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2019 Supreme(Jhk) 915
IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH KUMAR, J.
Employers in relation to the management of Dugada Coal Washery of M/s Bharat Coking Coal Limited, P.O. Dugda, Dhanbad - Petitioner
Versus
Their workmen being represented by the Secretary, Bihar Colliery Kamgar Union at Mohalla-Jharnapara, Hirapur, Dhanbad & Ors. -
W.P. (L) No.2196 of 2003
Decided On : 03-09-2019
For the Petitioner: Mr. Anoop Kr. Mehta, Adv.
For the Respondents: Mr. V.P. Singh, Sr. Adv. Mr. Ashok Kr. Sinha, Adv.
Headnote:
Constitution of India, 1950 - Article 226 - CLRA Act - Section 10 - Claim to be in employment - Services of management - Argument - From pleading and argument it appears that concerned workmen have claimed to be in employment of petitioner’s company since as Plant Cleaning - It has been further contended that management has regularized coworkers as Plant Cleaning leaving behind these workmen - Subsequently other workmen have been employed and these workmen have raised industrial dispute which has been referred vide Reference in which vide Award order of regularization of these workmen has been passed – Held, Further national litigation policy also adopts principle that if an issue stands settled then same should be extended similarly situated person also - In labor jurisprudence giving equal treatment to similarly situated labors is settled principle of law - Merely on ground that present reference is of year writ petition is year while same is being disposed of in year laborers should not be denied benefits of regularization - Parity is command of Article Constitution of India - Negative parity certainly does not exist in rule of law but positive parity is command of Article Constitution of India and has to be implemented by courts - In present case one set workmen has been regularized by Management himself in year - These regularized workmen were co workers of present respondent-workmen - Subsequently more workmen have been regularized in view Reference - Only these workmen cannot be discriminated on strength of one or other technical ground – Petition dismissed
JUDGMENT :
1. Heard learned counsel for the petitioner, Mr. Anoop Kumar Mehta and Learned senior counsel for the respondent Mr. V.P. Singh assisted by learned counsel Mr. Ashok Kr. Sinha.
2. The present writ petition has been filed for quashing the Award dated 08.01.2003 passed by CGIT-I, Dhanbad in Reference No.106 of 1994 whereby the Tribunal has answered the reference in favour of the workmen directing the petitioner-management to reinstate and regularized the service of all the 22 concerned workmen as Plant Cleaning Mazdoor subject to being found medically fit and below the age of superannuation within 60 days from the date of publication of Award and to pay them wages as per the NCWA.
3. From pleading and argument, it appears that the concerned workmen have claimed to be in employment of the petitioner’s company since 1980 as Plant Cleaning Mazdoor. It has been further contended that the management has regularized 161 coworkers as Plant Cleaning Mazdoor, leaving behind these 22 workmen. Subsequently, 64 other workmen have been employed and these 64 workmen have raised industrial dispute which has been referred vide Reference No.258/1990 in which vide Award dated 13.07.1992, order of regularization of these 64 workmen has been passed. Against the said Award, writ petition has been filed by the employer-management being CWJC No.157/1993(R), which has been dismissed and after dismissal of the writ petition, those 64 workmen have been regularized. Thus the workmen involved in the present reference have been discriminated as they have not been allowed to work w.e.f. 18.02.1993 and since then they are out of employment.
4. It has been further contended that they have raised an industrial dispute by submitting required application through Union on 03.10.1991. It has been referred for conciliation and while conciliation was pending, they have been stopped from working w.e.f. 18.02.1993.
5. On the other hand, employer has denied that the respondent-workmen were ever working with them.
6. The industrial dispute raised by the respondent-workmen has been finally referred for adjudication vide Reference No.106/1994.
7. The terms of reference are as follows:
“Whether the action of the management of Dugda Coal Washery of BCCL, P.O. Dugda, Dt. Dhanbad in not regularizing S/Sh. Moti Mahato and 21 others (as per list attached) is legal and justified? If not, to what relief are the concerned workmen entitled?”
8. After considering the argument and material brought on record by the parties, the Award has been answered in following terms:
“That award is, thus, made hereunder:
The action of the management of Dugda Coal Washery of M/s B.C.C.L. Ltd. in not regularizing the concerned workmen is not legal and justified and all those 22 concerned workmen deserve to be regularized in services of the management. Consequently, the management is hereby directed to reinstate and regularize the services of all the twenty two (22) concerned workmen (as per list attached with the order of reference) as plant cleaning mazdoors subject to being found medically fit and below the age of superannuation, within sixty days from the date of publication of the award and to pay them wages as per NCWA.”
9. Learned counsel for the petitioner has assailed the Award raising following points:
I. One of the grounds for allowing reference is that workmen were employed under the prohibitory category of employment which is per se illegal but there is no evidence on record to suggest prohibitory nature of work.
II. The workmen have admitted that salary was being paid by the contractor as they were appointed by him and therefore, there is no existence of employer-employee relationship between the employer and the concerned persons and as such, the relationship of employer and employee has been disputed. Reference has been made to the judgment rendered by the Apex Court in the case of Bengal Nagpur Cotton Mills reported in (2011) 1 SCC 635, International Airport Authority reported in (2009)
