Employers in relation to the Management of Karo Special Project of M/s Central Coal v. Their Workmen NCOEA
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (L) No. 954 of 2013 Employers in relation to the Management of Karo Special Project of M/s Central Coal Fields Ltd., Dharbhanga House, Ranchi, P.O., Petitioner P.S. & District Ranchi … … Versus Their Workmen NCOEA (CITU), KSP-II, Jitni Devi wife of Jairam Mahato, resident of CCL, KSP-II, Colony, P.O. & P.S. … … Respondent Bokaro Thermal, District Bokaro --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the Respondent : Mr. Rajesh Lala, Advocate : Mr. Abhishek Kumar, Advocate --- 06/10.04.2023 1. 2. Heard the learned counsel for the parties. This writ petition has been filed challenging the award dated 29th June, 2012 passed by the learned Presiding Officer, Central Government Industrial Tribunal No. I, Dhanbad, whereby the learned Tribunal has passed the award for regularization of the workman as ‘Ayah’ and payment of wages to her according to the terms and conditions of Grade ‘H’, ‘G’ and ‘F’ as per the provision of NCWA- VI and VII. Arguments of the Petitioner 3. The learned counsel for the petitioner while challenging the award has submitted that the concerned workman was appointed under
Legal Reasoning
category-I and not as Ayah. The learned counsel has further submitted that he has brought on record the category scheme in this writ petition and according to the category scheme for para-medical staff, the qualification of Ayah should be literate having aptitude for job. The learned counsel has further submitted that the mode of appointment in the post of Technical and Supervisory Grade H -Category I Ayah, is only by promotion on sanctioned and vacant post through Departmental Promotion Committee. 4. The learned counsel has submitted that the specific case of the Management was that the workman concerned was appointed as a 2 trainee in Category-I and after completion of training, she was regularized as Category-I worker. 5. Further case of the Management was that the workman was initially posted at Bokaro Colliery Hospital and later on she was transferred to Karo Special Project-Konar A.A. Dispensary and joined there w.e.f. 04.01.1993. Thereafter, she was working at Karo Special Project Dispensary, which was functioning without any bed and there was no any requirement of Ayah and as such, the company had not approved any sanctioned post for Ayah at Karo Special Project Dispensary. The learned counsel has also submitted that the learned Tribunal has failed to consider that the bed which was available at dispensary was only for the examination of patient and it cannot be said to be a bed in terms of the bed which are available in the hospitals and therefore, the dispensary practically works without a bed and consequently, there was no sanctioned post for Ayah in the dispensary. 6. The learned counsel has also submitted that the learned Tribunal has travelled beyond the terms of reference while holding that the concerned workman would be entitled for ‘H’, ‘G’ and ‘F’ grade post as per the provision of N.C.W.A. VI and VII w.e.f. January, 1992 ,01.01.2000 and 01.07.2006 respectively, as the upgradation of the post was not within the terms of reference. 7. The learned counsel submits that aforesaid aspects of the matter have not been properly considered by the learned labour court and accordingly, the impugned order calls for interference. 8. The learned counsel has also submitted that as per the operative portion of the award, no specific date for regularization has been fixed by the learned Tribunal and accordingly, it cannot be said that the workman was directed to be regularized from a retrospective date. Arguments of the respondent 9. Learned counsel appearing on behalf of the respondent has opposed the prayer and has submitted that the workman was appointed vide appointment letter dated 18.03.1991/23.03.1991 as Ayah and her appointment was against permanent vacancy and against permanent 3 nature of job. She was for a probation period of six months and completed her period of probation upon completion of six months and therefore, she was entitled for regularization on the status of Ayah with corresponding pay-scale as per N.C.W.A. i.e., National Coal Wage Agreement. It is the further case of the respondent that the workman has been working as Ayah, but the Management was not paying the regular pay scale of Ayah to the concerned workman. 10. The learned counsel has also submitted that the evidences were led before the learned Tribunal. The Management had also produced oral witness and the management witness had supported the case of the workman. 11. The learned counsel has further submitted that so far as the grant of upgraded scale w.e.f. 01.01.2000 and 01.07.2006 as mentioned in the impugned award is concerned, the same are consequential to the regularization w.e.f. June, 1992. The learned counsel has further submitted that from perusal of the operative portion of the award, it is clear that the regularization was given effect to from June, 1992 itself and thereafter consequential relief of upgradation was also given w.e.f. 01.01.2000 and subsequently on 01.07.2006. 12. Learned counsel for the respondent has relied upon the judgment passed by the Hon’ble Surpeme Court reported in (2009) 13 SCC 374 (International Airport Authority of India vs. International Air Cargo Workers’ Unioon & Another) and has referred to paragraph Nos. 47 and 48 thereof, which are quoted as under: - “47. It is true that in exercising the writ jurisdiction, the High Court cannot sit in appeal over the findings and award of the Industrial Tribunal and therefore, cannot re-appreciate evidence. The findings of fact recorded by a fact finding authority should ordinarily be considered as final. The findings of the Tribunal should not be interfered in writ jurisdiction merely on the ground that the material on which the tribunal had acted was insufficient or not credible. 48. It is also true that as long as the findings of fact are based on some materials which are relevant, findings may not be interfered with merely because another view is also possible. But where the Tribunal records findings on no evidence or irrelevant evidence, it is certainly open to the High Court to interfere with the award of the Industrial Tribunal.” 4 13. At this, learned counsel for both the parties have submitted that in the award there is an error in mentioning the date of upgradation. The subsequent date of upgradation would be 01.01.2008 and not 01.07.2006. They jointly submit that the date 01.07.2006 be directed to be read as 01.01.2008. 14. The learned counsels for the parties have also referred to their respective written statement filed before the learned court below
Decision
which has been annexed along with the writ petition. Findings of this court. 15. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the specific case of the workman was that she was originally appointed vide appointment letter dated 08.03.1991/23.03.1991 as Ayah, but was not being regularized in spite of successful completion of the probation period and was not being paid the regular pay-scale of Ayah. On the other hand, the specific case of the petitioner before the learned Tribunal was that the workman was appointed under Category-I and was regularized under Category-I only. Further respective case of the parties has already been recorded in the aforementioned paragraphs of this order. 16. A reference was made before the learned Tribunal in terms of Section 10 of the Industrial Disputes Act for the following: - (i) Whether the action of the management of Karo Special Project of M/s C.C.Ltd. in denying regularization to Smt. Jitni Devi, Ayah (Trainee) as Ayah is justified and legal? (ii) To what relief is the concerned workman entitled and from what date. 17. From perusal of the impugned award, it appears that the case of the concerned workman has been recorded at paragraph 2 and the case of the Management has been recorded at paragraph 3. 18. In paragraph 2, it has been recorded that the workman had prayed for an award for directing the Management to regularize the concerned workman as Ayah and to pay regular pay scale of Grade-H 5 at least w.e.f. 24.09.1991 with all arrears of wages and consequential attendant benefits. Before the learned Tribunal, the Management had produced one witness. The workman had examined herself as witness and the workman had proved four documents as Exhibits W-1 to W-4. W-1 was the appointment letter dated 18.03.1991 of the concerned workman; W-2 was the pay slip for the month of December, 2008; W- 3 was the pay slip for the month of January, 2010 and W-4 was the pay slip for the month of December, 2009. 19. This Court finds that the learned Tribunal has taken into account the materials on record, including the statements made by the management witness. The management witness has stated that there is a bed in K.S.P. Phase-II to examine patient. He has also stated that as per N.C.W.A., there is a post of Ayah. He has also stated that he did not know as to what were the duties of Ayah and he did not know the reason for not giving the regularization to the workman. 20. The learned Tribunal recorded that it was the admitted position that the concerned workman has been working as Ayah from very beginning and there was no reason as to why she was not being regularized as Ayah and therefore, held that the action of the management in not regularizing the concerned workman as Ayah was unjustified and illegal. 21. From perusal of the impugned award, it appears that no documentary evidence was produced from the side of the Management. Consequently, the Management had not produced the cadre scheme which is sought to be relied upon by the petitioner by filing Annexure-4 to the writ petition and the same was admittedly not a part of document/evidence filed before the learned Tribunal. The learned Tribunal also recorded that the pay-slip also showed that the salary was being issued to designating her as Ayah. 22. This Court finds that the learned Tribunal has scrutinized the materials available and has recorded that the workman was entitled to be regularized as Ayah. Such finding is based on appreciation of materials on record and is neither perverse nor illegal calling for any interference by this court. 6 23. The operative portion of the award is as follows: - “In the result, I hold that the action of the management of Karo Special Project of M/s. CCL in denying regularization to Smt. Jitni Devi, Ayah (Trainee) as Ayah is not justified and legal. Hence, she is entitled for regularization as Ayah and payment of wages according to T & S Grad ‘H’, ‘G’ and ‘F’ as per provisions of NCWA-VI and from January, 1992, 01.01.2000 and NCWA-VII with effect 01.01.2008 respectively with difference of wages of the above grades. The management is directed to implement the award within two months from the date of publication of the award in the Gazette of India.” 24. From perusal of the operative portion of the award, this Court finds that the learned Tribunal has recorded that the workman was entitled to Grade ‘H’, ‘G’ and ‘F’ w.e.f. January, 1992, 01.01.2000 and 01.01.2008 (to be read as 01.01.2008 instead of 01.07.2006 as per the submissions of the parties recorded in para 13 above). The fact that the workman was regularized and found entitled for wages under Grade ‘H’ from January, 1992 itself indicates that the regularization was to be given effect from January, 1992. Accordingly, the argument of the learned counsel for the petitioner that no date has been fixed for regularization of the workman is not correct. The award clearly indicates that the concerned workman was found entitled for regularization and was entitled for Grade ‘H’ w.e.f. January, 1992. 25. The learned Tribunal further held that the workman was entitled for Grade ‘G’ and ‘F’ w.e.f. 01.01.2000 and 01.01.2008 respectively and was also entitled for difference of the wages to the aforesaid grades. 26. This Court is of the considered view that so far as the entitlement of Grade ‘G’ and ‘F’ w.e.f. 01.01.2000 and 01.01.2008 respectively are concerned, the same was beyond the terms of reference. Accordingly, the entitlement in Grade ‘G’ and ‘F’ could not have been directed by the impugned award. Rather, it ought to have been left to the Management for consideration as a consequence of regularization from January, 1992 and as per the applicable scheme/rules governing Ayah when the workman has been regularized as ayah with effect from January 1992. 7 27. In view of the aforesaid circumstances, the direction made by the impugned award to give Grade ‘G’ and ‘F’ w.e.f. 01.01.2000 and 01.01.2008 respectively is set-aside being beyond the terms of reference. However, the entitlement of the workman for Grade ‘G’ and ‘F’ is left to be considered by the Management under the relevant scheme/rule governing Ayah working as ayah with effect from January 1992. Liberty is reserved with the workman to make her claim in accordance with law. Since much time has elapsed, it is observed that if such a claim is made, the same be expeditiously considered by the appropriate authority of the petitioner/management as per applicable rules/regulations etc. 28. This writ petition is accordingly disposed of. 29. 30. Interim order, if any, stands vacated. Pending interlocutory application, if any, is closed. Mukul (Anubha Rawat Choudhary, J.)