Building Labour problems – contempt of court =most of the states have not complied with the directions issued by this Court. They had failed to discharge their statutory duties under the provisions of the Building & Other Construction Worker (Regulations of Employment & Conditions of Service) Act, 1996 (for short, `the Act’) and the Building and Other Construction Workers Welfare Cess Act, 1996 (for short `the Cess Act’), thus, they should be punished for violating the orders of this Court. = audit by the Comptroller and Auditor General (CAG) has not been conducted of the funds placed at the disposal of the concerned authority. We may also notice that large funds are lying with the said Welfare Boards/authorities, but have not been disbursed. The possibility of these amounts being diverted by the state authority for other heads of expenditure in the respective states/union territories cannot be ruled out. Resultantly, while reiterating our earlier orders, we also issue the following directions for their immediate compliance: a) All the State Welfare Boards shall be subjected to audit by the CAG within two months from today. All the States, Union Territories and the State Boards to initiate the process and ensure its completion under the provisions of Section 27 of the Act. [8]

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION INTERLOCUTORY APPLICATION NO.6 IN WRIT PETITION (CIVIL) NO.318 OF 2006 National Campaign Committee for Central Legislation on Construction Labour ... Petitioner Versus Union of India & Ors. ... Respondents WITH Contempt Petition (C) Nos.41/2011 in WP (C) No.318/2006 Contempt Petition (C) Nos.42/2011 in WP (C) No.318/2006 Contempt Petition (C) Nos.43/2011 in WP (C) No.318/2006 Contempt Petition (C) Nos.44/2011 in WP (C) No.318/2006 O R D E R This order is in continuation to the all the previous orders passed by this Court, more particularly, the orders dated 18th January, 2011, 15th March, 2011, 25th April, 2011 and 28th November, 2011. Vide Order dated 15th March, 2011, this Court - [1] dealt with Contempt Petition Nos.41 - 44 of 2011 filed by the petitioner and passed certain directions including that the Labour Secretary of the concerned States should be present in the Court on the next date of hearing. Thereafter, vide Order dated 25th April, 2011, the States of Nagaland, Rajasthan, Meghalaya, Uttar Pradesh, Maharashtra, Goa and Uttarakhand, Union Territories of Lakshadweep and Chandigarh and Union of India were required to comply with certain directions as well as to file affidavits of compliance. The petitioner in Contempt Petition Nos. 41 - 44 of 2011 had contended that most of the states have not complied with the directions issued by this Court. They had failed to discharge their statutory duties under the provisions of the Building & Other Construction Worker (Regulations of Employment & Conditions of Service) Act, 1996 (for short, `the Act') and the Building and Other Construction Workers Welfare Cess Act, 1996 (for short `the Cess Act'), thus, they should be punished for violating the orders of this Court. However, after passing of the above orders, most of the states have filed affidavits, showing status of compliance with the [2] directions issued by this Court as well as performance of their statutory duties. In view of the persistent defaults and unacceptable conduct of the officers of the concerned states, we passed the following order on 28th November, 2011:- "Since almost every State is in contempt, we have no option but to take further steps in the matter. However, in order to give opportunity to the States, the matter is being adjourned to the last week of December, 2011, to enable each defaulting State to file it's reply as to why contempt action should not be taken against the concerned officers." Still, a few States have neither filed affidavits nor have they placed on record any documentation to demonstrate that they have fully complied with the directions of this Court and have completely discharged their statutory obligations under the provisions of the Act. Keeping in view the fact that, despite our order dated 28th November, 2011, these states have failed to show obedience to the orders of this Court, the matter was again placed before this Court on 16th December, 2011, on which date we had reserved the contempt petitions for orders. [3] Category - I - Under Category-I, we will be dealing with the States of Andhra Pradesh, Chhattisgarh, Punjab and Tamil Nadu. All these states had filed their respective affidavits in the years 2010 and 2009 respectively. Thereafter, they have not even cared to file further affidavits as directed by the orders of this Court. Though, all the above States have constituted Welfare Boards, have registered workers and establishments in accordance with the provisions of the Act, notified the prescribed authorities for collection and disbursement of cess under the Cess Act and have collected some cess, however, they have not collected the required quantum of cess and have also not distributed the amount to the registered applicants in furtherance to implementation of the scheme framed. The petitioner has also placed on record material to show that these states are defaulting in this regard. Before we take any action against the officers responsible for enforcing the schemes and proper collection and disbursement of cess, we would grant a last and final opportunity to these states to file affidavits of compliance within four weeks from today, subject to payment of Rs.10,000/- [4] each, as costs. The cost shall be payable to the Supreme Court Legal Services Committee. Category - II Under Category-II, we would pass directions in relation to the states which have constituted Welfare Boards, notified the statutory authorities responsible and have even collected the cess, however, they have not disbursed the cess amounts to the registered applicants for the reason that the competent authority in the State Government has not approved the welfare schemes or the welfare fund has not been constituted. Another reason for such non- disbursal of cess amount is that no applicants have approached the Welfare Board/notified authority, for payment under the provisions of the Act and the Cess Act. The States of Andhra Pradesh, Arunachal Pradesh, Goa, Jammu and Kashmir, Meghalaya, Maharashtra, Mizoram, Nagaland, Punjab, Sikkim and Tamil Nadu and Union Territories of Andaman and Nicobar, Dadra and Nagar Haveli, Daman and Diu and Lakshadweep fall under this category. [5] Having perused the affidavits of these states/union territories and the records before us, we issue the following directions:- a) The governments of the above-referred states/union territories are hereby directed to ensure that the welfare fund is created and welfare schemes are formulated and notified in accordance with the provisions of the Act and the Cess Act within four weeks from today. b) The welfare schemes framed by the respective states/union territories shall be given due publicity and be brought to the notice of the concerned workmen and eligible applicants by the District Authority/Sub- Committee responsible. We may clarify that there are certain schemes where the workmen are entitled to disbursement of the amounts across-the-board, like education schemes, etc. Every effort should be made to implement these schemes without any further delay. c) Affidavit shall be filed by the Secretary (Labour) of the respective states/union territories within six weeks from today reporting to this Court the complete compliance [6] with these directions. The affidavit shall also give the up-to-date status - d) of collection of cess, disbursement of amounts and implementation of schemes. Category-III The States of Kerala, Punjab, Nagaland and Himachal Pradesh and the Union Territory of Lakshadweep are the states/union territory which have not given any details of the schemes framed, reasons for its non-implementation and consequent non- disbursement of the cess amounts. It is a statutory obligation upon these states/union territory and the authorities in-charge of the concerned departments that they ensure implementation of the schemes and disbursement of the cess amounts. Let now the schemes be publicized and cess amounts be disbursed to the eligible applicants in accordance with the provisions of the Act and the Cess Act within a period of six weeks from today and affidavit of compliance of the Secretary (Labour) of the states/union territory be filed within two weeks thereafter. General Directions [7] It is clear from the affidavits filed on behalf of most of the states and union territories that they are not holding meetings of the Welfare Board as required, i.e., at least once in two months, to discharge their statutory functions. Further, it is also apparent that audit by the Comptroller and Auditor General (CAG) has not been conducted of the funds placed at the disposal of the concerned authority. We may also notice that large funds are lying with the said Welfare Boards/authorities, but have not been disbursed. The possibility of these amounts being diverted by the state authority for other heads of expenditure in the respective states/union territories cannot be ruled out. Resultantly, while reiterating our earlier orders, we also issue the following directions for their immediate compliance: a) All the State Welfare Boards shall be subjected to audit by the CAG within two months from today. All the States, Union Territories and the State Boards to initiate the process and ensure its completion under the provisions of Section 27 of the Act. [8] b) Every Welfare Board shall, without fail, hold its meetings at least once in two months and submit its Minutes, as well as the action taken and progress reports in regard to the framing and implementation of the schemes and disbursement of funds to the eligible applicants, to the Secretary (Labour) of that Government quarterly. c) The funds available with the Welfare Boards which have not been disbursed or are not likely to be disbursed within a short period should be properly invested with the nationalized banks only. Funds available with the Welfare Boards shall not be utilized by the State for any other head of expenditure of the State Government, etc. d) Union of India has filed an affidavit. It is stated in the affidavit that they have taken various steps, including steps for amendment of the Act and the Rules framed thereunder. Union of India is directed to expedite this process. We also direct the Union of India to discharge its various statutory functions under the Act with [9] particular reference to Sections 24 to 27. It shall also issue appropriate directions under Section 60 of the Act to all the State Governments to fully implement the provisions of the Act as well as the Cess Act. The above directions should be complied with by all concerned without fail and within the time afore-stipulated. We make it clear that in the event of any default committed by any officer/official/authority, we will be compelled to take action against the officer/official/authority concerned under the provisions of the Contempt of Courts Act, 1971 without any further notice. With these directions, we dispose of these four contempt petitions & I.A.6, but make it clear that in the event of default, the petitioner would be at liberty to file fresh contempt petitions before this Court, in view of the above order. Let a copy of this order be sent to each Chief Secretary and Secretary (Labour) of the respective states or union territories. .................................CJI. (S.H. Kapadia) [10] ...................................J. (A.K. Patnaik) ...................................J. (Swatanter Kumar) New Delhi; February 7, 2012 [11]

"8.As found by the Labour Court, they are attempting to evade from honouring the earlier Award, which has become final and that computation petitions as against the Award were also concluded and revenue recovery certificate was filed. As rightly contended by Mr.G.B.Saravanabhavan, the learned counsel for the contesting respondents, the attempt by the management is only to protract the litigation. It is not out of place to note that not even a single paisa has been paid to the workmen despite there being so many orders in their favour. Therefore, the writ petitions are misconceived and bereft of reasons."

IN THE HIGH COURT OF JUDICATURE AT MADRAS


DATED: 16 / 09 / 2011


CORAM


THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN


W.P.NO.6382 OF 2011
AND M.P.NO.1 OF 2011 






The Management of Hydro Chains P. Ltd.
Rep. by its Director S.A.J. Kamal Batcha
Sipcot, Ranipet  3. 
Vellore District. ... Petitioner  


    Versus


1. The Principal Labour Court
    Vellore, Vellore District. 


2.P.Parvatham
3.A.Arumugam
4.S.Malathi
5.S.Amaravathi
6.M.Pitchandi
7.K.Krishnaveni
8.P.Kuppammal
9.M.Kuppuswamy
10.S.Bhaskaran
11.G.Kathavarayan
12.M.Jayavelu
13.K.Munuswamy
14.P.Dayalan
15.P.Mani
16.S.Joseph
17.N.Gunasekaran
18.V.Mathiazhagan
19.L.Balu 
20.R.Karuppiah
21.V.Desingh
22.P.Jayapal
23.P.Ravi ... Respondents




PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records in I.A.Nos.191 of 2009 to 212 of 2009 in I.D.Nos.167, 168, 169, 171, 173 to 176 of 1998 and 291/2000 to 304/2000 on the file of the first respondent dated 03.08.2010 and quash the same. 


For Petitioner : Mr.S.V.Ramamurthy 


O R D E R


The petitioner is an Industry and the respondents 2 to 23 are its workmen.  The workmen became the Members of Bharatiya Mazdoor Union.  According to the workmen, this resulted in the petitioner resorting to laying off workmen.  Thereafter, the respondent workmen were retrenched from service from 01.08.1997.  


2.The workmen took up their non-employment before the first respondent Labour Court, after the conciliatory efforts failed.  According to the workmen, the action of the petitioner Management was not bonafide and that they were victimised for  joining the trade union. It was further alleged that the retrenchment was in violation of Section 25-F of the Industrial Disputes Act, 1947. 
3.The workmen took up the industrial dispute relating to their non-employment in I.D.Nos.167, 168, 169, 171, 173, 174, 175 and 176 of 1998 and 291 to 304 of 2000 before the first respondent Labour Court. The petitioner Management filed counter statement refuting the allegations. According to the petitioner Management, the workmen were retrenched from service in accordance with law. Further, it was averred that the petitioner Management resorted to lay off and retrenchment due to financial crisis. 


4.On the side of the workmen, one witness was examined on 23.06.2003 and 8 documents were filed and marked as Exs.W1 to W8. The matter was posted for cross examination on 01.07.2003, 15.07.2003, 24.07.2003, 18.08.2003 and 25.08.2003. On 25.08.2003, the counsel for the petitioner Management reported no instruction and hence, the petitioner Management was set exparte. Thereafter, the matter was adjourned to 01.09.2003, 17.09.2003 and 20.10.2003. 


5.The first respondent Labour Court passed an exparte award, based on merits, on 20.10.2003. The first respondent Labour Court ordered reinstatement, continuity of service, backwages and other attendant benefits.  The award attained finality as the same was not put to challenge. 
6.While so, the respondent workmen filed claim petitions in C.P.Nos.529 and 530 of 2004 under Section 33(C)(2) of the Industrial Disputes Act, 1947, claiming benefits as per the award of the Labour Court, referred to above. In those proceedings also, the petitioner Management remained exparte.  The first respondent Labour Court passed an order dated 18.02.2006 in C.P.No.529 of 2004 computing the amount due to 14 workmen. In C.P.No.530 of 2004, the first respondent Labour Court passed an order dated 21.12.2006 computing the amount due to 8 workmen. 


7.Thereafter, in the year 2007, the petitioner Management filed interim applications to condone the delay in filing the application to set aside the exparte order passed in the claim petitions. However, those interim applications were dismissed for default on 06.08.2008. Thereafter, the petitioner Management filed applications to restore those interim applications. However, the first respondent Labour Court rejected those applications by order dated 18.03.2010.


8.In the meantime, the workmen approached the Government under Section 33(C)(1) of the Industrial Disputes Act, 1947 to recover the amount due from the petitioner Management as per the order of the first respondent Labour Court in the claim petitions. 
9.Based on the applications under Section 33(C)(1) of the Industrial Disputes Act, 1947, the Government issued an order in G.O.Ms.No.111, Labour and Employment Department, dated 24.02.2009 issuing certificate to recover the amount due to the 14 workmen from the petitioner Management, pursuant to the order of the Labour Court dated 18.02.2006 passed in C.P.No.529 of 2004. 


9.1.Likewise,  the Government issued another order in G.O.Ms.No.112, Labour and Employment Department, dated 24.02.2009 issuing certificate to recover the amount due to the 8 workmen from the petitioner management pursuant to the order of the Labour Court dated 21.12.2006 in C.P.No.530 of 2004. 


10.The petitioner Management filed writ petitions in W.P.Nos.6196 and 6203 of 2009 to quash the aforesaid G.O.Ms.Nos.111 and 112. This Court dismissed those writ petitions on 29.04.2009. 


11.Thereafter, the petitioner Management filed writ petitions in W.P.Nos.14005 and 14010 of 2009 seeking for a direction to the Government to reconsider their orders issued in G.O.Ms.Nos.111 and 112.  This Court passed an order dated 23.07.2009 directing the Government to pass orders on the representation of the petitioner Management seeking reconsideration of the Government Orders in G.O.Ms.Nos.111 and 112. The Government passed orders on 09.11.2009 rejecting the representations seeking reconsideration of G.O.Ms.Nos.111 and 112. The petitioner Management filed writ petitions in W.P.Nos.160 and 161 of 2010 challenging the Government letter dated 09.11.2009 and the same were dismissed on 07.01.2010.  


12.The petitioner Management filed writ petitions in W.P.Nos.8466 and 8467 of 2010 seeking to quash the order dated 18.03.2010 passed in I.A.No.506 of 2008 in I.A.No.310 of 2007 in C.P.No.529 of 2004 and  I.A.No.507 of 2008 in I.A.No.312 of 2007 in C.P.No.530 of 2004 respectively. Those writ petitions were dismissed by this Court on 29.04.2010.   


13.In the meantime, the petitioner Management also filed applications in I.A.Nos.191 to 212 of 2009 in I.D.Nos.167, 168, 169, 171, 173 to 176 of 1998 and 291 to 304 of 2000 seeking to condone the delay of 2008 days in filing the application to set aside the exparte award dated 20.10.2003 passed by the first respondent Labour Court. 


14.The respondent workmen resisted those applications. According to the respondent workmen, the petitioner Management was aware of the exparte award when they filed interim applications in the year 2007 to condone the delay in filing the application to set aside the exparte orders dated 18.02.2006 and 21.12.2006 respectively passed in C.P.Nos.529 and 530 of 2004 respectively. According to the respondent workmen, the exparte award became final and based on the orders passed in the claim petitions, Government has issued G.O.Ms.Nos.111 and 112 for recovering the amount due from the petitioner Management. 


14.1.According to the respondent workmen, the writ petitions filed by the petitioner Management seeking to quash G.O.Ms.Nos.111 and 112 were dismissed. Their attempt in seeking reconsideration of G.O.Ms.Nos.111 and 112 was failed. Their writ petitions seeking to set aside the order dated 18.03.2010 rejecting the application to condone the delay in filing the application to set aside the order passed in the claim petitions were also dismissed. In these circumstances, in order to protract the litigation and to avoid payment to the workmen, they filed the applications seeking to condone the delay in filing their application to set aside the exparte award. No reason was given by the petitioner Management for the delay of 2008 days.  
15.On behalf of the petitioner Management, one witness was examined and no document was marked. On behalf of the respondent workmen, two witnesses were examined and 9 documents were filed and marked as exhibits R1 to R9. The Labour Court ultimately passed an order dated 03.08.2010 in  I.A.Nos.191 to 212 of 2009 in I.D.Nos.167, 168, 169, 171, 173 to 176 of 1998 and 291 to 304 of 2000 rejecting the applications filed by the petitioner Management. Challenging the same, the petitioner has filed the present writ petition. 


16.Heard the submissions made by the learned counsel for the petitioner. 


17.The learned counsel for the petitioner submitted that the first respondent Labour Court was not correct in passing the impugned award rejecting the application of the petitioner Management seeking to condone the delay of 2008 days in filing the application seeking to set aside the exparte order passed in C.P.Nos.529 and 530 of 2004. It is submitted that the petitioner Management faced severe financial crisis and therefore, they were not able to file the application to set aside the exparte award in time. However, the same was not duly considered by the first respondent Labour Court. 
18.I have considered the submissions made by the learned counsel for the petitioner and perused the materials available on record. 


19.The respondent workmen took up their non-employment before the first respondent  Labour Court in  I.D.Nos.167, 168, 169, 171, 173 to 176 of 1998 and 291 to 304 of 2000. The petitioner Management filed counter statement. One witness was examined on the side of the respondent workmen on 23.06.2003 and the same was posted for cross examination on 01.07.2003, 15.07.2003, 24.07.2003, 18.08.2003 and 25.08.2003.  However, the petitioner Management did not choose to cross examine the witness. On 25.08.2003, the counsel for the petitioner Management reported no instructions and hence, the petitioner Management was set exparte.  Thereafter, the first respondent Labour Court passed the exparte award dated 20.10.2003. On the side of the respondent workmen, 8 documents were filed and marked as Exs.W.1 to W.8. Though it was an exparte award, the same was on merits and also on the pleadings of the parties and the deposition of the witness. The first respondent Labour Court directed the petitioner Management to reinstate the respondent workmen with continuity of service, backwages and other attendant benefits.  


20.Based on the award of the first respondent Labour Court, the respondent workmen filed claim petitions under Section 33(C)(2) of the Industrial Disputes Act, 1947 in C.P.Nos.529 and 530 of 2004 claiming wages and other benefits as per the award. However, the petitioner Management remained exparte in the claim petition proceedings. Hence, the first respondent Labour Court passed the order dated 18.02.2006 in C.P.No.529 of 2004 computing the amount due in respect of 14 workmen and also passed the order dated 21.12.2006 in C.P.No.530 of 2004 computing the amount due in respect of 8 workmen.  


21.In January 2007, the petitioner Management has filed the application to condone the delay in filing the application seeking to set aside the exparte orders passed in C.P.Nos.529 and 530 of 2004 and the same is admitted by the witness examined on the side of the petitioner Management before the Labour Court and the same is taken note of by the first respondent Labour Court in the impugned order. Further, in para 5 of the affidavit filed by the petitioner Management in support of the present writ petition, the petitioner Management has stated that they received notices from the Labour Court in C.P.Nos.529 and 530 of 2004 and they handed over the papers to their counsel. Besides the reason given by the Labour Court that the petitioner Management was aware in 2007 itself, the petitioner Management was aware of the claim petitions filed even in 2004 itself as per para 5 of their affidavit filed in support of the present writ petition. The claim petitions were based on the exparte award dated 20.10.2003. 


22.Furthermore, the petitioner Management filed counter statement in the industrial disputes before the Labour Court and on the side of the respondent workmen, one witness was examined on 23.06.2003 and the same was posted for cross examination on 01.07.2003, 15.07.2003, 24.07.2003, 18.08.2003 and 25.08.2003 and on 25.08.2003, the counsel for the petitioner Management reported no instructions. It is held by the Labour Court that had the petitioner Management taken interest in the matter, they could have taken follow up action and found out the stage of the industrial dispute, but the petitioner Management failed to do so.  In my view, I do not find any infirmity in such a finding of the Labour Court.  


23.Furthermore, the petitioner Management is now facing recovery proceedings and the petitioner Management also failed in their attempt in stalling the recovery proceedings as their writ petitions in W.P.Nos.6196 and 6203 of 2009 were dismissed by this Court on 29.04.2009. Thereafter, they made representations to the Government to reconsider the orders passed in G.O.Ms.Nos.111 and 112. They approached this Court by filing writ petitions in W.P.Nos.14005 and 14010 of 2009 seeking for a direction to the Government to reconsider their orders passed in G.O.Ms.Nos.111 and 112. This Court passed the order dated 23.07.2009 in those writ petitions directing the Government to pass orders on the representations of the petitioner Management seeking reconsideration of the orders passed in G.O.Ms.Nos.111 and 112. Subsequently, the Government also passed orders rejecting their representations seeking reconsideration of the orders passed in G.O.Ms.Nos.111 and 112. Challenging the same, the petitioner Management filed writ petitions in W.P.Nos.160 and 161 of 2010 and those writ petitions were dismissed on 07.01.2010. Thereafter, they attempted to stall the recovery proceedings by filing writ petitions in W.P.Nos.8466 and 8467 of 2010 seeking to quash the order dated 18.03.2010 passed in I.A.No.506 of 2008 in I.A.No.310 of 2007 in C.P.No.529 of 2004 and  I.A.No.507 of 2008 in I.A.No.312 of 2007 in C.P.No.530 of 2004 respectively. Those writ petitions were also dismissed by this Court on 29.04.2010. While dismissing those writ petitions, this Court, in para 8 of the order, has held as follows:


"8.As found by the Labour Court, they are attempting to evade from honouring the earlier Award, which has become final and that computation petitions as against the Award were also concluded and revenue recovery certificate was filed. As rightly contended by Mr.G.B.Saravanabhavan, the learned counsel for the contesting respondents, the attempt by the management is only to protract the litigation. It is not out of place to note that not even a single paisa has been paid to the workmen despite there being so many orders in their favour. Therefore, the writ petitions are misconceived and bereft of reasons."


24.The Labour Court also came to a similar conclusion that the attempt of the petitioner Management is only to protract the proceedings so that the recovery proceedings could be stalled. In this regard, para 5 of the impugned order is extracted hereunder:


"5.So the reason stated in the petition is not satisfied one. They are attempting to evade from honouring the earlier Award, which has become final and that computation petitions as against the Award were also concluded and revenue recovery certificate was filed. It seems to be that the management is only to protract the litigation. I do not find any merit in this case and it is also seen from the Honour of the High Court passed in W.P.Nos.8466 and 8467/2010 and M.P.Nos.1 and 1 of 2010 was also dismissed by the High of Madras on 29.4.2010."


I am in entire agreement with the aforesaid findings of the Labour Court.   


25.For all the aforesaid reasons, I do not find any merit in the writ petition and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 






















TK


To


The Principal Labour Court
Vellore, 
Vellore District

The Supreme Court has clearly held that after the introduction of Section 11A of the Industrial Disputes Act with effect from 15.12.1971, the Labour Court has the power of an Appellate Court and it can also re-appreciate the evidence and come to different conclusion if the situation so warrants. The earlier judgment of the Supreme Court in Indian Iron and Steel Company Limited and another v. Workmen, AIR 1958 SC 130 was specifically held to be not holding the field in view of the introduction of Section 11A of the Industrial Disputes Act. The scope of Section 11A of the Industrial Disputes Act came to be explained by the Supreme Court in Workmen of Firestone Tyre and Rubber Co. v. Management, [1973] 1 SCC 813 : 1973 I LLJ 278. The Supreme Court in the said judgment has observed as follows: ".. The words

IN THE HIGH COURT OF JUDICATURE AT MADRAS  


DATED:    15.9.2011


CORAM:  


THE HONOURABLE MR.JUSTICE K.CHANDRU


W.P.No.21625 of 2009




M.Gowrishankar .. Petitioner 


Vs.


1. The Presiding Officer 
    Central Government Industrial Tribunal
    cum Labour Court, Sasthri Bhavan
    Chennai  600 008.


2. The Deputy General Manager 
    State Bank of India
    Local Head Office 
    Circletop House
    16, College Lane
    Chennai  600 006.


3. The Assistant General Manager 
    State Bank of India
    Mylapore Branch
    Chennai  600 004. .. Respondents


PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the entire records from the first respondent, quash the award passed by the first respondent dated 15.5.2009 in I.D.No.90 of 2006 and consequently direct the 2nd and 3rd respondent bank to reinstate the petitioner with full back-wages, continuity of service and all other attendant benefits.


For Petitioner : Mr.Balan Haridas

For Respondents : Mr.G.Masilamani, Sr.Counsel
for M/s.K.S.Sundar




ORDER
Heard Mr.Balan Haridas, learned counsel for the petitioner and Mr.G.Masilamani, learned Senior Counsel leading Mr.K.S.Sundar, counsel for respondents 2 and 3.


2. The writ petitioner challenges an award passed by the first respondent/Central Government Industrial Tribunal-cum-Labour Court, Chennai (for short, "the CGIT") made in I.D.No.90 of 2006, dated 15.5.2009.  By the impugned award, the Labour Court declined to grant any relief to the petitioner/workman and rejected the reference.


3. The writ petition was admitted on 23.10.2009.  On notice from this Court, respondents 2 and 3 have entered appeared and are represented through counsel.


4. It is seen from the records that as against the dismissal order dated 2.12.2005, the petitioner raised an industrial dispute before the Assistant Labour Commissioner (Central).  The Conciliation Officer after notice to the respondent/Bank, as he could not bring about any mediation, sent a failure report to the Government of India.  The Government of India, Ministry of Labour, vide their order dated 4.12.2006, referred the issue for adjudication.  The reference made to the CGIT reads as follows:
"Whether the action of the Management of State Bank of India in imposing the punishment of removal from the services of Sri M.Gowrishankar with effect from 3.4.2006 for the charges leveled against him is just and proper?  If not to what relief is the applicant entitled to?"


5. After the receipt of the reference, the CGIT took up the dispute as I.D.No.90 of 2006 and issued notice to the parties.  The petitioner/ workman filed a claim statement on 25.1.2007 and the second respondent/Management filed a counter statement on 5.4.2007.  The petitioner filed a reply statement on 24.4.2007.  Before the Labour Court, the petitioner examined himself as W.W.1 and on the side of the management, there was no oral evidence.  The petitioner filed 60 documents which were marked as Exx.W1 to W60.  On the side of the management, they did not file any documents.


6. The Labour Court on the basis of these materials came to the conclusion that the enquiry held against the petitioner was fair and proper.  Even though the documents filed by the workman runs into more than 520 pages, unfortunately, the CGIT did not refer to any of the records, but made a generalized conclusion, namely that the findings recorded in the enquiry are valid and legal, and then took upon the task of finding as to whether the penalty imposed on the workman was disproportionate.    Thereafter, the CGIT held that since the management had lost confidence in the petitioner/workman and the misconduct alleged is grave in nature, it does not call for any interference under Section 11A of the Industrial Disputes Act and in that view of the matter, the CGIT dismissed the reference.  


7. But it is rather unfortunate that out of the 15 pages of the award, three pages cover the list of exhibits and 13 pages was summarizing the pleadings of the parties.  It is only in three sentences the Labour Court summarized the entire issue by stating that the findings rendered against the petitioner in the enquiry are not perverse and are legal and proper.


8. The Supreme Court has clearly held that after the introduction of Section 11A of the Industrial Disputes Act with effect from 15.12.1971, the Labour Court has the power of an Appellate Court and it can also re-appreciate the evidence and come to different conclusion if the situation so warrants.  The earlier judgment of the Supreme Court in Indian Iron and Steel Company Limited and another v. Workmen, AIR 1958 SC 130 was specifically held to be not holding the field in view of the introduction of Section 11A of the Industrial Disputes Act.  The scope of Section 11A of the Industrial Disputes Act came to be explained by the Supreme Court in Workmen of Firestone Tyre and Rubber Co. v. Management, [1973] 1 SCC 813 : 1973 I LLJ 278.  The Supreme Court in the said judgment has observed as follows:
".. The words in the course of the adjudication proceeding, the Tribunal is satisfied that the order of discharge or dismissal was not justified clearly indicate that the Tribunal is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by an employer establishes the misconduct alleged against a workman. What was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction being arrived at by the Tribunal that the finding of misconduct is correct. The limitations imposed on the powers of the Tribunal by the decision in Indian Iron & Steel Co. Ltd. case, can no longer be invoked by an employer. The Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer, has ceased to be so, and now it is the satisfaction of the Tribunal that finally decides the matter.
....
To come to a conclusion either way, the Tribunal will have to re-appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. 
.....
In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by Section 11-A."


9. Notwithstanding the fact that the CGIT held the enquiry was fair and proper, it is incumbent upon the CGIT to look into the evidence and come to the conclusion as to the charges levelled against the petitioner are proved or not.  In the present case, eleven charges were levelled against the petitioner vide charge memo dated 21.9.2004.  Subsequent to the charge memo, the workman had given his explanation.  Thereafter, an elaborate enquiry was conducted.  The enquiry proceedings were recorded in Tamil and it runs into 277 pages. The Enquiry report submitted by the Enquiry Officer found that charge Nos.1 to 6 and 8 and 9 were proved, charge No.7 was partly proved and  charge Nos.10 and 11 were not proved.  During the enquiry, the Enquiry Officer examined not only the witnesses of the management, but there were also four defence witnesses.


10. But, in the present case, it is not clear as to how the CGIT did not even refer to any of the deposition of the either side witnesses and did not even refer to documents which were marked.  Therefore, it appears that the CGIT did not even look into the documents.  May be the enquiry report and other final orders were not in English, but that is not an excuse for the CGIT for not looking into the evidence recorded in the enquiry, especially when the CGIT is held to be an Appellate Court having power to re-appreciate the evidence.


11. The learned Senior Counsel appearing for the respondent/Bank is unable to explain as to why the CGIT did not refer to the materials recorded in the enquiry.  On this short ground, the impugned award is liable to be set aside and remitted for fresh disposal.


12. At this stage, Mr.Balan Haridas, learned counsel for the petitioner submitted that the Presiding Officer of the CGIT was not familiar with Tamil and his mother tongue was Malayalam and even during the proceedings the substance of the evidence was stated before him but the translated copies of the enquiry proceedings were not available before him.  Mr.K.S.Sundar, learned counsel for the respondent/Bank is unable to controvert the said submission.  Therefore, this single fact is enough to set aside the impugned award.  When the Tribunals are constituted with specific statutory power to go into the evidence on record, the Tribunal should have called for translated copies of the documents before satisfying itself with reference to the legality of the evidence.    In the light of the above, this Court has no hesitation to set aside the impugned award.


13. Mr.Balan Haridas, learned counsel appearing for the petitioner submitted that instead of remitting the matter for another round of litigation, this Court can itself go into the evidence and render a finding.  For this purpose, the learned counsel relied upon a judgment of the Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha, 1980 I LLJ 137.  Reliance was  placed upon the following passage found in paragraphs [79] and [80], which are as follows:
"79. Dual jurisdictional issues arise here which have been argued at some length before us. The position taken up by Sri Sen was that the High Court could not, under Article 226, direct reinstatement, and even if it felt that the arbitrator had gone wrong in refusing reinstatement, the court could only demolish the order and direct the arbitrator to reconsider the issue. What belonged, as a discretionary power, to a tribunal or other adjudicatory body, could not be wrested by the writ court. To put it pithily, regarding the relief of reinstatement, the arbitrator could but would not and the High Court would but could not. (We will deal later with the point that the arbitrator had himself no power under Section 11-A of the Act but did have it in view of the vide terms of reference.)


80. The basis of this submission, as we conceive it, is the traditional limitations woven around high prerogative writs. Without examining the correctness of this limitation, we disregard it because while Article 226 has been inspired by the royal writs its sweep and scope exceed hide-bound British processes of yore. We are what we are because our Constitution-framers have felt the need for a pervasive reserve power in the higher judiciary to right wrongs under our conditions. Heritage cannot hamstring nor custom constrict where the language used is wisely wide. The British paradigms are not necessarily models in the Indian Republic. So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle, except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power."


14. But, in the present case, this Court is not inclined to accept the said submission because the CGIT never recorded any finding on the specific misconduct alleged against the workman.  In case the CGIT has discharged its duty to some extent, the question of reconsidering or looking into other evidence omitted by the CGIT is possible, but for the first time to plead the entire issue on merits and going into the satisfaction of the materials would amount to this Court usurping the powers of the CGIT and hence, this Court is not inclined to accept the stand of the counsel for the workman.


15. In view of the above, having left with no other option, the impugned award stands set aside and the matter is remitted to the first respondent/CGIT for fresh consideration.  Mr.Balan Hardias, learned counsel for the petitioner stated that the petitioner being a Class IV employee, the management may be directed to supply the translated copies of the evidence as it is their primary duty to submit the enquiry report.  Though Mr.G.Masilamani, learned Senior Counsel tried to contend that the Tribunal itself can call for translation from official translator, that will only further delay the disposal of the dispute.  Since the management is a bank having sufficient means and it is also their duty to specify the nature of evidence recorded by them, it is incumbent upon them to supply the translated copies and such exercise should be done within two months from the date of receipt of a copy of this order and once the records are ready, the Tribunal after due notice to both sides, shall complete the hearing and dispose of the matter within three months thereafter and in any event, complete the entire process within six months from today and submit its final award for publication in the Gazette of India.


The writ petition is allowed to the extent indicated above.  However, the parties are allowed to bear their own costs.   


















sasi


To:


The Presiding Officer 
Central Government Industrial Tribunal
cum Labour Court, Sasthri Bhavan
Chennai 600 008

In order to avoid their liability under various labour statutes employers are very often resorting to subterfuge by trying to show that their employees are, in fact, the employees of a contractor. It is high time that this subterfuge must come to an end.

                                                                            REPORTABLE




                           IN THE SUPREME COURT OF INDIA 




                           CIVIL  APPELLATE  JURISDICTION 




                            CIVIL   APPEAL NO.  2585  OF  2006










BHILWARA DUGDH UTPADAK


 SAHAKARI S. LTD.                                                           Appellant (s)




                                          VERSUS




VINOD KUMAR SHARMA DEAD BY 


LRS & ORS.                                                                  Respondent (s)








                                              O   R   D  E   R 










      Heard learned counsel for the appearing parties. 




       This Appeal has been filed against the impugned judgments dated 23.08.2004 and 




dated 21.09.2004 passed by the High Court of Judicature at Rajasthan.  




    This Appeal reveals the unfortunate state of affairs prevailing in the field of labour 




relations in our country.  




    In order to avoid their liability under various labour statutes employers are very often 




resorting to subterfuge by trying to show that their employees are, in fact, the employees 




of a contractor.  It is high time that this subterfuge must come to an end.  




    Labour   statutes   were   meant   to   protect   the   employees/workmen   because   it   was 




realised that the employers  and the employees  are not on an equal bargaining position. 




Hence,   protection   of   employees   was   required   so   that   they   may   not   be   exploited. 



However,   this   new   technique   of   subterfuge   has   been   adopted   by   some   employers   in 




recent years in order to deny the rights of the workmen under various labour statutes by 




showing   that   the   concerned   workmen   are   not   their   employees   but   are   the 




employees/workmen of a contractor, or that they are merely daily wage or short term or 




casual  employees when in fact they are doing the work of regular employees.  




    This Court cannot countenance such practices any more.  Globalization/liberalization 




in the name of growth cannot be at the human cost of exploitation of workers.  




    The facts of the case are given in the judgment of the High Court dated 23.08.2004 




and we are not repeating the same here.  It has been clearly stated therein that subterfuge 




was resorted to by the appellant to show that the workmen concerned were only workmen 




of a contractor.  The Labour Court has held that the workmen were the employees of the 




appellant and not employees  of the contractor.   Cogent reasons have been given by the 




Labour   Court   to   come   to   this   finding.     The   Labour   Court   has   held   that,   in   fact,   the 




concerned workmen were working under the orders of the officers of the appellant, and 




were being paid Rs 70/- per day, while the workmen/employees of the contractor were 




paid Rs. 56/- per day.  




    We are of the opinion that the High Court has rightly refused to interfere with this 




finding of fact recorded by the Labour court.  




    The Judgment of this Court in Steel Authority of India vs. National Union Waterfront 




Workers   (2001)   7   SCC   1   has   no   application   in   the   present   case.     In   that   decision   the 




question   was   whether   in   view   of   Section   10   of   the   Contract   Labour   (Regulation   and 




Abolition)  Act, 1970 the employees  of contractors  stood automatically absorbed in the 




service   of   the   principal   employer.     Overruling   the   decision   in   Air   India   Statutory 



Corporation vs. United Labour Union, (1997) 9 SCC 377 this Court held that they did 




not.  




    In   the   present   case   that   is   not   the   question   at   all.     Here   the   finding   of   fact   of   the 




Labour Court is that the respondents were not the contractor's employees  but were the 




employees  of the appellant.   The SAIL judgment (Supra) applies where the employees 




were initially employees of the contractor and later claim to be absorbed in the service of 




the principal employer.    That judgment was considerating the effect of the notification 




under Section 10 of the Act.   That is not the case here.   Hence, that decision is clearly 




distinguishable.  




    Mr. Puneet Jain, learned counsel for the appellant submitted that the High Court has 




wrongly held that the appellant resorted to a subterfuge, when there was no such finding 




by the Labour Court.  The Labour Court has found that the plea of the employer that the 




respondents were employees  of a contractor  was not correct, and in fact they were the 




employees  of the appellant.   In our opinion, therefore, it is implicit in this finding that 




there was subterfuge by the appellant to avoid its liabilities under various labour statutes. 




    For the reasons given above, there is no infirmity in the impugned judgment of the 




High Court.  The Appeal is dismissed accordingly.  No costs.   










                                                             ...................................................J


                                                             [MARKANDEY KATJU]










                                                        ...................................................J


                                                        [CHANDRAMAULI KR. PRASAD]


NEW DELHI;


SEPTEMBER 01, 2011