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2017 Supreme(Pat) 1494
IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, J.
Birendera Kumar – Appellant
Vs.
Union of India – Respondent
C.W.J.C. No. 16365 of 2015
Decided On : 20-06-2017
For the Appellant :Mr. Mahesh Narayan Parbat, Senior Advocate and Smt. Renu Jha, Advocate
For the Respondent: Mr. Sujeet Kumar Sinha, CGC
For the BSNL :Mr. Ashok Kumar Dubey and Mr. Uma Shankar Singh, Advocates
The main legal point established in the judgment is the importance of reliable evidence in proving the completion of 240 days of work in a calendar year for the regularization of workers under Section 10(1)(d) of the Industrial Disputes Act, 1947.
Headnote:
Industrial Disputes Act - Regularization of Workers - Section 10(1)(d) - [KEYWORD] - Regularization of Workers - Industrial Disputes Act, 1947, Section 10(1)(d) - The court discussed the application of Section 10(1)(d) of the Industrial Disputes Act, 1947 and the criteria for regularization of workers. The court emphasized the importance of evidence in proving the completion of 240 days of work in a calendar year and highlighted the limitations of the writ court's powers in questioning the findings of fact.
Fact of the Case:
The petitioners filed a writ application to set aside an order passed by the Central Government Industrial Tribunal, which decided in favor of the Management regarding the regularization of workers under Section 10(1)(d) of the Industrial Disputes Act, 1947.
Finding of the Court:
The court found that the workers failed to produce reliable evidence to support their claim of working more than 240 days in one calendar year. The court also dismissed the plea regarding the erroneous consideration of evidence by the Tribunal and emphasized the limitations of the writ court's powers in questioning the findings of fact.
Issues: The issues involved the regularization of workers under Section 10(1)(d) of the Industrial Disputes Act, 1947, the sufficiency of evidence, and the jurisdiction of the Labour Court.
Ratio Decidendi: The court's decision was based on the lack of reliable evidence presented by the workers to support their claim of completing 240 days of work in a calendar year. The court also emphasized the limitations of the writ court's powers in questioning the findings of fact.
Final Decision: The writ application was dismissed by the court.
Ashwani Kumar Singh, J.
The petitioners have filed the present writ application for setting aside the order dated 30.04.2015 passed by the Presiding Officer, Central Government Industrial Tribunal (No.2), Dhanbad by which Reference Case No. 22 of 2011 referred under Section 10(1)(d) of the Industrial Disputes Act, 1947 has been decided in favour of the Management and against the petitioners.
2. The petitioners raised their claim for regularization through the General Secretary of their Union before the Government of India, Ministry of Labour & Employment, New Delhi from where the case of the petitioners in exercise of power conferred under Section 10(1)(d) of the Industrial Disputes Act was referred to the Central Government Industrial Tribunal No.2, Dhanbad for adjudication of the following questions :-
"(i) Whether the action of the Management of BSNL, Gaya in not regularizing the alleged 51 workers out of a total of 97 casual workers engaged by them while regularizing the remaining 20 such casual workers is legal and justified or not ?
(ii) What relief the workmen are entitled to?."
3. On receipt of the aforementioned reference from the Government of India, Ministry of Labour and Employment, New Delhi for adjudication of the dispute, Reference Case No. 22 of 2011 was registered and after hearing the parties, Central Government Industrial Tribunal No.2, Dhanbad, vide award dated 30.04.2015 held as under :-
"... the action of the Management of BSNL, Gaya, in not regularizing the alleged 51 workers (list enclosed) out of total 97 casual workers engaged by them is quite legal and justified..."
4. The aforementioned award dated 30.04.2015 is under challenge in the present writ application filed under Article 226 of the Constitution of India.
5. The contention of the petitioners in the present writ application is that these petitioners along with 30 other workmen under wrong legal advice through their Union Secretary had moved before the Labour Commissioner raising their dispute regarding payment of minimum wages and regularization.
6. Mr. Mahesh Narayan Parbat, learned Senior Counsel appearing for the petitioners submitted that the Tribunal decided the case against the petitioners without appreciating the evidences adduced on their behalf. He submitted that the documentary evidences produced on behalf of the workmen were sufficient to prove that the workmen had completed more than 240 days in a calendar year. He submitted that the petitioners ought to have filed their case before the Central Administrative Tribunal, but under wrong legal advice, the petitioners approached the Labour Court. He submitted that the petitioners are poor and illiterate persons and are not aware of the intricacies of law and they should not be allowed to suffer for choosing a wrong forum for redressal of their grievance. He submitted that the Tribunal committed an apparent error while adjudicating the reference made to it by not looking at the fact that 20 other similarly situated persons were regularized and some other applications of other similarly situated employees are pending before the Central Administrative Tribunal, Patna Bench, Patna.
7. Per contra, Mr. Ashok Kumar Dubey, learned counsel appearing on behalf of respondent nos. 2 to 4 submitted that this is not the stage when the petitioners can raise the issue of prejudice due to pursuing the remedy before a wrong forum. He submitted that the Tribunal has correctly appreciated the facts and law involved in the case. It has also appreciated the oral and documentary evidences adduced on behalf of the parties in correct perspective. He submitted that the workmen, who were engaged prior to 22.06.1988, were regularized under the policy decision of the Government of India and the case of the petitioners does not stand in any way similar to the case of the 20 causal workers, who were regularized
