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2011 Supreme(Bom) 8
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI
The Workmen of Taroda Opencast Mine of Western Coalfields Limited, represented by the Union
Versus
Central Government Industrial Tribunal cum Labour Court & Another
WRIT PETITION NO. 327 OF 1998
Decided on : 05-01-2011
For the Applicants:Shri R.B. Pendharkar, Sr. Advocate with Shri G. Belsare,
Advocate. For the Respondent:R2 - Shri M.P. Badar Advocate.
Headnote:Mines Act, 1952 - Sections 2(1)(h) and 58(O)(P)-Mines Rules, 1955, Rules 64, 69, 78 and 48(3)-Coal mine-Canteen-Workers engaged by contractor for running canteen -Employees of coal mine though not entering service of coal mine-However, grant of relief of absorption of such employees rendered impossible.-It is true that the language of reference by itself may not be sufficient in all cases to deny relief to the workmen. But here the petitioner took no steps whatsoever to bring the subsequent events to the notice of CGIT and did not invoke its jurisdiction under Section 33-A. Real issues involved were, therefore, not pressed into service by the petitioner. Reliance upon the judgment in the case of G.M., ONGC, Shilchar v. ONGC Contractual Workers Union, particularly para 17 wherein the Hon’ble Apex Court noticed that the Industrial Tribunal and Division Bench correctly observed that both parties to dispute were aware of the real issues involved in the light of protracted litigation and efforts made during conciliation proceedings. Here, the conciliation proceedings were started for absorption of employees and shortly thereafter canteen was handed over to co-operative society and about three years thereafter, canteen was started departmentally in accordance with the obligations cast upon it by law by respondent No. 2. Though there is no question of foundation of the dispute mentioned in the order of reference being non-existent, here 13 workers have admittedly not reported for duty or worked for past 19 years. Mere pendency of the dispute for all these years is therefore not enough to presume their continuation in employment in canteen. Hence, there is no question of grant of relief of absorption to them at this juncture. If grant of any other relief to these 13 workmen is to be considered, they have not entered the witnessbox and their individual grievance like discrimination in the matter of salary or other benefits, service conditions has not been brought on record.
As found that in present situation, though relationship of employer and employee existed between these 13 persons and respondent No. 2, in changed circumstances, grant of relief, even prospectively, to them has been rendered impossible.
1. By this petition filed under Article 226 of Constitution of India, the petitioner – Trade Union has challenged the Award dated 02.05.1997 delivered by the Central Government Industrial Tribunal No. 2, Mumbai, in Reference No. CGIT2/ 68 of 92 answering the reference made at their instance in negative. The reference as made on 10.12.1992 reads as under:
“Whether Shri K.P.S. Nair and other 12 workers (list enclosed) working in the Canteen through the contractor are entitled for absorption by the Sub Area Manager, Taroda Opencast, W.C. Ltd., District –Yeotmal, after working from March 1989? If not, to what relief they are entitled to?”
2. The reference was sought by the petitioner about workers in Canteen at Taroda Opencast Coalmine. The mine is one of the mines owned and managed by National Coal Limited i.e. Coal India Limited. The operations there started in the year 1987 and with a view to make canteen facility available to employees working therein, a contractor came to be appointed by an order dated 16.03.1989. Contractor engaged certain workmen and their names have been shown in scheduled appended to reference. Those names also include name of Contractor himself as worker at sr. no. 1. They started working from March 1989 and their wages were paid every month in presence of a Welfare Officer of Taroda Opencast mine. They approached Central Government Industrial Tribunal (CGIT) with contention that engagement of contractor was in violation of Contract Labour (Regulation and Abolition) Act, 1947, and also all provisions of Mines Act, 1952 and Mines Rules, 1955, framed thereunder. They also pointed out various provisions of bipartite agreement between employees of Coalmines and National Coal Limited to urge that the engagement of contractor was also in breach thereof. They particularly relied upon National Coal Wage Agreement IV (NCWA – IV) signed on 27.02.1989 which came into force on 01.01.1987. They, therefore, claimed absorption in service of Respondent No. 2 – SubArea Manager of Taroda Opencast mine. Respondent No. 2 – management resisted the claim and contended that there was no relationship of employer and workman. They also pointed out that arrangement of contractor was made on adhoc basis and as per decision taken in joint meeting of management and different Unions including the petitioner. They, therefore, urged that Union cannot raise such dispute. They further claimed that neither Mines Act, 1952 nor Mines Rules, 1955, were violated and there was also no violation of any National Coal Wage Agreement (NCWA). CGIT accordingly framed issues and answered the reference in negative observing that contractor K.P.S. Nair and other 12 workers mentioned in the scheduled were not entitled for absorption.
3. I have heard Shri Pendharkar, learned Senior Advocate with Shri Belsare, Advocate for the petitioner and Shri Badar, learned Advocate for respondent No. 2 – employer.
4. By giving a very brief outline of the dispute and controversy involved, the learned Senior Advocate stated that there are two options open before this Court. First one is to remand the matter to CGIT as it has not considered the relevant material and also law on the point. Second one and on which he laid more emphasis is to record a finding on existence of master servant relationship and remand the matter to CGIT to fix the salary/benefits of respective workman from 05.03.1989. Attention has been invited to the evidence adduced and also to written arguments filed before the CGIT to urge that the facts brought on record in that evidence and pressed into service in written arguments have not been appreciated at all. It is pointed out that existence of NCWA – III before 1987 casting similar obligation upon Respondent No. 2 – employer is also overlooked and case law specifically cited by indicating relevant portion therein has been ignored only because the photostat copies of the citations or journals containing the same were not made available. It
