IN THE HONBLE

HIGH COURT OF JHARKHAND

In the matter of

Bharat Coking Coal Limited

(Petitioner)
v.

Their Workmen being represented by Sri B.K. Ghose,

Executive Member
and Anr.
(Respondent)

MEMORANDUM ON BEHALF OF THE PETITIONER

COUNSEL FOR THE PETITIONER

Deepjoyika Ghosh Dastidar
Roll no. 43
Section- A

Semester IV

TABLE OF CONTENTS
1. List of Abbreviations...3
2. Index of Authorities.4
3. Statement of Jurisdiction.5
4. Summary of Facts...6
5. Issues Raised...7
6. Summary of Arguments..8
7. Body of Arguments....10
8. Prayer for Relief.13

LIST OF ABBREVIATIONS

&

AND

A.I.R.

ALL INDIA REPORTER

BCCL

BHARAT COOKING COAL LTD.

CO.

COMPANY

HONBLE

HONOURABLE

LLJ

LABOUR LAW JOURNAL

LTD.

LIMITED

MAMC

MINING AND ALLIED MACHINERY CORPORATION

LIMITED

NO.

NUMBER

ORS.

OTHERS

SAIL

STEEL AUTHORITY OF INDIA LIMITED

SC

SUPREME COURT

SCC

SUPREME COURT CASES

V.

VERSUS

INDEX OF AUTHORITIES

JUDICIAL DECISIONS

Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh & Ors1

SAIL v. National Union Water Front Workers & Ors2
Secretary, State of Karnataka and Ors. vs. Umadevi & Ors.3
Indian Drugs & Pharmaceuticals Ltd. v. Workmen4

List of Statutes

Industrial Dispute Act, 1947

Contract Labour (Regulation and Abolition) Act, 1970

List of Books

CONTRACT AND SPECIFIC RELIEF - POLLOK AND MULLA

1 (2002) II LLJ 544 SC

2 (2001) 7 SCC 1
3 (2006) 4 SCC 1
4 2007) 1 SCC 408

STATEMENT OF JURISDICTION

The Petitioner humbly submits the memorandum for the Appellants before the Honble High
Court of Jharkhand in the case filed by Bharat Coking Coal Limited in the matter of Bharat
Coking Coal Limited v. Their Workmen being represented by Sri B.K. Ghose, Executive
Member and Anr. in exercise of its jurisdiction under Article 226 of the Constitution of India,
1950.

SUMMARY OF FACTS
1. M/s. Bharat Coking Coal Limited (for short BCCL) awarded a turn key contract to M/s.
Mining and Allied Machinery Corporation Limited (for short MAMC), a Government of
India Undertaking, by virtue of agreement dated 9th December, 1985. It was for complete
design, engineering, supply, delivery to site, erection and commissioning of coal washery
of 2.5 Million Tones per annum at the cost of Rs. 72,50,00,000/-. The said contractor,
MAMC, was required to complete the work i.e. erection of the plant within the stipulated
time, commission the same and hand over charge to the BCCL.
2. The contractor, MAMC, in order to execute the work, awarded sub-contract to M/s.
Hindustan Steel Works Construction Limited (for short HSCL). As the contract involved
various types of works, the contractor/sub-contractor engaged sub-contractors having
specialization on respective items of work.
3. The concerned workmen were engaged by the petty contractor, M/s. Ravi & Company,
which was a sub-contractor under HSCL. The concerned workmen got their wages from
M/s. Ravi & Company and were retrenched in May, 1991 on payment of the wages and
retrenchment compensation.
4. The concerned workmen are no more on roll of M/s. Ravi & Company after May, 1991.
5. There is nothing on record to show that the construction of civil work of washery is of
prohibited category.

ISSUES RAISED

1. WHETHER THE HONBLE INDUSTRIAL TRIBUNAL, DHANBAD WAS

ERRONEOUS IN PASSING THE ORDER OF REGULARISATION IN FAVOUR
OF THE WORKMEN?

SUMMARY OF ARGUMENTS

1. THE HONBLE INDUSTRIAL TRIBUNAL, DHANBAD WAS ERRONEOUS IN

PASSING THE ORDER OF REGULARISATION IN FAVOUR OF THE
WORKMEN.
The Honble Industrial Tribunal, Dhanbad erred in passing the order in favour of the
workmen since the petitioner in the present case was not the principle employer of the
concerned workmen and were thus not entitled to appoint them in their company.

1.1.

THE PETITIONER IS NOT THE PRINCIPLE EMPLOYER OF THE

WORKMEN.

M/s. Ravi & Company was the employer of the workmen and there is no evidence of
contract in camouflage which proves that the petitioner was the principle employer of the
workmen. Thus there is no relationship of employer and employee between petitioner and
the workmen.

BODY OF ARGUMENTS
1. THE HONBLE INDUSTRIAL TRIBUNAL, DHANBAD WAS ERRONEOUS IN
PASSING THE ORDER OF REGULARISATION IN FAVOUR OF THE
WORKMEN.
M/s. Ravi & Co. had employed the workmen in the present case via petty contracts. Thus
in no circumstances, BCCL could not be the principal employer of the workmen and was
not entitled to reinstate the workmen in the principle company. Thus the Honble
Industrial Tribunal, Dhanbad erred in passing the order in favour of the workmen.

1.1.

THE PETITIONER IS NOT THE PRINCIPLE EMPLOYER OF THE

WORKMEN.
BCCL had given a contract for complete design, engineering, supply, delivery to site,
erection and commissioning of coal washery of 2.5 Million Tones per annum at the cost
of Rs. 72,50,00,000/-. The said contractor, MAMC, was required to complete the work
i.e. erection of the plant within the stipulated time, commission the same and hand over

charge to the BCCL. MAMC, in turn, had given a sub-contract to HSCL, which in turn
gave a sub-contract to M/s. Ravi & Co. There is no pleading or any evidence to establish
that the contract, in question, was a ruse or camouflage and that in fact there was an
employer-employee relationship between the concerned persons and BCCL. The fact
that the contract was a mere camouflage, has to be established by producing the
evidences/materials on record before the tribunal.5
The combined reading of terms 'establishment' and "workman' showed that workman
engaged in establishment could have direct relationship with principal employer as
servant of master - Person, who was not out worker but had satisfied requirement of first
limb of definition of 'workman' could fall within meaning of term 'workman'. However,
if such workman was within ambit of contract labour, he could not be treated as regular
employee of principal employer, unless he fell within mentioned classes - Thus, at
various stages there was involvement of principal employer - Hence, provisions of
CLRA Act neither contemplated creation of direct relationship of master and servant
between principal employer and contract labour, nor could such relationship be implied
upon provisions of Act on issuing notification under Section 10(1) of CLRA Act, 1970.6
Moreover, when a person employed is a contractual worker and the engagement is not
based on a proper selection as recognised by the relevant rules or procedure, he is aware
of the consequences of the appointment being temporary, casual or contractual in nature,
as such, a legitimate expectation for being confirmed in the post could not be made; that
adherence to the rule of equality in public employment is a basic feature of our
Constitution; the Court would be disabled from passing an order upholding violation of
Article 14 of the Constitution and it would not be open to the Court to prevent regular
recruitment at the instance of temporary employees whose period of employment had
come to an end or ad hoc employees who by the very nature of their appointment did not
acquire any right; the High Courts under Article 226 of the Constitution of India should

5 Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh & Ors, (2002) IILLJ 544 SC

6SAIL v. National Union Water Front Workers & Ors., 2001 (7) SCC 1

not ordinarily issue direction for absorption, regularisation or permanent continuance

unless recruitment itself was made regularly and in terms of the Constitutional scheme.7
In the case of Indian Drugs & Pharmaceuticals Ltd. v. Workmen 8, same principle has
been applied with regard to employment in industrial concerned and in the case of
industrial disputes.
Moreover, the employer in the present case i.e. M/s. Ravi & Co., had complied with the
procedure laid down in S. 25F of the Industrial Dispute Act, 1947 and had retrenched
the services of the said workmen. Thus no question of industrial dispute can necessarily
arise from the same.
Thus it is humbly submitted before the Court that BCCL is not the principal employer of
the wokmen and is not entitled to reinstate the retrenched workmen in their own
company.

7 Secretary, State of Karnataka and Ors. vs. Umadevi & Ors. , (2006) 4 SCC 1
8 (2007) 1 SCC 408

PRAYER FOR RELIEF

Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
cited, this Honble High Court of Jharkhand may be pleased to adjudge and declare:
1. The petition should be allowed.
2. To direct the Industrial Tribunal, Dhanbad to quash the order.

And/or pass any other order in favour of the Appellants that it may deem fit in the light of
justice, equity, and good conscience.

All of which is most humbly prayed.

Place : Jharkhand

Deepjoyika Ghosh Dastidar

Date :04.04.16

( Counsel for the Petitioner)