1 2025:CGHC:775-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 879 of 2024 1 - N.T.P.C Ltd., Korba Through its General Manager, Korba Super Thermal Power Station, P.O. Vikas Bhavan, Jamnipali, District-Korba. ... Petitioner versus 1 - Union of India Through its Secretary, Ministry of Labour, Shram Shakto, Bhavan, New Delhi. 2 - The Presiding Officer, Central Government Industrial-cum-Labour Court, Gole Bazar, Wright Town, Jabalpur. 3 - Shri Latiff Khan, Represented By General Secretary, M.P. Vidhuit Mazdoor Sabha, 1864, Weight Town, Jabalpur (M.P.) ... Respondents For Petitioner : Mr. Rajeev Shrivastava, Senior Advocate with Mr. Anuroop Panda, Advocate. For Respondent No.1 : Mr. Ramakant Mishra, Deputy S.G. For Respondent No.3 : Ms. Sharmila Singhai, Senior Advocate with Ms. Kanchan Kalwani, Advocate. Division Bench Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 06-01-2025 1. The N.T.P.C. Ltd. Korba who was the petitioner in WP has filed the instant Writ Appeal against the impugned order dated 17-09-2024 passed by the learned Single judge in WPL No.180/2013 read with order dated 05-11- 2024 passe in Review Petition No.236/2024 whereby the writ petition filed by the petitioner is disposed of reserving liberty in favour of the petitioner to raise all necessary grounds before the CGIT, Jabalpur which have been Digitally signed by MOHAMMAD AADIL KHAN 2 raised in the present writ petition including the issue of res judicata and then in turn the Tribunal shall consider and decide the said issue in accordance with law in expeditious manner. 2. Brief facts of the case as emerges from the pleadings of the writ petition as well as the writ appeal are that the petitioner is a company registered under the Companies Act and is engaged in generation of electricity based on thermal power plant. About 800 contract workers who were employed as electrician and working since 1987 under the N.T.P.C. for maintenance of Korba Super Thermal Power Project claimed the relief that they should be treated as worker of N.T.P.C .Ltd. by filing various objection before the M.P. High Court at Jabalpur either individually or through the union known as M.P. Vidyut Mazdur Sangh. The M.P. High Court vide its common order dated 11-03-1998 passed in WP No.3236/1997 and other connected batch of petitions held that in the case the relationship of employer and employee under the M.P. Industrial Relation Act, 1960 (hereinafter called as ‘the Act of 1960) is not established. It was also held that there is no notification issued by the appropriate Government obliging the contract worker under Section 10 of the Act and there is no scope for granting relief as prayed by the contract workers and has dismissed the WPs. Being aggrieved by the order dated 11-03-1998 passed by the learned Single Judge the respective petitioners filed LPAs before the Hon’ble Division Bench of M.P. High Court vide LPA No.91/1998 and other connected batch of petitions. The said LPAs have been decided vide its order dated 05-12-2003 and partly allowed the LPAs by observing that there can be reconciliation in both the decisions in Sheo Narayan Choudhari and another Vs. Shri A. Kanwadikar, the judgment passed by the Hon’ble Division Bench of M.P. High Court dated 21-09-1966 in M.P. No.338/1965. and Deen Dayal Vs. Factory Manager Gwalior (M.P. 148/1981) and when there is a dispute with regard to the wage structure 3 qua clause of employee they have to move Labour Court as per the provisions of Section 51 and 52 of the Act and if it is individual, the individual can move to Labour Court under Schedule 2. It has also been observed by Hon’ble Division Bench of M.P. High Court in its order dated 05-12-2003 passed in LPA No.89/1998 and other batch of petition that they have not expressed any opinion with regard to merits of the case. They have decided only with regard to the jurisdiction of the forum and as they have not concurred with the finding of the learned Single Judge on this score the judgment passed by the learned Single Judge was set aside and all other finding recorded by the learned Single Judge in favour of the employees have also succumbed as there cannot be piece meal lanceting with order of the learned Single Judge in the case of present dispute. All contentions except which the Hon’ble Division Bench have not decided were left open. Thereafter, respondent No.3/Union filed an application under Section 31(3) of the C.G. Industrial Relation Act before the Labour Court Bilaspur claiming that the contract workers may be declared as employees of the petitioner N.T.P.C. During pendency of the application filed under Section 31(3) of the C.G.I.R. Act, the petitioners of earlier WPs have filed the SLP before the Hon’ble Supreme Court challenging the order dated 05- 12-2003 passed by the Hon’ble Division Bench of M.P. High Court in LPA No.89/1998 and other batch of petitions which was registered as Civil Appeal No.5494-55505/2005. The Hon’ble Supreme Court vide order dated 11-08-2008 set aside the order passed by the Hon’ble Division Bench of M.P. High Court. In LPAs and upheld the judgment passed by the learned Single Judge dated 11-03-1998. In the light of the order dated 11- 08-2008 passed by the Hon’ble Supreme Court the petitioner moved an application before the Labour Court, Bilaspur for dismissal of the 4 application filed by the petitioners and vide order dated 19-01-2010 all the applications filed by the applicants have been dismissed. After dismissal of their application the contract workers through their union respondent No.3 raised an industrial dispute before the Deputy Chief Labour Commissioner, Jabalpur. In the said application, the similar relief of absorption was claimed under the same facts and grounds which they already availed in WP, LPAs or before the Hon’ble Supreme Court. In the industrial dispute raised by respondent No.3, the present petitioner filed objection that the matter has already been adjudicated by the Hon’ble Supreme Court and the Labour Court has also rightly dismissed the claim of respondent No.3 and that the industrial dispute is barred by the principles of res judicata and initiation of conciliation proceeding is bad in law. The Deputy Chief Labour Commissioner/ Conciliation Officer without considering the objection raised by the present petitioner submitted his report on 30-11-2011 to the appropriate Government, but the same was referred through the order dated 06-03- 2013 to the Industrial Tribunal for adjudication of the same under Section 10 of the Industrial Disputes Act. The said order dated 06-03-2013 was under challenge in the present writ petition before the learned Single Judge. After hearing the parties, the learned Single Judge disposed of the writ petition reserving the liberty in favour of the petitioner to raise all necessary grounds before the CGIT Jabalpur which has been raised in this writ petition including the issue of res judicata. The said order dated 17-09- 2024 is under challenge in the present writ appeal. 3. Learned Senior Advocate appearing for the writ appellant would submit that the reference of the dispute by the order dated 06-03-2013 as industrial dispute for its adjudication under Section 10 of the Industrial Disputes Act is illegal and arbitrary because the same dispute has already been 5 adjudicated by the Hon’ble Supreme Court in the earlier round of litigation filed by the respective petitioners/contract workers which is binding upon all the parties and therefore, there is no industrial dispute exists. The learned Single Bench has not considered the provisions of Section 10(4) of the Industrial Dispute Act, 1947 which permit the Tribunal to decide the dispute or point referred to it. He would further submit that the learned Single Judge has failed to consider that the Court exercising jurisdiction under the Industrial Disputes Act cannot set aside/quash the judicial pronouncement passed by the Court. While making a reference under Section 10 of the Industrial Disputes Act the appropriate Government should have recorded its satisfaction or apprehended existence of industrial dispute. The issue involved in the present case has already been settled by the Hon’ble Supreme Court in the earlier round of litigation and therefore, the order passed by the Hon’ble Supreme Court constitutes res judicata and the issue which has already been adjudicated cannot be re- opened. Therefore, the writ appeal may be allowed and the impugned order may be set aside. 4. On the other hand, learned Senior Counsel appearing for respondent No.3 has vehemently opposes the submission made by the learned counsel for the writ appellant and has submitted that before the Hon’ble M.P. High Court the issue was about the jurisdiction to decide the dispute and merits of the case have not been considered which went upto the Hon’ble Supreme Court and the merits of the case are yet to be decided as to whether the workmen come under the definition of employees and there is any relation of employee employer or not. The issue before the learned Single Judge of Hon’ble M.P. High Court was the applicability of the Act of 1960 and with respect to the applicability of the Act the writ petition was dismissed. The Hon’ble Division Bench has held that when a dispute arises relating to class, wages, rationalization or other efficiency of work 6 charges and other materials they have to be dealt with as per Schedule 1, hence, they can raise a dispute before the learned Industrial Court under Section 51 and 52 of the Act. The Schedule 2 of the Act is concerned with the employment of an individual including reinstatement and recruitment and unemployment of person previously employed in the industry concerned. After considering the two decisions in case of Sheo Narayan (supra) and Deen Dayal (supra) the Hon’ble Division Bench have reconciled in the decisions and held that when there is dispute with regard to wage structure qua class of employee, then they have to move before Labour Court as per the provisions of Section 51 and 52 of the Act and if it is individual, the individual can also move to the Labour Court under Schedule 2. The jurisdictional issue has been decided by the learned Division Bench which has been set aside by the Hon’ble Supreme Court in the challenge against the order of the Division Bench of M.P. High Court passed in LPA. Therefore, there is no adjudication on merits and only the jurisdictional issued has been been decided. The present reference before the CGIT is pending with respect to the merits of the case. In the earlier judgment the learned Single Judge of M.P. High Court has taken a view that the provisions of the Act 1960 is not applicable as they being the contract workers are not employees of respondent No.1 N.T.P.C. within the meaning of Section 2(13)(A) read with Sub-class (e) of Section 2(14) of the Act of 1960. She would further rely upon para 13 of the order dated 11-03- 1998 passed by the learned Single Judge in which it has been observed that the petitioners (petitioners of that writ petition) may pursue their remedy in accordance with the provisions of the Industrial Disputes Act. She would also submit that the reference before the CGIT, Jabalpur is pending consideration and the petitioner may raise all his grounds before there and therefore, there is no merit in the writ appeal and the same is liable to be dismissed. 7 5. We have heard learned counsel for the parties and perused the material placed in the writ appeal as well as in the writ petition. 6. From perusal of the order dated 11-03-1998 passed by the learned Single Judge of M.P. High Court in WP No.3236/1997 (Badri Singh Thakur and four others Vs. National Thermal Power Corporation, New Delhi and three others) explicitly appears that the petitioners of that writ petition were claimed declaration that the petitioners are employees of respondent No.1 and are entitled for all the consequential benefits in that writ petition. The document Annexure -P/16 purporting to be letter written by General Manager and Executive Director, be quashed. To elaborate claim of the petitioners para No.2 and 3 of the order dated 11-03-1998 are necessary to be reproduced here, which are as under:- “2. In this petition, the petitioners claim that they have been employed as electricians since 1987 as workmen. They claim that they were previously employed with the respondent No. 1 for last ten years. It is alleged that the petitioners are employed for maintenance of Korba Super Thermal Power Project Colonies for which about 80 persons engaged. The respondents No.1 and 3 do not directly employ the petitioners. They employ them through a contractor. The petitioners have claimed that they have been employed through respondent No.4 at present. Prior to that petitioners No.1 to 3 claimed that they were employed through M/s. G.M.C. Concern between 1987- 1990 and M/s. Star Delta Engineers between 1990-1995. Thereafter, they were employed through respondent No.4, M/s. Jai Enterprises. The petitioners No.4 and 5, although they claimed to be employed from 1987, were unable to name the previous contractor. The petitioners claim that respondent No.1 is their real employer as the supervision of the work of the petitioners is done by the officers and the employees of respondent No.1 The material for their job is supplied by respondent No.1. They work for the colonies owned and controlled by the respondent No.1. The contract entered into by the respondent No.1 and the contractors from time to time are marked as Annexure P-12 and Annexure P-13 and Annexure P-14. Annexure P- 15 is the copy of attendance register. Besides all the petitioners have 8 filed certificates given by various contractors regarding contractors’ service. 3. The petitioners claim that respondents No.1 and 5 wanted to avoid absorption of contract labour despite their standing requirements and the decisions of the Supreme Court and various High Courts. It is urged that the General Manager and Executive Director of the respondent No.1, in order to meet the impact of the decisions of the Supreme Court have now chosen to caution the authorities of various Units and directed them now to employ the workers not on the basis of labour employment contract but on the basis of job work. This scheme was made with a view to defeat absorption of the contract labour. Petitioners rely on the letters cumulatively marked as Ex.P-16. According to them, these letters indicate the devious scheme of the high authorities of respondent No.1. This practice has been condemned by the Supreme Court in no uncertain terms. The petitioners have filed Ex.P-19 as the copy of the job contract.” 7. After hearing the parties the learned Single Judge of M.P. High Court has passed the order dated 11-03-1998 holding that the High Court is not empowered to issue any writ for absorption and held in para 13, 14 and 15 that: “13. In the opinion of this Court, the decision in Air India Statutory Corporation’ case, AIR 1997 SC 645 on which heavy reliance was placed by the learned counsel for the petitioners, does not apply to the facts of this case. The Supreme Court was required to consider in that case the effect of abolition of contract labour by the appropriate Government. The Supreme Court held that the effect of abolition of contra labour was that intermediary between contract labour and principal employer vanished even though, there was no such express provision in Section 10 of the Act of 1970. The Supreme Court was not required to consider the case where the petitioners, in absence of any notification, were claiming that their employment is perennial and, therefore, contract labour should be abolished. The learned counsel for the petitioners has not brought to my notice any notification issued by the appropriate Government. No such notification has been referred to in the petition. Therefore, all those cases, wherein the contract labour has been abolished by a notification, are governed by the decision in the case of Air India Statutory Corporation, etc., AIR 1997 9 SC 645 (supra). It is not necessary to discuss individually the cases relied upon by the learned counsel for the petitioners on the point. The principal ratio of this case is that the moment contract labour is abolished, by a notification, the employees of the independent contractors become the employees of the principal employer and the Court is not precluded from granting the relief of absorption to the employees that they are entitled to as a consequence of abolition of the intermediary. The Court could grant relief under Articles 226/227 of the Constitution of India to the petitioners. However, the Supreme Court does not say that the Court itself can determine the question of absorption of contract labour which has been hitherto regulated by the Act of 1970. This Court cannot ushurp the function of the appropriate Government. In this connection, it is necessary to refer to the decision of the Supreme Court in B.K. Panda and others v. Steel Authority of India, reported in (1994) 5 SCC 304. In that case at paragraph 7, page 310 it was held that ordinarily the High Court, in exercise of writ jurisdiction or the Supreme Court under Article 136 of the Constitution cannot decide the question of facts which are necessary for coming to the conclusion that the contract labour become the employees of principal employer even though, there was an agreement between the principal employer and the contractor that he shall employ the same contract labour an was done by the previous contractor. Obviously, the Supreme Court had debarred the High Court from determining disputed questions of facts regarding the perennial nature of employment. It is clear from paragraph 9 of that judgment that the workmen continued with the respondent on account of various interim orders passed by the Supreme Court. During the pendency of the appeal, the appropriate Government identified under the Act of 1970, 104 jobs wherein contract labour was to be abolished. But in 142 jobs also the workmen continued with the respondent on account of various interim orders eventhough in ordinary course their term would have expired with the independent contractors. Therefore, the learned counsel for the respondent made an offer in respect of notified jobs held by 879 wоrkmen. The Supreme Court accepted the offer accordingly by Interim order dated 6-6-1992 and made the directions in respect of notified workmen given in paragraph 8, at page 311 of the report, However, in respect of workmen continued in service for ten years, the Supreme Court made directions contained in paragraph 9 of 10 its judgment. The condition No. (viii) at page 312 is as follows. It clarifies the position :- ”(viii) The direction shall be operative only in respect of 142 jobs out of 246 jobs, in view of the fact that contract labour has already been abolished in 104 jobs.” It is clear from the directions given by Supreme Court that it made directions in paragraph 9 of its judgment on the foundation that the workmen continued for ten years on account of interim orders of Supreme Court. This position was made further clear by the conclusion of the Supreme Court in Rourkela Mazdoor Sabha v. Union of India and others, reported in (1994) 5 SCC 313 (II) whereby the Supreme Court dismissed the writ petition under Article 32 filed by Rourkela Mazdoor Sabha to implement the provisions of the Act of 1970 and agreement entered into between the petitioners and the respondent on 30-5-1987. It was held that the petitioner may pursue his remedy in accordance with the provisions of the Industrial Disputes Act. This order was made subject to directions of Supreme Court in R.K.Panda's case (supra). Thus, it is clear from the aforesaid two cases that this Court cannot decide the question of absorbing the employees suo motu under the Act of 1970 in a writ petition. The directions given by Supreme Court in R.K. Panda's case (supra) have to be read as confined to facts of that case. On the other hand the principle that emerges from that case is that the High Court in not empowered to issue any writ for absorption. This is made clear in Rourkela Mazdoor Sabha’s case (supra). 14. The learned counsel for the petitioners referred to the decision of this Court rendered by D.M.Dharmadhikari, J., in Writ Petition No. 921 of 1997 (Ispat Khadan Labour Mazdoor Union, New Basti, Katni, Jabalpur (M.P.) v. Union of India and another), decided on 23rd October, 1997. That case is distinguishable an in that case the contract labour was abolished and the Air India Statutory Corporation's case (supra) was followed. The reference to R.K. Panda's case (supra) was for showing that there was no cleavage of opinion in R.K. Panda's case (supra) and the former. In that case there was a notification abolishing contract labour and, therefore, the case of Air India Statutory Corporation (supra) was followed. 11 15. As a sequel to this decision, it may be pointed out that in the case of Bharat Petroleum Corporation. Ltd. v. Mumbai Shramik Sangha & others, reported in JT 1990 (1) 5.C. 73, a two Judge Bench has referral the cane to a Constitution Bench of Supreme Court for deciding if the Central Government, under Section 10(1) and (2) of the Act of 1970 was authorised to prohibit contract labour employed by Bharat Petroleum Corporation Ltd., through the contractor M/s. Kleenvel (India) for cleaning, sweeping etc. the housing colony and sport complex of the Corporation situated at Chembur, Bombay. The matter is still in flux as two-judge Bench doubted the observations, made by the Constitution Bench in the case of Ms. Grammon India Ltd, etc. v. Union of India and others, reported in AIR 1974 SC 960 (1974(3) SCR 665), as not strictly necessary for the decision of the case. The observations confined to the operation of Section 10(1) and 10(2) of the Act of 1970 only at the place where industrial operations and the matters incidented thereto were being carried out. However, no such controversy was raised by the learned counsel for the petitioners and the case was argued on the foundation that the Act of 1960 would apply as the residential colony is situate at Jaminipali, Korba, where the respondent No.1 has its Super Thermal Power Station.” 8. The order dated 11-03-1998 was challenged by the petitioners by filing LPA No.89/1998 and other persons have also filed various LPAs. All the LPAs filed against the impugned order dated 11-03-1998 were clubbed together and decided on 05-12-2003 whereby the Hon’ble Division Bench of M.P. High Court has partly allowed the LPAs by holding in para 17, 18 and 19 that:- “17. On a perusal of both the decisions we are of the considered opinion that there is no conflict between the two. In the case of Sheo Narayan (supra) the Division Bench was dealing with the controversy relating to rejection of wages of a particular employee and held that the case was not covered by the item No.9 of Schedule I. In the case of Deen Dayal (supra) the Division Bench was dealing with the dispute of a class which falls, as is manifest from the said decision, in the item No.9 of Schedule I. At this juncture, we think it condign to 12 refer to item No.9 of Schedule I. It deals with the wages including the period of mode of payment. Item No.6 of Schedule 2 deals with the employment, reinstatement and recruitment and unemployment of persons previously employed in the industrial concerned. 18. In this regard we may refer to the item No.1 of Schedule II which deals with the propriety and legality of an order passed or action taken by an employer acting or purporting to act under the Standing Orders or any rules or regulations governing the conditions of the service of employees. On a reading of the Schedule we find that there is certain distinctions. When a dispute arises relating to class wages, rationalisation of other efficiency of work, charges and such other matters they are to be dealt with as per schedule I and hence they can raise a dispute before the Industrial Court under Sections 51 and 52 and obtain an award. As far as Schedule II is concerned it deals with the employment of an individual including reinstatement and recruitment and unemployment of persons previously employed in the industry concerned. In the case of Sheo Narayan (supra the Division Bench understood the term employment used under the Schedule II relating to wages of individual employee. We have already reproduced the definition of wages as defined under Section 2(35) of the Act. Hence, we are inclined to think that there can be reconciliation in the both the decisions when there is a dispute with regard to the wage structure qua class of employee they have to move Labour Court as per the provisions of Sections 51 and 52 of the Act and if it is individual the individual can move the labour Court under Schedule II. Needless to emphasise that any action can be taken after complying the provisions of Section 31(3) of the Act. We may also hasten to add that as the petitioners have been prosecuting the remedy in this Court they would be getting the benefit of that period to approach the Labour Court as stated by us earlier on. 19. Before we part with the case we hereby clarify that we have not expressed any opinion with regard to merits of the case. We have said so as Mr. Kale and Mr. Gupta have submitted that the finding recorded by the learned Single Judge would go a long way to frustrate the contentions putforth by the Management. We have decided only with regard to jurisdiction of the forum and as we have not concurred with the finding of the learned single Judge on this score the judgment 13 passed by him has to be set aside and all other findings recorded by him in favour of the employees have also to succumb as there can not be piece meal lanceting of the order of the learned single Judge in a case of this nature. All contentions except what we have not decided hereinabove are left open.” 9. The order dated 05-12-2003 passed by the Hon’ble Division Bench of M.P. High Court in LPA No.89/1998 and other batch of LPAs was challenged by the present petitioner before the Hon’ble Supreme Court by filing Civil Appeals No.5494-5505 of 2005. The Hon’ble Supreme Court has allowed the appeals vide its order dated 11-08-2008 and upheld the order dated 11-03-1998 passed by the learned Single Judge of M.P. High Court in WP No.3236/1997. 10. After the decision of the Hon’ble Division Bench of M.P. High Court passed in LPA No.89/1998 and other batch of petitions dated 05-12-2003, the contract workers have filed an application under Section 31(3) of the C.G. Industrial Relations Act before the Labour Court, Bilaspur through respondent No.3/Union claiming relief of declaration that the contract workers were employees of the petitioner establishment. The petitioner establishment filed his reply and denied the claim of contract workers and the proceeding before the Labour Court was pending and in between that period the Hon’ble Supreme Court has passed the order in Civil Appeals No.5494-5505 of 2005 by which the order passed by the Hon’ble Division Bench of M.P. High Court in LPAs is set aside and the order dated 11-03- 1998 passed by the learned Single Judge was affirmed. After passing of the order dated 11-08-2008 by the Hon’ble Supreme Court, the petitioner establishment filed an application before the Labour Court Bilaspur and prayed for dismissal of the application filed by the contract workers under Section 31(3) of the C.G. Industrial Relations Act and considering the effect that the matter has already been adjudicated by the Hon’ble Supreme Court the Labour Court Bilaspur has dismissed the application 14 filed by the contract workers vide its order dated 19-01-2010. The relevant part of the order passed by the Labour Court is also relevant which is reproduced her:- Þvkosnd ds mijksDRk vfHkdFkuksa ls ;g fu"d"kZ fudyrk gS fd vkosnd }kjk bl U;k;ky; esa orZeku izdj.k is’k fd, tkus ds iwoZ loZizFke ekuuh; e0iz0 mPp U;k;ky; tcyiqj dh ,dyihB ds le{k vukosndx.k ds fo#) ,d fjVihfVlu dzekad 3228@97 izLrqr dh xbZ Fkh ftls ekuuh; e0iz0 mPp U;k;ky; dh ,dyihB }kjk vkns’k fnukad 11-03-1998 ds }kjk fujLr dj fn;k x;k FkkA fjVihfVlu fujLr fd, tkus ds Ik’pkr~ vkosnd }kjk mDr vkns’k fnukad 11-03-98 ds fo#) ekuuh; e0iz0 mPp U;k;ky; dh fMohtu csap ds le{k ,y0ih0,0 uacj 91@98 izLrqr dh xbZ rFkk mDr ,y0ih0,0 esa ikfjr vkns’k fnukad 05-12-2003 ds vk/kkj ij vkosnd }kjk bl U;k;ky; esa iwoksZDr ewy vkosnu varxZr /kkjk 31¼3½ N0x0vkS0la0vf/k0] 1960 ds rgr~ izLrqr fd;k x;k gSA ;|fi vkosnd }kjk vius mDr vkosnu esa ;g vfHkdFku ugha fd;k x;k gS fd ekuuh; e0iz0 mPp U;k;ky; dh fMohtu csap }kjk ikfjr vkns’k fnukad 05-12-2003 ds fo#) ,u0Vh0ih0lh0 }kjk ekuuh; mPpre U;k;ky; esa vihy izLrqr dh xbZ Fkh ,oa ekuuh; mPpre U;k;ky; }kjk ,u0Vh0ih0lh0 dh vihy Lohdkj fd;k tkdj ekuuh; e0iz0 mPp U;k;ky; dh fMohtu csap }kjk ikfjr vkns’k dks fu.kZ; fnukad 05-12-2003 ds }kjk fujLr fd;k x;k Fkk fdarq vukosnd dz01 o 2 dh vksj ls izLrqr iz’uk/khu vkosnu dh dafMdk 6] 8 ,oa 9 ds vfHkdFkuksa ls ,oa vkosnd ds izdj.k ds gh leku ,d vU; izdj.k dzekad 97@lh0th0vkbZ0vkj0,DV@2005 ¼nqykj flag fo0 ,u0Vh0ih0lh0 ,oa vU;½ ftls bl U;k;ky; }kjk ikfjr vkns’k fnukad 11-11-2009 ds }kjk fujkd`r fd;k x;k gS] esa miyC/k flfoy vihy dz05494&5505@2005 ¼,u0Vh0ih0lh0 ,oa vU; fo0 cnzhflag Bkdqj ,oa vU;½ lfgr flfoy vihy dzekad 2140@2006] 5506&5507@2005] 5649@2005 ,oa fjVihfVlu dzekad 529@2005 esa ekuuh; mPpre U;k;ky; }kjk ikfjr fu.kZ; fnukafdr 11-08-2008 dh Nk;kizfr ls rFkk ¼2009½9 ,l0lh0lh0 337 ¼,u0Vh0ih0lh0 ,oa vU; fo0 cnzhflag Bkdqj ,oa vU;½ ds U;k;&n`"Vkar ls ;g nf’kZr gksrk gS fd ekuuh; mPpre U;k;ky; }kjk mijksDr ,y0ih0,0 esa ekuuh; e0iz0 mPPk U;k;ky; dh fMohtu csap }kjk ikfjr fu.kZ; dks fujLr dj fn;k x;k gS ,oa ekuuh; e0iz0 mPp U;k;ky; dh ,dyihB }kjk ikfjr fu.kZ; dks dk;e j[kk x;k gSA vkosnd ds ewy vkosnu ds ewy vkosnu ds vfHkdFkuksa ds vuqlkj vkosnd }kjk bl U;k;ky; esa izLrqr fd;k x;k ewy vkosnu ekuuh; e0iz0 mPp U;k;ky; dh fMohtu csap }kjk mijksDRk ,y0ih0,0 esa ikfjr fu.kZ; ds vk/kkj ij vk/kkfjr gS fdarq ekuuh; mPpre U;k;ky; }kjk mijksDr flfoy vihy esa ikfjr fu.kZ; fnukad 11-08-2008 ds }kjk ekuuh; e0iz0 mPp U;k;ky; dh fMohtu csap }kjk mijksDRk ,y0ih0,0 esa ikfjr fu.kZ; dks fujLr dj fn;k x;k gS ,oa ekuuh; ,dyihB }kjk ikfjr fu.kZ; dks dk;e j[kk x;k gS] blfy, izdj.k ds bu rF;ksa ,oa ifjfLFkfr;ksa esa vkosnd ds ewy vkosnu ij vkxs vc vkSj dksbZ dk;Zokgh fd;k tkuk mfpr izrhr ugha gksrk gSA vkosnd dk ewy vkosnu varxZr /kkjk 31¼3½ N0x0vkS0la0vf/k0] 1960 blh izdze ij iw.kZ #i ls fujLr fd;s tkus ;ksX; gSA vuqlfjr vukosnd dz01 o 2 }kjk izLrqr iz’uk/khu vkosnu Lohdkj fd;k tkrk gS ,oa vkosnd }kjk izLrqr ewy vkosnu /kkjk 31¼3½ N0x0vkS0la0vf/k0] 1960 fujLr fd;k tkrk gSAß 15 Some contract workers again raised an industrial dispute through respondent No.3 before the Deputy Chief Labour Commissioner, Jabalpur in which same relief claimed by the contract workers. It is further necessary to reproduce the relevant claim of the contract labourers/workers which they have raised before the Deputy Chief Labour Commissioner, Jabalpur which are as under:- “1. National Thermal Power Corporation (in short NTPC) Jaminipall, Korba (C.G.) is a Central Government installation and instrumentality of State under article-12 of the Constitution. 2. NTPC is running its business in Korba district of Chhatisgam Stats through its plant to generate power and deploy different kinds of workers, like -Supervisors, fitters, Electricians, plumbers, Rigger, Valveman, Carpenter, Masan, Chipper, Computer Operator, lift operator, vulcanizer, Welder, Cutter, Store Mazdoor, etc... Latiff Khan and 640 workers were deployed in the above mentioned job. The details of workers engaged in different jobs like name of the workman, father's name, designation, place of work, date of engagement, date of illegal stoppage of service, duration, local and permanent address etc. are enclosed herewith as ANNEXURE-A/1. 3. The workers were working under the strict supervision control and guidance of the statutory personnels in the premises of NTPC. The work was allotted by the officers of the Corporation. Their attendance were marked by the departmental staff of NTPC. 4. The work and place where the workers were engaged are essential and integral part of the Plant, i.e their services were utilized for smooth running and maintenance of the main activities of the Plant. The workers were working in premises of plant and engage directly in their machine for the profit and business. 5. The management of NTPC knowing that the job where these workmen were deployed cannot be engaged through any agencies other than the department of corporation because of the different judicial pronouncement time to time. Letter dated 21-11- 1996 under the signature of Shri K.K. Sinha, Genaral Manager(P&A) Is enclosed herewith as ANNEXURE-A/2. The roaster for engagement of these workers in different jobs were also prepared by the officials of the NTPC. 16 6. As the management of NTPC is fully aware and knowing that only departmental workers can be deployed in the work and the place where the workers under dispute were engaged. They engaged these workers directly and made some paper work showing contractors. The workers were issued Identity cards Samples of such identity cards are enclosed herewith as ANNEXURE-A/3. 7. The workers have completed more than 240 days attendance every year since their engagement till the illegal termination without following the provisions of 25 (F&N) of industrial Dispute Act, 1947. 8. The workers have been paid less wages than they were entitled, i.e., wages of NTPC invogue time to time for the job performed, the NTPC arranged agencies for making payment to the workers, but in reality they were paid directly. 9. When the workers came to know that they have bean falsely brand as contract labour, though they were the employees of NTPC, Jaminipali and there is employer-employee relationship between NTPC and the workers, they filed writ petitions before the Hon'ble High Court of Madhya Pradesh, which were registered as ----- (i) W.P. No: 3236/97-Badri Singh Thakur and others Vs. NTPC (ii) W.P. No.3059/97-Manohar Lal and others Vs. NTPC (iii) W.P. No.3228/97-Latiff Khan and others Vs. NTPC (iv) W.P. No.3245/97-Shiv Kumar Sharma and others Vs. NTPC (v) W.P. No.3246/97-Ramkishan and others Vs IITPC (vi) W.P. No.3435/97 - Ramcharan Sahu and others Vs ΝΤΡC (vii) W.P No.3436/97-Ram Prasad Yadav and others Vs. NTPC (viii) W.P. No.3437/97-Mahesh Ram Sahu and others Vs. NTPC (ix) W.P. No.4051/97-M.P. Vidyut Mazdoor Sabha Vs. NTPC (x) W.P. No.4925/07-M.P. Vidyut Mazdoor Sabha Vs NTPC (xi) W.P. No.4927/07-M.P. Vidyut Mazdoor Sabha Vs. NTPC (xii) W.P. No.3099/97-M.P Vidyut Mazdoor Sabha Vs. NTPC (xiii) W.P. No.4361/97-M.P. Vidyut Mazdoor Sabha Vs. NTPC (xiv) W.P. No: 4378/97-M.P. Vidyut Mazdoor Sabha Vs. NTPC The Hon'ble Single Judge vide order dated 11-3-1998 passed in WP No: 3236 of 1997 dismissed all the writ petitions on the ground that Contract Labour (R&A)Act 1970 has over-riding effect on M.P. Industrial Relation Act, 1960 [ Now Chhattisgarh Industrial 17 Relation Act] The copy of the judgement is enclosed herewith as ANNEXURE-A/4. 10. The workers challenged the order dated 11-3-1998 before the Division Bench of M.P. High Court by filing LPAs. The Hon'ble High Court allowed the appeal of the workers and directed the workmen that if the individual can move the Labour Court under Schedule-ll after complying the provisions of Section 31(3) of MP IR Act. The judgement is reported in 2004(2) MPLJ and a copy is enclosed herewith as ANNEXURE-A/5. 11. Accordingly the workmen filed Individual application before the Labour Court Bilaspur, later on transferred to Labour Court Korba which was registered as 97/CGIT/05 to 735/CGIT/05. 12. The management of NTPC challenged the order passed by the Division Bench of M.P. High Court by filing on SLP before the Hon'ble Supreme Court, Civil Appeal Nos. 5494-5505 of 2005. The Hon'ble Supreme Court passed order dated 11-08-2008 that the judgement of Single Judge was proper and accordingly the decision given by the Division Bench of M.P. High Coun is set aside. ANNEXURE-A/6. is the copy of the judgement dated 11- 08-2008. 13. Because of the order of the Supreme Court, the Labour Court Korba dismissed all the cases and held that the constitution bench of Hon'bla Supreme Court in "Steel Authority of India Limited & Ors. Vs. National Union Water Front Workers & Ors, (2001) 7 SCC 1” has decided that High Court has no jurisdiction to declare any contract workers to the workers of the management. Only an industrial adjudicator after reference of dispute by appropriate government can decide the case. 14. As the legal position is well settled by the Hon'ble Supreme Court through various earlier judgements as well as through its constitutional bench in the case of Steel Authority of India Limited & Ors. Vs. National Union Water Front Workers & Ors, if contract is bogus, sham and not genuine, an industrial adjudicator after reference can decide the status of the workers. 15. The workers have exhausted all the remedies under CG Industrial Relation Act and their case was rejected. In the mean time the services of the workers were stopped without any rhyme and reason and without following the process of law in the year 1998. 18 16. NTPC has been deleted from the State List by a notification………………………. Therefore the only remedy left with the workers is under the provisions of Industrial Disputes Act 1947. 17. From the above, it is clear that workers concerned, Latiff Khan and 640 others were the workers of NTPC. The total transaction of contract was sham and paper arrangement. 18. All the workers as per the list have completed 240 days attendance every year since their deployment as can be seen from the detail list of the workers. Therefore their services said to be continuous under the provision of Sec.25(B) of the ID Act. As even after completion of 240 days attendance many years the services of the workers were stopped without any notice and without making any payment of compensation as required under the provision of sec. 25(N) of the ID Act is void-ab-initio. Therefore the stoppage of duties of the workman come under the purview of illegal resulting into retrenchment without observing the process of law and workers are entitled to be reinstated in their duties with all consequential benefits including back wages. 19. Hence, the union is filling the dispute before the Hon'ble Authority for reasons mentioned above. PRAYER It is therefore prayed that the dispute may kindly be seized in conciliation and persuade the management of NTPC for amicable settlement resulting to relief to the workmen as they are fighting against the injustice and for redressal of their grievances failing which the case may please be referred for adjudication.” 11. The petitioner filed its reply and denied the claim of the contract workers he disclosed the entire litigation which traveled upto the Hon’ble Supreme Court and submitted that since the matter has already been adjudicated, therefore, the claim of the contract workers for the same relief is not maintainable and barred by principle of res judicata. The Deputy Chief Labour Commissioner/Conciliation Office has passed the order on 30-11- 2011 and submitted the failure of conciliation report before the Govt. of India and thereafter, the Govt. of India has referred the issue to respondent 19 No.2 on 06-03-2013 for its adjudication along with the following schedule for its determination:- “NOW THEREFORE, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) the Central Government hereby refers the said dispute for adjudication to the Cent.Govt.Indus.Tribunal-cum-Labour Court, Jabalpur. The said Tribunal shall give its award within a period of three months.” 12. The said referral order dated 06-03-2013 is challenged by the petitioner in the present petition. From the schedule referred vide order dated 06-03- 2013 it is quite vivid that the contract workers are claiming their status of direct workmen of N.T.P.C. Korba which has already been adjudicated by the learned Single Judge of M.P. High Court in WP No.3236/1997 which has been affirmed by the Hon’ble Supreme Court in Civil Appeals No.5494-5505/2005 and therefore, this Court is of the opinion that the rights of the parties have already been adjudicated and they cannot re- open their claim by filing a reference under Section 31(3) of C.G. Industrial Relation Act as has been referred by the Deputy Chief Labour Commissioner, Jabalpur to the respondent No.2 for its adjudication instead of dismissing the application. In reference filed by the contract workers through respondent No.3, the Deputy Chief Labour Commissioner ought not to refer the same for its adjudication in view of the order dated 11-08- 2008 passed by the Hon’ble Supreme Court in Civil Appeals No.5494- 5505/2005. The learned Single Judge while considering the writ petition filed by the petitioner N.T.P.C. Ltd, has considered the judgment passed by the Hon’ble Supreme Court in the matter of Workmen of the Straw Board Manufacturing Co. Ltd. Vs. M/s. Straw Board Manufacturing Co. Ltd. [AIR 1974 SC 1132 :1974 : LAB. I. C. 730] though has considered para 25 of the judgment and held that the principles of res-judicata is equally applicable to the industrial adjudication wherever possible for good 20 reasons and the Tribunal would have to be determined before holding in a particular case that principles of res-judicata are attracted by relying that principles laid down in para 25 of the aforesaid judgment of Workmen of the Straw Board Manufacturing Co. Ltd. (supra) gives the opportunity to the petitioner N.T.P.C. to raise all necessary grounds before the CGIT Jabalpur which has been raised in that petition including the issue of res- judicata. 13. When the matter has been substantially adjudicated by the Hon’ble Supreme Court, there is no need to again contest their case before the CGIT, Jabalpur as the claim of the contract workers/respondent No3 is already settled and adjudicated, sending again to contest the claim before the CGIT Jabalpur would amounts to continuing further litigation on the same subject matter and there is no good reason to reconsider the claim of the contract workers/respondent No.3. 14. For the forgoing reasons we find some force in the submission made by the learned Senior Counsel for the writ appellant that the matter has already been adjudicate and it cannot be reopened in the reference proceeding pending before the CGIT Jabalpur. Therefore, we are of the considered opinion that the order passed by the learned Single Judge is liable to be set aside and thereby the order dated 17-09-2024 passed in WPL No.180 of 2013 passed by the learned Single Judge is set aside. The writ petition filed by the writ appellant is allowed and the impugned order dated 06-02-2013 (Annexure-P/10) is quashed. No order as to cost. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Aadil