Bharat Coking Coal Limited vs The Central Government Industrial Tribunal-cum-Labour Court, Asansol & Ors.

Shampa Dutt (Paul), J.:

The writ petition has been preferred challenging an award dated 5th February, 2016 made upon Reference No.L-22012/280/2001-IR(CM-II) by the Central Government Industrial Tribunal-cum-Labour Court, Asansol.

Vide the said impugned order, the learned Tribunal answered the following issues:-

On hearing, the learned Tribunal held as follows:-

The petitioner’s case is that the petitioner entered into an agreement with M/s. Triveni Engineering Works for complete detailed engineering design, construction, supply of plant and machineries along with control of equipments, all associated civil/structural work as well as modification in existing system, erection of equipment, supply of design drawings, testing and commissioning, performance test and handing over in satisfactory working condition of the 100 TPH Froth Floatation Plant at Bhojudih Washery.

The value of the work as per the agreement was Rs.7,11,64,000/-. Under the said agreement M/s. Triveni Engineering Works was required to erect the Froth Floatation Plant through their own men and machinery.

M/s. Tirveni Engineering Works was unable to complete the erection and commissioning of 100 TPH froth floatation plant. A fresh agreement was, therefore, entered into by the petitioner with M/s. Humboldt Wedage on 16^th October, 1998 for commissioning the plant on turnkey basis for a sum of Rs.2,80,00,000/-.

On or about 08.03.2001 sixty-two persons purported to raise an industrial dispute alleging that their services had been terminated by the "Management of Bhojudih Coal Washery" instead of being regularised.

Conciliation proceedings were held in the matter, which the petitioner attended. During the said proceedings, the petitioner came to know that the concerned workmen had been employed by Triveni Engineering Works or Humboldt Wedage or their respective subcontractors in the work of the aforesaid Froth Flotation Plant. They had never been employed by the petitioner.

By an order No.L-22012/280/2001-IR(CM-II) dated 31^st May, 2002, the Government of India on an observation that an industrial dispute existed between the employees in relation to the management of Bhojudih Coal Washery, M/s. BCCL and their workmen made a reference to the Central Government Industrial Tribunal-cum-Labour Court, Asansol for adjudication.

The petitioner’s contention is that none of the concerned workmen had ever been employed by the petitioner, but may have been employed by Triveni Engineering Works or Humboldt Wedge or their respective sub-contractors.

The petitioner states that the Muster Rolls, Exhibits 1-(W) and Register of workmen, Exhibit 2-(W) before the first respondent clearly established that the concerned workmen were contract labour. Both were in the form prescribed by the rules framed in terms of the Contract Labour (Regulation and Abolition) Act, 1970 and had been signed inter-alia by a representative of Triveni Engineering Works and the petitioner had been named as "Principal Employer" therein. The petitioner's representative, the Assistant Labour Welfare Officer of Bhojudih Washery, signed the said documents as the representative of the Principal Employer.

The petitioner being aggrieved with the impugned award has preferred this writ petition stating that the tribunal erred in holding that the workmen had discharged the onus of establishing that the concerned workmen were employed by the petitioner. This is evident from the fact that the said exhibits 1-(w) and 2(W) are in forms prescribed by rules framed in terms of the Contract Labour (Regulation and Abolition) Act, 1970, for Muster Rolls and registers of workmen for contract labour, and that the petitioner has been the described as the principal employer in the said exhibits. The concerned workmen had no letters of appointment from the petitioner, and the wages paid to them were not recorded in any wage sheet or the register of the petitioner.

In course of hearing, both parties have filed written notes of argument and relied upon judgments in support of their contentions.

The petitioner has argued that no appointment letter and termination letter was produced by any of the workmen at any stage of the proceedings before the Learned Industrial Tribunal in aid of its statement that they all were allegedly appointed and/or engaged by the petitioner on June 06, 1994 and terminated by stopping their service with effect from 16.10.2000 (six years).

The petitioner further argues that the learned Tribunal’s finding that by pleading that the workmen were engaged and worked under the direct control and supervision of the Management, which allegedly prepared records to show that it was made by intermediaries like M/s. Tribeni Engineering & M/s. Humbolt Wedage was to camouflage the fact and the union, certainly does not tend to prove the Employer-Employee relationship by direct evidence either documentary or oral and admittedly no such evidence exist. It is thus stated that the award is not clearly in accordance with law as the workmen could not establish the existing employer employee relationship between the petitioner and 62 workmen.

The petitioner further states that the Muster Roll [marked as Exhibit 1 (W)] and the Registrar of Workmen Employed by Contractor [marked as Exhibit 2 (W)] produced and relied upon by the workmen clearly demonstrates the provision of the applicable Statue in obedience of which the same was prepared. The Muster Roll was prepared by the Contractor in accordance with Form XVI read with Rule 78 (1) (a) (i) of the Contract Labour (Regulation and Abolition) Central Rules, 1971 stating therein the 'Name of Contractor' to be the ‘Triveni Engg. Works Ltd.’ and 'Name of Principal Employer' to be 'Bharat Coking Coal Limited.

The Register of Workmen employed by the contractor was prepared in accordance with Form XIII read with Rule 75 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 stating therein the 'Name of Contractor' to be the Triveni Engg. Works Ltd.' and 'Name of Principal Employer' to be 'Bharat Coking Coal Limited'.

It is further stated that the contention of the workmen that they were paid wages in terms of the National Coal Wages Agreement (in short, “NCWA”) has not been substantiated. Not a single document or representation was produced on behalf of the workmen to corroborate its statements that: - (a) they have been continuously in permanent nature of job under the direct control and supervision of the management; (b) stopping the concerned workmen from service with effect from January 08, 1996; (c) management allowed the concerned workmen to resume their duties on May 05, 1997.

It is thus stated that the award dated February 05, 2016 passed by the Learned Tribunal, has the finding that there exist employer-employee relationship, even after stating that "by pleading that the workmen were engaged and worked under the direct control and supervision of the Management, which allegedly prepared records to show that it was made by intermediaries like M/s. Tribeni Engineering & M/s. Humbolt Wedage to camouflage the fact, the union certainly does not tend to prove the Employer-Employee relationship by direct evidence either documentary or oral and admittedly no such evidence exist." is based on 'no evidence', and is without application of mind and the tribunal has also based its finding upon conjectures, surmises and suspicion.

It is further stated that on the issue of establishment of employer-employee relationship and piercing the corporate veil, the Learned Tribunal misdirected itself by failing to take note of the settled principle in this regard as it stood on the date of the award, and as such prays for setting aside of the award.

The petitioner on the issue of employer-employee relationship has relied upon the judgments in:-i) Balwant Rai Saluja and Another -Versus- Air India Limited and Others [2014 (9) SCC 407] [Paragraphs 10, 18, 19, 20, 21, 25, 26, 27, 33, 45, 46, 52-66, 70, 71, 73, 74, 82, 84 and 89]; ii) The Joint Secretary, Central Board of Secondary Education and Another -Vs. Raj Kumar Mishra [SLP (c) 19648 of 2023 dated March 17, 2025] [paragraphs 7, 8 and 9];

On the Issue of Law of Perversity:-

On filing their written notes of argument, the respondent nos.2 and 3 have countered the case of the petitioner and stated that 62 workmen had been working at Bhojudih Coal Washery since 06.09.1994 regularly and continuously under the direct supervision and control of the Bhojudih Coal Washery management. The reference is dated 31.05.2022.

It is stated that the works executed, are permanent and perennial, in nature on being engaged by the management for performing regular nature of job and that the workmen were under direct control and supervision of the management for the gain and benefit of the management.

It is stated that the workmen were engaged as fitters, welders and cutters at the premises and prescient of washery and the works executed by the respondent no.2 were at par with the other permanent employee of Bhojudih Coal Washery. The workmen after working more than 240 days in a year continuously and uninterruptedly with unblemished record of service prayed for wages as per National Coal Wages Agreement and other benefits including regularization of their service as employee of Bharat Cooking Coal Limited of which the Bhojudih Coal Washery is a direct subsidiary, but the same was turned down by the petitioner on the ground that the workers are the employees of contactors and not of the Bharat Coal Cooking Limited.

It is further stated that entering into agreement with the contractors are sham and disbursement of wages through those intermediaries is an attempt to camouflage and to confuse the statutory body with intention to debar the employees from getting their statutory rights.

That the required ingredients and characteristics were proved beyond reasonable doubt, that the workmen are employee in terms of, Section 2(k) of Industrial Dispute Act.

That the management has not denied that the workmen were working for more than 240 days in a year continuously and without any interruption and the job is same and perennial in nature with the permanent workers of Bhojudih Coal Washery.

The date of agreement with M/s. Triveni Engineering Works Limited has not been specified by the management. It is stated that the M/s. Humboldt Waged Limited has entered into agreement with the management on 16.10.1998. The workers are working in the Bhojudih Coal Washery since 06.09.1994 for benefit and gain of the Bharat Cooking Coal Limited.

It is stated that in the muster roll signature of the welfare officer is appearing which suggests that the management was well aware about the employees and their job. The presence of signature of the welfare officer of Bhojudih Coal Washery itself proves that the workers were under the direct control and supervision of the management.

That in terms of the Contract Labour (Regulation and Abolition) Act 1970, the welfare officer has to look after and take care to ensure that the Contract Labours are getting at par salary with regular workers of the management. But in this case the workmen get much lesser payment compared to the regular workers of the management/company. The silence/inaction on the part of the welfare officer regarding payment of lesser wages without any protest itself shows that the welfare officer has worked for and on behalf of the management to ensure lesser payment of wages to the workers.

It is also stated that the management has not produced the agreements executed by and between the M/s. Triveni Engineering Works Limited and M/s. Humbolt Wages Limited, although the agreements were under the custody of the management. The liability of the contractor has not been shown by the management. It is the obligations on the part of the principal employer to pay the deficit wages and to give other statutory benefits. The management cannot avoid their statutory duties and liabilities.

That in the muster roll and form XIII, the name of contractor appears as M/s. Universal Construction Company and M/s. Minakshi Enterprises. The said M/s. Universal Construction Company and M/s. Minakshi Enterprises never entered into agreement with the management. No scrap of paper was produced before the Tribunal that they were authorized by the management to work in the place of original contractors. It clearly shows that in order to camouflage and to avoid legal compliances, the agreements were entered by the management were sham, vague and never acted upon.

In such circumstances, it is submitted that the writ petition being WPA 15018 of 2016 is liable to be dismissed.

From the impugned award dated 05.02.2016 it appears that the workmen herein are working since 1994 and the reference is of the year 2002, as such, when the dispute was raised in the year 2000, the same was within 6(six) years of being engaged.

Relevant observations of the tribunal are:-

Thus, considering the fact the petitioner herein had produced two agreements with M/s. Tribeni Engineering and M/s Humboldt and also two licences, it prima facie proves the presence of contractors at the initial stage.

Considering the materials on record, it appears that the workmen were engaged through M/s. Triveni Engineering Works for completing detailed engineering design, construction, supply of plant and machineries along with control of equipments, all associated civil/structural work as well as modification in existing system, erection of equipment, supply of design drawings, testing and commissioning, performance test and handing over in satisfactory working condition of the 100 TPH Froth Floatation Plant at Bhojudih Washery. The value of the work as per the agreement was Rs.7,11,64,000/-. Under the said agreement M/s. Triveni Engineering Works was required to erect the Froth Floatation Plant through their own men and machinery.

M/s. Tirveni Engineering Works was unable to complete the erection and commissioning of 100 TPH froth floatation plant. A fresh agreement was therefore entered into by the petitioner with M/s. Humboldt Wedage on 16^th October, 1998 for commissioning the plant on turnkey basis for a sum of Rs.2,80,00,000/-.

It is on record that the workmen were engaged for the said project in 1994 and their engagement was discontinued and were again reengaged w.e.f. 05.07.1997.

The workmen raised the demand for regularization in the year 2001, when their engagement was again stopped and till date since then they are not working with the petitioner company.

It appears that admittedly two agreement with the M/s. Tribeni Engineering and M/s. Humboldt and two licences were produced, before the tribunal.

It is thus clear that the workmen were engaged through contractors, only for the specific project for which the firms were engaged.

It is surprising that such a dispute has been raised within about six years of their engagement of which no papers (engagement by the petitioner) could be produced by the workmen claiming appointment and/or termination, when it appears to be actually a case of not being given further engagement, as the specific project/construction as commissioned had been completed.

The said facts are apparent on the face of the record and also seen as clear and logical, by this Court.

The tribunal’s judgment is based on no proper materials or evidence and more on presumption, as there appears to be no employer-employee relationship in the present case.

Thus, the impugned award dated 5th February, 2016 in Reference No.L-22012/280/2001-IR(CM-II) made by the Central Government Industrial Tribunal-cum-Labour Court, Asansol, being not in accordance with law if permitted to remain will be an abuse of the process of law, even considering that the law is a beneficial legislation, but in such cases, it is the interest of justice which is to be kept in mind and herein taking the plea of beneficial legislation, the management cannot be compelled to accept workmen engaged through contractors/engineering firms for specific projects, after the work has been completed, as the management being in their position are also entitled to justice.

WPA 15018 of 2016 is allowed.

The award dated 5th February, 2016 made upon Reference No.L-22012/280/2001-IR(CM-II) by the Central Government Industrial Tribunal-cum-Labour Court, Asansol, is set aside.

Applications, if any, connected thereto stand disposed of consequently.

Interim order, if any, stands vacated.

Photostat certified copy of this Judgment, if applied for, be given to the parties on priority basis upon compliance of all formalities.