Full Judgment Text
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CASE NO.:
Appeal (civil) 2778 of 1997
PETITIONER:
M/S INDIAN FARMERS FERTILIZER COOP. LTD.
Vs.
RESPONDENT:
INDUSTRIAL TRIBUNAL I, ALLAHABAD & ORS.
DATE OF JUDGMENT: 06/03/2002
BENCH:
S. Rajendra Babu & Doraiswamy Raju
JUDGMENT:
RAJENDRA BABU, J. :
A reference was made to the Industrial Tribunal, Allahabad under
the Industrial Disputes Act, 1947 as to whether it is justified for the
appellant not to give work to 88 workmen whose names are mentioned in
the Annexure to the reference order from the date indicated against each
one of them and, if not, what consequential benefits should be given to
them.
In the pleadings raised before the Tribunal, the workmen
contended that they were engaged directly by the appellant but later on
to evade the liability arising under the law, started showing them as
mazdoor employed through a contractor and such entries are fake. The
stand of the appellant has been that they are the employees of the
contractor, if at all, and, therefore, they are governed by the Contract
Labour [Regulation and Abolition] Act, 1970 and they are not entitled to
any relief. Evidence was adduced before the Tribunal and five witnesses
were examined on behalf of the workmen in support of their case and
each one of them stated that the workmen in question were appointed by
the officers of the appellant and the work was also assigned by them,
under their instructions the workmen carried out their work. On behalf
of the appellant, E.W.1, A.K.Dutta was examined who was the Manager
of the Power Plant. He admitted that Ex.E-1 had been signed by him
which indicated that between July 1985 to June 1986, M/s Industrial
Suppliers were the contractors and Anil Kumar Misra was partner of this
firm and in 1986, the contract was given in individual capacity to Anil
Kumar Misra. V.P.Awasthi, who was examined as the second witness,
admitted that Ex.W-7 was copies from the temporary attendance register
and they had been prepared by him.
From the material available on record, the Tribunal came to the
conclusion that it could not be disputed that 88 workmen in question
were working in the power plant of the appellant but the only contention
that was raised by the appellant was that those workmen were employed
by the contractor. Ex.E-1, to which reference was made earlier, is a duty
roster for the year 1985. A photo copy of this document was filed by the
workmen with an application dated May 6, 1988 and the original was
produced by the appellant. A comparison of the two would indicate that
the signature of the contractor was obtained on the original but the
signature of the contract was not available on the photo copy which
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obviously showed that the signatures were subsequently obtained on this
document. The Tribunal proceeding on that basis came to the conclusion
that the duties were assigned to these 88 workmen by the management
of the appellant; the contractor had no hand in the same and they were
working at no stage under the supervision and control of the contractor;
that they were ever paid their wages by the contractor and that it was
also on record that there were 2 workmen in service since 1979, 25 since
1982, 19 since 1981, 37 since 1983 and 4 since 1984 besides one which
entered into service in January 1986. There was no explanation as to
why 87 workmen were in service even before the contract of M/s
Industrial Suppliers started. Anil Kumar Misra ceased to have contract
after 1986, even then these workmen continued to be in service in the
establishment of the appellant and, therefore, the Tribunal concluded
that the 88 workmen were never employed by any contractor much less
Anil Kumar Misra and that they were direct employees of the appellant
and their services had to be continued. The Tribunal passed an award
stating that these workmen should be deemed to be continuing in service
of the appellant from the date of retrenchment without break of service
and would be entitled not only to their back wages from the date of their
retrenchment upto date but to all benefits which regular employees of
the appellant are entitled to as they are held to be regular workmen of
the appellant.
Against that award, writ petition was preferred before the High
Court. The High Court, after noticing the legal position, adverted to the
findings recorded by the Tribunal that the 88 workmen were employees
of the appellant even before the present contractor was given the contract
and continued even after the termination of the contract of the said
contractor; that they were working directly under the appellant; that they
were also carrying on the work of a permanent nature and their work
was outside the scope for which the contract was given to Anil Kumar
Misra and, therefore, the High Court declined to interfere with the award
made by the Tribunal. Hence, this appeal by special leave.
Before us, the contentions urged before the High Court are
reiterated. The learned counsel for the appellant urged that the Tribunal
had travelled far beyond the scope of the reference inasmuch as the
question referred to it was only limited as to whether the appellant had
wrongly terminated the services of 88 workmen. The question whether
88 workmen were employees of the appellant was completely outside the
scope of the reference. Even otherwise, the findings recorded by the
Tribunal had been recorded ignoring completely the material evidence on
record and in this context, the learned counsel relied upon the decision
in Steel Authority of India vs. V.S.Yadav, 1987 (55) FLR 268. The
claim of the workmen has been that they have been employed by the
appellant. When the stand of the appellant is that the workmen were not
employees of the appellant but they were working under a contractor,
necessarily the issue arose as to the nature of their employment
inasmuch as the relief that would be granted to them would depend
upon the same. In the circumstances, the nature of their employment,
whether directly under the appellant or through the contractor, was
necessarily to be decided. Even otherwise, a full reading of the reference
would show that there was no indication that they had been employed by
a contractor but their services had been terminated from the respective
date shown against them and whether the same was justified or not. In
such a case, when a question was raised that the workmen in question
were not the employees of the appellant, necessarily the Tribunal had to
go into the question whether they were the employees of the appellant or
not. On due appreciation of evidence, the Tribunal came to the
conclusion that they are the employees of the appellant and that finding
of fact was based on evidence. In our opinion, the conclusion reached by
the Tribunal could not be seriously assailed by the learned counsel for
the appellant. We find no justification to interfere with the award as
affirmed by the High Court.
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The appeal, therefore, stands dismissed. No costs.
...J.
[ S. RAJENDRA BABU ]
...J.
[ DORAISWAMY RAJU ]
March 6, 2002.