Employees in relation to the Management of Balihari Colliery of BCCL Vs Presiding Officer and Another

S.J. Mukhopadhaya, J.@mdashBoth the cases have been preferred by Employers in relation to the Management of Balihari Colliery of M/s. BCCL against common award dated 23rd September, 1996 in Reference Nos. 134/93 and 135/93 passed by learned Presiding Officer. Central Government Industrial Tribunal No. 2 at Dhanbad.

2. The brief fact of the case shows that the respondent No. 2, Bihar Mines Lal Jhanda Mazdoor Sangh made demand for regularisation of services of concerned workmen by the Management of Balihari Colliery-petitioner. It was alleged that the workmen of Bharatiya Mazdoor Sahyog Samiti were working since 1989 in prohibited category, already worked for more than 190 days in a calendar year, underground.

On receipt of such demand, the petitioner-Management objected the prayer mainly on the ground of non-existant relationship of master and servant. It took plea that the Management did not have any control or supervision over persons of the contractors, neither it can appoint a person under the contractor, nor could dismiss a person of contractor, as per the Management''s Will. The control lay exclusively with the contractor, the Co-operative Society which used to employ its own labour and supervise their work to complete this contract.

3. The conciliation proceeding having failed. ALC (C). Dhanbad submitted failure report to appropriate Government, wherein-after the reference, in question, being Reference Nos. 134/93 and 135/93 was made, as quoted hereunder :--

THE SCHEDULE IN REFERENCE NO. 134 OF 1993 :

"Whether the demand of the Bihar Mines Lal Jhanda Mazdoor Union for employment of Shri Binay Kumar Singh and 21 others (as per list enclosed) on the role of Balihari Colliery of M/s. BCCL is justified ? If not, to what relief they are entitled ?"

THE SCHEDULE IN REFERENCE NO. 135 OF 1993 :

"Whether the demand of Bihar Mines Lal Jhanda Mazdoor Union for employment of Shri Anil Kr. and 22 others (as per list enclosed) on the roll of Balihari Colliery of M/s. BCCL is justified ? If so, to what relief they are entitled V"

4. On hearing the parties, the learned Presiding Officer answered the question in affirmative, in favour of workmen and directed the Management to regularise them within six months, phase-wise in Category I with usual scale and benefits by impugned common award dated 23rd September. 1996.

5. Before the tribunal, as also this Court, the Management has raised same question and objection that there was no relationship of employer and employees, between the petitioners on the one hand and the concerned workmen on the other and thus the direction for regularisation of service under the Management is uncalled for.

6. The petitioner denied that the work performed by the workmen of contractors was prohibited under the Contract Labour (Regulation and Abolition) Act. Further, according to the Management, the concerned workers are persons of contractors, namely, the Co-operative Society, which was awarded the work of miscellaneous nature and payment was made to the contractor according to measurement and work order, the claim for regularisation/employment is without any basis. They had also no control or supervision over the persons of contractors. It was also denied that the concerned persons were employed in stone-cutting, coal cutting and on job prohibited by the Contract Labour (Regulation and Abolition) Act, 1970.

7. The 2nd respondent took specific plea that the workmen have been engaged by the petitioner-Management for perrinial nature of job since 1989 and concerned workmen have been engaged to perform various nature of jobs, both on the surface and in the underground mines. The work was performed under direct control and supervision of the Manager and other officials of Management for which the Management also provided instruments and tools for work in the Colliery where their attendance were marked.

8. A number of witnesses were produced and appeared on behalf of the parties. They were examined and made their statement, as recorded in the award.

9. The learned Presiding Officer on appraisal of evidences and facts came to a definite conclusion that the workmen of both the cases had been performing their work since 1989 under the two Co-operative Societies on behalf and for the Management-Collieries. They performed the job in the concerned collieries and the materials were supplied by the Management-Collieries. Though the payments were made through cheques prepared in the name of the Samiti and the Secretary of the Samiti used to encash the cheques which used to be distributed amongst the workmen, as per quantum of work.

10. It is not in dispute that the workmen were performing duties in the Collieries of Management since 1989. They were performing perrinial nature of job, is a question of fact determined by the Labour Tribunal. Such is the finding of fact with regard to establishment, permanent in nature. Merely, because the workmen were employed by independent contractor/society, cannot be a ground for refusal by Management to deny benefits to the workmen, including employment by regularisation.

11. In Hussainbhai, Calicut Vs. The Alath Factory Thezhilali Union, Kozhikode and Others, , the Supreme Court taking into consideration the fact that the work done by the workmen was an integral part of the Industry concerned, that the raw materials were supplied by the management, that the equipment used also belonged to the management and that the finished products were taken by the management for its own trade, held the concerned persons as workmen of the management, being broadly under the control of the management. The Supreme Court laid down the test to determine the relationship and held as follows :--"The true test may, with brevity, be indicated once again. Where a worker or group of workers labourers to produce goods or services and these goods or services are for the business of another, that other is, in fact the employer. He has economic control over the workers subsistence, skill and continued employment. If he, for any reason, chokes off, the worker is virtually, laid off. The presence of intermediate contractor with whom along the workers have immediate or direct relationship ex-contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the management, not the immediate contractor. Myriad devices, half-hidden infold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be restored to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43A of the Constitution. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances."

12. Similar finding given by the Supreme Court in Secretary, H.S.E.B Vs. Suresh and Others etc. etc., , wherein the applicability of doctrine of "lifting of the veil" discussed to determine employer-employees relationship.

13. In the present cases, by impugned award dated 23rd September, 1996 answered the question of facts that there exists employer-employee relationship between management and workmen. Such being the finding of fact arrived at by the labour Court. Hence it is not desirable, otherwise be interferred with while exercising powers under Article 226 of the Constitution of India, the same otherwise not being perverse and there being no error apparent on the face of the record.

14. Both the writ petitions are, accordingly, dismissed. However, there shall be no order, as to costs.

15. Petitions dismissed.