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2023 DIGILAW 1346 (JHR)

Janta Mazdoor Sangh v. Union of India

2023-11-10

S.N.PATHAK

body2023
JUDGMENT : Petitioners represented by trade Union have approached this Court for regularization/absorption from 01.10.1991, i.e. from the date other contract labourer have been departmentalized on the same condition. Further prayer has been made for granting the benefits which others have been granted. 2. At the very outset, learned counsel appearing on behalf of the respondent-BCCL raises the issue of maintainability and submits that this writ petition itself is not maintainable and as such, before delving into the merits of the case, it would be proper to decide the issue of maintainability. 3. Learned counsel for the petitioners argues that this writ petition is fully maintainable as the same has been admitted for hearing at this stage. The issue of maintainability cannot be raised at such point of time. Learned counsel further argues that it is a case of total discrimination and violation of Article 140 of Constitution of India where thousand persons have already been regularized and departmentalization of only the present petitioners who are 194 in number have been turned down. It has further been argued that role of adjudicator does not apply in this case and it is the notification which matter. Thousands of persons on the same terms and conditions have been regularized and as such the cases of present petitioners who are 194 in number cannot be washed away. Petitioners were admittedly working from 01.01.1988 till 30.09.1991 and as such they are entitled for regularization. 4. Learned counsel for the respondent-BCCL opposing the contention of learned counsel for the petitioners submits that the case of the petitioners are based on several disputed facts which cannot be decided under Article 226 Constitution of India. The same needs to be proved by exhibiting the documents by way of evidence. Learned counsel further submits that all the documents brought on record by the petitioners are disbelieved and the genuineness of the same are disputed and thus, it requires production of documentary evidence which has to be proved, which cannot be done here. Learned counsel placed heavy reliance in the case of Jai Singh Vs. Union of India & Ors. reported in (1997) 1 SCC 1 , wherein the Hon’ble Apex Court has held as under: “In a petition involving disputed question of fact, High Court should not grant relief when an alternative remedy by suit exists.” 5. Learned counsel placed heavy reliance in the case of Jai Singh Vs. Union of India & Ors. reported in (1997) 1 SCC 1 , wherein the Hon’ble Apex Court has held as under: “In a petition involving disputed question of fact, High Court should not grant relief when an alternative remedy by suit exists.” 5. Learned counsel further submits that right from the inception, the respondents are raising the issue of maintainability and has thus on that ground itself this writ petition is not maintainable. Petitioners have remedy before the Industrial Tribunal and as such they can avail the same but they have rushed to a wrong forum, as such, this writ petition should be dismissed on this count itself by asking them to approach the tribunal for adjudication of their grievances. 6. From the rival submissions of the parties and documents brought on record, this Court is of the view that under Article 226 of the Constitution of India, this Court should not enter into the merits of case before deciding the issue of maintainability, the documents brought on record needs to be examined which cannot be done here. The very pertinent question to be decided is as to whether after dismissal, petitioners can approach before this Court for regularization. The law is very well settled that there cannot be regularization of a person who is not on the roll either of the contractor or of the Principal Employer on the date of reference made by the Central Government for their regularization. In the instant case the petitioners-Union admits that these 194 persons have been terminated with effect from 01.10.1991. Therefore, they cannot claim regularization since they were not in service/roll. The writ petition is fit to be dismissed. 7. Similar issue has been decided by the Hon’ble Apex Court in case of SAIL Vs. National Union Waterfront Workers & Ors. reported in (2001) 7 SCC 1 . Further Hon’ble Apex Court in the case of A. P. STRTC & Ors. Vs. G. Srinivas Reddy & Ors., reported in (2006) 3 SCC 674 , at paras 11 and 12 has held that:- “11…. In this case, there was no notification under Section 10(1) of the CLRA Act, prohibiting contract labour. reported in (2001) 7 SCC 1 . Further Hon’ble Apex Court in the case of A. P. STRTC & Ors. Vs. G. Srinivas Reddy & Ors., reported in (2006) 3 SCC 674 , at paras 11 and 12 has held that:- “11…. In this case, there was no notification under Section 10(1) of the CLRA Act, prohibiting contract labour. There was also neither a contention nor a finding that the contract with the contractor was sham and nominal and the contract labour working in the establishment were, in fact, employees of the principal employer himself. In view of the principles laid down in Steel Authority the High Court could not have directed absorption of the respondents who were held to be contract labour, by assuming that the contract-labour system was only a camouflage and that there was a direct relationship of employer and employee between the Corporation and the respondents. If the respondents want the relief of absorption, they will have to approach the Industrial Tribunal/Court and establish that the contract-labour system was only a ruse/camouflage to avoid labour law benefits to them. The High Court could not, in exercise of its jurisdiction under Article 226, direct absorption of the respondents, on the ground that work for which the respondents were engaged as contract labour, was perennial in nature.” “12… The respondents were also not entitled to the relief of absorption/regularization on the basis of the circular dated 1-9-1988, as it specifically excluded contract labour. The order dated 5-11-1991 in the first round (WPNo.14353 of 1991) and the order dated 17-03-1998 in the second round (WP No.30220 of 1997) did not examine the status of the respondents, nor recorded a finding that they were entitled to absorption. They merely disposed of the writ petitions with a direction to consider the representation/claim of the respondents for absorption. Therefore, if the Corporation on consideration the claims of the respondents found that they were not employed by the Corporation, but were contract labour, who were not entitled to seek absorption under the circular dated 1-9-1988, the Corporation was justified in rejecting their claim for absorption. The only remedy of the respondents, as noticed above, is to approach the Industrial Tribunal for declaring that the contract-labour system under which they were employed was a camouflage and therefore, they were, in fact, direct employees of the Corporation and for consequential relief. The only remedy of the respondents, as noticed above, is to approach the Industrial Tribunal for declaring that the contract-labour system under which they were employed was a camouflage and therefore, they were, in fact, direct employees of the Corporation and for consequential relief. The Corporation has stated in the special leave petition that such a question was already raised by the trade unions and was pending in ID No.1 of 1996 on the file of the Industrial Tribunal, Hyderabad.” 8. Further Hon’ble Apex Court in the case of Oshiar Prasad and Ors. Vs. Employers in relation to Management of Sudamdih Coal Washery of M/s BCCL reported in (2015) 4 SCC 71 , has held that “22. It is thus clear that the appropriate Government is empowered to make a reference under Section 10 of the Act only when “industrial dispute exists” or “is apprehended between the parties”. Similarly, it is also clear that the Tribunal while answering the reference has to confine its inquiry to the question(s) referred and has no jurisdiction to travel beyond the question(s) or/and the terms of the reference while answering the reference. A fortiori, no inquiry can be made on those questions, which are not specifically referred to the Tribunal while answering the reference.” “27. In our considered opinion, therefore, the reference, even if made to examine the issue of absorption of the appellants in the services of BCCL, the same was misconceived.” 9. Further, Hon’ble Supreme Court in the case of Kirloskar Brothers Limited Vs. Ramcharan & Ors. reported in (2023) 1 SCC 463 has held as under: “Merely because salary and/or PF contribution was paid by appellant, which was due to non-payment of same by contractor, contesting respondents cannot automatically become employees of appellant. 10. Further Hon’ble Supreme Court in the case of Punjab National Bank & Ors. Vs. Atmanand Singh & Ors. reported in (2020) 6 SCC 256 Court has held as under: “Disputed questions of fact of complex nature requiring production of documentary evidence-Proper forum for adjudication of, held, is not writ court.” 11. 10. Further Hon’ble Supreme Court in the case of Punjab National Bank & Ors. Vs. Atmanand Singh & Ors. reported in (2020) 6 SCC 256 Court has held as under: “Disputed questions of fact of complex nature requiring production of documentary evidence-Proper forum for adjudication of, held, is not writ court.” 11. From the aforesaid facts and circumstances mentioned above and in view of the admitted fact that petitioners who were not on the roll have prayed for regularization which at this juncture, cannot be accepted and also in view of the fact that in the present writ petition disputed question of fact has been relied upon requires production of documentary evidence which cannot be considered by this Court sitting under Article 226 of the Constitution of India. 12. This Court is of the view that, at this stage, this writ petition is not maintainable and is fit to be dismissed on the ground of maintainability itself. 13. Petitioners may approach appropriate forum or a tribunal for the alternative remedy. Accordingly the writ petition stands dismissed as not maintainable.