TMI Blog2006 (9) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... y raised a dispute before the State Government demanding their absorption as permanent employees. By a notification dated 19.11.1985, the State Government referred the following industrial dispute for adjudication by the Presiding Officer, Labour Court, in exercise of its power under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short, 'the 1947' Act') : Are the contract workers employed in the nature of contract work listed as per Annexure working in the premises of Visveswaraya Iron and Steel Ltd., Bhadravathi, justified in demanding absorption as regular permanent employees of Visveswaraya Iron Steel Ltd. Bhadravathi? In the said proceedings, the workmen in their statements of claim filed on 26.02.1986 prayed for their absorption as permanent employees in the employment of Appellant. Inter alia, a jurisdictional question was raised by Appellant herein on the premise that the matter relating to the regulation and abolition of contract labour being governed by the Contract Labour (Regulation and Abolition) Act, 1970 (for short, 'the 1970 Act'), the reference made by the State Government was impermissible in law. It was contended that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of these petitions before this Court from the year 1999 keeping in view the law laid down by the Apex Court in the Steel Authority's case referred to and pass appropriate order making reference either to Central Industrial Tribunal or Labour Court for adjudication of the existing Industrial dispute between the workmen and first respondent. Intra-court appeals were filed thereagainst on the ground that no industrial dispute could be raised by the workmen concerned in terms of the judgment of this Court in Steel Authority of India Ltd. and Others v. National Union Waterfront Workers and Others [(2001) 7 SCC 1]. It was further contended that the award of the Labour Court having been accepted by the workmen, the matter relating to abolition of contract labour could only be decided by the Appropriate Government in terms of Section 10 of the 1970 Act and not otherwise. By reason of the impugned judgment, the said appeals have been dismissed. It is not disputed before us that the matter relating to abolition of contract labour being governed by the provisions of the 1970 Act, the Industrial Court will have no jurisdiction in relation thereto. It is also not in dispute that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications. The industrial dispute was raised by two Unions, namely, Visveswaraya Iron Steel Ltd. Workers Association, Bhadravathi and Visveswaraya Iron Steel Ltd. Contract Employees' Union, Bhadravathi. The award dated 13.07.1999 was confined to only one issue, namely, Issue No.6 framed by the Labour Court. The said issue was determined by the Labour Court pursuant to or in furtherance of the order of the High Court passed in Writ Petition No.26874 of 1995. While determining the said question, the Labour Court framed seven issues by an order dated 31.12.1998, some of which are : (i) Whether the 1st party proves that they were employed by the 2nd party Management in the job of permanent and perennial in nature. (ii) Whether the 2nd party Management proves that the 1st party workmen were employed under different contractors in the job of permanent and perennial in nature in various departments of the Management. (iii) Whether the 2nd party proves that system of contract labour in respect of the nature of the workers involved in this Referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion cannot be decided by this Court but by the competent appropriate Government under the provisions of Sec. 10 of the Contract Labour Act The Labour Court also took into consideration the contention raised by the representatives of the Union that the issue as to whether the members of the Unions were really the employees of the management and not those of the employees of the contractors was to be tried and decided by the said court as both the parties had led their oral and documentary evidences in that behalf. Having regard to the nature of reference by the Appropriate Government, which fell for consideration before the Labour Court, it declined to go into the said question, opining that it was not within its province to go into the question as to who the actual employer was as the same did not fall in the category of matters, which can be said to be incidental to the main dispute. It was opined : Therefore, it is clear that the I party Union itself apprehended that the reference made to this Court was not in accordance with the law. The principle laid down by his lordship of our Hon'ble High Court in the case reported in ILR 1994 Karnataka page 2603, taken supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r but also abolition thereof. Relationship of employer and employee is essentially a question of fact. Determination of the said question would depend upon a large number of factors. Ordinarily, a writ court would not go into such a question. In State of Karnataka and Others v. KGSD Canteen Employees' Welfare Association and Others [(2006) 1 SCC 567], this Court held : Keeping in view the facts and circumstances of this case as also the principle of law enunciated in the above-referred decisions of this Court, we are, thus, of the opinion that recourse to writ remedy was not apposite in this case. We may reiterate that neither the Labour Court nor the writ court could determine the question as to whether the contract labour should be abolished or not, the same being within the exclusive domain of the Appropriate Government. A decision in that behalf undoubtedly is required to be taken upon following the procedure laid down in sub-section (1) of Section 10 of the 1947 Act. A notification can be issued by an Appropriate Government prohibiting employment of contract labour if the factors enumerated in sub- section (2) of Section 10 of the 1970 Act are satisfied. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication. The 1947 Act was enacted, as the preamble indicates, for investigation and settlement of industrial dispute and for certain other purposes. It envisages collective bargaining. Settlement between Union representing the workmen and the Management is envisaged thereunder. It provides for settlement by mutual agreement. A settlement or an award in terms of Section 18(3)(b) of the 1947 Act is binding on all workmen including those who may be employed in future. What assumes importance is the ultimate goal wherefor the 1947 Act was enacted, namely, industrial peace and harmony. Industrial peace and harmony is the ultimate pursuit of the said Act, having regard to the underlying philosophy involved therein. The issue before us is required to be determined keeping in view the purport and object of the 1947 Act. It is interesting to note that in Modi Spinning Weaving Mills Company Ltd. Another v. Ladha Ram Co. [(1976) 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. While laying down the principle, this Court followed Modi Spinning Weaving Mills Co. (supra) and distinguished Hira Lal (supra). It is, thus, evident that by taking recourse to an amendment made in the pleading, the party cannot be permitted to go beyond his admission. The principle would be applied in an industrial adjudication having regard to the nature of the reference made by the Appropriate Government as also in view of the fact that an industrial adjudicator derives his jurisdiction from the reference only. There is another aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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