Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 1073 (JHR)

Gautam Kumar, S/o late Kamal Thakur v. D. E. E. , Electric Loco Shed

2020-11-11

S.N.PATHAK

body2020
JUDGMENT : S.N. Pathak, J. The petitioners have approached this Court for a direction upon the respondent to regularize the services of the petitioner or to confer temporary status on the petitioner, who have already rendered their services under the respondent- E.C. Railway in different specialized Trades without any break in service for a period of more than 240 days. Further, prayer has been made for quashing of the Award dated 11.07.2014 passed by the learned Presiding Officer, Central Govt., Industrial Tribunal No. 2, Dhanbad. 2. The case of the petitioner lies in a narrow compass. The petitioners had been continuously performing the work of repair and maintenance of 22 numbers of Locos imported from Switzerland, under the respondent, within the premises of E.C. Railway/Electric Loco Shed Gomoh and the said job was permanent in nature from 1996 to October/December, 2002. The petitioners had appeared before then the Sr. Divisional Electrical Engineer for interview and at that time, submitted their Trade Certificates and as per their specialization the respondent found that the petitioners are competent to discharge duties in A.B. B. Loco Repairing and Maintenance Work and as such, they were appointed on casual basis in pursuance of the orders of Divisional Electrical Engineer under the Contract Labour (Regulation and Abolition ) Act and the Sr. Section Engineer, Electric Loco Shed, Gomoh had also issued identity cards in the names of the petitioners, containing their education qualifications and nature of work being taken from them. Thereafter, the petitioner regularly discharged their duties to the full satisfaction of their Superiors and never any compliant was made against the petitioners. As the repairing and Maintenance work in Loco Shed, E.C. Railway, Gomoh is of permanent nature and the petitioners were continuously working, requested for regularization of their services or even to confer temporary status to them, but the respondent authorities instead of regularizing the petitioners in services, stopped taking work from them without any rhyme and reason and without providing any opportunity to show cause and without considering the fact that maintenance and repair of the 22 Electric Locos imported from Switzerland Loco Shed, Gomoh under E.C Railway is of permanent and continuous nature for which the services of the workmen are inevitably required. Aggrieved by the same, the petitioners raised an industrial dispute. Thereafter, the Govt. Aggrieved by the same, the petitioners raised an industrial dispute. Thereafter, the Govt. of India, Ministry of Labour, in exercise of the powers conferred on them under Section 10 (1) (d) of the I.D. Act, 1947, has referred the industrial dispute for adjudication before the learned Central Govt. Industrial Tribunal No.2, Dhanbad with the following schedule: “Whether the engagement of the 24 workers by the Management for maintenance of Locos in, Electric Loco Shed Gomoh, Eastern Central Railway, through contractor for 5 years, which is permanent nature job, their termination, and not providing employment is justified and fair? If not, so what relief Management can provide to them ?” 3. Upon the receipt of the same, the learned Tribunal registered the same as Ref. No. 72 of 2007 and issued notices upon the respective parties to submit their written statement, rejoinder, etc. Upon receipt of the notice and written statement of the petitioners-workmen, the respondent appeared before the learned Tribunal and filed rejoinder. 4. The learned Tribunal, after hearing the parties at length and after perusing the documents and evidences brought on record, came to the conclusion vide Award dated 11.07.2014 that there was neither engagement of the 24 workers by the Management for maintenance of Locos in Electric Loco Shed, Gomoh, Eastern Central Railway, through any contractor for five years nor their any termination nor there was any occasion for the management to deny their employment, because the tricky schedule to the reference itself is quite illegal and unjustified. Therefore, no management can provide any relief to them, as their allegations to that effect are totally misconceived and baseless. Aggrieved by the same, the petitioners have been constrained to knock the door of this Court, challenging the Award dated, 11.07.2014. 5. Mr. Shekhar Prasad Sinha, learned Counsel for the petitioner submits that respondent-Management, without issuance of any notice or any opportunity of hearing, stopped taking work from the petitioners for repairing and maintenance of 22 Electric Locos imported from Switzerland in Loco Shed, Gomoh under the E.C, Railway and also the supervision of the Railway Authorities from 1996 to October/December, 2002, which is complete violation of principles of natural justice. He further submits that learned Tribunal has also failed to consider the fact that even if the petitioners were employees of Contractors but worked for the Railway-Management for more than 240 days and as such they are entitled for regularization of their services by the Railway-Management. Since 22 Electric Locos were the properties of the Indian Railway and the petitioners rendered their services in their specialized Trades under the Railway-Management, for a period of about six years regularly without any break in service and their relationship was with employer Eastern Railway and not the Contractors and as such, they ought to have been regularized or atleast confer temporary status. 6. Per contra counter-affidavit has been filed. 7. Mr. Vijay Kumar Sinha, learned counsel representing the respondent-Management vehemently opposes the contention of the learned counsel for the petitioners and justifies the impugned Award passed by the learned Tribunal. He further submits that the petitioners has not rendered any services for the Railways and as such, there is no question for regularization of their services. The petitioners were selected through Agency M/s Prakash Contractors Pvt. Ltd., were engaged to work in the Electric Loco Shed under the Eastern Railway, Gomoh and also under a Project of the Indian Railway named ‘TR GP-140 Locomotive Project. All the workers-petitioners performed their duties under the guidance of their Contractors/Company and as such, the principal employer of the petitioners was their Company not the Indian Railway. The training of the petitioners under the ABB Company was neither scheduled nor approved by the Railway. He further submits that 24 ABB Locomotives were imported by the Railway from Switzerland under a warranty period of five years and during this warranty period, ABB Personnel were looking after the imported Locomotives. The said ABB Company in order to provide service as per terms and conditions of warranty, hired the petitioners and other laborers through an Agent M/s Prakash Contractors and as such, Indian Railway have nothing to do with regard to their appointment nor was paying salary to them. 8. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that learned Tribunal has minutely examined all the evidences and has given cogent reasons before passing of the impugned Award. 8. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that learned Tribunal has minutely examined all the evidences and has given cogent reasons before passing of the impugned Award. It is settled principle of law that this Court sitting under Article 227 of the Constitution of India cannot reappraise evidence and come to a different conclusion. On the contrary, the findings of the learned Tribunal can only be interfered with, if there appears to be apparent illegality or perversity in the Award. The issue fell for consideration before the Hon’ble Apex Court in case of ONGC v. ONGC Contractual Workers Union, reported in (2008)12 SCC 275 , wherein at page 285, it has been held that: 21. In the instant case, on a consideration of material produced before it, the Tribunal came to the following conclusions: “(1) That there existed a relationship of master and servant. (2) That there was no contractor appointed by ONGC. (3) That ONGC used to supervise and allot works to individual workers. (4) That ONGC took disciplinary action and called for explanations from the workers. (5) The workers were paid wages though they did not attend their duties due to Cachar Bandh and due to flood. (6) The wages were paid directly to the workers by ONGC and the acquaintance roll was prepared by the management to make payment to the workmen.” It has also been observed that even ONGC had admitted that since 1988, there was no licensed contractor and that the wages were being paid through one of the leaders of the Union and one such contractor, Manik has been named. The Tribunal then opined that it appeared from the record that Manik himself was a workman and not a contractor as he too was shown in the acquaintance roll to have received wages. We find that the real issue was as to the status of the workmen as employees of ONGC or of the contractor, and it having been found that the workmen were the employees of ONGC they would ipso facto be entitled to all benefits available in that capacity, and the issue of regularisation would, therefore, pale into insignificance. We find that the real issue was as to the status of the workmen as employees of ONGC or of the contractor, and it having been found that the workmen were the employees of ONGC they would ipso facto be entitled to all benefits available in that capacity, and the issue of regularisation would, therefore, pale into insignificance. We find that in this situation, the Industrial Tribunal and the Division Bench of the High Court were justified in lifting the veil in order to determine as to the nature of employment in the light of the judgments quoted above. We, therefore, find that the ratio of the judgment in Umadevi case 10 would not be applicable and that the facts of Pandey case are on the contrary more akin to the facts of the present one. 9. Further, the Hon’ble Apex Court in case of Krushna Narayan Wanjari Vs. Jai Bharti Shikshan Sanstha, reported in (2018) 12 SCC 620 , it has been held thus: 3. Having regard to the fact that the documents were produced before the High Court, we are of the view that the High Court was not justified in refusing to look into the same. After all, the Industrial Court had looked into the entire materials and had awarded the salary for the disputed period. Unless the approach is wholly perverse in the sense that the Tribunal acted on no evidence, the High Court under Articles 226/227 is not justified in interfering with the award. It is not a court of first appeal to reappreciate the evidence. Therefore, the appeal is allowed and the impugned orders are set aside and the order dated 14-3-2012 passed by the Industrial Court, Nagpur Bench, Maharashtra is restored. 10. Nowhere, it has been proved that the workers were the employees of the Railway and there was no licensed contractor. Admittedly, the petitioners were employed by the outsourcing Agency/Contractors and as such, their principal employer was their contractors/outsourcing Agents and not the respondent- Indian Railway. The petitioners were not recruited by Railway. The learned Tribunal has rightly held that all the aforesaid documents of the workmen in controversially set up that they were outsider workers recruited by their contractors namely, M/s Bombardier or M/s Prakash Contractors. The petitioners were not recruited by Railway. The learned Tribunal has rightly held that all the aforesaid documents of the workmen in controversially set up that they were outsider workers recruited by their contractors namely, M/s Bombardier or M/s Prakash Contractors. The argument advanced by the learned counsel for the petitioners-workmen that even if the workmen are not the employees of the Railway and are employees of the Contractors working for the Railway, are entitled for regularization, is not acceptable to this Court rather the same is based on false reasoning. Nowhere, it has been proved that workmen were the employees of the Railway and only if it is proved, a finding to that effect on the basis of leading evidences would have been arrived at by the learned Tribunal in its Award that they were the employees of the Railway and they would have ipso facto entitled for all benefits available in that capacity. 11. The case of the respondent-Railway is also fully covered by the ratio laid down in case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., reported in (2006) 4 SCC 1 [: 2006(2) JLJR (SC) 282]. 12. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, this Court is in full agreement with the findings recorded by the learned Tribunal and as such, no case is made out for interference. Accordingly, writ petition stands dismissed. 13. Let the LCR be transmitted back to concerned court below/Tribunal.