B.K. Sharma, J.@mdashThe petitioner is a company incorporated under the Companies Act having its Head Office in Delhi with different branches through out India. The present dispute relates to its branch at Guwahati. The petitioner company is engaged in the business of carrying goods by road transport from one place to another. Its branch office at Guwahati has three godowns located in different places. As stated in the writ petition, the Management of the petitioner does not engage labourers. It has been stated that the labourers are engaged for loading and unloading goods by the contractors directly and the Management never engages labourers on regular or permanent basis. It has further been stated that the same set of labourers work in different godowns including the godowns owned by the petitioner Management.
2. On the basis of a complaint lodged in 1993 by the respondent No. 2 i.e. Fancy Bazar Mazdoor Union, represented by its General Secretary, the Conciliation Officer served notices upon the parties. Upon failure of the conciliation proceeding, the appropriate Government referred the following issue for adjudication by the learned Labour Court, Assam at Guwahati. Be it stated here that the complaint lodged was to the effect that the Management had terminated the services of the 16 workmen and that they had also been deprive the minimum wages fixed by the Government of Assam.
1-a) Whether the 16 (sixteen) workmen as per annexure are the workmen of M/s. North Eastern Carrying Corporation, M.S. Road, Guwahati.
ANNEXURE:-
Name of workmen:-
1. Sri Bhagloo Mahto
2. Shri Suresh Mahto
3. Shri Daya Sankar Mahto
4. Shri Ram Pukar Mandal
5. Shri Ganga Mandal
6. Shri Sikindra Mandal
7. Shri Promode Mandal
8. Shri Kuseswar Das
9. Shri Janak Mandal
10. Shri Rdual Mandal
11. Shri Rambilash Mukhiya
12. Shri Umesh Mahto-II
13. Shri Bisheswar Mandal
14. Shri Lala Mahto
15. Shri Ram Chandra Kanty
16. Shri Bhola Mahto.
b) If not, are the said workmen are entitled to reinstatement in their services at the establishment of M/s. North Eastern Carrying Corporation, M.S. Road, Guwahati-7.
c) If not, what relief they are entitled to?
2-a) If the issue No. 1, is answered in the affirmative, whether the management was justified in refusing to pay minimum wage, house rent allowance, bonus and other dues to the workmen or not?
b) if not, to what relief the workmen are entitled to?
3. On receipt of the reference, the same was registered and numbered as Reference Case No. 17/1997 and the learned Labour Court issued notices to both the parties. On receipt of the notice, the parties appeared before the Court, filed their respective written statement, additional written statement and also adduced evidence in support of their case.
4. On conclusion of the hearing, the learned Presiding Officer, Labour Court having answered the reference in favour of the respondent No. 2 by his award dated 28.11.2003, the Management invoked the writ jurisdiction of this Court by filing the instant writ petition.
5. I have heard Mr. S.N. Sarma, learned Sr. Counsel assisted by Mr. H. Sarma, learned counsel for the petitioner. I have also heard Mr. S. Chakraborty, learned counsel representing the respondent No. 2 Union. I have also perused the entire materials on record including the record.
6. Mr. Sarma, learned Sr. Counsel for the petitioner argued that the impugned award being the product of perverse finding and it being a case of no evidence at all, the same is liable to be set aside and quashed. He also submitted that the learned Presiding Officer, Labour Court having not answered the reference in its true perspective, the award is not at all sustainable in law.
7. Placing reliance on the decision of the Apex Court reported in
8. Mr. S. Chakraborty, learned counsel appearing for the respondent Union, on the other hand, supporting the impugned award submitted that the finding arrived at by the learned Labour Court cannot be interfered with exercising the writ jurisdiction by way of appreciating the evidence like an appellate authority. He submitted that the evidence on record being overwhelming to sustain the impugned award, this Court exercising its power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the said award. During the course of argument, he placed reliance on the following decisions:
1.
2.
9. As to what was the reference has been noted above. The first issue involved in the reference was - whether the 16 workmen named in the reference were the workmen of the petitioner and if so whether they are entitled to reinstatement in their service. The second issue was dependent on the answer to the first issue. The second issue was, whether the Management was justified in refusing to pay minimum wages, HRA, bonus and other dues to the workmen or not.
10. I have very carefully gone to the award and the related materials. The whole basis of the award is the purported Annexure-A memorandum of settlement u/s 18 (1) of the Industrial Disputes Act, 1947 allegedly signed by one Mr. R.A. Joshi of the Management. While in the reference, there is mention of 16 workmen, but in the said memorandum of settlement, there is mention of 12 workmen [as per the document annexed to the memorandum of settlement - Ext. E (1)].
11. The learned Presiding Officer in his award although has referred to the said document mentioning only 12 workmen without stating as to how the names of 4 more workmen could find place in the reference held that all the 16 workmen were the workmen of the Management. There ought to have been a finding that the balance 4 workmen were also the workmen when the alleged memorandum of settlement was signed on 15.3.1993. The impugned award is completely silent in this regard. Even after noticing the fact of mentioning only 12 workmen in the memorandum of settlement.
12. Being confronted with the above this revelation, Mr. Chakraborty, learned counsel representing the respondent Union submitted that even if 4 workmen are left aside based on the said memorandum of settlement, the impugned award will be applicable to the 12 Workmen, whose names find mention in the memorandum of settlement. If this argument is to be accepted then necessarily the question will arise whether the impugned award can partially be implemented in respect of those workmen, whose names appeared in the memorandum of settlement leaving aside the 4 other workmen. Nothing was argued in this regard. Be that as it may, the whole basis of the impugned award being the said memorandum of settlement, the same could not have been extended to 4 more workmen whose names did not find mention in the said settlement and that too without discussing anything as to how the said 4 workmen could be included in the reference and the impugned award.
13. Let us now examine the basic foundation of the claim of the workmen and the impugned award, which in the Annexure-A memorandum of settlement dated 15.3.1993 purportedly executed by and between the parties, the Management being represented by one Sri R.A. Joshi. According to the Management/petitioner, its representative Sri R.A. Joshi never signed the settlement. In this connection, it has placed reliance on the Annexure-B affidavit sworn by said Sri Joshi stating there that he was not authorized to perform any act independently for and on behalf of the Management. It has further been stated in the affidavit that he did not sign any document/deed/petition or memorandum of settlement as alleged by the union and that the entire allegation were false. The affidavit was sworn on 23.11.1996. This date is significant inasmuch as the reference was made vide Govt. notification dated 26.3.1997. Thus it was not for the purpose of the reference only, but the same was sworn in when it came to his notice that his name had been named in the purported memorandum of settlement.
14. Mr. S. Chakraborty, learned counsel for the respondent union while questioning the said affidavit submitted that the author of the said affidavit having not been examined by the management, the contents of the said affidavit cannot be relied upon. However, the fact of the matter is that Mr. Joshi, who had sworn the affidavit died before he could be examined in support of the said affidavit.
15. MW-1 in shi deposition stated that the workmen had never served the management on regular or permanent basis and that the management itself did not engage labourers who were only engaged by the driver whenever required. As regards the purported conciliation followed by the memorandum of settlement, he in his deposition stated that no such settlement was arrived at as was informed to him and that he was the predecessor of Sri R.A. Joshi, who had sworn the aforesaid affidavit (Ext.-1). In his cross examination, he denied that the Ext-1 does not bear the actual fact. He also confirmed that Sri R.A. Joshi had expired. He also denied that the Ext-1 is a fake document.
16. W.W.1 is the General Secretary of the respondent union, who in his deposition stated about engagement of members of the union in loading and unloading woks. He stated that wages of the labourers were paid on the basis of the weight of goods loaded and unloaded. He further stated that entries had been made in respect of the workers in the Talibooks. Referring to the memorandum of settlement, he deposed that the same was arrived at by and between the parties. In this cross examination, he stated that he did not ask the workers as to whether they had any appointment letter/document in respect of their engagement by the management. He also stated that he was not aware as to whether the workmen had signed on any attendance register. He also deposed that he was not aware as to whether the workmen used to go to their native places from time to time. He further stated that he had no knowledge if the concerned workmen had obtained any written or oral permission to visit their own State and also as to whether the workmen for the purpose of loading and unloading used any iron hook.
17. Referring to the documents (Ext-A, B and C), on which the respondent union had placed reliance to support the case of the workmen, he in his cross examination stated that the same did not bear the signature of the management officials. He denied that during conciliation, no one represented the management. He expressed his ignorance as to whether the drivers used to pay the money to the labourers.
18. WW-2 (Hem Ch. Gogoi) is the Labour Inspector. He in his deposition although referred to the purported complaint lodged by the union in respect of direct payment of wages to the labourers, but could not produce the same stating that the same could not be traced out in the office. He stated that after 1993, he was transferred to some other place. As regards the dispute raised by letter dated 13.3.1993, which finds mention in the purported memorandum of settlement, he in his deposition stated that he had received the said letter, but the same was not traceable in the office. It is only photocopies of the said letter, which was produced and he admitted that based on the said photocopy, certified copy was issued to the union. He further stated that the file containing the document was also missing.
19. In the cross examination, he stated that he had never visited the office of the management and that he had no personal acquaintance with the officials. He, in his cross examination further stated that he had no knowledge as to who was the manager of the management and that he also did not know Sri R.A. Joshi personally. He further stated that he had not received any letter of authority authorizing the signatory of the letter dated 13.3.1993. Finally he stated in his cross examination that he was not aware of the subject matter of the case and that he had not enquired during the conciliation proceeding as to whether the said Sri R.A. Joshi was really the said person or not. Importantly he also stated that the department did not send copy of the settlement to the management and that there was also no acknowledgment or receipt of the same by the management.
20. W.W.-3 is another witness examined by the union, who in his deposition stated that he was engaged in loading and unloading works and such work was supervised by the staff of the company. According to him, he was directly engaged by the management and used to receive salary fixed by the management. Referring to one Bhagalo Mahto, this witness stated that for some time he had received the wages for the workmen. He further stated that Sri R.A. Joshi was the Manager who was supervised. Subsequently transferred to Rajasthan and in his place Nidhi Parik was posted. According to this witness, said Sri Parik started payment to Ram Bali Rai in place of Bhagalo Mahto authorized by the workmen making a grievance against which the union had lodged a protest. This witness further stated that when wages were not paid by Ram Bali, a dispute was raised before the Labour Department and thereafter a conciliation proceeding was initiated. In his cross examination, he admitted that the workmen did not have any appointment letter.
21. It is on the basis of the aforesaid evidence and primarily on the basis of the Annexure-A memorandum of settlement, the learned Labour Court passed the impugned award answering the reference in favour of the workmen, leaving aside the plea of the management that the said document was not signed by its authorized representative and also the affidavit made in support of the said plea.
22. Let us now examine as to on what evidence and how the Labour Court has arrived at its finding. The decisions on which Mr. Chakraborty, learned counsel for the union has placed reliance are on the scope of the judicial review by way of re-appreciating and re-apprising the evidence. Normally the Writ Court should not interfere with the findings of fact arrived at by the Court below. All the decisions are to emphasize on the limited scope of interference in respect of the findings arrived at by the learned Labour Court, more particularly when the same is on the basis of the aforesaid memorandum of settlement. Par contra, the decision on which Mr. S.N. Sarma, learned Sr. Counsel for the petitioner has placed reliance is to emphasis that the workmen engagement by contract labour in connection with the work entrusted to him by the principal employer does not culminate in emergence of master and servant relationship between the principal employer and the contract labour.
23. On a very careful scrutiny of the impugned award, what I find is that there is absolutely no finding as such which can be said to be a reasoned one. After discussing the evidence on record, the learned Labour Court has recorded the following finding:
From the above evidence on record, it is apparent that the workmen has claimed that they are the workmen under the management. On the other hand, the management has claimed that the workmen are not the workmen under the management. The claim of the management is that they never engaged any labourers in loading and unloading of trucks and they also did not make any payment to the labourers directly. It is the specific plea of the management that the drivers of the respective trucks used to engage eh labourers for loading and unloading of the commodities of the trucks and they also make payment to the labourers directly.
24. After the above, the learned Labour Court recording the submissions made by the learned counsels for the parties has again discussed the evidence of WW-1 and WW-2 in respect of the aforesaid memorandum of settlement. In the said discussion, there is absolutely no mention as to why as against the 12 workmen included in the memorandum of settlement referred to above, the award shall be enlarged to 16 workmen. The learned Labour Court has heavily relied upon the memorandum of settlement. However, while dealing with the plea of the management that said Sri R.A. Joshi was not party to the same and that he did not sign the memorandum of settlement, the learned Labour Court has simply referred to the aforesaid deposition of MW-1 and declined to place reliance on the Ext-1 affidavit and held that in fact the memorandum of settlement was arrived at by and between the parties.
25. As to what MW-1 stated in his deposition has been noted above. From the said deposition, it cannot be inferred that Sri R.A. Joshi in fact was party to the settlement and that he was the signatory to the memorandum of settlement. What the learned Labour Court has observed in paragraph-24 is reproduced below:
24. The evidence of WW-1 Ram Tope Chaupal, WW-2 Hem Chandra Gogoi, Labour Inspector, Guwahati and WW-3 Daya Shankar Mahato makes it clear that earlier in the year 1993 a dispute was raised by the workmen ad there was a conciliatory settlement. Ext-E, the certified copy of the Memorandum of Settlement U/S 18(1) of the Industrial Dispute Act, 1947 arrived at in between the management of North Eastern Carrying Corpn. and the Union and the workmen, makes it ample clear that the settlement was arrived at on 15.3.1993 and it was to be enforced w.e.f. 16.3.1993. The management was represented by Shri R.A. Joshi, Manager of North Eastern Carrying Corporation and the workmen were represented by Sri R.J. Chaupal, Gen. Secy, Fancy Bazar Mazdoor Union and Shri Bhaglo Mahto, workmen of North Eastern Carrying Corpn. Ext. E(1), the annexure shows that it mentioned the names of 12 workmen. Of course, the names of some of the workmen in the instant case have not been found place in the Memorandum of Settlement. The Conciliation Officer Shri Hem Chandra Gogoi has supported the conciliation proceeding. The management has now claimed that Shri R.A. Joshi did not represent the management in any conciliation proceeding and he did not put any signature. In support of the claim of the management as submitted an affidavit filed by R.A. Joshi which has been exhibited as Ext-1 in this case. Management''s witness Shri Ridh Karan Parikh who is the manager of the Guwahati Branch of N.E.C.C. that R.A. Joshi was his immediate predecessor at Guwahati and Est-1 is the affidavit exhibited by R.A. Joshi to the effect. He also deposed that R.A. Joshi has already expired. In view of the facts of the Labour Inspector cum Conciliation Officer, Guwahati Sri Hem Chandra Gogoi, I am unable to place any reliance on Ext. 1 affidavit. I have absolutely no hesitation to belief that on 15.3.1993 there was a conciliation settlement in between the management of N.E.C.C. and the Union and the workmen and in that settlement R.A. Joshi represented the management and put his signature in the Memorandum of Settlement.
26. It is with the above observation only, the learned Labour Court passed the impugned award holding that 16 workmen were the workmen of the management while answering the issue No. 1-A referred to above. Solely on that basis it has also held that the said workmen should be entitled to reinstatement in their services. Thereafter without discussing anything, the issue No. 2 has also been answered in the affirmative in favour of the workmen holding that the workmen are entitled to receive minimum wages, HRA, bonus and other dues from the date of their reinstatement in service. The impugned award has also awarded 50% of the back wages. In this connection, the finding recorded in paragraph 26 of the award is quoted below:
In view of my decision in issue No. 1(a), 1(b) and 1(c) there was no justified ground for the management to refuse to pay the minimum wages, house rend allowance, bonus and other dues to the workmen. This issue No. 2(a) is decided in the negative. The workmen are entitled to receive payment as I have held in issue No. 1(b) and 1(c).
27. From the above, what is seen is that the learned Labour Court has only discussed the evidence without any analysis attached to it with the abrupt finding that 16 workmen were entitled to reinstatement in service and that they were also entitled to minimum wages, HRA, bonus and other dues. As discussed above, the reference was on three segments namely-
(1) whether 16 workmen were the workmen of the management;
(2) and if so whether they are entitled to reinstatement and
(3) depending upon to the answer to the issue No. 1 whether they are entitled to pay minimum wages, HRA, bonus and other dues.
28. The learned Labour Court without discussing anything on evidence and analyzing the same towards giving a finding in respect of the issue No. 1 as to whether the workmen are the workmen of the management, answered the same in favour of them and thereafter straightway without discussing anything as to whether they are entitled to reinstatement and also minimum wages, HRA, bonus etc. awarded the same to them. This being the position, hesitantly the award is perverse and based on no evidence at all.
29. The plea of the management that contract labourer cannot raise an industrial dispute until and unless the engagement of contract labourer is prohibited u/s 10 of the Contract Labour (Regulation and Abolition Act, 1970) and that the provision of Section 21 of the said Act are mandatory which escaped appreciation by the learned Labour Court in reference to the evidence on record also finds support from the decision of the Apex Court in Steel Authority of India (supra).
30. For all the aforesaid reason, I am inclined to allow the writ petition and accordingly the impugned award dated 28.11.2003 passed in Reference Case No. 17/1997 stands set aside and quashed. The writ petition is allowed, without, however, any order as to costs.
