of the
Constitution and accordingly the writ petition filed by the
management stood dismissed.
Mr. V.R.Reddy, learned Additional Solicitor General
appearing for the appellant contends that the rehabilitation
project undertaken by the Government of India to
rehabiliate the refugees from Pakistan was in discharge of
the sovereign function of the Government and, therefore,
cannot be held to be an industry and consequently neither
the reference was competent nor the Tribunal had any
jurisdiction to examine the demands raised by the employees
union. Having examined the aforesaid contention of Mr.Reddy,
learned Additional Solicitor General and having scrutinised
the materials on record and the nature of duties discharged
by the workers and in view of the decision of this Court in
Bangalore Water Supply case it is difficult for us to accept
the contention raised by learned Additional Solicitor
General. Bearing in mind the dominant nature of the
activities of the project and the nature of duties
discharged by the workers in the project we are of the
considered opinion that the Dandakaranya Project is an
industry within the meaning of section 2(i) of the
Industrial Disputes Act and the conclusion of the Tribunal
in this respect is unassailable.
Mr. Reddy, learned Additional Solicitor General then
contended that the project was for the limited purpose of
rehabilitating the refugees from Pakistan and the said
purpose having been achieved and the project itself having
been wound up and its assets and liabilities having been
passed on to the State of Orissa and State of Madhya Pradesh
there do not exist regular posts with the project
authorities so as to consider the question of regularisation
of 425 N.M.R. workers and therefore, the ultimate conclusion
of the Tribunal on this score is wholly unsustainable in
law.
Ms. Indira Jaisingh, learned senior counsel appearing
for the respondent workers, on the other hand argued with
vehemence that these N.M.R. workers having spent their major
part of life in serving under the project, it is the
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constitutional obligation of the project authorities or the
Government of India to get these workers absorbed in some
departments of the Government of India or in any Public
Sector Undertakings and, therefore, the impugned direction
of the Tribunal is wholly justified. The learned senior
counsel further urged that even in the project itself there
exist sufficient vacancies against which these N.M.R.
workers could be regularised and the appellant therefore, is
not justified in contending that there do not exist any
vacancies for considering the regularisation of these N.M.R.
workers.
Before we examine the correctness of the rival
submissions it would be appropriate to notice that when
this matter came up before this Court on 18.9.95 the Court
had called upon the appellant to explore the possibility of
the 425 N.M.R. employees being adjusted in any other project
of the Governments of India or in the concerned State
Government. The aforesaid direction had been given bearing
in mind the nature of direction given by the Tribunal.
Pursuant to the aforesaid direction of this Court the
appellant as well as the Government of India took certain
steps for exploring the possibilities of regularising the
N.M.R. workers in any other projects and a detailed
affidavit has been filed indicating the inability of the
Union Government to absorb these N.M.R. of the Union
Government to absorb these N.M.R. workers on regular basis
in any other department of Government of India or in any
Public Sector Undertakings. After going through the
affidavits filed on behalf of the appellant as well as the
Government of India we are satisfied that steps authorities
of the project as well as the competent authority of the
Government of India and inspite of their best efforts and
persuation it has not been possible to absorb 425 N.M.R.
workers in any of the department of the Government or in any
Public Sector Undertakings, in view of the situation
prevailing in those organisations. In this view of the
matter the only question which requires consideration by
this Court is whether the impugned direction of the Tribunal
in the circumstances as found by it are at all sustainable
in law.
The Tribunal after elaborately discussing the evidence
on record came to the conclusion as under|-
"(a) At present there 425 N.M.R.
employees in the employment of the
D.D.A. for whom there is no
sufficient work for absorption as
regulars.
(b) The Dandakarayna Development
Authority is in the process of
being wound up since it has
completed its work of
rehabilitating displaced persons in
the project area.
(c) The assets of the project have
been transferred by the D.D.A. to
the concerned States, namely, the
State Governments of Madhya Pradesh
and Orissa.
(d) The 425 employees have been
working in the project since many
years and most of most of them
would not be eligible to ensure
fresh employment elsewhere.
(e) All the work charged employees
after an agitation made by them
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were regularised while the N.M.R.
employees were not regularised.
(f) The bulk of the N.M.R.
employees do not have any work in
the project through the works in
which had been engaged are
continuing under the respective
State Government by the State
Government did not take them
alongwith the works."
Even after coming to the conclusion that the project
has been wound up and there are no employment facilities for
these N.M.R. workers for regular absorption yet the Tribunal
issued the direction requiring the project authorities to
find out work for the N.M.R. workers who have been working
in the project continuously for more than 240 days. It may
be stated that even though the project has been wound up and
its assets and liabilities have been transferred to the
State of Orissa and State of Madhya Pradesh yet on account
of an interim order passed by this Court the 425 NMR workers
are sitting idle and getting wages to the tune of Rs.1.50
lacs per month which is undoubtedly an unnecessary financial
strain on the public exchequer. It is no doubt true that in
the interest of these N.M.R. workers who have spent a
considerable period of their absorption on regular basis
should be explored but even after exploring such possibility
if the concerned authorities failed in their attempt. in our
considered opinion it would not be appropriate for a Court
to issue mandamus in that regard and thus the Tribunal was
wholly in error in issuing the impugned direction. As has
been stated earlier, while the matter was pending in this
Court pursuant to the interim direction of this Court the
concerned authorities explored the possibility of absorption
of these N.M.R. workers either under the Central Government
or under any Public Sector Undertakings or in the respective
State Governments of Orissa and Madhya Pradesh but affidavit
has been filed indicating how they failed in their attempt
to get these N.M.R. workers absorbed on regular basis and we
have already held that the attempt was bonafide made and yet
the authorities have failed to get these N.M.R. workers
absorbed on regular basis.
Ms Indira Jaisingh, the learned senior counsel,
however, in course of her argument relied upon a decision of
this Court in the case of G.Govinda Rajulu vs Andhra Pradesh
State Construction Corporation Limited and another
[1986(Supp) Supreme Court Cases 651] wherein this Court had
issued direction to the employees of the Andhra Pradesh
State Construction Corporation Limited whose services stood
terminated on account of closure of the Corporation. But in
the aforesaid case neither there has been any discussion on
any question of law nor any circumstances have been
indicated under which the direction was given. This being
the position the aforesaid decision cannot be of universal
applications in all cases where there has been a closure of
the project which resulted in termination of the employees.
Under the Industrial Disputes Act if an industry is closed
the employees thereof are entitled to compensation as
provided under Section 25(fff) of the Industrial Disputes
Act. During the pendency of this appeal on behalf of the
Union a Scheme has been framed seeking 100 months’ full pay
as compensation, the scheme being called the Golden
Handshake Scheme, but even the said scheme was found to be
unworkable and the concerned Ministry filed an affidavit
indicating the reasons for not implementing the said scheme.
On the admitted position that the Dandakaranya Project has
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been completely wound up since 1990 and these N.M.R. workers
would have been otherwise retrenched but for the interim
order of this Court in consequence of which the project
authorities have been paying every month to these workers to
the tune of Rs.1.50 lacs without getting them engaged in any
work, we think that any direction to pay compensation in
terms of the Scheme will not be in the interest of justice.
But, however, the workers would be entitled to their
rightful dues on account of closure of the project as
envisaged under Section 25(fff) of the Industrial Disputes
Act.
In the circumstances we hold that the direction issued
by the Tribunal to regularise 425 N.M.R. workers is wholly
unsustainable in law and we accordingly set aside the same.
The High Court committed an error in not interfering with
the aforesaid direction of the Tribunal. The award of the
Industrial Tribunal. So far as it relates to 425 N.M.R.
workers is accordingly set aside and we hold that these
N.M.R. workers should be entitled to compensation as
provided under Section 25 (fff) of the Industrial Disputes
Act. The interim order passed by this court in relation to
these N.M.R. workers stands vacated. The appeal is
accordingly allowed. But in the circumstances there will be
no order as to costs.