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2019 DIGILAW 1070 (GAU)

Raja Nath Taye v. Numaligarh Refinery Ltd.

2019-09-19

UJJAL BHUYAN

body2019
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. A. Dasgupta, learned Senior Counsel, assisted by Ms. B. Das, learned counsel for the petitioner; Mr. D. Sahu, learned counsel for respondent Nos. 1 and 2. Mr. S.S. Roy, learned Central Government Counsel appears for respondent No. 3. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of award dated 03.01.2018, passed by the Central Government Industrial Tribunal-cum-Labour Court, Guwahati in Reference Case No. 10/2014, answering the reference in favour the Management (respondent Nos. 1 and 2), by holding that petitioner was not a casual employee, but a supplier/contractor of manpower and thus, not entitled to any relief. 3. According to the petitioner, he was engaged as a casual Office Assistant in the office of Numaligarh Refinery Limited (NRL) at Guwahati, in November, 1996. He used to discharge usual duties of Office Assistant. In return, not only was he paid salary, but Management had extended him the benefit of salary advance as well as overtime due. From April, 1998, Management had enhanced his daily wages. In addition, he was entrusted the responsibility to receive official letters etc. on behalf of NRL. However, suddenly from September, 1999 onwards, Management started to show him as a contract labourer against his wishes. Thus, by such manoeuvre Management converted a casual employee to a contract labourer, which according to the petitioner constituted an unfair labour practice. 4. Petitioner has stated that with the legitimate expectation that his service would be regularized he had followed all the instructions of the Management. Though he requested the Management on several occasions for regularizing his service it was not done. Ultimately, he was compelled to file an application before Regional Labour Commissioner (C) at Guwahati, raising industrial dispute relating to regularization of his service. Conciliation proceeding was initiated by the Labour Commissioner, but the conciliation proceeding ended in failure, whereafter report was submitted to the appropriate Government, i.e., the Central Government. 5. Ultimately, he was compelled to file an application before Regional Labour Commissioner (C) at Guwahati, raising industrial dispute relating to regularization of his service. Conciliation proceeding was initiated by the Labour Commissioner, but the conciliation proceeding ended in failure, whereafter report was submitted to the appropriate Government, i.e., the Central Government. 5. Central Government, thereafter, made a reference to the Central Government Industrial Tribunal-cum-Labour Court, Guwahati for adjudication of the question as specified in the schedule as to whether action of the Management in not regularizing the service of the petitioner in the post of Administrative Assistant on the plea that he was working as a manpower supplier contractor was just, proper and justified and if it was not, as to what relief the workman was entitled to. 6. Following notice by the Central Government Industrial Tribunal-cum-Labour Court, Guwahati (Labour Court), both the sides, i.e. workman and Management filed their respective written statements. In fact, petitioner filed an additional claim statement. The workman's side examined 2 witnesses, whereas the Management side examined 3. After examining the evidence on record and after hearing learned counsel for the parties, Labour Court passed the award dated 31.01.2018, holding that petitioner was not a casual employee, who was a supplier/contractor of manpower to NRL. Therefore, action of the Management in not regularizing his service was not unjustified. 7. Aggrieved, present writ petition has been filed. 8. This Court by order dated 07.09.2018, had admitted the writ petition for final hearing. 9. The Management side, i.e., respondent Nos. 1 and 2 have filed affidavit. Management has denied that petitioner was engaged as casual Office Assistant under NRL. It is stated that petitioner was an independent contractor supplying manpower to the office of NRL. Whatever jobs were performed by the petitioner that was out of his contractual obligation and nothing else. It is asserted that petitioner was never in the employment roll of NRL. It is further contended that petitioner is a registered manpower supply contractor and his registration certificate is available in the Government portal maintained by the Ministry of Finance; his registration certificate being numbered as - No. ADAPT9584FSD001. Petitioner did not write any letter to NRL for regularizing his service. 10. Mr. It is further contended that petitioner is a registered manpower supply contractor and his registration certificate is available in the Government portal maintained by the Ministry of Finance; his registration certificate being numbered as - No. ADAPT9584FSD001. Petitioner did not write any letter to NRL for regularizing his service. 10. Mr. Dasgupta, learned Senior Counsel for the petitioner strenuously has argued that projection of the Management that petitioner was a labour contractor and not a casual employee under the management is a sham. By clever paper-work the above fiction has been created. If the veil is lifted it would not be difficult for the Court to discern the actual relationship between petitioner and respondent Nos. 1 and 2, i.e., workman and management. Labour Court failed to appreciate this aspect of the matter and thereby arrived at an erroneous finding causing prejudice to the petitioner. In support of his submissions, Mr. Dasgupta, learned Senior Counsel for the petitioner has placed reliance on the following decisions of the Supreme Court:- (1) Hussainbhai, Calicut Vs. Alath Factory Thezhilali Union, Kozhikode, (1978) 4 SCC 257 , (2) Secretary, HSEB Vs. Suresh, (1999) 3 SCC 601 , (3) Steel Authority of India Ltd. Vs. National Union Waterfront Workers, (2001) 7 SCC 1 , and (4) General Manager, ONGC Vs. Contractual Workers Union, (2008) 12 SCC 275 . 11. On the other hand, Mr. Sahu, learned counsel for respondent Nos. 1 and 2 supports the finding of the Labour Court. His submission is that finding of the Labour Court is based on the evidence on record and on due consideration. Such a finding cannot be termed as a perverse finding. Interference by the writ Court in such a matter would not be justified. In support of his submission, Mr. Sahu has placed reliance on the following decisions of the Supreme Court:- (1) Secretary, State of Karnataka Vs. Umadevi, (2006) 4 SCC 1 . (2) Radheshyam Vs. Chabi Nath; Civil Appeal No. 2548 of 2009; decided on 26.02.2015. (3) Union of India Vs. Arul Mozhi Iniarasu; Civil Appeal Nos. 4990/4991 of 2011; decided on 06.07.2011. 12. Submissions made by learned counsel for the parties have been considered. 13. Also perused the materials on record. 14. Umadevi, (2006) 4 SCC 1 . (2) Radheshyam Vs. Chabi Nath; Civil Appeal No. 2548 of 2009; decided on 26.02.2015. (3) Union of India Vs. Arul Mozhi Iniarasu; Civil Appeal Nos. 4990/4991 of 2011; decided on 06.07.2011. 12. Submissions made by learned counsel for the parties have been considered. 13. Also perused the materials on record. 14. Question for consideration in this proceeding is legality and correctness of the finding of the Labour Court that petitioner was not a casual employee directly under NRL, but was rather a supplier/contractor of manpower and, thereafter whether upholding the decision of NRL in not regularizing the service of the petitioner is justified? 15. It may be mentioned that Government of India in the Ministry of Labour passed an order dated 04.07.2014, making a reference to the Labour Court. It was mentioned in the order that Central Government was of the opinion that an industrial dispute existed between the employer in relation to Management of NRL and the workman and, therefore, in exercise of the powers conferred by Clause-(d) of Sub-Section (1) and Sub-Section (2-A) of Section 10 of the Industrial Disputes Act, 1947, made the reference for adjudication of the issue raised in the schedule, which is as under:- "Whether the action of the management of M/s NRL in not regularizing the services of Sri Raja Nath Taye in the post of Admin Assistant although he fulfills all the criteria of qualification, experience and other conditions as in the Recruitment Rules and is discharging his functions effectively 1996 on the plea that he is working as manpower supplier contractor against his will is just, proper and justified. If not, what relief the workman Sri Raja Nath Taye is entitled for" 15.1 While examining the evidence of workman witness No. 1, i.e., the petitioner himself, Labour Court noted that as per his own version, suddenly from the month of September, 1999, he was projected as a labour contractor by the Management through some paper works against his will. However, he could not produce any document to show that he was asked to do contractual works by the Management. Relevant portion of his cross-examination is extracted hereunder:- "On being shown copy of a letter written by NRL to me on 27.08.1999 I admit that I received that letter from the NRL to perform the contractual job. However, he could not produce any document to show that he was asked to do contractual works by the Management. Relevant portion of his cross-examination is extracted hereunder:- "On being shown copy of a letter written by NRL to me on 27.08.1999 I admit that I received that letter from the NRL to perform the contractual job. On 08.10.2001 I executed another agreement with NRL to perform the contractual job on certain terms and conditions. I entered into another agreement on 31.08.2002 for a period of three months of extension basis for a contractual job of office maintenance in NRL office at Guwahati under certain terms and conditions. I entered into another agreement for three years with effect from 28.02.2005 upto 30.03.2008. I entered another agreement on 20.11.2008 for a period of 3 years. From time to time work orders were issued in my favour to perform my work as a contractual work. I exactly cannot remember but perhaps TDS was deducted from my remuneration from the year 2014. It is a fact that I am a registered service provider in the Government portal, Ministry of Finance, Government of India". 16. From his cross-examination it is seen that the workman had admitted that he was a registered service provider in the government portal of Ministry of Finance, Government of India. 17. Management witness No. 1, Sri Koustav Sarma deposed from the record stating that petitioner was a manpower supplier contractor of the management and that petitioner was a service provider having service tax registration bearing No. ADAPT9584FSD001. Registration certificate of the petitioner as service provider was exhibited as Exhibit-B and the contract entered into between the Management and the petitioner was exhibited as Exhibit-C. 18. This deposition of Management witness No. 1 was supported by Management witness No. 2, who also categorically stated that petitioner was not an employee under the Management and no appointment letter was issued to him by the Management. 19. Management witness No. 3 supported the stand taken by the Management witness Nos. 1 and 2. In his cross-examination, he stated as under:- "On 20.11.2008, an agreement was made between Sri R.N. Taye and the authorities of NRL. Exhibit-C (2) is the said agreement. 19. Management witness No. 3 supported the stand taken by the Management witness Nos. 1 and 2. In his cross-examination, he stated as under:- "On 20.11.2008, an agreement was made between Sri R.N. Taye and the authorities of NRL. Exhibit-C (2) is the said agreement. It is specifically and distinctly understood and agreed between the OWNER and the CONTRACTOR that the CONTRACTOR shall have no right, title or interest in the site made available by the OWNER for execution of the works or in the building, structures or works executed on the said site by the CONTRACTOR or in the goods, articles, materials etc. brought on the said site (unless the same specifically belongs to the CONTRACTOR and the CONTRACTOR shall not have or deemed to have any lien whatever charge for unpaid bills will not be entitled to assume or retain possession or control of the site or structures and the OWNER shall have an absolute and unfettered right to take full possession of site and to remove the CONTRACTOR, their servants, agents and materials belonging to the CONTRACTOR, their servants, agents and materials belonging to the CONTRACTOR, lying on the site. The CONTRACTOR shall be allowed to enter upon the site for execution of the works only as a licensee simpliciter and shall not have any claim, right, title or interest in the site or the structures erected thereon and the OWNER shall be entitled to terminate such licence at any time without assigning any reason." 20. In the backdrop of the above evidence on record, Labour Court vide the award dated 31.01.2018 held as follows:- "16. Admittedly, there was no notification by the Government under Section 10 (1) of CLAR Act in respect of NRL. Hence, the management was not restricted to avail the services of the contract labourers depending on necessity. However, even in the existence of a contract for hiring labour, if the contract itself is found to be a mere paper work, the labourers hired thereunder may be considered to be casual employees directly under the principal employer. This is the admitted position of law as enunciated by the Hon'ble Supreme Court in several cases as indicated in some earlier paragraphs of this "Award". This is the admitted position of law as enunciated by the Hon'ble Supreme Court in several cases as indicated in some earlier paragraphs of this "Award". Having considered the evidence on record, it appeared that the petitioner was not only a registered manpower supplier contractor, he even executed certain contract works having entered into agreements with the management. It has also been proved by the management that the petitioner was a registered manpower supply contractor under the relevant portal of Government of India. Another aspect which deserves consideration is the claim of the petitioner that from 1999 he was shown as a manpower supplier and a contract labour himself through some paper works against his wishes. This claim of the petitioner, on the face of it, did not appear to be believable because in such a situation the petitioner definitely would not have waited for about 14/15 years for raising an industrial dispute. That apart, there was no material on record to suggest that the contract was a mere paper arrangement. There was, admittedly, no appointment letter issued to the petitioner as a casual employee. He even registered himself as a manpower supplier contractor under the concerned portal of the Government of India. There was also no such document to show that having continued in NRL he approached the NRL in writing for "regularization" of his service. In view of the evidence in this matter, it was clear that the petitioner was/is not covered for "one time step for regularization" as directed by the Hon'ble Supreme Court in "Uma Devi" (supra). At the relevant time, he was not a casual employee directly under the NRL and furthermore he was a registered supplier/contractor of manpower to the NRL. 17. Another plea of the workman side was that the management from time to time entrusted him with official works and hence he is to be treated as a casual employee directly under the principal employer. But that plea cannot be held to sustain in view of the decision of the Hon'ble Supreme Court in "Steel Authority of India" (supra) wherein it was held that mere engagement of contract labour in connection work entrusted to workman by the principal employer does not culminate in emergence of master servant relationship between the principal employer and the contract labour." 18. In view of the above, it is held that Sri Raja Nath Taye was not a casual employee directly under the principal employer. He was a supplier/contractor of manpower to NRL. Accordingly, it is held that the action of the management of M/s NRL as mentioned in the Schedule of the present reference was not unjustified. Sri Raja Nath Taye, therefore, is not entitled to any relief. The reference is answered accordingly." 21. Labour Court found that there was no notification by the Central Government under Section 10 (1) of the Contract Labour (Regulation and Abolition) Act, 1972 in respect of NRL while acknowledging that even in the existence of a contract for hiring labour, if the Court finds the contract to be a mere paper work the labourers hired thereunder could still be considered as casual employees directly under the principal employer, but in the facts and circumstances of the case it was found that petitioner was not only a registered manpower supplier, but he had even executed certain contract works having entered into agreements with the Management. Besides, Management had proved that petitioner was a registered manpower supplier contractor under the Government of India. Conduct of the workman/petitioner was also taken note of. As per version of the petitioner himself though he was a casual employee under the Management, from 1999 he was shown as manpower supplier against his wishes. Labour Court rightly did not accept such plea of the petitioner by holding that it took the petitioner more than a decade (14/15 years to be precise) to raise an industrial dispute claiming himself to be a casual employee under the Management. On the facts and circumstances of the case, Labour Court was of the view that the contract entered into between the petitioner and the Management could not be considered or construed as a mere paper arrangement. Besides, no appointment letter appointing the petitioner as a casual employee by the Management could be exhibited. Such finding by the Labour Court is a finding of fact and viewed in the context of the evidence tendered, the same cannot be said to be a perverse finding. Scope of interference of the writ Court in an industrial award being very limited, Court is not inclined to interfere with the award passed by the Labour Court. 22. Consequently, writ petition fails and is accordingly dismissed. 23. Scope of interference of the writ Court in an industrial award being very limited, Court is not inclined to interfere with the award passed by the Labour Court. 22. Consequently, writ petition fails and is accordingly dismissed. 23. Registry to send down the record. 24. Parties to bear their own costs.