Jharkhand High Court
Their Workmen Being Represented By The … vs Employers In Relation To The Management … on 4 March, 2025
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 119 of 2024
Their workmen being represented by the Rastriya Colliery Mazdoor Sangh,
P.O. Kusunda, P.S. Putkee, District-Dhanbad, PIN-828116, through
President of Shramik Sahayog Samitee namely Jiwan Kumar Sarkar son of
Sri B.M. Sarkar, resident of 4 Pit, Balihari Colliery, P.O. Kusunda, P.S.
Putkee, District-Dhanbad. ... ... Appellant
Versus
Employers in relation to the Management of Gopalichak Colliery under
Putkee Balihari Area of M/s Bharat Coking Coal Limited, P.O. Kusunda,
P.S. Putkee, District-Dhanbad, PIN-828116, through Sri Surendra Singh son
of Sri Ramashish Singh, General Manager, P.B. Area of M/s B.C.C.L.,
resident of G.M. Bunglow, Kendua, P.O. Kusunda P.S. Putkee, District-
Dhanbad, PIN-828116. ... ... ... Respondents
---------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK ROSHAN
---------
For the Appellant: Mr. Shrestha Gautam, Advocate
Mr. Tejo Mistry, Advocate
For the Respondent-BCCL: Mr. Amit Kr. Das, Advocate
---------
Reserved on: 12.02.2025 Pronounced on: 4/03/2025
Per M.S. Ramachandra Rao, C.J.
1. This Letters Patent Appeal is preferred challenging the judgment
dated 05.07.2023 of the learned Single Judge in W.P.(L) No. 1018 of 2010.
2. The said Writ petition had been filed by the respondents herein
challenging the award dt. 20.10.2009 of the Central Government Industrial
Tribunal No. 1, Dhanbad ( for short ‘the Tribunal’) in Reference No. 101 of
1995.
The reference
3. The said reference had been made by the Central Government for
adjudication of the following issue:-
“Whether the claim of Rastriya Colliery Mazdoor Sangh,
Dhanbad for regularisation of services of Sri Jiban Kumar
Sarkar and 63 others (as per list Annexed) by the
Management of Gopalichak Colliery of M/s. Bharat CokingPage 1 of 15 LPA No. 119 of 2024
Coal Limited is justified? If not, to what relief the concerned
workmen are entitled?
4. Before the Tribunal, the appellant/workmen, which had sought the
reference, as well as the respondents/Management filed pleadings and also
led oral and documentary evidence.
The case of the appellants/ workmen
5. The workmen had contended before the Tribunal that they had been
regularly and continuously working since 1989 and doing important jobs
like installation of machinery, heavy line carrying, laying tramming track
and packing and also in smithy works for lifting up tubs from underground
and their repairs, boiler cleaning, dressing, stone fall breaking and cleaning,
cutting of coal, etc.
6. They claimed that the respondent had directly employed them on
hazri basis for different works. According to them, the works they were
engaged to perform were of permanent and perennial nature and their jobs
were directly connected with the production and mining operations.
7. They claimed that they were working underground regularly and
have also put in more than 190 days of attendance in a year of 12 calendar
months. According to them, they had been engaged by the Management
through a dummy contractor by name Rajendra Prasad, that the said
contractor after a short time deserted the workers, that they then approached
the Management for their employment, and the Management on their part
advised them to form and register in a co-operative and assured them
continuation of their employment. They contended that on the basis of the
said advice of the Management, they formed a workers’ co-operative in the
name and style of ‘Jan Bikash Shramik Sahayog Society’ (for short
‘Society’) and got it registered under the Co-operative Act at Dhanbad. All
the workmen were members of the said Society.
8. The Society never obtained a license under the Contract Labour
(Regulation & Abolition) Act, 1970, and so the above workers are to be
Page 2 of 15 LPA No. 119 of 2024
deemed to be employees of the Management, particularly when they were
working under the guidance, supervision and control of the Management
and tools and implements necessary for execution of jobs entrusted to them
were also being supplied by the Management.
9. They claimed that the attendance of the workmen was marked in
statutory records by the staff of the Management and they were also paid by
the Management.
10. They claimed that through their President and Secretary, the Society
made a representation to the Deputy Chief Personnel Manager, P.P. Area for
regularisation of the services of the workmen, but it had no effect. So they
raised an industrial dispute and claimed the relief of regularisation of their
services in the direct rolls of the company.
The case of the Management
11. The respondent Management filed written statement contending that
the reference is not maintainable as there was no existing relationship
between them and the workmen concerned.
12. They contended that the Society is a registered co-operative Society
and the Management had awarded the contract to the said Society from time
to time as and when the contract jobs would be available for awarding to
them, and in that process the Society was awarded different contracts in
1990-1991, but the job was mostly for shorter duration of few days at a
time.
13. They contended that the work orders indicate that the Society was
awarded contract for shifting and installation of pumps or repairing,
rewinding, reconditioning some machineries at certain particular time and
doing some jobs of packing, cleaning etc. on some different occasions.
14. They contended that the jobs performed by the workers were purely
temporary in nature and the temporary period was for a few days only at a
time. According to the Management, it has got sufficient work force to carry
Page 3 of 15 LPA No. 119 of 2024
on regularly all permanent jobs and the question of engaging the workmen
through the Society on permanent jobs did not arise.
15. They also claimed that the engagement of contract labour on jobs
awarded to the co-operative Society was not prohibited by the Central
Government under any notification issued under Section 10 of Contract
Labour (Regulation & Abolition) Act, 1970 ( for sort ‘the Act’). According
to them, the workers were contract workers and they have no right to
demand for abolition of contract system and to provide them regular job
under the principal employer.
16. The workmen examined WW-1 to WW-5 and the Management
examined MWs-1 & 2. The workmen marked exhibits W1, W1/1, W 2, W3
to W3/9 and W4 to W4/12.
Findings of the Tribunal
17. The Tribunal considered the contentions of the parties as well as the
oral and documentary evidences on record.
18. Referring to para 18 of the written statement filed by the respondent-
Management, the Tribunal held that it is very important because the
Management admitted that a contract was awarded to a co-operative Society
for some one-time temporary jobs, like installation of machinery or
carrying, laying and packing any tramline when any new district is opened
or for doing any repairing jobs of cleaning jobs available at intervals of six
months or a year.
19. It also noted that in para 21 of the respondent’s written statement, it
was admitted that Rajendra Prasad was a recognized contractor and he was
awarded contract on some occasions and he engaged his own workers for
executing the contract jobs awarded to him, and that some of the workmen,
who are parties to the Reference, might have worked under him; some of the
contract workers as well as the several others were entrusted to form a co-
operative Society in the name of ‘Jan Bikash Shramik Sahyog Sammittee’
Page 4 of 15 LPA No. 119 of 2024
and got it registered; and these statements of Management show that the
workmen were working with them, but they have not given details best
known to them.
20. It then referred to the evidence of MW-1 who stated that he had not
gone through the written statement of the Management and that he simply
knows that Labour Co-operative Society had been assigned some jobs on
the contract basis.
21. The Tribunal also referred to the evidence of WW-3 that the
workmen had worked continuously and regularly and underground as well
as on the surface of the mine and noted that persons of the Management
who supervise the jobs of the workers had supported the case of workmen
that they had worked on surface as well as underground in the mine. It held
that the workmen were engaged by the Management through the Co-
operative Society and the work performed by the workmen showed that they
have been assigned the work of permanent and perennial nature, which
cannot be given to contract workers under section 10 of the Act.
22. The Tribunal also referred to the evidence of MW-2, who admitted
in chief examination that they used to engage contractor for doing certain
jobs and that they had also got the colliery of Gopalichak registered under
the Contract Labour (Regulation & Abolition) Act, 1970; during 1989-91
there was a registered Co-operative Society by name ‘Jan Bikash Shramik
Sahayog Samiti Limited.’ which was a Labour Co-operative Society and
work orders were used to be issued to it for providing certain works; for the
work done by the Society they used to submit bills and payment was then
made through cheque. The witness also admitted that the workers of the
Society were issued Identity Cards. In cross-examination, the same witness
also stated that he used to visit the spot to verify what works the workers of
the contractor were performing on the surface; it is possible that few of
them might be working in the underground mine; that he knew the
Page 5 of 15 LPA No. 119 of 2024
supervisory staff of Gopalichak Colliery who were working during his
posting there and WW-2, WW-3 and WW-4 had worked as Senior
Overman, Stowing Incharge and Assistant Survey Officer respectively. He
admitted that the cheques were being issued in the name of the Secretary of
the said Co-operative Society.
23. After considering the above oral evidence, the Tribunal concluded
that the officials of the Management supervise the work of the workmen on
behalf of the Management and WW-2 to WW-4 stated on oath that the
workmen had been working regularly in the underground and surface of the
mine and their work was of essential nature. It therefore concluded that the
workmen were engaged by the Management for performing work of
permanent and perennial nature, that attendance was taken by the
Management and the work was supervised by the Management and payment
was made to them through cheque to the Society.
24. It, therefore, concluded that the Management, to camouflage the real
fact, treated them as employees of the so-called contractor.
25. It also referred to (a) Exhibit W-1 which showed that it was written
by the Superintendent of Gopalichak Colliery to the Deputy Chief Manager
Personnel of Pootkee area and he was sending attendance register of the
concerned workmen prepared, (b) Exhibit W-2 application for
regularization and (c) Exhibits W-3/1 to W3/9 work orders issued by the
Management to the Co-operative Society.
26. It referred to the contents of the work orders Exhibits W-3/1 to W-3/9
and concluded that the above evidence shows that the work being performed
by the workmen was of essential and perennial nature. It then relied on the
judgment of the Supreme Court in Hussainbhai, Calicut vs. Alath
Factory Thozhilali Union, Kozhikode and others1, where the Supreme
Court held that where a worker or group of workers labours to produce
1
1978 (4) SCC 257
Page 6 of 15 LPA No. 119 of 2024
goods or services and these goods or services are for the business of
another, that other is, in fact, the employer. He has economic control over
the workers’ subsistence, skill and continued employment. If he, for any
reason, chokes off, the worker is, virtually, laid off. The presence of
intermediate contractors with whom alone the workers have immediate or
direct relationship ex contractu is of no consequence when, on lifting the
veil or looking at the conspectus of factors governing employment, we
discern the naked truth, though draped in different perfect paper
arrangement, that the real employer is the Management, not the immediate
contractor. The Court must be astute to avoid the mischief and achieve the
purpose of the law and not to be misled by the maya of legal appearances. If
the livelihood of the workmen substantially depends on labour rendered to
produce goods and services for the benefits and satisfaction of an enterprise,
the absence of direct relationship or the presence of dubious intermediaries
or the make-believe trappings of detachment from the Management cannot
snap the real-life bond. The story may vary but the inference defies
ingenuity and the liability cannot be shaken off.
27. It also referred to the judgments of the Supreme Court in U.P. State
Electricity Board Vs. Puran Chandra Pandey and others2, General
Manager ONGC, Silchar Vs. ONGC Contractual Workers Union3,
Kanpur Electricity Company Vs. Shamim Mirza4, Hindalco Industries
Limited Vs. Association of Engineering Workers 5etc. and concluded that
the works have been taken by the Management from the workmen and as
per the evidence produced by the Management, the workmen were doing
jobs of permanent and perennial nature since 1989. Other persons had been
regularised by the Management of M/s. Bharat Coking Coal Limited but the
present workmen have not been regularised and so they were entitled to be
2
(2007) 11 SCC 92
3
2008 AIR SCW 3996
4
(2009) 1 SCC 20
5
(2008) 13 SCC 441
Page 7 of 15 LPA No. 119 of 2024
regularized in the services of Management of Gopalichak Colliery of M/s.
Bharat Coking Coal Limited. It also directed payment of 50% of back-
wages from the date of the stoppage from services within 30 days from the
date of publication of the award.
Order of the learned Single Judge
28. The respondent-Management then questioned it in W.P.(L) No.1018
of 2010.
29. After referring to the contentions of both the parties and also the
findings recorded by the Tribunal and the reliance by the Tribunal on
Exhibit W-1, the letter written by the Superintendent of Gopalichak Colliery
to the Deputy Chief Personnel Manager asking for sending the attendance
register of the concerned workmen, and the enclosure to Exhibit W-1 which
was marked as ‘X’ for identification, the learned Single Judge held that the
enclosure to the letter Exhibit W-1 marked as ‘X’ was a photo copy of a so-
called attendance register and what was taken on record was only the
covering letter, but not the enclosure containing details of the workmen
because it was a photocopy and it was merely marked as ‘X’ for
identification.
30. The learned Single Judge then observed at para 25 that in the entire
award there is no discussion of any material produced either by the
Management or by the workmen with regard to the number of days of
continuous work in a year the workmen had worked; that only 01 workman
had deposed before the Labour Court below who was the
President/Secretary of the Co-operative Society; admittedly, attendance
register could not be exhibited and taken on record before the Industrial
Tribunal to record any finding in connection with the number of days of
continuous work in a year each workman had worked.
31. Learned Single Judge, therefore, found fault with the Tribunal and
observed that the Tribunal had simply recorded a finding that the concerned
Page 8 of 15 LPA No. 119 of 2024
workmen were doing the job of permanent and perennial nature since 1989
without recording any finding with regard to the number of days each
workman had actually worked much less the number of days each workman
continuously worked in a year. Learned Single Judge also held that except
one workman, the others did not depose before the Tribunal to even make a
statement that they had worked for 190 / 240 days continuously in a year.
32. She therefore allowed the Writ Petition and set aside the award of the
Tribunal.
33. Challenging the same, the instant LPA has been preferred.
Consideration by the Court
34. There is no dispute that it was the respondent Management which
was maintaining the attendance register of the workers working in the
particular Gopalichak Colliery and Exhibit W-1 records the statement of the
Manager of the said colliery that he is sending to the Deputy Chief
Personnel Manager, Putkee Balihari area of the Bharat Coking Coal Limited
the attendance of the workers prepared from the available records of the
colliery. To this letter was enclosed a photocopy of list of workmen engaged
to carry out works in the respondent Management’s Colliery at Gopalichak.
35. Unfortunately, though strict rules of evidence do not apply to
Industrial Adjudication as held in Grindlays Bank Ltd. v Government
Industrial Tribunal and Ors.6 and Bhavnagar Municipal Corporation and
Ors. v. Jadeja Govubha Chhanubha and Anr.7, on the ground that the
enclosure to Ex.W-1 containing the details of number of days the workmen
worked was a photocopy, it was not marked as an exhibit , but marked as
‘X’ by the Tribunal.
36. Inspite of the same not being marked, the Tribunal returned a finding
in favor of the workmen on basis of available other evidence that they were
doing works of a permanent and perennial nature.
6
1980 (Supp) SCC 420
7
(2014) 16 SCC 130
Page 9 of 15 LPA No. 119 of 2024
37. But the learned single Judge ignored the photocopy altogether on the
pretext that it was not marked as exhibit and stating that it was marked as
‘X’ only for identification, gave no weight to it.
38. The fact that strict rules of evidence do not apply to the Tribunal and
it should have marked the enclosure to Ex.W-1 containing the details of the
number of days the workmen had worked seems to have missed the
attention of the learned single Judge. The single Judge therefore erred in
holding that there was no material to show how many days each workman
worked in a year or worked continuously in a year.
39. Nothing therefore prevented the learned Judge to draw an adverse
inference against the Management for not producing the original record of
the number of days the workmen had worked , but she chose not to do so by
adopting a highly technical approach.
40. In Gopal Krishnaji Ketkar v. Mohamed Haji Latif8, the Supreme
Court held that even if the burden of proof does not lie on a party, the Court
may draw an adverse inference if he withholds important documents in his
possession which can throw light on the facts at issue. It declared:
“40. Even if the burden of proof does not lie on a party the Court
may draw an adverse inference if he withholds important
documents in his possession which can throw light on the facts at
issue. It is not, in our opinion, a sound practice for those desiring
to rely upon a certain state of facts to withhold from the Court the
best evidence which is in their possession which could throw light
upon the issues in controversy and to rely upon the abstract
doctrine of onus of proof. In Murugesam Pillai v. Manickavasaka
Pandara9 Lord Shaw observed as follows:
“A practice has grown up in Indian procedure of those in
possession of important documents or information lying by,
trusting to the abstract doctrine of the onus of proof, and
failing, accordingly, to furnish to the Courts the best
material for its decision. With regard to third parties, this8
AIR 1968 SC 1413
9
44 IA 98 at 103 (PC)Page 10 of 15 LPA No. 119 of 2024
may be right enough — they have no responsibility for the
conduct of the suit; but with regard to the parties to the suit
it is, in Their Lordships’ opinion, an inversion of sound
practice for those desiring to rely upon a certain state of
facts to withhold from the Court the written evidence in
their possession which would throw light upon the
proposition.”
This passage was cited with approval by this Court in a recent
decision– Biltu Ram v. Jainandan Prasad10. In that case,
reliance was placed on behalf of the defendants upon the following
passage from the decision of the Judicial Committee in Bilas
Kunwar v. Desraj Ranjit Singh11:
“But it is open to a litigant to refrain from producing any
documents that he considers irrelevant; if the other litigant
is dissatisfied it is for him to apply for an affidavit of
documents and he can obtain inspection and production of
all that appears to him in such affidavit to be relevant and
proper. If he fails so to do, neither he nor the Court at his
suggestion is entitled to draw any inference as to the
contents of any such documents.”
But Shah, J., speaking for the Court, stated:
“The observations of the Judicial Committee do not
support the proposition that unless a party is called upon
expressly to make an affidavit of documents and inspection
and production of documents is demanded, the Court
cannot raise an adverse inference against a party
withholding evidence in his possession. Such a rule is
inconsistent with Illustration (g) of Section 114 of the
Evidence Act, and also an impressive body of authority.”
41. If the respondent Management was, in fact, maintaining the
attendance particulars of the workmen as admitted in Ex.W-1, then it was
obligatory on the part of the respondent Management to produce the
evidence in its possession. If it had not done so in spite of being in
possession of the same, adverse inference should have been drawn by the
10
C.A.941 of 1965 dt.15.4.1968 (SC)
11
42 IA 202 at 206 (PC)
Page 11 of 15 LPA No. 119 of 2024
learned Single Judge against the respondent under Section 114 (g) of the
Evidence Act,1872 i.e that if such evidence were to be produced, it would
be unfavorable to the respondent who withheld it.
42. In Gauri Shanker Vs. State of Rajasthan12, muster-rolls were not
produced by the Management and the Labour court had drawn an adverse
inference against the Management. The Supreme Court upheld its decision
to draw the adverse inference by placing reliance of its judgment in Gopal
Krishnaji Ketkar ( 8 supra). In that case, the Supreme Court had taken the
view that it is not a sound practice for those desiring to rely upon a certain
state of facts to withhold from the Court the best evidence which is in their
possession which would throw light upon the issues in controversy and to
rely upon the abstract doctrine of onus of proof.
43. The learned single Judge relied on the judgment of the Supreme
Court in Manager, R.B.I., Bangalore Vs. S. Mani and Others13 for
holding that adverse inference cannot be drawn for non-production of the
attendance register.
In that case, the Tribunal had held that the employer failed to prove
that the workmen abandoned their service, instead of asking the workmen to
show that they had completed 240 days of service. The Supreme Court
found fault with this. According to us this was the main factor which
weighed with the Court.
In that case no workmen had entered the witness box to depose as to
the number of days they had worked unlike in the instant case where WW1
to WW4 were examined and their evidence, coupled with the evidence of
MW1 and 2, was considered by the Tribunal and it rightly came to the
conclusion that the workmen were entitled to relief. The view of the
Tribunal is supported by the decision in Gauri Shanker (12 supra).
12
(2015) 12 SCC 754
13
(2005) 5 SCC 100
Page 12 of 15 LPA No. 119 of 2024
No doubt the Supreme Court observed in S.Mani (13 supra) that the
initial burden to establish the factum of their continuous work for 240 days
in a year rests with the workmen, but that was because no workmen in that
case had entered the witness box.
The learned Single Judge has misconstrued the judgment of the
Supreme Court and misunderstood it to mean that every workman should
depose with regard to the number of days he had worked.
The learned single Judge also held in para 31 that in S.Mani (13
supra), the Supreme Court held that adverse inference can be taken on
account of non-production of document only when the management is
called upon to produce one or the other document.
This view of the Supreme Court in S.Mani (13 supra) is contrary to
it’s previous judgments in Gopal Krishnaji Ketkar (8 supra) and in Biltu
Ram (10 supra) where it was held by the Supreme Court that the Court can
raise an adverse inference against a party withholding evidence in his
possession even if a party is not called upon expressly to make an affidavit
of documents and inspection and production of documents is not demanded.
It held that if such a requirement is introduced , i.e., that there must be a
demand to produce documents first before the adverse inference is drawn,
such requirement is inconsistent with Illustration (g) of Section 114 of the
Evidence Act, and also an impressive body of authority. These two
decisions were not noticed, considered or overruled in S.Mani ( 13 supra).
So we are inclined to follow the decisions of the Supreme Court in Gopal
Krishnaji Ketkar (8 supra) and in Biltu Ram (10 supra) and not the
decision in S.Mani (13 supra).
44. Thus we hold that the learned Single Judge ought not to have
declined to draw an adverse inference against the Management for non-
production of attendance registers in it’s possession and it was fit case
where such adverse possession should have been drawn. The learned Single
Page 13 of 15 LPA No. 119 of 2024
Judge ought to have concluded that if the attendance register with regard to
the said workmen which the Management had in it’s possession had been
produced, it would disprove its pleadings that the workmen had not worked
for 190/240 days in a year, and so the Management had deliberately
suppressed it.
45. We also hold that the learned Single Judge erred in observing at para
25 of the judgment in the Writ Petition that in the entire award there is no
discussion of any material produced either by the Management or by the
workmen with regard to the number of days of continuous work in a year
the workmen had worked.
The Learned Single Judge appears to have not noticed the elaborate
discussion of the evidence adduced by the workers’ witnesses WW1-4 and
the Management witnesses – in particular MW-1’s evidence that he had not
even gone through the written statement of the Management; and the
evidence of MW-2 that he was visiting the spot to verify what works the
workers of the contractors were performing on the surface and it was
possible that some of them might be working in the underground mine also
and he was aware as to who were the supervisory staff of the colliery.
46. The view of the learned Single Judge that unless all the workmen
deposed before the Labour court or the Industrial Tribunal regarding the
number of days they had worked in one colliery area, cannot be said to be
correct because not only the president of the Society but also WW2- Senior
Overman, WW3- Stowing Incharge and WW4- Assistant Survey Officer,
had deposed in regard to the workers’ continuous employment. This
evidence coupled with the non-production/suppression of attendance
particulars of the workmen was thus rightly relied upon by the Tribunal to
grant relief to the workmen.
Page 14 of 15 LPA No. 119 of 2024
47. The Supreme Court in D.P. Maheswari Vs. Delhi Administration
and others14, had held that the findings of the Central Industrial Tribunal
based on proper appraisal of the evidence cannot be interfered under Article
226 of the Constitution of India.
48. In exercise of a jurisdiction under Article 226 of the Constitution of
India, the High Court does not sit in appeal over orders of Industrial
Tribunals and its jurisdiction is supervisory only and unless there is any
error of law apparent on the face of record, or where the Industrial Tribunal
had acted in excess of its jurisdiction or failed to exercise its jurisdiction,
interference by the learned Single Judge was not warranted (Tulsi Das Paul
Vs. Second Labour Court, West Bengal and others15).
49. For all the aforesaid reasons, the LPA is allowed, the judgment of the
learned Single Judge is set aside and, consequently, the judgment of the
Central Government Industrial Tribunal, No.1 at Dhanbad dt. 20.10.2009 is
restored.
(M.S. Ramachandra Rao, C.J.)
(Deepak Roshan, J.)
N.F.R.
MM/- `
14
1983 (4) SCC 293
15
1972 (4) SCC 205(2)
Page 15 of 15 LPA No. 119 of 2024
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