PRADEEP KUMAR,J. - (1.) Heard the learned counsel for petitioner -Management of Kathara Colliery of M/s Central Coalfields Limited, Bokaro and learned counsel for the workmen. The petitioner -Management of Kathara Colliery of M/s C.C.L is challenging the award passed by the Presiding Officer, Central Government, Industrial Tribunal No.1, Dhanbad in reference case no. 65 of 1992 dated 28.2.2006 as contained in Annexure -3 by which judgment learned Tribunal found answer to the reference that the action of the Management of Kathara Colliery of M/s CCL in not regularizing and making the payment of wages as per NCWA to these workmen is not justified and they are entitled for regularization as general mazdoor category -1 and payment of wages as per NCWA. learned tribunal also directed the management for regularizing the concerned workmen within 30 days after passing of the award.
(2.) IT is submitted by learned counsel for petitioner -management that the so called 11 workmen have failed to prove by any evidence that the 11 workmen worked at Kathara Colliery of M/s CCL from 1986. In their evidence the workman who was examined as WW 1 clearly admitted in his cross -examination that they have got no appointment letters, no payment certificate, no document to prove that they worked at Kathara Colliery under CCL. The order of regularization is based on document Ext. -W -2, a certificate granted in plain paper and singed by a person stating that he is personal manager and 11 persons worked as sweeper in the Kathara Colliery. Even that certificate does not show that the aforesaid 11 workers worked for 240 days at the colliery and they were employee of CCL and as such the finding of the Tribunal is based on no evidence. There is absolutely lack of appreciation of evidence and hence, the impugned award is fit to be set aside. Learned counsel for petitioner submitted that it has been settled by various judgments of Hon'ble Supreme Court including the one reported in "(2007)1 SCC page 408 in the case of Indian Drugs and Pharmaceutical Ltd." that "unless the appointment are made by following the rules, such appointment does not have any right to claim the permanent absorption. It was held at para -15 of the judgment that no direction can be given that daily wages employee should be paid salary of regular employee". Moreover, in the instant case the workmen even failed to prove that they were temporary employee of Kathara Colliery even for sometime. The finding that they worked for 240 days and hence entitled for regularization is absolutely bad and fit to be set aside. He has also relied upon the judgment reported in "(2007)1 SCC page 533 in the case of Gangadhar Pillai" where it has been settled that it is not the law that on completion of 240 days of continuous service in a year, the employee concern is entitled to be regularized to service and or permanent status. In the instant case the workmen failed to prove that they worked for 240 days or they were even employee of CCL. In that view of the matter, award is fit to be set aside.
(3.) ON the other hand learned counsel for the respondent -workmen has submitted that no plea of 240 days was taken by the management in the written statement filed before the Tribunal. It only claimed that they are not employees of Kathara Colliery under CCL. The management have even failed to prove that they were employed by any contractor to work under the Kathara Colliery of CCL. It is submitted by learned counsel for respondent that vide Ext. -W -2 the document relied by the workmen, it has been proved that they were the employee of CCL and as such they have rightly been directed to be regularize in permanent service since, they were working as sweeper which is perennial nature of work. learned counsel for respondent has relied upon the judgment reported in (2000)4 SCC page 245 where in it has been held by the Hon'ble Supreme Court that the finding of fact cannot be disturbed under the writ jurisdiction of the court. Respondent has further relied upon the judgment reported in SC 1978(5)1410 (sic -AIR 1978 SC 1410?) in the case of Husssaini Bhai wherein it has been held that where the workmen has been employed even by a contractor but the real employer is management and not the intermediate contractor. learned counsel for respondent has also relied upon the judgment reported in 2008(1) JLJR page 121 wherein it has been held that finding of fact arrived at by the Tribunal cannot be disturbed.;