Arijit Pasayat, J. - (1.) APPELLANT calls in question the legality of the judgment rendered by a Division Bench of the Patna High Court upholding the judgment of the learned Single Judge. By the said judgments certain persons were held to be workmen of the appellant.
(2.) FACTUAL background in a nutshell is as follows : The Central Government in exercise of power under Section 10 of the Industrial Disputes Act, 1947 (in short the 'Act') referred the following two disputes for adjudication to the Central Government Industrial Tribunal No. 1 Dhanbad (hereinafter referred to as the 'Tribunal') ; Reference No. 32 of 1989 dated 16th March, 1989 1]. "Whether the action of the management of Sudamdih Colliery of M/s. BCCL in denying employer to Shri Karma Rout and 21 others with effect from 9.7.1977 is justified ? If not, to what relief the concerned workmen are entitled" and Reference No. 35 of 1989 dated 20th March, 1989 2]. "Whether the action of the management of Sudamdih Area of M/s. BCCL in denying employment to Shri Bhagwat Singh and 3 Others, viz. Shri Sapan, Karan Sahi and Shanti Thakur, who were engaged as sump cleaning mazdoors is justified ? If not, to what relief are the workmen entitled" ? As the controversy involved in both the cases was the same, the Tribunal heard them analogously and answered the references in favour of the workmen declaring them to be workmen of the principal employer, namely, the Management of M/s. Bharat Coking Coal Ltd. (hereinafter referred to as the 'management') and directing for their reinstatement in service with effect from the dates of references with 75% back wages. Being aggrieved by the said combined award, the management filed two writ petitions before the Patna High Court., being CWJC No. 859/1993 (R) and CWJC No. 856/1993 (R), which were dismissed by the learned Single Judge on 10th August, 1998. Not being satisfied with the judgment of the learned Single Judge, the management has filed two appeals under Clause 10 of the Letters Patent. Relying on a decision of this Court in Air India Statutory Corporation etc. v. United Labour Union and Others, AIR 1997 SC 645=1997(3) SLJ 81 (SC), the Division Bench held that the decision of the learned Single Judge was unexceptionable. Reference was made to a decision of this Court in Secretary, Haryana State Electricity Board v. Suresh and Others etc., JT 1999(2) SC 435, to hold that where the engagement of workmen by a contractor is a camouflage to conceal the real relationship between principal employer and the workmen, then also the workmen employed through unlicensed contractor are liable to be treated as workmen of the principal employer. Mr. Ajit Kumar Sinha, learned Counsel for the appellant submitted that the view expressed by the learned Single Judge and the Division Bench cannot be sustained in view of the Constitution Bench judgment of this Court in Steel Authority of India Ltd. and Others v. National Union Waterfront Workers and Others, 2001(7) SCC 1. It was pointed out that though dispute purportedly relating to the period 1976-77 was raised long after i.e., about a decade and on that score alone the claimants were not entitled to any relief. There was a settlement arrived at which was binding. But the Tribunal and the High Court did not take note of the same. Additionally, in the reference names of the workmen were not given and it was not clear as to whose cause was being espoused by the union. For the first time in the statement filed before the Tribunal by the Union, the names were indicated. The reference was, therefore, incompetent, but the Tribunal had lightly brushed it aside.
(3.) MR. S.B. Upadhyay, learned Counsel for the respondent on the other hand submitted that the decision in Steel Authority 's case (supra) applies to the present case as the so-called contractor was introduced as a camouflage. This aspect has been noticed by the Tribunal. Additionally, the respondents were not inactive and they were making all the efforts to get the matter settled. Merely because the names were not given, that did not render the reference incompetent. Further, the settlement referred to had no legal sanction. In order to appreciate the rival submissions observations of this Court in various cases need to be noted.;