2008(4) ALL MR 803
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.H. MARLAPALLE, J.
Sahyadri Samanya Kamgar Sangh Vs. Indian Rare Earths Ltd. & Ors.
Writ Petition No. 6187 of 1996
16th January, 2008
Petitioner Counsel: L. S. DESHMUKH,S. S. PAKALE
Respondent Counsel: R. M. PARDIWALLA,Mulla & Mulla & CBC
Constitution of India, Art.227 - Supervisory jurisdiction - Award of Industrial Tribunal - Interference with - Tribunal holding that the Management of respondent Company did not commit any unfair labour practice in not absorbing 78 casual workmen in permanent employment - Award passed by Tribunal after considering the evidence placed before it - Impugned award, not being perverse or manifestly erroneous, held, does not call for any interference under Art.227 of the Constitution of India. AIR 1998 SC 517 and AIR 1982 SC 879 - Ref. to. (Para 8)
Randhir Singh Vs. Union of India, AIR 1982 SC 879 [Para 5]
Delhi Municipal Karmachari Ekta Union Vs. P. L. Singh, 1988 I CLR (SCC) 585 [Para 5]
Daily rated casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India, (1988) I CLR (S.C.) 45 [Para 5]
U.P.Income Tax Department Contingent Staff Welfare Association Vs. Union of India, AIR 1988 SC 517 [Para 5]
The Dharwar District PWD Literate Daily Wage Employees Association Vs. State of Karnataka, (1991) I CLR SC 534 [Para 5]
JUDGMENT :- This Petition filed by the registered trade union under the Trade Unions Act, 1926 brings in question the Award passed by the Central Government Industrial Tribunal No.2 at Mumbai on 4-10-1996 whereby and whereunder Reference No. CGIT-2/51/94 came to be dismissed.
2. It was the union's case that the Respondent No.1 which is an undertaking of the Union Government and engaged in the manufacturing of Thorium Chemical at its factory at Trombay and it required a large number of permanent workmen. Accordingly it had employed about 300 workmen in its factory and in addition it engaged temporary employees to do permanent and regular nature of work. The names of the workmen who were kept on temporary basis though engaged to do permanent nature of work were listed in Exhibit A and they were working in different categories like sweepers, cleaners and helpers. The Union claimed that all of them were qualified to be appointed on permanent basis as they possessed the required qualifications. It, however, admitted that temporary employees were selected and appointed in the same manner and in the same fashion as the permanent employees were selected and appointed. It is alleged that Respondent No.1 had engaged in unfair labour practice by keeping the employees on temporary basis for years together when there was sufficient work available. It was further alleged that though the workmen were working for more than 500 days, they were engaged every year in such a fashion that they should not complete 240 days every year and the workmen who were on the regular rolls of Respondent No.1 were getting Rs.2000/- more in their monthly salary as compared to the wages paid to the workmen listed in Annexure A. As the employer did not take steps for regularisation of these 78 workmen engaged from 1988 onwards, the union raised an industrial dispute for their absorption and consequently the following demand came to be referred for adjudication by the Central Government to the Industrial Tribunal at Mumbai.
"Whether the action of the Management of Indian Rare Earths Limited, Trombay, Bombay in not absorbing the 78 casual workmen (as per the list enclosed) w.e.f. the respective date of appointment on the permanent roll of the company is legal and justified, if not, what reliefs the concerned workmen are entitled to".
3. The union filed a Statement of claim and pointed out that none of the 78 workmen was allowed to complete 240 days in the year and they have been paid daily wages of Rs. 35/-. None of these workmen were covered for the benefits of ESIC or PF and on the contrary professional tax was being deducted from their gross wages which was not more than about Rs.1000/- p.m. The union further contended that 45 temporary workmen were required to work everyday continuously and, therefore, the work assigned to 45 workmen was permanent and perennial in nature. It further alleged that about 15 to 20 unskilled workers were engaged and were doing same and similar job as was assigned to these 78 workmen.
4. The Company resisted the claim made by the union by filing its written statement at Exh.5. It pointed out that the factory was 40 years old and was on the verge of being closed down as the Central Government was not inclined to renew its licence. It also stated that a new plant was set up in Orissa and it became operational in the year 1992 and consequently the Plant at Mumbai would be running until such time that the plant in Orissa would start. It further pointed out that the plant in Mumbai was continuously making losses and the work performed by 78 workmen was casual and was different from the work performed by regular employees in plant. He further pointed out that the casual employees were retained in employment only with a view that all of them get equal opportunities of employment and they were paid wages much above the minimum wages prescribed and were provided with other facilities. It also pointed out that in a month maximum of about 30 to 45 casual workers were engaged.
5. The Union filed a rejoinder at Exh.6 denying the contentions raised in the written statement. Mr. Karve, the General Manager of Respondent No.1 had stepped in the witness box and he stated that Thorium plant at Trombay was commissioned in the year 1955 and it is a chemical industry. The raw material used was Thorium Hydroxide and is obtained from the factory of Indian Rear Earths Ltd in Kerala State. As Thorium Nitrate is a strategic raw material required for the Nuclear power programme, the department of atomic energy regulates its production, use etc. and runs the thorium plant as a departmental undertaking and Indian Rare Earths Limited manages it on behalf of the Bhaba Atomic Energy. Mr. Karve further deposed that the plant at Trombay produced 5 connes of Thorium Nitrate per month and it was closed for refurbishing in November 1994 for which an amount of Rs. 1.3 crores was spent over it. He further stated that a total outlet of 7 to 8 crores would be required for establishing Thorium plant and prior to refurbishing the plant, the monthly production was about 12 tonnes of Thorium nitrate per month. He further stated that Thorium Nitrate is a radio active material and the licence issued by the Government of India for the said month was only after 31-12-1997 (at Exhibit 1 alongwith the affidavit) and placed on record the letter received under Government of India which consequently tended to show that plant could be run only upto 31-12-97 and not thereafter unless the licence was renewed by the Licensing Officer. He also pointed out that it was a loss making unit and was in danger to be closed at any time.
6. Shri. Pandurang Tambe, General Secretary of the Union was examined in support of the union's case and he had alleged that though the management need 50-60 casual employees for its own capacity operations, they were not made permanent as alleged. This was denied by Mr. Karve. The Industrial Tribunal accepted the evidence of Mr. Karve and recorded a finding that factory at Trombay was not working to its fullest capacity and it was specified as eminent. The list of casual labourers employed in the year 1989 was placed on record at Exhibit 18 and it shows that in the year 1984, 60 casuals were employed whereas the same strength was reduced in the subsequent years. Two other workmen by name Jadhav and Mule were also examined before the Industrial Tribunal and though they claimed that they were doing the same work as regular employees but the Industrial Tribunal did not rely on the same. It referred to the following decisions of the Supreme Court and held that the Respondent No.1 did not commit any unfair labour practice in continuing the workmen on casual basis.
(i) Randhir Singh Vs. Union of India and others reported in AIR 1982 (S.C.) page 879.
(ii) Delhi Municipal Karmachari Ekta Union Vs. P. L. Singh and others reported in 1988 I CLR (SCC) at page 585.
(iii) Daily rated casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India and others (1988 I CLR (S.C.) page 45.
(iv) U.P.Income Tax Department Contingent Staff Welfare Association Vs. Union of India and others (AIR 1988 (S.C.) 517).
(v) The Dharwar District PWD Literate Daily Wage Employees Association and others Vs. State of Karnataka (1991 I CLR S.C. page 534).
7. Mr. P. M. Prasantha Kumar Head (HRM) of the Mining and Mineral Department of the Respondent No.1 has filed affidavit in reply and has pointed out that in the meeting held on 3-2-1998 the Board had announced a Voluntary Retirement Scheme which was displayed on the notice Board and most of the permanent employees opted for the benefit of retirement scheme. It is further clear that the production at the Thorium Plant was stopped in 1998 at the factory at Trombay and the plant was closed down.
8. Undoubtedly, the Industrial Tribunal considered the evidence placed before it and its reasoning to hold that the management did not commit any unfair labour practice in not absorbing the 78 casual workmen in permanent employment, cannot be said to be perverse or manifestly erroneous. Hence, the impugned Award does not call for any interference under Article 227 of the Constitution.