B.K. Sharma, J.@mdashThis writ petition is directed against the judgment and award dated 22.10.2001 passed by the Industrial Tribunal, Guwahati in Reference Case No. 16(C)/1999 by which dealing with the following reference made by the Govt. of India in the Ministry of Labour u/s 10 of the Industrial Disputes Act 1947, the same has been answered in favour of the respondent Workmen represented by the Food Corporation of India (FCI), Mazdoor Sangha.
Whether the action of the Management of Food Corporation of India, Ziribam in stopping the work of 35 labourers is legal and justified ? If not, to what relief are the workmen entitled?
According to the petitioner, i.e. the Management of Food Corporation of India (FCI), the impugned award dated 22.10.2001 is not sustainable in law on two counts, namely the same is beyond the term of reference and secondly, the Tribunal has recorded perverse findings beyond the evidence on record.
2. I have heard Ms. A. Bhattacharyya, learned counsel for the petitioner as well as Mr. R.P. Sarmah, learned Sr. counsel assisted by Mr. M.R. Adhikari, learned counsel representing the respondent Mazdoor Sangha.
3. Mr. Bhattacharyya, learned counsel for the petitioner while arguing that the learned Presiding Officer, Industrial Tribunal exercising its jurisdiction u/s 10(4) of the Industrial Disputes Act, ought to have confined to the term of reference and could not have exercised any power and jurisdiction beyond the periphery of jurisdiction conferred on it under the said provision. She also submitted that the findings recorded by the Tribunal is beyond the evidence on record and thus, not sustainable in law. In support of her argument she has placed reliance on the following decisions:
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4. Countering the above argument, Mr. R.P. Sarmah, learned Sr. counsel representing the respondent Sangha, submitted that the Tribunal having answered the reference in its impugned award considering all the relevant aspects of the matter, the High Court exercising its power and jurisdiction under Article 226 of the constitution of India will not sit on appeal over such findings and the award. He also submitted that even if some part of the award is held to be beyond the term of reference, the award can suitably be modified instead of setting aside the same. In support of his argument, he has placed reliance on the following decisions:
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5. In Pottery Mazdoor Panchayat (supra), the Apex Court noticing the particular reference and the adjudication of it made by the Tribunal held that the Tribunal had no jurisdiction to go behind the fact so as to enquire into the particular question. Similarly in Firstone Tyre and Rubber Company (supra), the Apex Court dealing with conferment of adjudication by a Tribunal in reference u/s 10(4) of the Industrial Disputes Act, found that the findings of discrimination recorded by the Tribunal was beyond the reference that was sent for adjudication.
6. In Hindustan Lever Ltd. (supra), also the Apex Court dealing with particular approach and finding of the Tribunal held that there is no statutory provision that a status of a person invoking the jurisdiction of the Tribunal must be adjudicated upon notwithstanding that no contention to that effect is raised. It was observed that the Tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact which it must of necessity decide to acquire jurisdiction. It was held that Tribunal was clearly in error in holding that the contention canvassed on behalf of the union would permit it to raise estoppel against a statute.
7. In National Council for Cement & Building (supra), the Apex Court dealing with the procedure for determination of preliminary and main issues of the term of reference, held that Industrial Tribunal rightly decided to hear the preliminary issue alongwith the main issue. While holding so, non-interference of the High Court with the decision of the Tribunal to hear the preliminary issues alongwith the main issue, the Apex Court held that the decision of the High Curt was fully in consonance with law. In Savita Chemicals (supra), the Apex Court while dealing with the scope of interference under Article 227 of the Constitution of India in respect of Labour matters, held that where the findings are patently erroneous and dehors the factual and legal position in record, interference would be proper and justified.
8. In Board of Directors, HPTC (supra) also the Apex Court was concerned with the power of interference of the High Court under Article 226/ 227 of the Constitution of India. It was held that in case of patent illegality or perversity, High Court has power and jurisdiction to interfere with the findings of the Tribunal.
9. Learned counsel for the petitioner has placed reliance on the above decisions to bring home her points of argument that the Tribunal has gone beyond the term of jurisdiction in passing the impugned award and that this Court exercising its power and jurisdiction under Article 226/ 227 of the Constitution of India is entitled to interfere with such finding which is also not based on any evidence supporting such finding and consequently such finding is perverse.
10. The decision in Steel Authority of India (supra), has been pressed into service by the learned counsel for the respondent Sangha to emphasize that the direction of the Tribunal to regularise the services of the workmen was as per the provision of the Contract Labour (Regulation and Abolition) Act, 1970. According to the learned counsel for the petitioner, the workmen in question were direct employees under the Management of FCI with direct payment system and accordingly, the Tribunal has rightly directed the Management to regularise their services as at the time of their disengagement they had completed 240 days of service.
11. In Workmen of Food Corporation of India (supra), in the given facts and circumstances, the Apex Court found that there existed direct relationship between the FCI and the Workmen engaged in handling food grains. It was found that direct payment system was introduced and consequently the workmen acquired the status of workmen of the Corporation and thus it was not open to the Corporation to unilaterally discontinue the system without the consent of the workmen.
12. In R.K. Panda (supra), noticing the fact that labourers in question had been continuing for several years, direction was issued for regularisation of their services confining such labourers with 10 years on different jobs assigned to them. The decision in Workmen of Best & Crompton Industries (supra), has been referred to so as to emphasize that when two different views are possible, the writ Court will not interfere with the findings recorded by the Labour Court.
13. I have carefully considered the submissions advanced by the learned counsel for the parties and have also perused the entire materials on record including the records received from the Tribunal. Upon giving my anxious consideration to the same, my findings and conclusions are recorded as follows:
14. The dispute that was raised was in respect of the action of the Management of FCI, Ziribum, Manipur in stopping the work of 35 labourers. The term of reference was as to whether such discontinuation was justified or not and if not, what relief the workmen were entitled to. Referring to the decisions cited above, learned counsel for the petitioner has argued that the direction of the Tribunal upon re-engagement of the workmen to regularise their services within one year being beyond the terms of reference, is liable to be interfered with. It is in this context, learned counsel for the respondents has submitted that even if the direction of the Tribunal to regularise the services of the workmen is not sustainable in law, the other part of the award, namely re-engagement of the workmen within three months from the date of the award, is required to be sustained.
15. As discussed above, the decisions on which the learned counsel for the petitioner has placed reliance are basically on the jurisdiction of the Tribunal towards passing the award upon adjudication of the dispute/ reference u/s 10(4) of the Industrial Disputes Act. Section 10(4) of the Industrial Disputes Act, 1947 reads as follows:
10. (4). The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award singed by the arbitrator or all the arbitrators as the case may be.
16. Section 10(4) permits the Tribunal to decide only the disputes or points referred to it. Once the reference is made to the Tribunal, it cannot permit the union of the workmen at whose instance the dispute was referred to, to amend the facts on which the reference was made so as to bring out a new case on new facts not put up before the appropriate Government. The Tribunal cannot engage itself in enquiry beyond the term of reference. In the instant case, the dispute was as to whether the Management was justified in dispensing with the services of 35 labourers. The Tribunal exercising its power and jurisdiction u/s 10(4) of the Industrial Disputes Act, could not have travelled beyond the term of reference so as to issue a direction to regularise the services of the labourers within one year, as the issue was not as to whether the workmen who were allegedly illegally disengaged were entitled to regularisation of services. The decisions on which Ms. A. Bhattacharyya, learned counsel for the petitioner has placed reliance support her argument that the Tribunal could not have gone beyond the term of reference.
17. The Tribunal has issued the direction for regularisation of services of the workmen basically placing reliance on the decision in Workmen of Food Corporation of India (supra). After quoting the particular passage of the said judgment, the Tribunal upon an abrupt finding that all the 35 workers had been working without break for 240 days, held that the workmen are entitled to regularisation of their services. The Tribunal has also referred to another decision of the Apex Court reported in
18. It is one thing to say that the termination of service of a workman who has completed 240 days of continuous service without complying with the provision of Section 25(f) of the Industrial Disputes Act, 1947, is illegal, but it is altogether a different thing to say that such workman upon reinstatement would be entitled to regularisation of his service. The issue of regularisation of service was not in the term of reference and thus, neither party more particularly, the Management did not have any opportunity to deal with the said issue in the proceeding. In that view of the matter, I have no hesitation to hold that the second part of the award by which direction has been issued to regularise the services of the 35 labourers is not sustainable in law.
19. This now leads us to the main issue which is, as to whether the Management of FCI was justified in stopping the work of 35 labourers. According to the petitioner, the said labourers were under a particular contractor, namely Shri Sarat Ch. Singh (MW1), but on the other hand, it is the stand of the respondent Sangha that the said workmen were under direct payment system of the Management of FCI. In the written statement submitted by the Management, it was contended that the Management never engaged the 35 workmen in direct payment system and that they were labourers engaged by the contractor, said Shri Singh was engaged for handling transport contract. It was stated that the said contractor used to submit bills for the works done as per the term of contract and it was he who used to pay wages to the workmen. It was further stated that the Management had no control over the workmen.
20. As regards the plea raised regarding issuance of identity cards to the workmen as employees of the Corporation, it was contended that the particular location at Ziribum in Manipur where the workers had done their work was within the control of paramilitary force and therefore no person without proper identity card and authority was allowed to enter into the said area. Being faced with such difficulties, the contractor as well as the security personnel requested the Management of the Corporation to issue identity cards to the labourers and accordingly acceding to the said request and to facilitate smooth functioning of the contractual works, the labourers engaged by the contractor had been issued with temporary slip permitting them to enter into the area to engage themselves in the work. It was contended that temporary slips personally issued to the labourers did not make them direct employees of the Corporation.
21. Referring to the particular register, it was contended that the labourers had worked for 67 days only. In this connection paragraph-7 of the written statement referred to the days of works from January, 1995 to October, 1995.
22. In the written statement submitted on behalf of the workmen, it was contended that the 35 workmen were directly engaged by the Management and they were entrusted with the job of loading and unloading of food grains. It was also contended that identity cards had been issued to them (Exh. 2 to 25). There was no specific denial that the labourers had worked only for 67 days during the period from January, 1995 to October, 1995. In paragraph-7 of the written statement submitted by the Management, the days of work in every month were also indicated.
23. The whole basis of the findings recorded by the Tribunal is the purported identity cards issued to the labourers which are marked as Exhts. 1 to 25. Although the Management in its evidence categorically stated that those identity cards had to be issued having regard to the fact that the area of operation was under paramilitary force, the Tribunal referring to the identity cards (Exht. 2 A (z) to 30) while holding that they were issued by the Management as a token of identity of the workmen, also held that the plea of the Management that the said cards had to be issued having regard to the fact that Ziribum depot was an insurgency area under the control of paramilitary force, is not acceptable.
24. The Tribunal without answering the aforesaid issue raised by the Management in support of the context in which the identity cards were issued, has simply overruled the same by observing thus:
But whatever may be name of the document either identity card or identity slip, and whatever may be reason of issuing it but fact remains that this documents have been issued by the management in the name of the workers, during the period of their working.
25. As against the specific plea of the Management made in the written statement in paragraphs- 4, 5, 6 and 8 that the 35 labourers were never under direct payment system and that they had worked only for 67 days, the Tribunal has made the following sweeping remarks solely on the basis of the identity cards/slips referred to above.
So far as the workmen case is concerned, it is found that all these 35 workers have been working since 06.01.95 to 22.10.95 without break consisting a period of 240 days. Although management has not issued any formal appointment letter to them, but Identify Card were issued to them which are ext. 2(A) z to 30 in the name of the workmen which clearly shows that these documents were issued by the management as a token of identity of the workmen. But management''s plea in this respect is that Jiribam Depot is an insurgency area where no one can enter without any identity card and because of this reason, the workers were issued identity slip, not the identity card.
26. To come to a definite finding that the 35 labourers had been working under the Management on direct payment system, there must be some evidence and not just an assertion on the basis of the identity slips. I have verified Exhts. A(z) to A(24) purported identity cards/slips standing in the names of the concerned workmen. The said documents are all dated 14.08.1995 with the information like, name of the persons, permanent address, with the remarks "certified that person is engaged for loading & unloading of food grains, FSD, Ziribum. Apart from the fact that the said certificates which the respondent Sangha has projected as identity cards to prove the fact of direct payment system had been issued on 14.08.1995, the same also do not indicate that they are workers of FCI under direct payment system. The said slips do not indicate that they were in any manner connected with the employment of the FCI.
27. The period in question in reference to which the workmen have contended that they had been in employment for more than 240 days which also found favour with the learned Tribunal is from January, 1995 to October, 1995. The whole basis of the claim of the workmen is the identity slips that had been issued to them on the basis of which the Tribunal has also reiterated the finding that they were in employment for 240 days under direct payment system, falls through on their own assertion based on the said identity slips. As noted above, the said identity slips are all dated 14.08.1995 leaving the particular column on it namely "valid upto.............." blank. Thus, the said identity cards cannot cover the period from January, 1995 to October, 1995 enabling to the take plea that they had been working for 240 days.
28. Unlike the entries in the identity slips issued to the 35 labourers referred to above, in case of identity cards issued to the actual labourers under the respondent Corporation, the entries contain the headings like, identity card, WMC Labour, department of labour, serial number, name & designation, gang number, religion, place of posting etc. Exht. 14 is another form of identity card with the entries like name, date of birth, place of birth and posting of employment. Exht. 15 is the letter addressed to Sr. Regional Manager, N.E. Region, FCI by the Assistant Secretary of the particular Mazdoor Federation by which purported illegal activities of the depot In-charge, FCI, Ziribum Depot, Manipur were brought to the notice by which it was stated that the 35 labourers in question had not been allowed to work in the depot. The said letter clearly states that the 35 labourers had been working in the depot under the said contractor Shri M. Sarat Ch. Sigh. Exht. 12 is the bill register maintained by the said contractor showing the payments made to the labourers. Thus, there is no escape from the fact that 35 labourers had not been under direct payment system of FCI, but were the labourers engaged by the contractor who was engaged by FCI for managing loading and unloading of food grains.
29. In addition to the above, MW 1 Shri M. Sarat Ch. Singh in his deposition categorically stated that he had engaged 35 labourers for whose payment bills had been submitted and on payment of bills the workmen had been paid. In cross examination such a stand could not be controverted. MW 2 is a labourer working under FCI. He in his deposition stated about supply of labourers and execution of agreement for the same. In cross examination he could not name 35 labourers except one. MW 3 in his deposition stated that said Shri M. Sarat Singh (MW 1) was the handling contractor and that when there was more requirement of labourers, the contractor had engaged 35 labourers. In cross examination it was stated by him that he did not know as to whether any circular was issued prohibiting engagement of 35 labourers. Referring to identity slips, this witness stated in his deposition that same was issued to the labourers facilitating loading and unloading works. He also stated that such slips had been issued as the military personnel insisted for the same, the area being an insurgency prone area.
30. MW 4 in his deposition stated about failure of conciliation proceeding. He also denied issuance of any identity cards to the labourers. He also stated that the identity slips had been issued as the area was controlled by the military personnel. The witness No. 1 examined on behalf of the workmen is the Secretary of the FCI Mazdoor Sangha. He in his deposition stated that 35 labourers had been working under direct payment system and that they had been issued with identity cards. In cross examination, he admitted that he did not know the names of 35 labourers and that no formal appointment letters were issued to the labourers under direct payment system. He also stated that FCI did not call for any applications for engagement under direct payment system. He admitted that Ziribum area was a disturbed area.
31. Witness No. 2 is a workman. He in his deposition stated that ail the 35 labourers had been working in the Ziribum depot and that they were engaged in loading and unloading of food grains. According to him, the labourers had been working under direct payment system. In cross examination this witness stated that none of the labourers had been issued with any formal appointment letter. He also stated that he did not know the meaning of identity card and that he also did not know the types of employment. He admitted that in the identity cards there is no mention of direct payment system, nor there was any mention of payment being made. He stated about his ignorance as to whether the identity cards are issued only to regular workers.
32. It is on the basis of the aforesaid evidence, the learned Tribunal has passed the impugned award not only holding that the 35 labourers are under direct employment of the FCI under direct payment system, but has also issued direction for regularisation of their services. There is absolutely no evidence on record even to remotely suggest that 35 labourers were under direct employment of FCI under direct payment system. Had it been so, the workmen could have been asked for production of payment register which naturally was to be maintained by the FCI. However, the Register that has been produced is the one maintained by the handling contractor, Shri M. Sarat Ch. Singh.
33. Neither the documentary evidence nor the oral testimony renders any assistance to the plea of the workmen that they were under direct payment system of the FCI. As noted above, their whole basis of the claim is the identity slips character of which has been discussed above. Nowhere in the said identity slips, there is any mention of direct payment system nor there is mention of position held by the 35 labourers. The assertion made by the Management is that such identity slips had been issued as the area was insurgency prone and was also under control of Army. It was brought on evidence that the Army personnel had insisted for issuance of such slips enabling smooth entry and exit of the workers who were also not local. As per the identity slips they are all from Bihar and thus, naturally in the particular insurgency affected area in the State of Manipur there was necessity to issue identity slips to facilitate their entry into the depot. Such type of identity slips cannot be said to be regular identity card issued to the workers under direct employment of FCI.
34. It was argued that Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 providing for prohibition of contract labourer implicitly requires automatic absorption of 35 labourers. As has been held by the Apex Court in Steel Authority of India Ltd. (supra), u/s 10 of the said Act, there is no implicit requirement of automatic absorption of contract labour by the principal employer in the establishment concerned. Upon issuance of notification by the appropriate Govt. u/s 10(1) can prohibit the employment of contract labour in a given establishment. In this connection, the Apex Court has made the following observations:
105. An analysis of the cases, discussed above, shows that they fall in three classes; (i) where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the Industrial adjudicator/Court ordered abolition of contract labour or because the appropriate Government issued notification u/s 10(1) of the CLRA Act, no automatic absorption of the contract labour working in the establishment was ordered; (ii) where the contract was found to be sham and nominal rather a camouflage in which case the contract labour working in the establishment of the principal employer was held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) where in discharge of a statutory obligation of maintaining canteen in an establishment the principal employer availed the services of a contractor and the Courts have held that the contract labour would indeed be the employees of the principal employer.
35. Above being the position of law and facts, I am of the considered opinion that the findings recorded by the learned Tribunal is based on no evidence and consequently such findings are perverse findings. Firstly direction for regularisation of 35 labourers is beyond the scope of the reference. Secondly, the findings that 35 labourers had been continuously working for 240 days being based on the identity slips referred to above, is of no consequence. Such a findings is based on no evidence at all and consequently is liable to be interfered with which I accordingly do.
36. In the result, the writ petition is allowed by setting aside and quashing of the impugned award dated 22.10.2001 passed by the learned Tribunal in Reference No. 16 (C)/1999. However, there shall be no order as to costs. Registry is directed to send down the records immediately alongwith a copy of this judgment.
