Jharkhand Vidyut Kamgar Sangh v. Jharkhand State Electricity Board through its Secretary
2015-01-28
D.N.PATEL, PRAMATH PATNAIK
body2015
DigiLaw.ai
Order D.N. Patel, J. 1. This Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge in W.P(S) No. 3385 of 2013 dated 30th June, 2014 whereby, the petition preferred by this appellant has been dismissed and liberty is reserved with this appellant to raise industrial dispute under Section 10 of the Industrial Disputes Act. Against this judgment and order passed by the learned Single Judge, the present Letters Patent Appeal has been preferred. 2. Having heard counsel for both the sides and looking to the facts and circumstances of the case, it appears that it is a case of the appellant-trade union that it has espoused the cause of more than 560 workmen, who are engaged since 1977, but, till today, they are the employees of the Contractor and therefore, their services should be regularized. Counsel for the appellant has also relied upon the circular issued by the respondents which is at Annexure4 and has submitted that if an employee is working prior to 1st August, 1985 his services should be regularized. This aspect of the matter has not been properly appreciated by the learned Single Judge and therefore, this Letters Patent Appeal may be allowed. 3. Counsel for the appellant has also relied upon other annexures and submitted that even in the year 2005 suitable directions were given by the office of the Labour Commissioner to give reply about their regularization because they are working since long and are performing the regular work of principal employer. This aspect of the matter has not been properly appreciated by the learned Single Judge. 4. We are not in agreement with the arguments advanced by the counsel for the appellant mainly for the reason that regularization of 560 employees cannot be done in a writ petition. 5. Serious dispute has been raised about various factual aspects by the respondents about the total number of employees who are working since 1977. These facts have also stated in paragraph 4 of the decision rendered by the learned Single Judge. Moreover, the nature of the work is required to be appreciated after the evidence is being taken up. Thus, the process of regularization can be done only after taking cogent and convincing evidences for which this appellant is not remediless. Ubi jus ibi remedum (where there is wrong there is remedy).
Moreover, the nature of the work is required to be appreciated after the evidence is being taken up. Thus, the process of regularization can be done only after taking cogent and convincing evidences for which this appellant is not remediless. Ubi jus ibi remedum (where there is wrong there is remedy). This appellant has efficacious alternative remedy available under Section 10 of the Industrial Disputes Act. This trade union can raise industrial dispute for regularization of 560 employees of the contractor and reference may be made before the competent jurisdiction or Labour Court thereafter, evidence are required to be given that who is working how long and what is the nature of the work done and the particulars of the employees. Much depends upon all these factors. Hence, no error has been committed by the learned Single Judge in dismissing the writ petition. We hereby, upheld the decision rendered by the learned Single Judge. 6. It has been held by the Hon'ble Supreme Court in the case of ONGC Ltd. & Another Vs Shyamal Chandra Bhowmik reported in (2006) 1 SCC 337 especially in paragraph no. 12 as under: “12. When examined with reference to the principle laid down in the aforesaid decisions, it is clear that the approach of the High Court i.e. the learned Single Judge as endorsed by the Division Bench, is not correct. The relevant issue was not considered in its proper perspective. The respective stand was to be examined in the light of law laid down by this Court in the decisions referred to above. The question of shifting of onus assumes relevance only when evidence is led. Almost all the decisions referred to above, related to matters which came to the High Court after evidence was led before the Tribunal by the contesting parties. The High Courts should not entertain writ petitions directly when claim of service of more than 240 days in a year is raised. Whether a person has worked for more than 240 days or not is a disputed question of fact which is not to be examined by the High Court. Proper remedy for the person making such a claim is to raise an industrial dispute under the Act so that the evidence can be analysed and conclusion can be arrived at.
Whether a person has worked for more than 240 days or not is a disputed question of fact which is not to be examined by the High Court. Proper remedy for the person making such a claim is to raise an industrial dispute under the Act so that the evidence can be analysed and conclusion can be arrived at. As in the instant case the legal position has not been analysed in the proper perspective, it would be appropriate if the matter is decided by the forum provided under the Act.” In view of the aforesaid decision also, writ is not a proper remedy of regularization of 560 workers of the appellant-trade union. Industrial dispute should have been raised in the manner which is provided under the Industrial Disputes Act and thereafter, this remedy can be given by the concerned Tribunal or by the concerned Labour Court. 7. There is no substance in this Letters Patent Appeal hence, the same is hereby dismissed.