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2022 Supreme(Gau) 261
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SANJAY KUMAR MEDHI, J.
GODA DHAR DAS S/O LATE CHANMAL DAS – Petitioner
VERSUS
NUMALIGARH REFINERY LTD. – Respondent
WP (C) No. 2057 of 2019
Decided On : 26-05-2022
Advocate Appeared:
For the Petitioner: A. DASGUPTA.
Point of Law : An assumption that the petitioner was discharging his function since 1995 under the NRL as Peon-cum-Messenger and that his services were not regularized for not meeting the qualification even though his juniors were considered.
Headnote:
Constitution of India, 1950 – Article, 226/227, 32, 323-A, 323-B –Tribunals for other matters – Territories in relation –Superintendence – Habeas corpus – Mandamus – Quo warranto – Prohibition and certiorari – Industrial Disputes Act, 1947 – Section 10, 11(3) , 17(2) – Writ jurisdiction of this Court has been sought to be invoked by petitioner by questioning legality and validity of an Award passed by Central Government Industrial Tribunal-cum-Labour Court of Assam in Reference Case – By impugned Award, it was held that Workman (present petitioner) is not entitled to any relief and the reference was answered in favour of the Management - An assumption that the petitioner was discharging his function since 1995 under the NRL as Peon-cum-Messenger and that his services were not regularized for not meeting the qualification even though his juniors were considered. (Para 23)
Finding of the court:
There is no employer-employee relationship at all between petitioner and Management – In this regard, Management adduced evidence through three numbers of witnesses and Management witness in clear terms had stated that petitioner was on contractual service under contractor, facilitate discharge of duties, some official papers were given to all contractual employees like gate pass etc for easy access to project area – Though it is a fact that Management could not produce Recruitment Rules in learned Tribunal to substantiate plea regarding requirement of Matriculation for regularization of services, since petitioner had failed to discharge his initial burden, there is no requirement for this Court to venture to answer second point – In any case, Management had filed an affidavit wherein it has been categorically stated that required qualification for post of Peon-cum-Messenger was Matriculation.
Results: Appeal is dismissed.
JUDGMENT :
SANJAY KUMAR MEDHI, J.
1. The writ jurisdiction of this Court has been sought to be invoked by the petitioner by questioning the legality and validity of an Award dated 31.01.2018 passed by the Central Government Industrial Tribunal-cum-Labour Court of Assam (hereinafter referred to as the Tribunal) in Reference Case No. 11 of 2014. By the impugned Award, it was held that the Workman (present petitioner) is not entitled to any relief and the reference was answered in favour of the Management.
2. Before going to the issue which has arisen for determination in this Case, it would be convenient to state the facts of the case in brief.
3. The appropriate authority namely, the Central Government had made a reference under Section 10 of the Industrial Disputes Act, 1947 (hereinafter refer to ID Act) to the learned Tribunal in the following terms:
“Whether the action of the Management of M/s NRL in not regularizing the services of Sri Goda Dhar Das in the post of Peon-cum-Messenger under the Management though he is discharging his functions effectively since 1995 on the plea on non-fulfilling the criteria of qualification contained in the Recruitment Rules even though his juniors were considered, is just, proper and justified. If not, what relief the workman Sri Goda Dhar Das is entitled for?”
4. Upon receipt of notices, both the parties had filed their respective written statements.
5. The case of the workman was that he was initially appointed as Peon-cum-Messenger in M/s. IBP Co. Ltd. in the year 1989. However, upon commissioning of the Numaligarh Refinery, M/s. IBP Co. Ltd. which was a part thereof, the petitioner was engaged as Office Peon in the NRL since 1995. The petitioner claims that he used to sign Attendance Register along with other employees. He also claims that wages were increased and later, was paid overtime allowances by the NRL from 1993 to 2006. The petitioner also claims of having issued Identity Card. However, the grievance is that his services have not been regularized by the Management.
6. On the other hand, in the written statement filed by the Management, it has been stated that the workman is a contract labour engaged through one contractor Shri RN Taye and was not a regular employee of the Management.
7. I have heard Shri A. Dasgupta, learned Senior Counsel for the petitioner. I have also heard Shri D. Sahu, learned counsel for the respondents-Refinery, who has also raised a preliminary objection.
8. Before considering the submission made by the learned counsel, let us first deal with the preliminary objection raised by Shri Sahu, learned counsel for the Refinery. By relying upon a Judgment of the Hon’ble Supreme Court in the case of Radhe Shyam and another Vs. Chhabi Nath and Others, (2015) 5 SCC 423, the learned counsel submits that the Hon’ble Supreme Court in the said decision has laid down that judicial orders of Civil Court are not amenable to the writ jurisdiction under Article 226 of the Constitution of India and such challenge can be made only by taking recourse to Article 227.
9. On the other hand, Shri Dasgupta, the learned Senior Counsel for the petitioner submits that the aforesaid preliminary objection is a misconceived one inasmuch as judicial review is a basic structure of the Constitution of India which cannot be taken away. He further submits that there is a difference between ‘Court’ and ‘Tribunal’ and therefore, the decision of the Hon’ble Supreme Court in the case of Radhe Shyam ( supra) is not applicable.
10. Before going into the inter se merits, let us first deal with the preliminary objection raised on behalf of the Management. The objection regarding maintainability appears to be structured on the case of Radhe Shyam (supra). However, a bare reading of the said case would reveal that the restrictions were imposed upon in challenging a judicial order of a Civil Court. The Hon’ble Supreme Court has also laid down that such restriction was necessary in view of the remedies prescribed
