1. In view of outbreak of COVID-19 pandemic, case has been taken up through Video Conferencing and heard at length . Concerned lawyers have no objection with regard to the proceeding which has been held through Video Conferencing and there is no complaint in respect to audio and video clarity and quality and after hearing at length, the matter is being disposed of finally
2. In the instant writ application prayer has been made for setting aside the Award dated 22.02.2012, passed by learned Presiding Officer, Labour Court, Jamshedpur in Ref. Case No. 03 of 1998, whereby the learned Court has held that the respondent No. 2 being the employee of the Petitioner Company, is entitled to get salary and other benefits at par with the other employees of the Petitioner Company.
3. The brief facts of the case as stated in the writ petition is that petitioner is a Company which is involved in the business of manufacturing and sale of automobiles at Jamshedpur (Jharkhand) and other places in the Country. The workmen employed in the petitioner-company have their exclusive registered and recognized Trade Union known as "TELCO Workers' Union", which represents the workmen of the petitioner-company. In the year 1958, the petitioner-Telco Ltd. started a separate department under the name and style of "Telco Recreation Club" for carrying activities of welfare and recreation of its employees. The said Telco Recreation Club is a Society registered under Societies Act having a separate legal entity of its own with its own source of income, its own constitution and bye-laws and has no direct connection with the petitioner-company and the petitioner under its corporate responsibility, provides financial assistance to several Societies in the area including said Club. Petitioner-company has no control over TELCO Recreation Club, which is run and managed by a Managing Committee elected/ selected by its members.
4. It is further case of the petitioner-Company that one Indra Deo Prasad on behalf of 21 persons employed in Telco Recreation Club made a claim of parity in pay and other benefits at par with the regular employees of Telco Ltd. The said disputes, upon failure of conciliation, vide Notification dated 28.04.1998, was referred by the State Govt. to the Labour Court, Jamshedpur on the following terms:
"Whether the workmen of M/s. Telco Recreation Club, Jamshedpur as per the list are entitled to get pay and other benefits at par with the regular workmen of M/s. Telco Ltd.? If not, what relief they are entitled to?"
5. It is the further case of the petitioner that initially when the dispute was referred to the Labour Court, petitioner was not party to the said dispute, however, later on, without giving any opportunity of hearing to the petitioner, the respondent-State modified the earlier notification dated 28.04.1998 vide notification dated 17.09.1998 substituting petitioner-Company in place of Telco Recreation Club and subsequently, Labour Court also substituted the petitioner-Company as the employer of the said workmen of Telco Recreation Club, that too without any notice or without giving opportunity of hearing to the petitioner.
6. Upon being noticed, petitioner-company appeared and filed a detailed written statement stating therein that the Telco Recreation Club has no connection with Telco Ltd. and the employees of Telco Recreation Club have been employed by the Managing Committee of the Club on specific terms and conditions. It was further stated that neither in the appointment of said workmen nor in the process of their engagement Telco Ltd. had any role and therefore, the industrial disputes against the petitioner-Company is wholly illegal and uncalled for. There do not exists any employer-employee relationship between petitioner-company and the workmen of Telco Recreation Club. Workmen of the Club are exclusively workmen of the Club and have nothing to do with the petitioner-Management. It was further case of the petitioner that in the year 1981, the Government of Bihar had found Telco Recreation Club to be an independent establishment and had made a reference being Ref. Case No. 06 of 1991 to Industrial Tribunal, Ranchi, which was never challenged or objected by the employees of the said Club and therefore, the petitioner-company cannot be treated to be the employer of the workmen of Telco Recreation Club.
7. On the other hand, respondent No. 2 also filed its written statements before the learned Labour Court and stated therein that the expenses for running the Club is meted out from the funds received from the petitioner-company and further, the General Manager of the petitioner-Company is the President of the Club and hence, the Club should be treated as a department of M/s. TELCO Ltd. The respondents further pleaded that being employees of a wing of M/s. Teclo Ltd., they were entitled to parity of salary with the other workmen of petitioner-company.
8. On the basis of the pleadings of the parties, Labour Court framed following issues for adjudication:
(I) Whether the present reference is maintainable?
(II) Whether the workmen of TELCO Recreation Club as per list is entitled to get pay and other benefits at par with the regular workmen of TELCO Ltd.? If not, what relief they are entitled to?
(III) Whether the workmen of TELCO Recreation Club are entitled to be treated as workmen of M/s. TELCO Ltd.?
9. The management had examined three witness and the workmen had examined five witnesses. Apart from this, both parties had also exhibited certain documents in support of their respective cases.
10. The Labour Court while deciding Issue No. (I) has held that, there exists a relationship of employer and employees between the parties, and Telco Recreation Club is a department/wing of the company, and petitioner-company provides all facilities to said Club and has a direct control over the Managing Committee of the said Club as the General Manager of M/s. Telco Ltd. is the President of the Club and as such, the present reference is maintainable. So far as Issue Nos. (II) and (III) are concerned, Labour Court has held that the concerned workmen are also permanent employees of M/s. Teclo Ltd., Jamshedpur and hence, they are entitled to get pay and other benefits at par with the employees of Telco Ltd. Accordingly, the Labour Court answered the Reference in favour of the workmen and against the petitioner-company by observing as under:
"In the light of above mentioned facts and circumstances, the management of M/s. Telco Ltd., Jamshedpur is directed to treat the employees of Telco Recreation Club, as the workmen of M/s. Telco Ltd., Jamshedpur and make payment of their wages and other benefits at par with the employees of the company within 90 days from the order."
Aggrieved by the said Award dated 24.02.2012, passed by Presiding Officer, Labour Court, Jamshedpur whereby reference has been answered against the petitioner and in favour of the respondent No. 2, petitioner-Company has knocked door of this Court.
ARGUMENTS ON BEHALF OF THE PETITIONER-MANAGEMENT
11. Mr. Kamal Nayan Choubey, learned Sr. counsel assisted by other counsels representing the petitioner - Management strenuously urged that the impugned Award dated 24.02.2012 is wholly illegal, arbitrary, bad in law as well as on fact and as such the same is liable to be set aside. Learned Sr. Counsel further argued that the Labour Court failed to consider that there was no demand raised by the workmen with the petitioner-management and there was no conciliation with the petitioner-management and as such notification dated 17.09.1998 as well as the reference case itself was illegal and bad in law. It is specific case of the petitioner that before notification dated 17.09.1998, the appropriate Government never treated the petitioner - management as an employer nor had conciliated prior to submission of its failure report or ever noticed the petitioner as an employer. Petitioner-management should not have been substituted as an employer of the respondentworkmen on the basis of invalid reference. There does not exist "Industrial Dispute" as defined under Section 2(k) of the Industrial Disputes Act between the petitioner-Management and the respondent-workmen, as the workmen are not the employees of petitioner-Management, which is totally a different establishment. The TELCO Recreation Club is a separate body having separate legal entity and as such its employees cannot be treated as employees of petitioner-management. The TELCO Recreation Club was constituted under separate Memorandum of Association and is functioning as per the Rules and regulations framed by its Managing Committee and General Body and petitioner-Company, being registered under the Companies Act, cannot be held responsible for the employment made by such different and independent legal entity. The employees of TELCO Recreation Club cannot be treated to be the employees of petitioner-management. The respondent-workmen were employed by the Managing Committee of the TELCO Recreation Club on specific terms and conditions of employment. The workmen had accepted terms and conditions of said employment and they worked there for a considerable period and now they cannot claim parity in pay and other benefits with the employees of the petitioner-management, which is a totally different body and has no relations with these workmen. The liability or responsibilities of the TELCO Recreation Club, if any, cannot be fastened upon the petitioner-management. Petitioner-management cannot be held liable for any part of the liability of TELCO Recreation Club towards its employees in a situation when both are different and distinct organizations. Even the dispute was never espoused by the recognized Union or the workmen of the petitioner-management and as such the same was not maintainable as against the petitioner-management.
12. Learned Sr. Counsel further submitted that the preliminary issue "Whether the Notification dated 17.09.1998 is liable to be quashed on the ground that the appropriate government has no power to amend/modify Notification dated 28.04.1998 unilaterally, was answered against the petitioner vide order dated 12.05.2015, passed by a Coordinate Bench of this Court which was challenged before the Hon'ble Division Bench. The Hon'ble Division Bench, vide order dated 17.12.2018, disposed of said L.P.A. No. 319 of 2015, holding therein that the issue "Whether the employees are the workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 of the present appellant or not" shall remain open and further "If the Award is under challenge, the same will be decided on its own merits and on the basis of the evidences on record and without being influenced by the orders of this Court in the writ and this Letters Patent Appeal.
13. Assailing the impugned Award, Mr. Kamal Nayan Choubey, learned Sr. Counsel very humbly submitted that following are the moot questions of law for determination before this Court.
(I) Whether the State was entitled to and within its legal ambit to amend/change the reference made through its earlier notification with a subsequent notification by substituting the respondent no. 3 with the petitioner-Company to redress the same alleged grievance of the respondent no. 2?
(II) Whether the impugned Award will be barred by res-judicata in view of earlier Award on the point in question finally decided on 17.06.1993?
(III) Whether by initiating such a change, the State has actually superseded the terms of reference as contained in the initial notification and whether such suppression is valid in law?
(IV) Whether the Award, as passed by the Court below, is vitiated and bad in the eyes of law as it failed to record any finding on whether the amendment/ change brought about by the impugned notification was justified?
(V) Whether there at all actually existed any industrial dispute between the respondent no. 2 and the petitioner as referred under Section 2(k) of the Industrial Dispute Act, or was the supposed dispute actually between the respondent no. 2 and the respondent no. 3 in the facts and circumstances of the present case and the respondent no. 3 in the facts and circumstances of the present case and whether in the absence of any finding thereon the Court below has ended up passing an Award that is null and void?
(VI) Whether the Court below could at all have reached the conclusion it has without recording any finding on the above questions and for that the reason alone the Award ought to be set aside as a nullity in the eyes of law?
(VII) Whether the Court below applied its mind to the fact that before notification dated 17.09.1998, the State had never treated the petitioner-Company as an employee of respondent no. 2 nor had conciliated as such prior to the submission of its failure report or ever noticed the petitioner-Company as an employer and whether due to such non-application of mind, the court below was justified in substituting the petitioner-Company, instead of respondent no. 3 as the employer of the respondent no. 2 on the basis of an invalid reference?
(VIII) Whether action on part of the State in resorting to the impugned action without providing an opportunity of hearing to the petitioner-Company defeats the principles of natural justice and is thus unconstitutional and, therefore, bad in law?
(IX) Whether the Court below has glossed over materials that was germane to the facts and circumstances of the case and has instead relied upon extraneous facts in recording its findings?
(X) Whether inference drawn by the Court below in coming to the findings as recorded in the impugned Award suffers from the twin vices of non-application of mind and colourable exercise of power?
14. Learned Sr. Counsel further argued that while disposing of the L.P.A. No. 319 of 2015, the Hon'ble Division Bench of this Court has held that:
(i) Whether the employees of the Telco Recreation Club are the workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 of M/s. Telco Ltd. or not, will remain open and;
(ii) The Award under challenge will be decided on its own merits and on the basis of evidences on record and without being influenced by the order of either writ court or the Division Bench.
Hence the above two issues are still subjudice for final adjudication by this Court.
15. Learned Sr. Counsel further argued that findings recorded in the Award of the Industrial Tribunal is perverse, improper, not based on proper appreciation of evidence on record and against the weight of evidence, which is quite copious and hence the same is untenable in the eyes of law and as such the same is fit to be set aside. By recording a finding that as many as 18 of the 22 workmen of the respondent no. 3 had raised the dispute and, therefore, the number was substantial for an industrial dispute to exist but the Tribunal has failed to note that the absolute quantum of workmen had to be taken into consideration and not the real quantum in terms of percentage or fraction. The respondent no. 2 did not represent any registered Union nor were they supported by the registered Union to which workmen of the petitioner-Company belonged.
16. Learned Sr. Counsel further argued that by coming to a finding that there exists an employer-employee relationship between the petitioner-Company and the respondent no. 2 on the ground that the respondent no. 3 is a department/ wing of the petitioner-Management, the Tribunal has completely erred in not considering that the respondent no. 3 is an independent establishment with a separate entity of its own which is very distinct from the petitioner-Management. The respondent no. 3 has its own Rules but all its employees are appointed by the Managing Committee of the respondent no. 3. It is the Managing Committee, therefore, which is its appointing and disciplinary authority, which issues work instructions, pays salary and wages and has been created in accordance with the constitution and rules framed. On the contrary, petitioner-Management has no administrative nor any deep and pervasive financial control, no supervisory role or management control in general over the affairs and daily working of respondent no. 3 nor is the respondent no. 3 a holding company of the petitioner-Company. Merely because in its discharge of certain social welfare schemes, which is far from being mandatory on part of the petitioner-Management or by providing basic amenities, such as electricity, water and some furniture, petitioner-Management cannot be termed as a department/ wing or employer of the respondent no. 2 so as to be treated at par with the workers of the petitioner-Company for the purposes of receiving wages and other benefits. The witnesses of the workmen admitted that they were appointed by the Managing Committee of the Club after interview and they were working under control of the Managing Committee of the Club. They also admitted that their salary were being paid by the Managing Committee of the Club. The witnesses further admitted that TELCO had allowed and provided buildings to TELCO Cooperative Societies, State Police for establishment of a Police Station and also to several other organisations. Learned Sr. Counsel further argued that the petitioner-Management had been providing financial assistance to the Club and had also contributed major portion of the fund required by the Club. Learned Sr. Counsel further submitted that the State as well as the Labour Court failed to consider that no industrial dispute, as defined under Section 2(k) of the Industrial Disputes Act existed or apprehended between the petitioner-Company and the workmen. The Notification dated 17.09.1998 as well as the reference was illegal and bad in law and as such impugned Award need interference. The TELCO Recreation Club is a Society registered under the Societies Registration Act having a separate legal entity of its own with its own source of income, its constitution and bye-laws and have no direct connection with the petitioner-Company. Petitioner-Company, under its corporate responsibilities and in order to discharge of its responsibilities towards the Society, provides financial assistance to several other Societies in the area. Petitioner-Management also provides some assistance including financial assistance from time to time to the Club as most of the members of the Club also happens to be employees of the petitioner-Company. Learned Sr. Counsel however argued that in any case, petitioner-Company cannot be held liable for any part of the liabilities of the employees of the TELCO Recreation Club when both are different and distinct body.
17. Placing reliance in the case of National Aluminium Company Limited and others Vs. Ananta Kishore Rout and Others, (2014) 6 SCC 756learned Sr. Counsel submits that it has been held in para-22 thereof that in order to determine the existence of employer-employee relationship, the correct approach would be to consider as to whether there is complete control and supervision of NALCO. The relationship of master and servant is a question of fact and that depends upon the existence of power in the employer, not only to direct what work the servant is to do but also the manner in which the work is to be done.
18. Learned Sr. Counsel further submits that in terms of Industrial Disputes Act, the State Government had no jurisdiction to refer the matter to the Labour Court since only 18 employees had raised the demand, which, from their own showing, is not substantial number of workmen of the petitioner-management and certainly not a substantial number.
19. To buttress their arguments, learned Sr. Counsels have placed heavy reliance upon the following Judgments:
i. Pondicherry Khadi & Village Industries Board Vs. P. Kulothangan and Another, (2004) 1 SCC 68;
ii. Chairman and Managing Director, Fertiliers and Chemical Travancore Ltd. and Anr. Vs. General Secretary, Fertilizer and Chemicals Travancore Employees Association and others, (2019) 11 SCC 323;
iii. Sri LA Sri Subramana Desika Gnana Sambanda Pandarasannadhi Vs. The State of Madras and Anr., (1965) AIR SC 1578;
iv. Raja Bahadur Giriwar Prasad Narain Singh s. Dukhu Lal Das and Ors., (1968) AIR SC 90
v. State of Bihar Vs. M/s. Bata Shoe Co. Ltd. and Ors., (1958) AIR SC 1018
vi. S.J.S. Business Enterprises (P) Ltd. Vs. The State of Bihar and Ors., (2004) AIR SC 2421 : (2004) 7 SCC 166
vii. Arunima Baruah Vs. Union of India and Ors., (2007) 6 SCC 120
viii. National Aluminium Company Ltd. Vs. Ananta Kishore Rout and Ors., (2014) 6 SCC 756
ix. S.C. Chandra and Ors. Vs. State of Jharkhand and Ors.,20070 8 SCC 279
x. Tekraj Vasandi Alias K.L. Basandhi Vs. Union of India and Ors., (1988) 1 SCC 236
xi. Air Vice Marshal J.S. Kumar Vs. Governing Council of Air Force Sports Complex & Anr., (2006) 86 DRJ 711 (2006) SCC online Delhi 8 : (DB)
xii. The Workmen under the Management of the Burragarh Colliery of M/s. B.C.C.L. Vs. Employer in relation to the Management of Burragarh Colliery of M/s. BCCL and Anr. in W.P.(L) No. 7977 of 2012 .
ARGUMENTS ON BEHALF OF THE RESPONDENT - WORKMEN
20. Mr. Ajit Kumar, learned Sr. Counsel strenuously urged that the Award passed by the Labour Court, Jamshedpur is based on pure findings of fact and needs no interference. The Tribunal has rightly passed the Award holding that the workmen are entitled to be treated as workmen of the petitioner-management and accordingly, are entitle for payment and other benefits at par with other employees of the petitioner-management. The vast difference of salary and other benefits between these workmen and those working in petitioner-management is unjustified and harassing and as such, Award passed by the Tribunal should be implemented. The notification dated 17.09.1998 was issued to the petitioner-management by the appropriate government and if they chose not to challenge the same before any Court of law. Petitioner-management cannot be allowed at this stage to challenge the notification dated 17.09.1998 which is in the form of corrigendum to the original notification dated 28.04.1998 through which matter was referred to the Labour Court for adjudication. The petitioner-management had a direct control over the TELCO Recreation Club and as such, the Tribunal has rightly passed the Award and the same needs no interference. The TELCO Recreation Club is merely a department/ wing of the petitioner-management and the petitioner-management has provided premises, furniture, electricity, water to the club as also its securities. The company also provides wages and other benefits to the workers of the Club and the petitioner-management has direct control and supervision over them through a Managing Committee and General Manager of the Company is the President of the Company who is all in all of the said Club, and thus, there exists the relationship of employer-employee.
21. Learned Sr. Counsel further argued that the Management has not approached this Court with clean hands and has made gross suppression and false statement and this writ petition is fit to be dismissed on that score itself. Learned Sr. Counsel emphatically argued that the Judgment relied upon by the petitioner is of no help to them. On the point of resjudicata, it has been argued by learned Sr. Counsel that there is no dispute on the legal proposition and reliance placed by the petitioner on the Judgment passed in the case of Pondicherry Khadi & Village Industries Board V. P. Kulothangan, (2004) 1 SCC 68. Learned Sr. Counsel, by referring paragraph-11 to the said Judgment, submitted that the arguments advanced by learned Sr. Counsel for the petitioner is not tenable and writ petition is fit to be dismissed. It is relevant to quote para-11 of the said Judgment:
"11. The principle of res judicata operates on the court. It is the courts which are prohibited from tying the issue which was directly and substantially in issue in the earlier proceeding between the same parties, provided the court trying the subsequent proceeding is satisfied that the earlier court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such court. Here the parties to the writ petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on merits and after a contesting hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen v. Board of Trustees of the Cochin Port Trust, (1978) 3 SCC 119 [ : 1978 SCC (L & S) 438] and Pujari Bai v. Madan Gopal, (1989) 3 SCC 433 [ : AIR 1989 SC 1764]. The "lesser relief" of reinstatement which was the subject-matter of the industrial dispute had already been claimed by the respondent in the writ petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent. The decision was, therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to re-agitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and decided the matter in the face of the earlier decision of the High Court in the writ proceedings."
Similar is the view given in the case of Ramjas Foundation and others Vs. Union of India, (1993) Supp2 SCC 20 and in the case of K.D. Sharma Vs. Steel Authority of India Limited, (2008) 12 SCC 481.
It is well settled that a person invoking an equitable extraordinary jurisdiction of the Court under Article 226 of the Constitution of India is required to come with clean hands and should not conceal the material facts. Learned Sr. Counsel argued that the terms of reference can only be assailed before the High Court in exercise of its extraordinary writ jurisdiction as the Labour Court/ Tribunal cannot go behind the terms of reference. The Labour Court/ Tribunal is a creature of statute and is bound by the terms of reference. Once the reference is made, it is presumed that the State Government is satisfied regarding the existence of industrial dispute and the Labour Court cannot go behind the reference.
22. Rebutting arguments of learned Sr. Counsel appearing for the petitioner, Mr. Ajit Kumar, learned Sr. Counsel appearing for the workmen argued that the arguments advanced by and on behalf of the petitioner-Company on the basis of the Judgment rendered in [S.C. Chandra Case, (2007) 8 SCC 279], (NALCO Case, (2014) 6 SCC 756) had been adjudicated by the writ court and findings given and thus on that basis, the findings given by the Labour Court in its impugned Award cannot be reappreciated or judged. The matter in CWJC No. 1339 of 2008 and LPA No. 1489 of 2014 are also not applicable on the facts and law laid down. Those cases are either based on the issue of institution being covered by Article 12 of the Constitution of India or on different proposition.
23. Learned Sr. Counsel further argued that the petitioner has tried to take shelter of a letter dated 24.06.1996 to take plea of res-judicata. The said letter was written by an authority of the petitioner-Company before the Deputy Labour Commissioner-cum-Conciliation Officer and much thereafter the notices dated 14.10.1996, 13.01.1997 were issued to the petitioner-Company and finally on 28.02.1997 the failure report was referred to the Government. After reference of the dispute before the Labour Court, the petitioner filed their written statement and a rejoinder to the written statement was also filed on behalf of the workmen. Petitioner very much contested the reference case and even adduced their oral as well as documentary evidence and thus, taking plea at this stage, that too on this nonest grounds, cannot be accepted and writ petition merits dismissal. The Award is based on appreciation of evidences adduced from both sides and pointed to the adjudication of the reference before it.
24. To buttress his arguments, learned Sr. Counsel has relied upon the following Judgments:
(i) Rajbir Singh Dalal (Dr.) Vs. Chaudhari Devi Lal University, Sirsa and Another, (2008) 9 SCC 284;
(ii) Padma Sundara Rao (Dead) and others Vs. State of T.N. and others, (2002) 3 SCC 533;
(iii) Harjinder Singh Vs. Punjab State Warehousing Corporation, (2017) 4 SCC 75;
(iv) Indian Petrochemicals Corporation Vs. Shramik Sena, (1999) 6 SCC 439;
(v) Hindalco Industries Vs. Association of Engineering Workers, (2008) 13 SCC 441;
(vi) National Engineering Industries Limited Vs. State of Rajasthan, (2000) 1 SCC 371;
(vii) National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, (2005) 2 SCC 256;
(viii) Sarva Shramik Sangh Vs. Indian Oil Corporation Limited and others, (2009) 11 SCC 609;
(ix) Ramjas Foundation and others Vs. Union of India and others, (1993) Supp2 SCC 20;
FINDINGS OF THE COURT
25. The preliminary issue "Whether the Notification dated 17.09.1998 is liable to be quashed on the ground that the appropriate government has no power to amend/ modify Notification dated 28.04.1998 unilaterally, has been answered against the petitioner-Management vide order dated 12.05.2015, passed by a Coordinate Bench of this Court. Thereafter, the matter was listed before this Court to be heard on merits. The issue of validity of Notification is closed now and the Award is being tested on merits.
26. Be that as it may, having gone through rival submission of the parties and on perusal of Judgments brought on record, it appears that this writ petition warrants interference for the following facts and reasons:
(i) The impugned Award suffers from patent illegalities and therefore, it can comfortably be said that the same is based upon errors of law. Admittedly there is no relationship of employer-employee between the petitioner-Management and the concerned workman. Neither in the appointment of workmen nor in the process of their engagement, the petitioner-Management has played any role and, therefore, the industrial disputes against the petitioner-Management is wholly illegal and uncalled for. There exists no employer-employee relationship between the petitioner-Management and the workmen of TELCO Recreation Club. It was case of the petitioner-Management that in the year 1981, the Government of Bihar had found TELCO Recreation Club to be an independent establishment and had made a reference being Ref. Case No. 06 of 1991 to Industrial Tribunal, Ranchi, which was never challenged or objected to by the employees of the said Club and, therefore, the petitioner-Management cannot be treated to be the employer of the workmen of TELCO Recreation Club. The concerned workmen were being governed by the rules, regulations and bye-laws of the Club and not the petitioner-Management. Even the disciplinary control was of the Club and not of the Management. The findings of the Tribunal is totally perverse and error of law. This Court finds force in the arguments of learned counsel for the petitioner-Management. The Club was incorporated as a separate body and concerned workmen were admittedly appointed by the Club and not by the petitioner-Management. The claim of the concerned workmen is not sustainable.
(ii) It is well settled law that findings of facts recorded by a Tribunal requires no interference under Article 226 of the Constitution of India. The Hon'ble Apex Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan, (1964) AIR SC 477, has held that a writ of Certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. Orders passed by inferior Courts or Tribunals, which are without jurisdiction or are in excess of it, fail to exercise jurisdiction, a writ of certiorari can be issued. Where the Tribunal exercise jurisdiction illegally or improperly or the procedure adopted in dealing with the dispute is opposes to principles of natural justice, a writ under Article 226 of Constitution can be issued.
Similarly, the Apex Court in the case of Sawarn Singh Vs. State of Punjab, (1976) 2 SCC 868, has held that a finding of fact recorded by an inferior Tribunal, writ of certiorari can be issued only if, while recording such a finding, the Tribunal has acted on no evidence or has refused to admit admissible evidence or if the findings are not supported by any evidence at all. In such cases, the error amounts to an error of law.
(iii) The Hon'ble Apex Court in the case of General Manager (OSD), Bengal Nagpur Cotton Mills Vs. Bharat Lal and Anr., (2011) 1 SCC 635, has held that it is for the workmen claiming employer-employee relationship are to aver and prove that they were paid salary directly by the principal employer and not by the contractor. In the instant case, the workmen did not discharge this onus and did not establish that they were working
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directly under control and supervision of the management, the question of employer-employee does not arise at all. The Hon'ble Apex Court has further held that two of the well-recognized tests to find out whether the contract labourers are the direct employees of the principal employer are- (a) Whether the principal employer pays salary instead of the contractor? (b) Whether the principal employer control and supervises the work of the employees? In the instant case on both these counts, workmen have failed to establish their case (iv) In the case of Atlas Cycle Vs. Kitab Singh, (2013) 12 SCC 573, the Hon'ble Apex Court held that when Labour Court arrives at a finding overlooking the materials on record, it would amount to perversity. Findings of facts based on no evidence would be regarded as an error of law, which can be corrected by writ of certiorari. (v) The Hon'ble Apex Court in the case of National Aluminium Co. Ltd. Vs. Ananta Kishore Rout, (2014) 6 SCC 756, has held that there is no employer-employee relationship between the employees of the school and NALCO which had established the schools for benefit of wards of its employees. (vi) In the case of Balwant Rai Saluja Vs. Air India and others, (2014) 9 SCC 407, the prayer for regularization of workmen engaged in statutory canteens of Air India run by Contractor, a wholly owned subsidiary of AIR India, were refused on the ground that there was no employer-employee relationship. (vii) Further, in the case of Bhuwanesh Kumar Dwivedi Vs. Hindalco Industries, (2014) 11 SCC 85, the Hon'ble Supreme Court has held that where Labour Court commits patent mistake in law in arriving at a conclusion contrary to law, the same can be corrected by the High Court. In the instant case, the Tribunal has committed a patent error of law to hold that the employer-employee relationship exists between the petitioner-Management and the concerned workman. (viii) The reliance of the learned counsel for the workman in the case of Krushna Narayan Wanjari Vs. Jai Bharti Shikshan Sanstha, Hinganghat through its Secretary and another, (2018) 12 SCC 620 does not come to his rescue as though it has been held in the said case that unless the approach is well perverse and the Tribunal had acted in no evidence, the High Court under Article 226 and 227 of the Constitution of India, is not justified in interfering with the Award as it cannot re-appreciate the evidence as an Appellate Court. In the instant case, the Tribunal has completely overlooked the material evidence and has relied upon the evidences which cannot be termed to be the cogent ground for treating these workmen to be employees of petitioner-Management. (ix) In the instant case, the concerned workmen have sought for parity in pay and other benefits at par with the regular employees of TELCO Ltd. whereas the fact is that the petitioner-Management has never issued appointment letters to them rather these workmen were appointed by the Club, which is a separate entity. When the initial appointment letter of the workmen has not been issued by the petitioner-Management, the question of parity in pay etc. with the employees of the petitioner-Management, does not arise and as such the impugned Award suffers from patent illegalities and is fit to be interfered. 27. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned Award is fit to be quashed and set aside. 28. Resultantly, writ petition stands allowed. Award dated 22.02.2012, passed by Presiding Officer, Labour Court, Jamshedpur in Ref. Case No. 03 of 1998 is hereby quashed and set aside.