A.K.SINHA, J. - (1.) The present writ petition has been preferred for quashing the Award dated March 13, 2001 of the Central Government Industrial Tribunal No.1, at Dhanbad in Ref. No. 230/1994. The facts in brief are set out as under: On August 4, 1992, the Secretary of the Bihar Colliery Kamgar Union raised an industrial dispute alleging arbitrary stoppage of Work of Shri Sohar Vishwakarma and Others by the Management of Amlabad Colliery. It was stated that they were stopped from work from December, 1991 and they continued working since 1980. The Conciliation Officer vide its letter dated April 27, 1993 gave its reply that there was no workman named as Sohar Vishwakarma in the manpower roll of Amlabad Project/Mine and as such there was no question of stoppage of his work. It was also submitted that there was no employer-employee relationship and the named workman was actually employed by a contractor Electro. Mech. Corporation who was engaged by the Management purely on contractual basis as and when required for temporary nature of job of repairing machineries. The said contractor who also engaged for installation and commissioning of Koepe Winder and for repairing of machineries etc. on contractual basis. The conciliation, however, failed and the appropriate Government by reasons of its order dated August 31. 1994 referred the dispute for adjudication to the Central Government Industrial Tribunal No. 1, at Dhanbad and the reference is quoted as under: "Whether the demand of Bihar Colliery Kamgar Union that Sri Sohar Viswakarma and 9 others (as per list annexed) should be treated as employee of Amlabad Colliery of B.C.C. Ltd. is justified? If so, to what relief the persons concerned are entitled to?" After considering the entire pleadings, evidence on record and the facts and the deposition of the witnesses the learned Tribunal vide its impugned Award dated March 13,2001 answered the reference in favour of the Union respondent No. 1. directing absorption of the concerned persons as permanent employees of B.C.C. Ltd.. which is sought to be challenged in the present writ petition.
(2.) The main contention raised by Sri Anup Kumar Mehta, the learned counsel for the petitioner is that the Tribunal has committed serious and apparent error of facts and law and the Award of the Tribunal was perverse and liable to be set aside. It is further submitted on behalf of the petitioner that there was no employer-employee relationship and thus the direction for absorption was on the face of it illegal and unsustainable since the employee concerned were employed by the contractor Electro Mech. Corporation, Asansol. It has further been submitted that there is already a permanent and surplus labour and the company is sick and the enquiry in terms of Section 16(1) of the Sick Industrial Companies (Special Provisions) Act is pending before BIFR and thus the Award of absorption/employment is liable to be set aside.
(3.) It has further been submitted that the Tribunal committed serious error of law in holding that the respondent-workmen have completed more than 240 days in a calendar year and even assuming but not admitting they had completed 240 days in a calendar year, that by itself does not give any right to be absorbed in view of the settled law. It has further been contended by the learned counsel for the petitioner that the workmen have neither pleaded nor proved that the engagement of the contract is against the prohibited nature of job by issuing notification under Section 10(1) of the CLRA Act and no evidence was produced nor any finding has been given that the contract was ruse, sham or a camouflage. No finding of that has been recorded by the learned Tribunal. in its award. It has further been contended that even in the SAIL v. National Union Water Front Workers AIR 2001 SC 3527 : (2001) 7 SCC 1 : 2001-II-LLJ-1087, it was held that/there cannot be any automatic absorption of contract labour engaged in a prohibited category of job as laid down in para 125(5 and 6) by the Hon'ble Supreme Court, unless the Labour Court/Industrial Tribunal gives a finding that the contract was ruse, sham or camouflage.;