ASHIS KUMAR CHAKRABORTY, J. - (1.) This mandamus appeal is directed against the order dated March 02, 2017 passed by a learned Single Judge of this Court in W.P. No. 255 of 2016. By the impugned order, the learned Single Judge rejected the writ petition filed by the appellants herein and upheld the award dated August 29, 2014 passed by the learned Industrial Tribunal, Andaman & Nicobar Islands Port Blair (hereinafter referred to as "the Tribunal") in IT Case No. 02 of 2009.
(2.) The brief facts of the case which are necessary to be considered for deciding the present appeal are as follows: The appellant No.1 is the Secretary of BSNL Contract Mazdoor Union, Port Blair, South Andaman. The appellant Nos. 2 to 13 were engaged by the various contractors and they were working at the various establishments of Bharat Sanchar Nigam Limited (hereinafter referred to as "BSNL") at Andaman and Nicobar Islands. The said contractors were engaged by BSNL from time to time through tenders. Due to a decision of the BSNL management for reduction of manpower by 50%, the appellants No.2 to 13 and other contractor workmen were retrenched from their services with effect from August 01, 2008 by the respective contractors, without any notice and retrenchment benefits. This led to an industrial dispute and on June 24, 2009 vide notification No. L-40012/42/2009-IR (DU) the Government of India, Ministry of Labour, New Delhi made a reference under Section 10 of the Industrial Disputes Act, 1947 to the Tribunal in respect of the following matter: "Whether the action of the management of BSNL, Port Blair in reducing the strength of contract workers by 50% w.e.f. 31/07/2008 and consequent retrenchment of said workers from 01/08/2008 is legal and justified? If not, what relief the workmen are entitled to?" Before the Tribunal, the appellants workmen filed the statement of claim praying for an award for their reinstatement in service of BSNL with full back wages. The respondent BSNL also filed its written objection before the Tribunal denying all material allegations made by the appellants workmen in the statement of claim. They alleged that the workmen were engaged by the contractors on contract basis and all the workmen performed work by getting wages from the contractors who retrenched them. On these allegations, BSNL put up their defence that the claimants workmen were not entitled to obtain any relief as claimed by them before the Tribunal. The appellants workmen also filed their rejoinder before the Tribunal alleging that they have been working under the direct supervision and control of the different officials of BSNL and the intermediate contractors have no role for execution of work. All the appellants workmen adduced evidence before the Tribunal. They filed their affidavits for their examination-in-chief. However, none of the appellants workmen was cross-examined by BSNL. On August 08, 2013 the Tribunal passed an award by directing BSNL to absorb the appellants workmen as its regular employees with effect from the date of the award. Challenging the said award BSNL filed a writ petition, being W.P. No. 319 of 2013 before this Court. One of the grounds that was urged by BSNL to challenge the said award of the Tribunal was that the same was passed by the Tribunal without considering the Division Bench decision of this Court rendered in MAT No.021 of 2012 (Shri Binoy Bhushan Chakraborty v. Chief General Manager) which was relied by them. When the said writ petition was heard, a learned Single Judge of this Court found that the claims of the workmen in the writ petition were not different from that of Binoy Bhushan Chakraborty who was also a workman engaged by the contractor to work at the establishment of BSNL and, as such, the Tribunal committed an error in law in passing the award without considering the said Division Bench decision of this Court. On these findings, by the order dated February 03, 2014 a learned Single Judge set aside the award dated August 08, 2013 passed by the Tribunal and remitted the matter back to the Tribunal for deciding the matter afresh by taking into account the significance of the Division Bench decision of this Court in the case of Binoy Bhushan Chakraborty (supra). It may be noted that in the said case of Binoy Bhushan Chakraborty (supra) the Division Bench of this Court held that when a workman admits to have been appointed by the contractor and he was receiving salary from the contractor, after his retrenchment by the contractor he cannot claim to be a workman under the principal employer or for his absorption in the service of the principal employer. After the remand of the matter as aforesaid, the Tribunal reheard the matter and found that the decision of the Division Bench of this Court in the case of Binoy Bhushan Chakraborty (supra) is squarely applicable in the present case. Relying on the said Division Bench decision of this Court, on August 29, 2014 the Tribunal passed an award holding that in the present case, the workmen cannot be said to be workmen under BSNL in accordance with the provisions of the Industrial Disputes Act and rejected the prayer of the workmen, the appellants in this appeal. The appellants workmen challenged the said order dated August 29, 2014 passed by the Tribunal by filing a writ petition being W.P. No. 255 of 2016 before this Court. By an order dated March 02, 2017 a learned Single Judge of this Court held that there is no illegality or infirmity in the impugned award which has been passed by the Tribunal in the light of the direction made in W.P. No. 319 of 2013 dated February 03, 2014 and dismissed the writ petition. As mentioned earlier, it is the said order dated March 02, 2017 passed by the learned Single Judge which is the subject matter of challenge in this appeal.
(3.) Assailing the impugned order, Mr. K.Vijay Kumar, learned advocate appearing for the appellants submitted that the on March 02, 2017 when the writ petition was taken up for hearing there was a cease work declared by the local Bar and the appellants remained unrepresented before the learned Single Judge. Therefore, according to him, the learned Single Judge should not have decided the writ petition on merit in the absence of the learned advocate of the appellants. It was contended on behalf of the appellants that in the present case, each of the appellant workman in their examination-in-chief before the Tribunal stated that although they were appointed by the labour contractors, but they were working under the direct supervision and control of officer SDOP of BSNL of the concerned range and were responsible for the duty of the said officer of BSNL and the respondent BSNL declined to cross examine each of the appellant workman. Therefore, according to the appellants, it was proved that the appellants workmen were working under BSNL and the Tribunal fell into error in rejecting their prayer for reinstatement in the service of BSNL and, as such, the learned Single Judge ought to have set aside the award dated August 29, 2014 passed by the Tribunal. The learned counsel for the appellants referred to the decision of the Division Bench of this Court in the case of Binoy Bhushan Chakraborty (supra), as well the deposition of Binoy Bhushan Chakraborty particularly, his cross-examination in IT/ID Case No. 0309 before the Tribunal. According to him, in the said case the workman admitted to have been working under contractor based on which by the judgement and order dated March 30, 2012 the Division Bench of this Court in MAT No. 021 of 2012 held that neither BSNL, Port Blair can be regarded as the employer of the writ petitioner as defined in the Industrial Disputes Act nor can he be held to be the workman under BSNL, within the meaning of the term as defined in the said Act. It was strenuously contended that in view of the evidence adduced by the appellants workmen in this case, it was proved that they were working under BSNL and the Division Bench decision of this Court in the case of Binoy Bhushan Chakraborty (supra) has no application and the learned Single Judge fell into an error of law in upholding the award dated August 29, 2014 passed by the Tribunal. Relying on the decision of the Supreme Court in the case of Steel Authority of India Ltd. v. National Union Waterfront Workers reported in (2001) 7 SCC 1 (para-107) it was argued for the appellants that in the present case, the contracts between BSNL and the respective contractors engaging the appellants are all sham and nominal, rather camouflage and, as such, the appellant ought to have been held to be the employees of BSNL, the principal employer and the award dated August 29, 2014 passed by the Tribunal was vitiated by patent error of law, which ought to have been set aside by the learned Single Judge. On these grounds, the appellants prayed for setting aside both the award dated August 29, 2014 passed by the Tribunal, as well as the impugned order passed by the learned Single Judge.;