Kerala High Court
Tata Finlay Employees Association vs The Deputy Labour Commissioner on 23 October, 2018
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY ,THE 23RD DAY OF OCTOBER 2018 / 7TH BHADRA, 1940
WP(C).No. 16349 of 2018
PETITIONER/S:
TATA FINLAY EMPLOYEES ASSOCIATION
REPRESENTED BY ITS GENERAL SECRETARY,M.Y.OUSEPH, AGED 68
YEARS, SON OF YOGANAN,AITUC OFFICE, MUNNAR.685 612.
BY ADV. SRI.B.ASHOK SHENOY
RESPONDENT/S:
1 THE DEPUTY LABOUR COMMISSIONER
OFFICE OF THE REGIONAL JOINT COMMISSIONER,CIVIL STATION,
KAKKANAD, ERNAKULAM,KOCHI-682 030.
2 TATA GLOBAL BEVERAGES LTD.
REPRESENTED BY ITS MANAGING DIRECTOR,INSTANT TEA
DIVISION, NALLATHANNI,MUNNAR.685 612.
3 INSTANT TEA EMPLOYEES UNION
REPRESENTED BY ITS GENERAL SECRETARY,CITU OFFICE,
MUNNAR.685 612.
4 INSTANT TEA EMPLOYEES CONGRESS INTUC
REPRESENTED BY ITS GENERAL SECRETARY,INTUC OFFICE,
MUNNAR.685 612.
5 INSTANT TEA EMPLOYEES SANGH BMS
REPRESENTED BY ITS GENERAL SECRETARY,HEAD OFFICE,
MUNNAR.685 612.
BY ADVS.
SRI.C.ANIL KUMAR
W.P.(C) No. 16349/2018
-2-
SRI.K.BALACHANDRAN (MANGALATH)
SRI.P.BENNY THOMAS
SMT.ASHA K.SHENOY
SMT.PREETHI RAMAKRISHNAN (P-212)
SRI.D.PREM KAMATH
SRI.K.BALACHANDRAN (MANGALATH)
SRI.P.RAMAKRISHNAN
SRI.PRATAP ABRAHAM VARGHESE
SRI.RAJESH NAIR
SRI.T.C.KRISHNA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.10.2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Introduction:
The petitioner-Trade Union champions the cause of contract employees in an industrial establishment. When one of the trade unions wanted recognition, the Deputy Labour Commissioner notified elections and released the voters' list, too. The contract employees were found excluded. So the petitioner-Trade Union questions the exclusion.
Should the contract employees be treated on a par with the regular employees, so they can vote to confer recognition on a trade union?W.P.(C) No. 16349/2018 -3-
Facts:
2. Tata Finlay Employee's Association ("Tata Finlay Union"), the petitioner, is a trade union. It claims to represent the workers employed in the second respondent's industrial establishment; to be more precise, in its 'Instant Tea Division', at Munnar. Among the ranks of its members are 27 contract labourers.
3. The respondents 3 to 5 are the other trade unions. As the record reflects, Tata Finlay Union and the third and fourth respondent unions have already had the recognition from the employer. Recently the fifth respondent, Instant Tea Employees Sangh, applied for recognition under the Kerala Recognition of Trade Unions Act 2010 ("the Act"). So the Deputy Labour Commissioner, the first respondent, issued the Ext.P1 notification proposing to hold the election. And he prepared a voters list, too.
4. When the 27 contract workers did not find their names in the voters' list, the Tata Finlay Union submitted the Ext.P2 objection.
That apart, the individual workers also filed their objections, the W.P.(C) No. 16349/2018 -4- Ext.P3 being one such objection. Eventually, the first respondent, after considering the objections, including those of the employer, passed the Ext.P7 order. He rejected the contract employees' claim to vote in the election to be held. Then, assailing the Ext.P7, Tata Finlay Union has filed this writ petition.
5. I may as well note about a development on the status of the 27 contract employees. In fact, five of them became regular employees. But their claim too was rejected because they had less than 120 days service in a calendar year, as regular employees. Submissions:
Petitioners':
6. Sri Ashok B. Shenoy, the learned counsel for the Tata Finlay Union, has taken me through the entire provisions of the Act, besides other cognate enactments. He asserts that even the contract employees are part of the establishment and they cannot be denied the right to vote, lest it should negate their bargaining power. W.P.(C) No. 16349/2018 -5-
7. To begin with, Sri Shenoy has contended that the Act, apparently, is industry oriented rather than employer-oriented.
According to him, the Act does not discriminate among the different classes of employees or workers. In short, employees of all shades-- be it regular, casual, temporary, or contractual--ought to be treated on a par. For employees' exercising their right to vote is a part of their bargaining power in the industrial establishment. Referring to a few provisions of the Act, including the definitional clauses under Section 2, Sri Shenoy would contend that 'workmen' is defined by incorporation from the Industrial Disputes Act. To fix the bounds or the legal limits of who could be termed an employee under the Industrial Disputes Act, Sri Shenoy has relied on Devinder Singh v. Municipal Council, Sanaur1 and Basti Sugar Mills Ltd., M/s. v. Ram Ujagar2.
8. First 27, now 25, of the Tata Finlay Union are contractual labourers, accepts Sri Shenoy. But he refers to Contract Labour 1 (2011) 6 SCC 584 2 AIR 1964 SC 355 W.P.(C) No. 16349/2018 -6- (Regulation and Abolition) Act 1971 read with the Rules under that Act. According to him, that Act casts a specific statutory obligation on the second respondent employer to take care of those workers' welfare, too. Then, he has drawn my attention to the Rules. Besides Kerala Recognition of Trade Unions Rules, he has referred to Rules 21 and 23, besides Forms IV, V and VI, of the Contract Labour (Regulation and Abolition) Central Rules.
9. Sri Shenoy has also taken me to the annexure appended to Form VI and its clauses 4 and 5. He wants to underline, what he calls, the irrevocable relationship the principal employer has with even the contract employees. In the end, Sri Shenoy has urged this Court to allow the writ petition, so even the contract labourers could exercise their franchise, have their bargaining power preserved, and their rights protected.
Respondents':
10. Sri Benny Thomas, the learned counsel for the second respondent employer, contradicts the Tata Finlay Union's W.P.(C) No. 16349/2018 -7- contentions. Sri Benny's principal contention is that the contract labourers cannot be, by any stretch, treated as the second respondent's employees. According to him, the second respondent can exercise no powers over them because those workers are employed by a contractor, with whom alone have they any privity of contract.
11. Sri Thomas has then referred to analogous provisions and definitions under the Employees Provident Fund Act, the Employees State Insurance Act, and the Minimum Wages Act. In the context of those enactments, he has tried to analyze how an employer stands defined, and how an employee in an establishment could relate himself to the employer.
12. Referring to the long title of the Act, Sri Benny would contend that the principal aim behind recognizing a union is to ensure that the workers will have collective bargain--that is, to protect their service conditions. In that context, he submits that the second respondent has nothing to do with the contract W.P.(C) No. 16349/2018 -8- employees' service conditions. In other words, a contract employee may entertain a hope to become a regular employee. But that hope should materialize, if ever, through an established statutory or legal process. And till that happens, no contract employee could claim any privity with the principal employer. Then, taking me through each provision of the Act, Sri Benny would contend that if at all the contract employees cast their vote, it would defeat the very statutory purpose; the regular employees, in such instances, would become a minority, thus losing their bargaining power. He has given specific illustrations in that regard. Eventually, to support his contentions Sri Thomas has relied on Balwant Rai Saluja v. Air India Ltd.3
13. On the decisions Sri Shenoy has relied on, Sri Thomas would say those decisions have been rendered under different facts and also different enactments. According to him, the holding of those cases cannot be applied here.
3 (2014) 9 SCC 407 W.P.(C) No. 16349/2018 -9- Fifth Respondent's:
14. Sri Krishna, the learned counsel for the fifth respondent, has adopted Sri Thomas's arguments. Besides, he has submitted that the contract employees would not work for the principal employer.
According to him, the contractor takes the work, and to complete that piece of work, he may engage his own workers--who are the contract employees. In this regard, he has submitted that the contractor, at any time, can take away one set of contract employees and replace that with some other.
15. If the 27 contract employees, the counsel hypothesizes, cast their vote and the very next day the contractor replaced them with another batch, the whole exercise would become futile. He also submits that the Ext.P6 cannot be treated as a register maintained by the contractor about the contract employees engaged in the second respondent establishment. According to him, the register reflects only the work the contractor secured and its performance. It is not employee-specific; it is rather work-specific. The work is W.P.(C) No. 16349/2018 -10- outsourced. And whoever does it is not the employer's concern, but the contractor's.
16. Sri Rajesh Nair, the learned counsel for Tata Global Beverages Ltd. has adopted the arguments advanced by both Sri Benny and Sri Krishnan.
Reply:
17. In reply, Sri Shenoy would reiterate his contention that the entire act is establishment-specific. It speaks of neither the employee nor the employer.
18. Heard Sri Ashok B. Shenoy, the petitioner's counsel, Sri Benny Thomas, the second respondent's counsel, Sri T.C. Krishna, the fifth respondent's counsel, Sri Rajesh Nair, the third respondent's counsel, and the Government Pleader. Discussion:
19. In Tata Global Beverages Ltd., there already exist three recognized trade unions: petitioner Tata Finlay Union and two more; that is, the respondents three and four. Now, the fifth W.P.(C) No. 16349/2018 -11- respondent--Instant Tea Employees Sangh--wanted recognition. So it occasioned elections. The Deputy Labour Commissioner issued the Ext.P1 notification and prepared the voters list.
20. But that list omitted 27 employees. Tata Finlay Union claims those omitted employees belong to it. They are, in fact, contract employees. Though five had recently been regularised, their names, too, were not included. They had less than 120 days service in a calendar year. In protest, Tata Finlay Union submitted the Ext.P2 objection, besides those employees' individual objections.
21. Should the contract employees have the right to vote? To answer that question, we must examine the statutory scheme. The Kerala Recognition of Trade Unions Act, 2010, governs the filed. It is an Act, as the preamble reveals, to provide for "the recognition of Trade Unions for facilitating collective bargaining and for checking multiplicity of Trade Unions in industrial establishments." Who Is An Employee or Workman?
22. Of all the expressions, "workman" assumes importance W.P.(C) No. 16349/2018 -12- here. Section 2(n) of the Act defines it by reference. That is, it adopts the expression as defined in clause (s) of Section 2 of the Industrial Disputes Act. That provision reads:
Section 2(s): "[W]orkman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged, or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
xxx (italics and boldfacing supplied)
23. A workman4/employee under this Act includes even an apprentice. He or she must have been employed in any industry.
And that employment is to do any manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward. The terms of employment can be express or implied. The 4"Workman", now, is pejorative and gender specific, thus politically incorrect. The Workman's Compensation Act has had its makeover; it is now the Employees Compensation Act. But not the other cognate enactments. This Act, we are dealing with, still sticks to the expression "workman." As it does no violence to the meaning and as "employee" connotes no other distinct meaning, I will employ "employee" instead of "workman."
W.P.(C) No. 16349/2018-13- definition, as seen, applies for all purposes under this Act "in relation to an industrial dispute." Encompassed in the fold of that expression are the persons dismissed, discharged, or retrenched. Who Is Eligible To Vote?
24. Section 8, the pivotal provision, deals with an employee's eligibility to vote. An employee must have been over eighteen years and "in service" for a minimum one hundred and twenty days in twelve months. That twelve-month period must be reckoned right before the announcement of the election. And the election must be for recognizing a trade union under Section 5 of the Act. What Does A Recognized Trade Union Do?
25. The raison d'être of a trade union, and its objective to have recognition is to gain bargaining power with the management, as the sole agent, or as a principal agent, or as a constituent of the joint bargaining council. As Section 10 of the Act sets out, (a) it can raise an issue and contract with the employer or employers. The issue may concern the general questions of employment or non- W.P.(C) No. 16349/2018 -14- employment; the employment terms of service conditions. It can (b) collect membership fee, subscriptions, or any other dues from the members of the Trade Union. It can (c) put up a notice board on the premises of the industrial establishment. That is to inform the members about meetings, statements of accounts of its income and expenditure, and other announcements which are not abusive, indecent, or contrary to discipline. The information thus provided should not offend any law.
26. Clause (d) of Section 9 underlines one of the important functions of the trade union: to prevent or settle any dispute over issues specified in clause (a). Besides that (i) the trade union can hold discussions with its members at a suitable place or places within the industrial establishment, of course, with the employer's consent. It can (ii) meet and discuss with the employer or any person appointed by him on the issues mentioned above. And it can nominate its representatives on non-statutory bipartite committees, like Production Committee, Welfare Committee, House Allotment W.P.(C) No. 16349/2018 -15- Committee, which might be set up by any employer in an industrial establishment.
27. Given its importance, we may extract Section 10 of the Act. And it reads:
10. Rights of recognised Trade Union--(1) A Trade Union being the sole bargaining agent or a principal bargaining agent or a constituent of the joint bargaining council shall, in such manner and subject to such conditions as may be prescribed, have the right,--
(a) to raise issue and enter into collective agreement with the employer or employers on general questions concerning employment or non-employment or terms of employment and conditions of labour or any workmen in respect of the industrial establishment or class of industry in a local area, as the case may be, for which it is recognised:
Provided that where, in any local area, in addition to Trade Unions recognised for a class of industry, there are also recognised Trade Unions in individual industrial establishments belonging to that class of industry, the Trade Unions recognised for a class of industry shall have the right to raise only such issues which concern that class of industry as a whole;
(b) to collect membership fee, subscriptions or any other dues payable by members of the Trade Union within the premises of the industrial establishment in such manner as may be prescribed;
(c) to put up or to cause to be put up a notice board on the premises of the industrial establishment in respect of which it is W.P.(C) No. 16349/2018 -16- recognised and affix or cause to be affixed thereon notices relating to meetings, statements of accounts of its income and expenditure and other announcements which are not abusive, indecent or contrary to discipline or otherwise against the provisions of any law for the time being in force;
(d) for the purpose of prevention or settlement of any dispute regarding issues specified in clause (a),--
(i) to hold discussions with the workmen who are members of the Trade Union at a suitable place or places within the premises of the industrial establishment with the consent of the employer; and
(ii) to meet and discuss with the employer or any person appointed by him for the purpose;
(e) to nominate its representatives on non-statutory bipartite committees like Production Committee, Welfare Committee, House Allotment Committee that might be set up by any employer in an industrial establishment.
(2) The rights of a Trade Union referred to in sub-section (1) shall be without prejudice to the rights that any unrecognised Trade Union enjoys under the Industrial Disputes Act, 1947 (Central Act 14 of 1947).
28. We may, in the end, examine Section 14 of the Act, too. It protects the lawful union activities. The provision mandates that every employer must protect the trade union's legitimate activities. It must also give the Union members reasonable opportunities, W.P.(C) No. 16349/2018 -17- including leave for attending negotiations or conciliations to representatives.
The Rules:
29. Rule 12 of the Kerala Recognition of Trade Unions Rules, 2011, prescribes how the electoral rolls should be maintained. That duty is cast on the Returning Officer, and the employer must provide the rolls on the Returning Officer's request. Rule 13 provides for the mechanism to publish the electoral rolls. They must be published "within seven days from the date" of election notification. The Registrar will arrange with the employer concerned to supply the copies of the electoral rolls to all the registered Trade Unions in the industrial establishment. Those employees who do not belong to any trade union, too, can access, under sub-rule (2), the electoral rolls. And any employee can object, under sub-rule (3), to the correctness of the electoral roll, in seven days from its publication, and the Returning Officer must rule on those objections in five days and, later, arrange for its publication, W.P.(C) No. 16349/2018 -18- with changes, if any. But no election gets invalidated, as mandated under Rule 14, because of any defect in the electoral rolls.
30. Indeed, Rule 15 deals with the employee's eligibility to participate in the election. Subject to Section 8, all employees in the industrial establishment, as included in the electoral roll, may participate and vote in the election. And Rule 35, read with Section 7 of the Act, provides for redressal mechanism: Appeal. Manner and conditions under which the Trade Unions may raise issues find elaborated in Rule 37.
The Impugned Order:
31. Acting on the Tata Finlay Union's objections, the Deputy Labour Commissioner, as the Returning Officer, has passed the Ext.P7 order. In that, the authority records that five employees have not completed 120 days service. About the remaining 22 employees, the Returning Officer, first, acknowledges, that Tata Global Beverages is an establishment registered under the Contract Labour (Regulation and Abolition) Act, 1970. It can engage 50 employees W.P.(C) No. 16349/2018 -19- through a contractor. Then, he holds that all those 22 employees were engaged through one Rajappan Xavier, a registered contractor. So he ruled that they are not eligible to vote.
Are the Contract Employees Eligible to Vote?
32. I must note one fact: the 22 employees owing allegiance to Tata Finlay Union are contract employees. Their status admits of no doubt. The other five, now regularised, have not completed 120 days. So for our purpose--to decide on an employee's right to vote-- we must treat those five employees, too, as contract employees. Then, the sole question is, Should the contract employees be treated on a par with the regular employees, so they can vote to confer recognition on a trade union?
33. Granted that the definition of "workman" under Section 2
(n) of the Industrial Disputes Act is wide. In Basti Sugar Mills, the question is whether the contract-employees should be paid minimum wages on a par with the regular employees. It is not, I must say, a question of pay parity; instead, it is a question of W.P.(C) No. 16349/2018 -20- minimum wages. The government issued Standing Orders prescribing minimum wages for the employees in an industrial establishment. The management contended that the respondents are not 'workmen' under the Standing Orders and so cannot get the benefit of the minimum wages prescribed in those Standing Orders.
34. In the context of minimum wages, the Supreme Court has examined the definitional dynamics of the expression "workman". It has held that "on the ordinary grammatical sense of the words 'employed by a factory' they include, in the Court's opinion, every person who is employed to do the work of the factory. The use of the word "by" has nothing to do with the question as to who makes the appointment." The reason "by" was used instead of "in" appears to be, according to Basti Sugar Mills, to ensure that if a person has been employed to do the work of the industry, whether the work is done inside the factory or outside the factory, he will get the benefit of the Standing Orders.
W.P.(C) No. 16349/2018-21-
35. In the end, Basti Sugar Mills has pertinently ruled that there is no reason for the Government to deny the benefit of the Standing Orders to some persons falling within the definition of workmen under the Act. The Orders require employers to observe certain terms of employment of their workers as defined in the Act. "It is unthinkable that in doing so the Government would want to exclude from its benefits-- mainly, that of the minimum wages--a class of "workmen who would otherwise get the benefit under the definitions of workmen and employer in the Act itself."
36. I reckon Basti Sugar Mills turns on the threshold issue of minimum wages. It concerns no person's right to participate in the affairs of an establishment as its stakeholder--an employee.
37. The question in Devinder Singh concerns retrenchment. The respondent establishment engaged the appellant for clerical work, on consolidated pay. The appellant continued in the service for two years. Then, his service was discontinued. On the discontinuation, he was neither notified nor compensated.
W.P.(C) No. 16349/2018-22-
38. In that context, the Supreme Court has held that Section 2(s) contains an exhaustive definition of the term 'workman'. The definition takes within its ambit any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. The terms need not be in writing. The definition also includes, Devinder Singh asserts, a person, who has been dismissed, discharged or retrenched in an industrial dispute.
39. Devender Singh went on to observe that the definition of workman also makes no distinction between full time and part time employee or a person appointed on contract basis. There is nothing in Section 2(s) to conclude that only a person employed regularly or a person employed for doing a whole time job is a workman.
40. Further important is paragraph 15 of Devender Singh. It observes that whenever an employer challenges the maintainability of an industrial dispute contending that the employee is not a workman, the Labour Court/Industrial Tribunal will decide W.P.(C) No. 16349/2018 -23- "whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry." Once the test of employment for hire or reward for doing the specified work is satisfied, the employee would fall within the definition of 'workman'.
41. In Devender Singh, the establishment did engage the appellant, it continued him in service for two years, then it terminated him. Neither notice preceded, nor compensation followed. So the applicability of Section 25F of the ID Act was the issue.
42. Indeed, here, it is not the Tata Finlay Union's case that its 25 members are the Tata Global Beverages' employees. That those employees have been engaged through a contractor and that they have no privity of contract with the establishment stand admitted-- or at least undenied. So the Devender Singh's observations must apply to those whose employer-employee relationship needs no further proof.
W.P.(C) No. 16349/2018-24-
43. Termination presupposes the employer-employee relationship. Unless there is a contractual obligation to engage an employee, his disengagement does not exist. That issue begs the question.
44. Now we will examine the Rules 21 and 25 of the Contract Labour (Regulation and Abolition) Central Rules, 1971. Under Rule 21, to get a licence, a contractor must apply in Form IV, to the licensing officer. That application must include the principal employer's certificate: Form V. That certificate must declare that the principal employer has engaged the contractor in his establishment and that he seeks to be bound by the Act and the rules "insofar as the provisions are applicable to him as principal employer".
45. Rule 25, in fact, deals with the forms and the terms of the licence. The licence granted under Section 12 must be in Form VI. The licence terms, among other things, mandate that the persons employed as contract labour in the establishment shall not, on any W.P.(C) No. 16349/2018 -25- day, exceed the maximum number mentioned in the license; the wages the contractor pays to the employees shall not be less than those prescribed under the Minimum Wages Act, 1948. And if the contract employee does similar work as does the establishment's "directly employed" person, the wage rates, holidays, hours of work, and other service conditions of the contract workers must be the same.
46. Sri Shenoy has laid much emphasis on the conditions 4 and 5 attached to Form VI. Let us test them. Both conditions, in fact, reiterate what is in Rule 25: minimum wages and non- discrimination among the employees--be it contractual or permanent--performing similar functions.
47. To answer Tata Finlay Union's contentions, we will examine a decision that better accords with the facts here, on the employer-employee relationship, involving contract employees. In Balwant Rai Saluja, the main issue is whether workers, engaged on a casual or temporary basis by a contractor to operate a statutory W.P.(C) No. 16349/2018 -26- canteen, on the premises of a factory, can be treated as that factory's workers.
48. On reference from a Two-Judge Bench because of precedential cleavage, a Three-Judge Bench of the Supreme Court has examined the issue threadbare. After referring to various pronouncements, it has held that the workers of a statutory canteen would be the workers of the establishment only for the Factories Act, 1948, and not for all other purposes. Balwant Rai Saluja acknowledges the principal employer's statutory obligation under Section 46 of the Act, 1948. But it also declares that those obligations do not extend to the employees' appointment, seniority, promotion, dismissal, disciplinary actions, retirement benefits, and so on. They stand covered, as Balwant Rai Saluja puts it, by various other statutes, policies, and so on.
49. The issue, I reckon, gets clinched in para 49 of the judgment. To find out whether the workers of the contractor can be treated as the employees of the factory or company, the Court W.P.(C) No. 16349/2018 -27- should apply the test of complete administrative control. Besides, it would be necessary to show there is an employer-employee relationship, too.
50. We can also gather from Balwant Rai Saluja that, first, a precedent cannot be applied universally; it must consider the fact- setting of each case. Second, each enactment governs only a set of rights and obligations. We cannot, therefore, infer rights by extension or by implication. Many facets of an employee's welfare found interspersed among many enactments. One enactment alone does not address or redress all grievances.
51. The Trade Union Act, as we have seen, compels the establishments to recognize the Trade Unions. That recognition entails the trade unions to negotiate with the management, among other things, for better service conditions. We cannot stretch these provisions to accommodate an outsider--that is, an employee engaged by a contractor--to be part of this bargain mechanism. The employee's rights, even under Rule 25 of the Contract Labour W.P.(C) No. 16349/2018 -28- (Regulation and Prevention) Central Rules do not extend beyond his contractual rights. First, there should be no discrimination in the service benefits if the contract employees are assigned work much like that done by a regular employee. Second, the obligation of non- discrimination is cast on the contractor, not on the principal employer. There is no privity of contract, nor does there exist any employer-employee relationship.
52. Therefore, viewed from any perspective, Tata Finlay Union's contention cannot sustain itself. The employees working under a contractor cannot claim a right to vote in an election for recognizing a trade union.
I, therefore, dismiss the writ petition. Any interim directions given earlier stand vacated. No order on costs.
Sd/-
DAMA SESHADRI NAIDU JUDGE jjj W.P.(C) No. 16349/2018 -29- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF ORDER NO.IR 2715/17 DATED 30.4.2018 ISSUED BY 1ST RESPONDENT EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED 10.5.2018 SUBMITTED BY THE PETITIONER TO 1ST RESPONDENT EXHIBIT P3 TRUE COPY OF OBJECTION DATED 11.5.2018 SUBMITTED BY MR.SEBASTIAN TO 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF LETTER DATED 14.5.2018 SUBMITTED BY 2ND RESPONDENT TO 1ST RESPONDENT EXHIBIT P5 TRUE COPY OF HEARING NOTE DATED 13.5.2018 SUBMITTED BY PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P6 TRUE COPY OF REGISTER OF WAGES FOR THE MONTHS OF JANUARY 2017 AND FEBRUARY 2017 OF 2ND RESPONDENT'S INDUSTRIAL ESTABLISHMENT, INSTANT TEA DIVISION AT MUNNAR EXHIBIT P7 TRUE COPY OF ORDER NO.IR 2715/17 DATED 15.5.2018 PASSED BY 1ST RESPONDENT EXHIBIT P8 TRUE COPY OF BYELAWS OF THE PETITIONER EXHIBIT P9 TRUE COPY OF RELEVANT PAGES OF MEMBERSHIP REGISTER OF PETITIONER PERTAINING TO TEMPORARY AND CONTRACT WORKERS.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 NIL EXHIBIT R2 NIL W.P.(C) No. 16349/2018 -30- EXHIBIT R3 NIL EXHIBIT R4 NIL EXHIBIT R5 A TRUE COPY OF LICENCE ISSUED BY THE LICENSING OFFICER UNDER SECTION 12(1) OF THE CONTRACT LABOUR (REGULATION AND ABOLITION) ACT 1970 TO SRI. RAYAPPAN XAVIER EXHIBIT R5 B TRUE COPY OF LONG TERM SETTLEMENT BETWEEN THE 2ND RESPONDENT AND THE TRADE UNION