Naba Kishore Pradhan & Ors. ….. The Presiding Officer, C.G.I.T.- cum-Labour Court, Bhubaneswar & v. …
Case Details
1 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 9882 of 2018 Naba Kishore Pradhan & Ors. ….. The Presiding Officer, C.G.I.T.- cum-Labour Court, Bhubaneswar & Anr. Vs. ….. Petitioner s Mr. S. Mohanty, Advocate Opposite parties Mr. B. Maharana, CGC (O.P.1) Mr. S.B. Jena, Advocate (O.P.2) CORAM: DR. JUSTICE B.R. SARANGI MR. JUSTICE M.S. SAHOO ORDER 23.02.2024 W.P.(C) Nos.9882 of 2018, 18697 of 2018, 18942 of 2018, 18948 of 2018, 18951 of 2018, 18952 of 2018, 18956 of 2018, 18958 of 2018, 18960 of 2018 & 18961 of 2018 Order No. 27 This matter is taken up through hybrid mode. 2. Heard Mr. S. Mohanty, learned counsel appearing for the petitioners-workmen and Mr. S.B. Jena, learned counsel appearing for opposite party-Management. 3. The workmen have filed W.P.(C) No.9882 of 2018 and the opposite party-Management has filed other above noted writ petitions. Both the workmen and the opposite party-Management have filed these writ petitions challenging the common award dated 30.11.2017 passed in I.D. Case Nos.341 of 2001, 342 of 2001, 343 of 2001, 344 of 2001, 346 of 2001, 347 of 2001, 348 of 2001, 349 of 2001 and 350 of 2001, by which the learned Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, Bhubaneswar, while disposing of the said I.D. 2 Cases, has observed that since 15 (fifteen) workmen have completed 240 days work in a year, they are entitled to be paid Rs.1,25,000/- as compensation in lieu of reinstatement and Rs.25,000/- as litigation expenses in raising the dispute and in respect of rest 30 (thirty) workmen since they have not completed 240 days work in a year, their grievance shall not be accepted.
Legal Reasoning
4. Mr. S. Mohanty, learned counsel appearing for the petitioners-workmen contended that at the outset pointed out that 45 workmen were rending services under the opposite party- Management and out of them, those who faced retrenchment, raised Industrial Disputes before the learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar. It is stated that pursuant to award passed by the learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar, since 15 workmen out of 45 workmen have completed 240 days work in a year, they have been awarded compensation of Rs.1,25,000/- as compensation in lieu of reinstatement and Rs.25,000/- as litigation expenses in raising the dispute and the grievance of the rest 30 workmen have been dismissed, as they have not completed 240 days work in a year. It is contended that 15 workmen out of 45 are interested to get the award and out of those 15, four workmen, namely, Harihar Kalia, Sukadev Samal, Saraswati Dei and Muralidhar Jena have died during pendency of this writ petition. Therefore, the legal heirs of the deceased workmen may be disbursed the awarded amount. 5. Mr. S.B. Jena, learned counsel appearing for opposite party- Management vehemently contended that none of the workmen have completed 240 days work in a year. Therefore, the award 3 dated 30.11.2027 passed by the learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar in respect of 15 workmen cannot be sustained in the eye of law. 6. Considering the contentions raised by learned counsel for the parties and after going through the records, this Court finds that there is no dispute that 45 workmen were engaged by the opposite party-Management, the Director, Water Technology Centre for Eastern Region, (ICAR), Bhubaneswar for rendering the seasonal work. But, their services were terminated without following due procedure as envisaged by the Industrial Disputes Act, 1947. Challenging the order of retrenchment, those 45 employees raised Industrial Disputes. The Government of India in the Ministry of Labour in exercising its awuthority conferred by clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of the Industrial Disputes Act, referred the disputes for adjudication, vide letter dated 02.03.2000 and the schedule of references in the common terms are given below: the action of the Management of WTCER, “Whether Bhubaneswar by changing the employment of the disputants as so-called contract labourers and afterwards terminating their services is justified? Whether the action of the Management of WTCER by not reinstating or by not giving temporary status to the disputants is legal and justified? If not to what relief the disputants are entitled to? 7. Pursuant to such reference, the workmen filed their claim statements stating, inter alia, that they were employed/engaged by the opposite party-Management in between the year 1989 to 1990 to do field work in Deras firm of Mendhasala managed by the opposite party-Management. Initially their services were directly under the control and supervision of the Management and they 4 were also receiving their wages directly from the opposite party- Management. The opposite party-Management did not provide them any appointment letters and wage slips and their employment was on oral and verbal basis. According to them they worked for more than 240 days continuously and uninterruptedly as casual labourers directly under the opposite party-Management till a dubious method was adopted by the Management by changing their engagement/employment through the contractors with effect from 16.12.1990. It is the claim of the disputant workmen that such change in their service condition was made without any prior notice to them and in violation of the provisions of Section 9-A of the Industrial Disputes Act. Such change of method of their engagement was only in paper transactions and it was sham and camouflage to avoid the liabilities of extending temporary status to them. Their employment and payment of wages are reflected in the muster rolls maintained by the Management. In spite of such change in the method of their engagement, they continued to work directly under the control and supervision of the officers of the opposite party-Management. They were paid wages in the same rate in which they were paid previously by the Management. They were shown to have received wages from the contractors only in paper transaction though payment was made to them directly by the officers of the Management. When they raised objection to such change of their service condition, they were refused engagement with effect from 24.12.1994. Hence, they and some others approached the Central Administrative Tribunal by filing O.A. No. 51/1995 challenging the above whimsical action of the Management and prayed for regularization of their services for conferment of temporary status, 5 as per the Scheme notified by the Central Government as well as for regularization of their services. It has been further asserted by the disputants that in the said case, they took a stand that their engagement as contract labour was sham land camouflage in violation of Contract Labour Act and provisions of the I.D. Act for which the Central Administrative Tribunal, while dismissing their application, directed them to raise an industrial dispute under the provisions of the 1.D. Act. Accordingly, they raised the disputes. 8. On the basis of such claim made by the workmen, the opposite party-Management filed written statements stating therein that the opposite party-Management, being a research oriented institution, is not an "Industry" as defined under the I.D. Act and, as such, the provisions of the I.D. Act are not applicable to it. The disputants were never engaged or employed by it directly, in view of circulars of the Central Government issued from time to time, more particularly after 16.12.1990. The institution, being a research oriented centre in the field of agriculture, needs to do some seasonal works in its firm and, as such, contractors are entrusted on different occasions to provide labourers intermittently to perform the seasonal nature of work in the field. The disputants might have been engaged intermittently through the contractors as and when required. Hence, question does not arise on the part of the Management to employ or engage them directly on daily rated/temporary casual labourer basis and there was no scope for the Management to take continuous and uninterrupted service of the disputants and to take their attendance by taking their signatures in any muster rolls or registers. When there was no appointment of the disputant workmen by the Management, there was also no occasion on its part to 6 terminate/retrench/disengage them. The scheme of 1/30th pay implemented by the Central Government is not applicable to them. The seasonal work for which labourers are being engaged through contractors is not also a permanent and perennial in nature job. As there was no 'employer and employee" relationship between it and the contract workers, the disputants are not entitled to any reliefs to which they are claiming. 8. On the basis of the pleadings of the parties, the learned Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, Bhubaneswar framed following issues: “1. Whether the Management is an Industry as defined under section 2) of the L.D. Act? 2. Whether the claimant is a workman? 3, Whether the action of the Management of WTCER by changing the employment of the disputants as so called contract labour is justified? 4. Whether the termination of service of the disputants is legal and justified? 5. Whether the action of the Management by not resisting or by not giving temporary status to the disputant is legal and justified? 6. To what relief the disputants are entitled? 9. Taking into consideration the evidence of the Management witness, who is a Senior Scientist & Head of Office, the learned Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, Bhubaneswar, vide award dated 30.11.2017, came to a finding in paragraph-9, which reads as follows: “9. On the other hand, it is emerging from the evidence of the Management witness, who is a Senior Scientist & Head Of Office and the photo copies of attendance registers and muster rolls maintained during the period 1989-90, which are pressed into evidence by the Management that there is no serious dispute that prior to 21.4.1990 assistance of dailv/casual labourers were taken by the Management for doing seasonal 7 works in the firm of the Management and those labourers were receiving wages directly from the Management. Further, on a close examination of the sworn affidavits of the Management witness filed in the different reference cases, it is found that the disputants were engaged as labourers on daily wage basis. The statistics given in tabular form in those sworn affidavits further reveal that there are two categories of casual labourers. Some of them are stated to have worked for more than 240 days in a year preceding to adoption of contract labour system whereas others are found to have worked for a small period or much less than 240 days in a year. The disputants namely Gangadhar Panda, Harihar Kalia, Narayan Behera, Kusa Sethi, Pramod Kumar Behera, Sarathi Paikarai, Prafulla Kumar Mishra, Kedar Behera, Arat Singh, Sukadev Samal, Satya Sundar Samant, Saraswati Dei, Ajay Kumar Behera, Ashok Kumar Rout and Salila Kumar Behera worked for a period of 329, 323, 479, 423, 291, 262, 332, 430, 380, 407, 299, 348, 488, 393 and 267 days respectively in between the date of their initial engagement in the year 1988-89 and the date on which contract labour system is allegedly adopted i.e. 21.04.1990. If their such period of employments are taken into consideration vis-a-vis the initial dates on which they were engaged as daily casual labourers, it is emerging that they had worked for a period of more than 240 days in a year prior to 21.4.1990. Other disputants are found to have been engaged for a small period which is much less than 240 days in a year.” 10. Basing upon the evidence adduced by the Management witness, who is none other than the Senior Scientist and Head of Office and referring to attendance registers and muster rolls maintained during the period 1989-90, the learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar came to a definite finding that since 15 workmen, out of 45, have worked more than 140 days in a year, they are entitled to get compensation of Rs.1,25,000/- in lieu of reinstatement and Rs.25,000/- towards litigation expenses in raising the dispute. 11. Thereby, this Court does not find any illegality or irregularity in the award dated 30.11.2017 passed by the learned Presiding Officer, Central Government Industrial Tribunal-cum- Labour Court, Bhubaneswar so as to interference of this Court at 8 this stage. 12. Accordingly, W.P.(C) No.9882 of 2018 filed by the workmen is allowed and W.P.(C) Nos. 18697 of 2018, 18942 of 2018, 18948 of 2018, 18951 of 2018, 18952 of 2018, 18956 of 2018, 18958 of 2018, 18960 of 2018 & 18961 of 2018 filed by the opposite party-Management are dismissed. Thus, this Court directs the opposite party-Management to pay compensation of Rs.1,25,000/- as compensation in lieu of reinstatement and Rs.25,000/- as litigation expenses in raising the dispute within a period of two months from today. Needless to say, during pendency of this writ petition, four workmen, namely, Harihar Kalia, Sukadev Samal, Saraswati Dei and Muralidhar Jena have died and therefore, the legal heirs of the deceased workmen are entitled to get the compensation amount, which shall be disbursed in their favour within the time stipulated. Alok (DR. B.R. SARANGI) JUDGE (M.S. SAHOO) JUDGE Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 23-Feb-2024 17:39:40