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2023 Supreme(Jhk) 1300
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.N.PATHAK, J.
Janta Mazdoor Sangh - Appellant
Versus
Union of India – Respondent
C.W.J.C No. 384 of 1997(R)
Decided on : 10-11-2023
Advocate Appeared:
For the Appellant :Mr. Mahesh Tewari, Advocate
For the Respondent:Mrs. Leena Mukherjee, Mr. A. K. Mehta, Advocate
IMPORTANT POINT
The main legal point established in the judgment is that under Article 226 of the Constitution of India, disputed questions of fact requiring evidence cannot be considered, and the petitioners cannot claim regularization as they were not on the roll of the contractor or the Principal Employer on the date of reference made by the Central Government for their regularization.
Headnote:
Regularization - Contract Labour - CLRA Act, Section 10(1), Article 226 - Summary of Acts and Sections: CLRA Act, Section 10(1), Article 226 - The court discussed the maintainability of the writ petition and the issue of regularization of contract laborers. It referred to the CLRA Act, Section 10(1) and Article 226 of the Constitution of India. The court emphasized that the petitioners cannot claim regularization as they were not on the roll of the contractor or the Principal Employer on the date of reference made by the Central Government for their regularization. The court also cited relevant case laws to support its decision.
Fact of the Case:
The petitioners, represented by a trade union, sought regularization/absorption and benefits similar to other contract laborers who had been departmentalized. The respondent raised the issue of maintainability, arguing that the writ petition was not maintainable and the case was based on disputed facts requiring evidence.
Finding of the Court:
The court held that the writ petition was not maintainable under Article 226 of the Constitution of India and dismissed it on the ground of maintainability. It emphasized that the petitioners cannot claim regularization as they were not on the roll of the contractor or the Principal Employer on the date of reference made by the Central Government for their regularization.
Issues: The main issues were the maintainability of the writ petition and the entitlement of the petitioners for regularization/absorption.
Ratio Decidendi: The court's decision was based on the fact that the petitioners were not on the roll of the contractor or the Principal Employer on the date of reference made by the Central Government for their regularization, and therefore, they cannot claim regularization. The court also emphasized that disputed questions of fact requiring evidence cannot be considered under Article 226 of the Constitution of India.
Final Decision: The writ petition was dismissed as not maintainable, and the petitioners were advised to approach an appropriate forum or tribunal for an alternative remedy.
JUDGMENT :
Petitioners represented by trade Union have approached this Court for regularization/absorption from 01.10.1991, i.e. from the date other contract labourer have been departmentalized on the same condition. Further prayer has been made for granting the benefits which others have been granted.
2. At the very outset, learned counsel appearing on behalf of the respondent-BCCL raises the issue of maintainability and submits that this writ petition itself is not maintainable and as such, before delving into the merits of the case, it would be proper to decide the issue of maintainability.
3. Learned counsel for the petitioners argues that this writ petition is fully maintainable as the same has been admitted for hearing at this stage. The issue of maintainability cannot be raised at such point of time. Learned counsel further argues that it is a case of total discrimination and violation of Article 140 of Constitution of India where thousand persons have already been regularized and departmentalization of only the present petitioners who are 194 in number have been turned down. It has further been argued that role of adjudicator does not apply in this case and it is the notification which matter. Thousands of persons on the same terms and conditions have been regularized and as such the cases of present petitioners who are 194 in number cannot be washed away. Petitioners were admittedly working from 01.01.1988 till 30.09.1991 and as such they are entitled for regularization.
4. Learned counsel for the respondent-BCCL opposing the contention of learned counsel for the petitioners submits that the case of the petitioners are based on several disputed facts which cannot be decided under Article 226 Constitution of India. The same needs to be proved by exhibiting the documents by way of evidence. Learned counsel further submits that all the documents brought on record by the petitioners are disbelieved and the genuineness of the same are disputed and thus, it requires production of documentary evidence which has to be proved, which cannot be done here. Learned counsel placed heavy reliance in the case of Jai Singh Vs. Union of India & Ors. reported in (1997) 1 SCC 1, wherein the Hon’ble Apex Court has held as under:
“In a petition involving disputed question of fact, High Court should not grant relief when an alternative remedy by suit exists.”
5. Learned counsel further submits that right from the inception, the respondents are raising the issue of maintainability and has thus on that ground itself this writ petition is not maintainable. Petitioners have remedy before the Industrial Tribunal and as such they can avail the same but they have rushed to a wrong forum, as such, this writ petition should be dismissed on this count itself by asking them to approach the tribunal for adjudication of their grievances.
6. From the rival submissions of the parties and documents brought on record, this Court is of the view that under Article 226 of the Constitution of India, this Court should not enter into the merits of case before deciding the issue of maintainability, the documents brought on record needs to be examined which cannot be done here. The very pertinent question to be decided is as to whether after dismissal, petitioners can approach before this Court for regularization. The law is very well settled that there cannot be regularization of a person who is not on the roll either of the contractor or of the Principal Employer on the date of reference made by the Central Government for their regularization. In the instant case the petitioners-Union admits that these 194 persons have been terminated with effect from 01.10.1991. Therefore, they cannot claim regularization since they were not in service/roll. The writ petition is fit to be dismissed.
7. Similar issue has been decided by the Hon’ble Apex Court in case of SAIL Vs. National Union Waterfront Workers & Ors. reported in (2001) 7 SCC 1. Further Hon’ble Apex Court in the case
