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PETITIONER: MANAGEMENT OF DANDAKARANYA PROJECT,KOREPUT

       Vs.

RESPONDENT: WORKMAN THROUGH REHABILITATIONEMPLOYEES UNION & ANR.

DATE OF JUDGMENT:       07/01/1997

BENCH: S.C. AGRAWAL, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      PATTANAIK. J.      Leave granted.      This appeal  by special  leave is  directed against the award passed  by the  Industrial Tribunal,  Bhubaneshwar  in Industrial Disputes  Case No. 13 of 1988 and the judgment of the Orissa   High Court in O.J.C.No.2502 of 1990, whereunder the Orissa High Court refused to interfere with the award of the Industrial  Tribunal in  exercise of power under Article 226  of  the  constitution.  Though  the  award  relates  to different items  of demand  but in this appeal Mr.Reddy, the Additional Solicitor  General restricted  his submissions to the direction  of the  Tribunal  to  regularise  425  N.M.R. workers union.      The Government  of India  in the  Ministry of Labour in exercise of  the powers conferred upon them under clause (d) of sub-section(1)  and sub-section  (2)(a) of  section 10 of the  Industrial   Disputes  Act  referred  the  dispute  for adjudication by  the Industrial  Tribunal to  the  following effects:      "Whether  the   following   demands      raised by Rehabilitation Employees‘      Union   of    the   management   of      Dandakaranya Project, Koraput , are      justified, if  so, to  what  relief      the concerned  workmen are entitled      to and from what date."      Demands No.1  and 3  with which we are concerned are as under|- 1.   Regularisation of all muster roll workers who have been working from  1958 onwards after completion of 240 days with all consequential benefits of such regularisation. 3.   Stoppage of retrenchment of all workers of Dandakaranya Project and  absorption of  all muster  roll  workers  after their regularisation  in other  Central  Government  Surplus Cell as is done in case of regular employees of Dandakaranya Project."      The appellant  management took  the  stand  before  the Tribunal that  the reference  itself was  incompetent as the Dandakaranya Project  is not  an industry.  So  far  as  the

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demands of  the N.M.R. workers are concerned, the management took the  stand that the project itself having been wound up and there  being no necessity for further continuance of the project which  had been  taken up by the Government of India on humanitarian  consideration  for  rehabilitation  of  the refugees from Pakistan the question of regularisation of the N.M.R. workers  does not  arise. The Union on the other hand took the  stand that the plea of the management that no work is available  for the  N.M.R. workers  is not correct and as such,  N.M.R.   workers  are   being  employed   in  several construction and  irrigation    works  and,  therefore,  the project authorities  have the obligation of regularising the service who  have been  working since  1950.  The  Inustrial Tribunal negatived  both the contentions raised on behalf of the management  and came  to hold  that the  project  is  an Industry. It  further  came  to  hold  that  the  claim  for regularisation of 425 N.M.R. employees is justified and they would not  be retrenched and the project authorities through the Government  of India  should find out the ways and means to regularise  them either  under the  Central Government or the concerned  state  Governments  or  under  Public  Sector Undertakings of  the Central  Government. When  the award of the Tribunal  was assailed  in the  High Court  by moving an application under  Article 226 of the Constitution, the High Court came to the conclusion that award does not contain any error of law which could be corrected by issuance of writ of certiorari in  exercise of  power under  Article 226  of the Constitution and  accordingly the writ petition filed by the management stood dismissed.      Mr. V.R.Reddy,  learned  Additional  Solicitor  General appearing for the appellant contends that the rehabilitation project     undertaken  by   the  Government   of  India  to rehabiliate the  refugees from  Pakistan was in discharge of the sovereign  function of  the Government  and,  therefore, cannot be  held to  be an  industry and consequently neither the  reference  was  competent  nor  the  Tribunal  had  any jurisdiction to  examine the demands raised by the employees union. Having examined the aforesaid contention of Mr.Reddy, learned Additional  Solicitor General and having scrutinised the materials  on record and the nature of duties discharged by the  workers and in view of the decision of this Court in Bangalore Water Supply case it is difficult for us to accept the  contention   raised  by  learned  Additional  Solicitor General.  Bearing   in  mind  the  dominant  nature  of  the activities  of   the  project   and  the  nature  of  duties discharged by  the workers  in the  project we  are  of  the considered opinion  that  the  Dandakaranya  Project  is  an industry  within   the  meaning   of  section  2(i)  of  the Industrial Disputes  Act and  the conclusion of the Tribunal in this respect is unassailable.      Mr. Reddy,  learned Additional  Solicitor General  then contended that  the project  was for  the limited purpose of rehabilitating the  refugees  from  Pakistan  and  the  said purpose having  been achieved  and the project itself having been wound  up and  its assets  and liabilities  having been passed on to the State of Orissa and State of Madhya Pradesh there  do   not  exist   regular  posts   with  the  project authorities so as to consider the question of regularisation of 425 N.M.R. workers and therefore, the ultimate conclusion of the  Tribunal on  this score  is wholly  unsustainable in law.      Ms. Indira  Jaisingh, learned  senior counsel appearing for the  respondent workers,  on the  other hand argued with vehemence that these N.M.R. workers having spent their major part of  life in  serving  under  the  project,  it  is  the

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constitutional obligation  of the project authorities or the Government of  India to  get these  workers absorbed in some departments of  the Government  of India  or in  any  Public Sector Undertakings  and, therefore,  the impugned direction of the  Tribunal is  wholly justified.  The  learned  senior counsel further  urged that even in the project itself there exist  sufficient   vacancies  against  which  these  N.M.R. workers could be regularised and the appellant therefore, is not justified  in contending  that there  do not  exist  any vacancies for considering the regularisation of these N.M.R. workers.      Before  we   examine  the   correctness  of  the  rival submissions it  would be  appropriate to   notice  that when this matter  came up  before this Court on 18.9.95 the Court had called  upon the appellant to explore the possibility of the 425 N.M.R. employees being adjusted in any other project of the  Governments of  India  or  in  the  concerned  State Government. The  aforesaid direction  had been given bearing in mind  the nature  of direction  given  by  the  Tribunal. Pursuant to  the  aforesaid  direction  of  this  Court  the appellant as  well as  the Government  of India took certain steps for  exploring the  possibilities of  regularising the N.M.R.  workers   in  any  other  projects  and  a  detailed affidavit has  been filed  indicating the  inability of  the Union  Government  to  absorb  these  N.M.R.  of  the  Union Government to  absorb these  N.M.R. workers on regular basis in any  other department  of Government  of India  or in any Public  Sector   Undertakings.  After   going  through   the affidavits filed  on behalf  of the appellant as well as the Government of  India we are satisfied that steps authorities of the  project as  well as  the competent  authority of the Government of  India and  inspite of  their best efforts and persuation it  has not  been possible  to absorb  425 N.M.R. workers in any of the department of the Government or in any Public  Sector   Undertakings,  in  view  of  the  situation prevailing in  those organisations.  In  this  view  of  the matter the  only question  which requires  consideration  by this Court is whether the impugned direction of the Tribunal in the  circumstances as  found by it are at all sustainable in law.      The Tribunal  after elaborately discussing the evidence on record came to the conclusion as under|-      "(a) At  present there  425  N.M.R.      employees in  the employment of the      D.D.A.  for   whom  there   is   no      sufficient work  for absorption  as      regulars.      (b)  The  Dandakarayna  Development      Authority  is  in  the  process  of      being  wound   up  since   it   has      completed     its      work      of      rehabilitating displaced persons in      the project area.      (c) The  assets of the project have      been transferred  by the  D.D.A. to      the concerned  States, namely,  the      State Governments of Madhya Pradesh      and Orissa.      (d) The  425  employees  have  been      working in  the project  since many      years and  most  of  most  of  them      would not  be  eligible  to  ensure      fresh employment elsewhere.      (e) All  the work charged employees      after an  agitation  made  by  them

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    were regularised  while the  N.M.R.      employees were not regularised.      (f)  The   bulk   of   the   N.M.R.      employees do  not have  any work in      the project  through the  works  in      which   had    been   engaged   are      continuing  under   the  respective      State  Government   by  the   State      Government  did   not   take   them      alongwith  the works."      Even after  coming to  the conclusion  that the project has been wound up and there are no employment facilities for these N.M.R. workers for regular absorption yet the Tribunal issued the  direction requiring  the project  authorities to find out  work for  the N.M.R. workers who have been working in the  project  continuously for more than 240 days. It may be stated that even though the project has been wound up and its assets  and liabilities  have been  transferred  to  the State of  Orissa and  State of Madhya Pradesh yet on account of an interim order passed by this Court the 425 NMR workers are sitting  idle and  getting wages  to the tune of Rs.1.50 lacs per month which is undoubtedly an unnecessary financial strain on  the public exchequer. It is no doubt true that in the interest  of these  N.M.R.  workers  who  have  spent  a considerable period  of their  absorption on  regular  basis should be explored but even after exploring such possibility if the concerned authorities failed in their attempt. in our considered opinion  it would  not be appropriate for a Court to issue  mandamus in  that regard and thus the Tribunal was wholly in  error in  issuing the  impugned direction. As has been stated  earlier, while  the matter  was pending in this Court pursuant  to the  interim direction  of this Court the concerned authorities explored the possibility of absorption of these  N.M.R. workers either under the Central Government or under any Public Sector Undertakings or in the respective State Governments of Orissa and Madhya Pradesh but affidavit has been  filed indicating  how they failed in their attempt to get these N.M.R. workers absorbed on regular basis and we have already held that the attempt was bonafide made and yet the authorities   have  failed to  get these  N.M.R. workers absorbed on regular basis.      Ms  Indira   Jaisingh,  the   learned  senior  counsel, however, in course of her argument relied upon a decision of this Court in the case of G.Govinda Rajulu vs Andhra Pradesh State   Construction   Corporation   Limited   and   another [1986(Supp) Supreme  Court Cases 651] wherein this Court had issued direction  to the  employees of  the  Andhra  Pradesh State Construction  Corporation Limited whose services stood terminated on  account of closure of the Corporation. But in the aforesaid  case neither there has been any discussion on any  question   of  law  nor  any  circumstances  have  been indicated under  which the  direction was  given. This being the position  the aforesaid  decision cannot be of universal applications in  all cases where there has been a closure of the project  which resulted in termination of the employees. Under the  Industrial Disputes  Act if an industry is closed the  employees  thereof  are  entitled  to  compensation  as provided under  Section 25(fff)  of the  Industrial Disputes Act. During  the pendency  of this  appeal on  behalf of the Union a  Scheme has been framed seeking 100 months’ full pay as  compensation,   the  scheme   being  called  the  Golden Handshake Scheme,  but even  the said scheme was found to be unworkable and  the concerned  Ministry filed  an  affidavit indicating the reasons for not implementing the said scheme. On the  admitted position  that the Dandakaranya Project has

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been completely wound up since 1990 and these N.M.R. workers would have  been otherwise  retrenched but  for the  interim order of  this Court  in consequence  of which  the  project authorities have been paying every month to these workers to the tune of Rs.1.50 lacs without getting them engaged in any work, we  think that  any direction  to pay  compensation in terms of  the Scheme will not be in the interest of justice. But,  however,  the  workers  would  be  entitled  to  their rightful dues  on account  of  closure  of  the  project  as envisaged under  Section 25(fff)  of the Industrial Disputes Act.      In the  circumstances we hold that the direction issued by the  Tribunal to  regularise 425 N.M.R. workers is wholly unsustainable in  law and we accordingly set aside the same. The High  Court committed  an error  in not interfering with the aforesaid  direction of  the Tribunal.  The award of the Industrial Tribunal.  So far  as it  relates to  425  N.M.R. workers is  accordingly set  aside and  we hold  that  these N.M.R.  workers   should  be  entitled  to  compensation  as provided under  Section 25  (fff) of the Industrial Disputes Act. The  interim order  passed by this court in relation to these  N.M.R.   workers  stands   vacated.  The   appeal  is accordingly allowed.  But in the circumstances there will be no order as to costs.