Vishweshwaraiah Iron And Steel Ltd vs Union Of India By Its Secretary on 12 March, 2009

[Cites 4, Cited by 0]

Karnataka High Court

Vishweshwaraiah Iron And Steel Ltd vs Union Of India By Its Secretary on 12 March, 2009

Bench: Subhash B.Adi

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IN' THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED 'm1s THE mm my 09 MARCH 

BEFORE

<3'-

THE HON'BLE MR.JUS'I'ICE SUBHAS_Ih§ B,A£§1I~  %

WRIT PETITIOII nc§;«¥1"86.<g)09% __,___    % ~
olw w.p.no.13§7oIaoca s:;.~nm _" A'  

BEIWEEN:  A  

Vishwcshwaraialzl Iron     " 
(lonttact Employees Union (R) ' '
Ghouse Sal) Lane,,_C)ld Tam-':1 _  V V
Bhadravathi    I   ' 

By its Presidegaﬁ i§i:~' _ V  PE'I'I'I'IONER
(By M] s.M.(i.Nai'z§§imiism_:§§'st$§;'Ad§'§Q)

AND: . _ _  - _ ._ 

1. Unioﬁoflndia      

By its  to  of Labour
Shgrama  Bhavmi

R.s:1;i Marg '
 Dem; ....... ..
 CQmm1'ssioner (Central)
. Nq,362?A+36f."&#~B/6

'(kgcjas Bengal Clinic Compound)
Kusugal Ffbad, Keshavapum

Hub}: -4;. 530 023.

ﬁrhe Sfzel Authority of India
_ ﬁahweshwaraiah Iron & Steel Plant
; Bhadravathi --- 577 301

 Rapid. by its Extxtutive Dimctor. .. RESPONDENTS

'V (By Sri.Aravinda Kuraar, ASG for R-1 & 2, M] s.S.N.Murthy Assts., Advs. for R3) .2- This Writ Petition is ﬁled under Articles 226 & 227 0f the Constituﬁon of India praying to direct the Government pf India (R 1) to refer the ixldustﬁal dispute validly raised as at 'Ann---A, dt.9.7.2007 namely as to whether the so caﬁcd cn=1,iLta'c.t in respect of 1 I92 workmen is bogus or sham and whe;t}1¢r.tI1a'V;~1V192 workmen are entitled to such relief as may be the, adjudicator (C.G.I.'i'., Bangalore) in View of the énormoﬁs delay' .4 for access to justice it is pxayed that an emergent basis in the interest ofjtistice _ _ V 13 w,P.Ng. ;33?:'.QQ_;Q_$_"

BETWEEN: % V' Steei Authority of India V.I.S.PIa11t Bhadravathi --- 577 301 Shimoga District ..

Represented by its    _ 
Manager (Legal) &-rﬁpa Héyldcr 
S1i.H.N.Venkates;l1.  _ .  

 " '-~.~.': PETITIONER
(By M] s.z§3.N, 
AND: % A'    

1. The * 
Govcmnisnt of Ltndia

   """ 

. Raﬁ fliarg -. '

    001.

2. 
Visvesvaragfa Iron 85 Stce1Ltd.

' '  Contract. Employees Union (R)

V f"§_E1ous€:"Lanc, Old Town

" Bhédravathi -- 577 301

Q' VK'a-rnataka. .. RESPGNDENTS

A   ] {By-§ri.A.niyan Joseph, me for R-1

'KM/s.M.C.Narasixnhan Agata, Advs. for R2} This Writ Petition is ﬁled under Articles 226 &. 227 of the (3-anstimtion of India praying to quash the Govemment Order d1:.5.5.2(}()8 issucd. by the R1 at Anx~F', etc.,. $%"bé'«tai;te12. oil. L -4- Cemzrai Government in pursuance of the W.P.Nos.33485-- 33963] 1999 and connected matters, matter went in appe:§1'*te the Division Bench of the High Court. The Division Court; by order dated 18.12.2003 had conﬁrming the ditections of the 1eame§éiAA'Sing1e"~«eIudgje_"iz1 :11e7vmt J Petitions and thereafter, the Me_negeeeeee_ 1eed j£;3ee1»sL1ﬁ§e'%'(e':ei s2i1}eV No.I2621-13236/2004 and 1;,-eee latei' numbered as Civil Appeal ,'.I'he by its judgment dated 26.9.2006 'Iat'1z§is;'s;et.j:1:1tI«g1I1ent of the High 3 Court in writ petiii£j11a_as interalia setting aside the ordex of Central Government.

4. I; is ehe"ree&e_e'ene«:2i5«.e5_.2oe7 again the Union had sought for refexer:1es:V_ by before the Assistant Labour Commissioner4(Ce;1t::§}),jn1emIia seeking reinstatement of the I-Vilvneeorkera; xiiho "ape 'the Ietirelnent age and fuli backwages dﬂ'ﬁ:érAV.cei1eequenﬁa1 benefits with retrospective eﬁiect from ' the of into sezvice in the Visw:-2$varay,a Iran and ;.~v'.._'_._fS':eeI Bhadravaihi (hereinafter referred to as 'VISL') en ' e that the management had engaged the coniractor with the intentien of denying the workers of their rights. it V is alleged that the Workers ate all the employees of the VISL and not the contn-act labourers.

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5. It is the ease of the Union that, nearly services of 1192 Workers have been wrongftllly terminated at diﬁexent £985 to 1987 and they were all worldng from departments under the contractor and their .V to illegal Ietrenchzsent and is violatitre industrial Disputes Act, 1947 (hereinafterefefened £he'=~5,&;¢:');ess L»

6. The said claim petition Labour Commissioner (Cienualj 1' mshdgement by ﬁling the detailed ohjections the decisiora of the Apex Court It is stated that, the members 'w:rhoV'e}siimed to be the workers. are all coiitzaet eVﬁ§»1oy4ees"a1jid.. __eori.side1ing the fact that they are contract has already quashed the order '1'eferehce_ by; the Central Government on the the Union had also sought for sexvices of the employees. In View of the deeisim; of digﬁaex Court, second refexence on the same issue " 'A -it Q ' 'does not suririve.

*7: Union had also made another petition before the T -«'.As'sistant Labour Commissioner (cenhal) on 9.7.2007 seeking it the reference of dispute to the Tribunal, intemlia alleging that the management had engaged these Workers from 1970 to 1987 -5- and the aiieged contract is sham, bogus and mere camquﬂage is done to smokescreen the real employment and that, the workmen are not the employees of the .}:§')'t1t they are direct employees of the principal 8II1ﬂ'i63¥t;§::1'.. is further alicged that, ever since the éqorkexeijeittetlh i:he'~ VISL untier the middleman ﬂﬁte.

management itself was issuing ijcket numbers to those workers to' ~-the and was maintaining P.F. purpose, it is the managemeﬁt: from the workexs.

The cont:act£$ie':;i7e:ﬁé' 'Bethe'-:,}enders. Exmpt by paying the all other statutozy beneﬁts annual leave Wages. wages for National and also for the Weekly holidays Vabpw:,h..:the._'managemcnt has paid the Fesﬁval advances d111:c: ' Av'ﬁy'teVthe$eVA'§#hrkem. Relymg' 'on the acts 0!" the mazmgcmcnt

-and and also the conduct of the management, H H K that, the real employer being the management V contractor is only a name lender. As such, the 'ma3hagcmcnt in the name of abolition of the contract labour has "i1iegaIly terminated all 1192 workers from their services and it amounts to violation of Section 25-13' of the Act. ltﬁthescvworkmen by the VISL itself, in addition ' -7-

8. The said petition was opposed by the management by ﬁling statement of objections interalia stating that. the claim made by the Union does not constitute an industrial dgspute in View of the decision of the Apex Court in a judgment: in AIR 2905 so 3229 in the matter of STEEL mews LTD. -vs~ UNION OF INDIA & ORS, .(refe1*re»_:Z" 'toethe«M%b** judgment between the same {It -:

claim, if any, Weuld be __u11cVier"ﬂ1e * (Regulation and Aboﬁtion) Act, Isfened to as the 'CLRA Act') and not

9. Thoughfhe Ceizamissioner (Central) issued no1eieev:',t9_¢V$Z:ee and received the objections, but thefesftietj has any report to the Central Govemmentébbénfi iris regard, a dimction. is sought by the ' V' zﬂrgsozi' in;~:.tswet peﬁﬁeﬁ.

._ Writ petitions were taken up together for ﬁnal V V . disgﬁbsalgit Sri.1'vi.C.Narasimhan, learned Senior Counsel .. for the Union, Sri.S.N.MurLhy, learned Senior Counsel b for the management (VISL) and Sri.Aravind Kumar, Assistant Soliciter General for the Union 01' india. 1 1. SIi.M.C.Narasimhan, Eearned Senior Counsel submitted that, the Assistant Labour Commissioner (Central) is under -3- obligation to submit his report aﬁer having mceivcd the claim petition and also the objections from the management to submit his report amounts to failure of cxcztziae vested in him. He submitted that, the decision management Ieported in AIR 2006 T the decision of the STEEL Amwoxrryioptiwbm 'i:{2n0~2_._ AIR sew 3574 at paxagr-aphs«1§>;§§§;¢:11 to the decision reported in 2083(3) without advcrting to the principlé the decisions, Without ' oiggrtzrvaﬁon has been made at patﬁ-26 of the judgment cannot read in the oontcxt of the earlier detﬁgidxts {tie the decision ofﬁve Judges in INDIA wherein, if any dispute is » ¢V1n1ti<")j,r=.-12¢;-;___(12f' the contract Labour and if the contract A"'i.$ avoid the real employment and if the cmploycr. ton'. of the employment. has set up the V Vt contxﬁhétqr; matters require proper adjudication only by the and at the level of rcfcrencc, these matters adjudicated. In this context, he also I'£':f6I.'I't':d to the judgwncnt of the Division Bench. which became the subject A " matter of the decision of the Apex Court in STEEL AU'1IHOR1?*Y op HVBIIA (AIR 2006 SC 3229) and submitted that, the Division -9- Bench relying on the decision of the STEEL AU'1?-IOREFY OF BVDIA had held that, the Causal Government is required to' 'the matter to Industrial Tribunal for adjudication. on the judgment in the case ef STEEL " es:

further submitted that, insofar as 'as ' empioyees of the contractor are;t;t"1e eeipieyees " L» employer or not is a matter adjuﬁieeﬂee is these circumstances. the into and not merely referring by the Union that they are the§e1:§)}eyeee 0% He submitted that, reference to the dispute, as the case of the Unisex' flieeweetxployees of the contractor, but it is " empioyment and that is the issue, He aiso refened to the Cexjzri reported in 2002 AIR SCW I 788 in the 'of. MzJi:ifC;PAL CORPORATHON or GREATER MUMBAI mus- AND omees and submitted that. where 'the found to be a sham and nominal rather a K V' V' ee11i:e~._;'_ﬂ. age, in which case the contmc_ t labour workm g in the

--'.e?Q'eet3ehs:hment of the principal empieyer were held in fact and in ? the employees of the 'principal employer himself. indeed D» such cases do not reiate to abolition of eemract labour wherein the court piemed the veil and declared the correct -19- position as a fact at the stage aﬂer employment of contract labour stood prohibited. Relying on the pmposieon dew: by the Apex Court, learned Senior Counsel further the Apex Court While considering the issue the principles Iaid down in both the _j in i STEEL AUTHORITY or mom _ ((2003; i) "~a:;a..L MUNICIPAL CORPORATIYON or ea§1«:.aTeR 'MD?.df¥Af '1{eej§:e) are binding and are 19 beA.Ae¢cegga;§i-mtg, te wt, as to whether, there is an issue or not. He also Ieliw on the issee Government as per __h)'rWthe management axed submittedvV.t13aat,'VAth'_e <i%d...r:c;nsider the issue as regard to the pagément "based on very averment that their texminatien end has referred the issue as to 'vwhethergthe. workers: entitled for compensation or not, the 'L referred to the industrial Tribunal for so reﬁned, there is a failure to exercise pcswefby iihefissistant Labour Commissioner (Cenual) in not " " 'LA issue as regard to the abolition of contract labour a;ed Whefher the Contact is a sham and is only a camouﬂage the ':'rea1.empIoyment, I2. Sri.S.N.Murthy, ieamed Senior Counsel appearing for the management submitted that, neither the Government of India -11- can refer the matter for industrial adjudication net the reference made as per Annexure-F in the writ petition the management does survive for consideration. as f'§ss_1ies have been set at naught by the decision of STEEL AUYYIORHY op mom mponecsi" fA;«:2 2:006 am; 7 submitted that. once the Apex court fisjvilac issue which requires an adjudicaffbn, again and again seek reference offglae ff 1

13. In this regard. proceedings and submitted puI'S'l1aI1C€ of the decision of the ;i1.e;21os.33248--33253/99 and connected .{n3*the< petition aiso, the allegation is that, the w6rkets.. eI;e'*t}ie«--._'erd:13loyees of the management and not the:Veoni::"aetmv'A' light of the same, this Court had fdi1*ectedC.xe;fere'nee to ftlzfieindustiiai Tribnnai. However, the Apex ifrthc matter has held that there is no issue, ' ff reference. He speciﬁcally referred to para-26 the judgment and submitted that, based on the stand taken by the Union, the Apex Cami has held the principles of esteppel apply even to the industxtiai uldispute and has quashed the refexence. it has cbsexved that, Union cannot take contradictory and inconsistent plea and such plea is mutually being destructive plea, it cannot be allowed to be /"'»

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raised even in an industrial adjudication, common law principles of estnppel. Waiver and acquiescence are 8.p1J1iCab1€,'V:.'33.1. an iizldustrial adjudication. Relying on the decision Court, he submitted that. again raising the the decision of the Apex Court is 'be in contravention of the binding oittziie in this regard, he submitted V for absorption as pennanentV.cmpioyees tin: enipioyfaent of the management Managem'e3:it_e_' as regards to jurisdiction of the tithe dispute on the ground that the contractor and the Centxfai' any notiﬁcation under Section 1i'(}_oi"' the contract labour, the employees not raise any dispute against the ~ if any, would only be against the V"ooo.ti'aotor_ not against the management. He further ttespite there being a binding decision on the V authoiity' authority erroneously has again referred the it it Aiiiinatterby reference opder dated 5.5.2008. He submitted that, 'tguistion of g*anti11g or paying the compensation to the employees it Vofvtiie coxmactor by the pxincipal employer does not arise and the "issue sought to be referred is for payment of compensation to 1192 oontnaot workexs. He also submitted that, the petition ﬁled -13- before the Assistant Labour Commissioner (Central) for seeking reference by the Union is aiso based on the same such as, they were the employees engaged from have been terminated from service from V "

submitted that. the claim of the 7.

and such an issue having reached the Apex Court. there is no question of dispute between the uniozisnd the'

14. He also Couzt considers the earlier decisionsend onier, the latter decision of the Apex circumstances, it is not now open to eaiiier decision for interpreting the later judgexenttofithe it is also submitted that, the judgment of Clonrt being between the parties, it is bbbbb H; s as well as the authorities.

._ Kumar. ieamed Assistant Solicitor General V it _ subﬁitteszij in consideration of the petition ﬂied by the Imion it _s}so'v--'objections ﬁled by' the management, the Assistant Commissioner (centraﬁ has submitted a failure repozt Iwidsied 10.1.2003 fnteralfa stating that, no sispus exists. It is 'A ~ submitted that. the Assistant Labour Commissioner f?Qw ..}4..

(Central) has relied on the decision of the Apex Court View 0f the same, the said authority has submitted a ..

16. However. in ZI'6Sp€C1; of the L. Central Government. he submitted Gentz"s1"€':oyei*h1nent Ve taking into consideration that, 'fa:

nearly 22 years. the Central £5' refer the issue of payment of compensatmn' svfrorkers.-A ﬁe submitted that the reference was cimumstanee and not based 93:1: Dthe He further submitted Court is binding not only on the 'Govemment.

17. in the "ci3"ntentions of the learned Counsel for the, tee arises for consideration is:

A -- whet.h,er"d"feferenoe once rejected and upheld ' could there be any other reference " ._ "gm same union in reaped of the same *-£;§m,p'lo;;r_e ésA on similar issue?' 'A i 1.8. It is not in dispute that, earlier Union on behalf of the .___'"' e1n'p1oyees numbering 1192 had sought for a reference. The V V V.S1':ate Government referred the dispute an the following issues:

"{1} Are the contract warkmen employed in the nature of contract work listed as per annamre, working in the premises of VfSL, Bhadmmzthi, justiﬁ'ed in demanding -15- absorption as regular permanent emplayees of VISL, Eﬁwubruxdhi {ii} gfso, to what relief the said workmen are enzi1z¢45,§#** .

19. I11 pursuance of the refemnce, sfias regstemd in Ref.No.10(LCM) No.9'? gf%19s.=5%d'"ne£§;s:1~ed Court, Mangalore. During the pendgncy--rd)f?

VISL was merged in STEEL for short}, The Labour . issues for adjudication, which ' 'Whether the present and proper and that Véo adjudicate the The the i'§Sl1€ and by award dated 13.7.1999. "nega1i§rdd_f~ "me intemlia hokling that the appzopxfiate d"€3voire1fn;rn§é11dtV'*~*é;ras Oentral Government and the " «--1x:fe1fé§j£ict:;--.d1:m1ade "*6--«State Govemmcnt was not valid and the no jurisdiction to decaf!' c the issue and a(2.('Z%().l."!'i'i.E1gVl')T',.V'v'.:}73V€:--:: "did not examine the other contentions of the I Um'o1a3;. .. award was called in question in W.P.Nos.33248 u x V " 1999 and connected matters interaiia seeking

-' déqddfdﬁon that, the wozrkmen are entitled for absoxptian and iégxllarizaﬁon as yermanent Workers upon abolition of contract U labour system in SAIL and their termination is illegal. This Court 1*' ,g§Jg -15- considering the provisions of Section 10 of the CLRA Act: and also considering the decision of the Apex Court in SAIL held asﬁmden ". . . . .that the industrial! Adjudiaator can dec;ig:ie.thf$=. question as to whether the contract is sham.l__or i' _ ruse or camouﬂage to evade compliance with__ = beneﬁcial Iegislations in the foﬂawing.

circunzstanoes:     ii 

(cc) On issuance of

Seciion 10(1) of' CLRA' Act 1pvmyhi§)itim3 employment afcor2.i;f;ic;»Iabo1:r; ' " '

(b) or othenuisg in dispute bfought before they fndu.striqI -.»€1ci_'judt;'ca1ar by any contract labour thasf the comfraci for suppfy of' oonirtfct not a genmne az*:?ii'ri:tc$t1 la._ mere ruse or ta 'tirade.' with the __ .-varu1'Gi4_$_*.ben,§fici:;I ?tE,fg§S1aﬂO??.S. "

and dirtczicd consider the question in the light oi' 1_(3( ﬁi'e«f3LRA Act and also to consider the question, as toiwilétliér the ébntxact is a men: ruse or camouﬂage 'V tmmplianciéi the vaxious beneﬁcial legjislations in cf In this regard. both the parties were i ii to evidence.

20; onder of the Division Bench. direcﬁng the Eééfeéxéiicxe Court to decide the issues. was called in question __"'¥'E.)'6fA(§.':i"t2' ihe Apex Court in Civil Appeal 130.4263/2006 (AIR 2006 ""V$é"3229}. The Apex Court by its judment dated 26.9.2006 allowed the agpeal interalia holding as under: C" ,,;$.:{ 'W K .11-

"$26. The workmen whether before the Labour Court or in wriz proceedings were represented by the same Unim A trade union registered under the Trade Uniqris Act is entitled to espeuse the ccmse of the worknaeie deﬁnite stand was taken by the employees z%.a1_" "

had been working under the contractors. _:'I*I weerfti, 1 thus, in our opinion, no: lie in their mm41_h"z9 aj _ contmdiciery and inconsistent plea that they' 'w'ere"a1s0 "

the workmen of the principal employer: 31%; raise" sudid . mutualfy destructive plea is iH1pennff$;sib£e'a'n iaw. :;_' mutually destrucfive plea, in cur opirzimz, she1zId.not ' allowed to be raised evenin-c__m inﬁzgstriaf c1dj£;di(xm'q:n. % Common law pﬁnaples 'qf.,estoppe1,V --..uiai#er acquiescence are appﬁcabie' _ in *5-sift ' ' incifusiﬁai adjudication.' It also observed the of exercising jurisdiction under' 1(5) 'Act. the appropriate Government its order may be an administitative. ej:i5e'vh;;_ﬁ,he not be beyond the pale of judicial mv'iew4§ 'aai: reference. it must apply its mind and based 911 before it by the workmen or the 'eV1.11i~:i1=.', the Government must itself satisfy ﬁrhether the workmen are in fact not employed by theubut by the management ' K " By reading of this judgment. it is clear that the Apex the Civil Appeal, set aside the order of the Bivision VT of this Court and held that, once the Union sets upon a 3 " "defence that the employees are the contract labourers working under the centractor, it cannot mm round and take a diifcxtnt 2% -13- defence and also observed that, principles of estoppel, waiver and acquiescence of common law are also ayplioable in adjudication. Further, the Apex Court on the que_sftioti of the State Government in referring the matter-has that, the State Government must prime to ' Whether the employees are the__ emiiioifees of 1 , employer before it could refer the iviinieitter for From the judgment of the Apex. 'that having admitted that the employees Labourer, they cannot seek 1efe;:e1i.ee1' -by and further the appropriate a reference without prima as to'te1Viettier they are the employees of the Thus, the issue as to whether the mexpjoers of Union the contract labourers or not has it is-eeri Apex Court. may be on the basis of the para-26 of the judgment.

it it the Union in respect of very same 1192 _ee1;)1oyees3_ has again sought for zeferenee by its petition dated made to the Assistant Labour Commissioner (Cenual) ..__"V'iitteVi;a1ia aneging that, their termination is illegal and vioiative of "geetion 25-1? of the Act. In the said petition, undisputediy, they alleged that. VESL is the employer and it is not Iegstered under the provisions of CLRA Act and the contract is only camouﬂage

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only made to deny the beneﬁt to the employees. This peﬁtion was opposed by the management Apart fmm other cooteoﬁons, a speciﬁc contention was raised imferczlia stating that I E' Court has already decided the issue in 30;. mom pm 2066 so 3229) holding .e%exsp1¢3%¢§sV _;h;~:

contract employees and no issue T. a1ises'efoi=refe1e:1ee§ " However,'-..L by Annexure~F in the writ pe1:17tiot1"*vﬁied by. thge the Central Government refemtlafche issi1e;.:§vsVie.h zea§is'as"onder: "Whether the claim for; 'oar:-2pensotioi;.. for the 1192 contract workers --. fist' 'enoe'®ed) by the Vishweshwqraiah Iron gﬁ ",.'S£eel'~..Liou'ieéi T/ISL Contract Employees . _V " ''-r:ianagement of Vishwesh'wcinzi£2hT_Iron_ Eirnifsd, Bhadravathi as legal jtisfgﬁed?' Toe'~vioh€zt'e'reE§ef the workmen are eniitIsd»to?"~.._ .

23. {he Union had also made another peﬁtion _datec'1LAssistant Labour Commissioner "('€eot1-:j1r'«:.ir§teralia the contract engagement by the for the years ﬁmn 1970 till the end of 1987 was and valid under the eye of law but some bogus, smokescreen and mere camouﬂage the "em;;1o$o'11ent and that the workers so employed under so-

are not the employees of the contractors, but VT the employees of the principal employer (VISL) and for a direction to the management to treat me said workers as the employees ofV1SL and reinstate them into service -20- with all other beneﬁts and for payment on par with other regular employees, etc.,.

24. This petition was also opposed by the 'hy detailed objecﬁon interalia stating that the J mg ma1'nta1'nab1e in the light of the decisi<§ﬁA»ie:"STEEL-iﬁifﬂfiﬂﬁifff or I % INDIA (AIR 2006 SC 3229). Since _there'we1e._no ae1iiai1"oi1 of the Assistant Labour Comxiiieeinner ' Unioii sought for a direction in W.R1No.4'I'8Cv[ & ' V

25. The issue that --'£j;¢.'--Union at the ﬁmt instance was $1) =:111;e""re¢gii]axiz;é1tion of employees x1u1nbe1'i1).ge'1e.1.«;':;:2.+fV'<'I.'ii;'§:; V;>is~i[si¢u'B'eng1£o£this com held that. an issue is vi:equ'1red" by the Industna1' Tribuxlai. However, the Apex AUTHORITY OF INDLA (supra) _._1.;as egsid.e the "o1:tie_zfH «of the Division Bench by holding that, *_<_:u:1-.ee« _V that the employees axe the employees and not under the principal employer, 'V VV quesﬁon iefening the dispute does not arise. It is also .4 H the State Government before it could make a it must prima fade satisfy itself. as to Whether the eoﬁxact emplayees are the employees of the principal empioyer " "er not. Once the issue as regard to whether the employees are the contract employees or not is decided between the parties, it is .21- undisputedly binding on both the parties. Even assuming that, the second and further reference sought for by the Union on diﬂ"e1"e1:1t allegations, but the fact remains that, the issn'"e----_is one and the same, as to Whether they are Contact ~tul'1e employees of the principal employer. A by the State only if it prima fac:g'e""ﬁnde g employees of the pxincipal employer;;M1'.e::ﬁ§rV adjudicatiozzr. arises between If_fa'e-ie tile Government ﬁnds that they the question of reference does"n-:>t--arLse§.V }

26. In betveeeiae parties. the Apex Court the Union has admitted that the employees. they cannot take a diﬁ'erent iefeience having been rejected by the .."n_Apex it__ is n6t','2e;::nissi}31e in law to seek further reference in different passion. If a reference is made in ef'LjtI1 eVVsaJne, it would amount to circumventing the decisien zoi'"V.t1ie' Apex Court. Once it is held that the workers are ' eeniraet labourer. the question of xeference does not arise.

27. As' regards to the decision of the ﬁve Judges' Bench of }':he Supreme Court in STEEL AWHORITY 01:' maps LTD. & ANOIYIER Iepoﬁed in 2001-II-LLJ page 1087 . it is not in dispute -32- that, in a subsequent decision in 2006, the Apex has referred to the said decision. Even though the _4s1ﬁ:bseq&uent decision is by the smaller Bench, if the decisio11'_:A.cf"»ﬁ;e _ :isx_jge_1f Bench is consﬁdexed by the Apex Court and it would not be permissible for this 'go ':£ntc4'*theA_'_Vezg.tIier ' decision and find. out whether thea subsequent d.ecis.icn isfcorre_c'c. or not. Judicial discipline bending on this Court be followed theueiecision of the larger Bench is (xmskiered it is not for this Court to ﬁnd out 'theV_._;;1:§Eéc£sion of the smaller bench with larger bench.

28L made by the Union for refexenoe in its V co11cc:r.t1ed, Sri.Aravind Kumar, 'Assistnnt General has placed the records and Wasconsidered and has been rejected in stew' cf. v".of.:~'the Apex (lourt in AIR 2006 SC 3229 and he that, consolidated reference is made by taking " 'A -Tiv"V"<.__into consigieraﬁon both the issues. Even otherwise, when the has held that the employees are the contract ' .._ ;%m'p3loyees and rejected their reference, it is ununderstandable as how the Central Government once again refers the issue to the Tribunal for adjudication on the question of payment of compensation. The compensation claimed by the eznployms of = -23- the contractor is again based on the same contentions inasxnuch as they have been terminated illegally. When there is no relationship of employer and employee between the in law, no claim could be made against the not known as to how an issue for payment against the management at the instalrice T' would arise particularly in thefareke oftlie Court. The Apex Court in the the State must prfma fade tlieiueﬁuoployees are the employees of the not to refer the distmte and that'is_si;e Iiaught by the Apex Court eetlviat not employees of the principal employer!'-it' is Vnot the Central Government gets the jutistiiotiontiu zefef *él1e issue once again. This is again a of, committed by the Government in ;ret:'er1ing the issue without even satisfying itself as to Wliethef a dispute existing or not.

x j vvTl'1ough time and again the Apex Court pazticuiarly in of the contract labourers has held that, unless the H Qoeemment primafgswie finds that the contract is camouﬂage and created to avoid the beneﬁts to the employees. there is no reason to refer the issues. No doubt. the power exercised being an administrative. at the same time. when such decisions axe E -34- available for judicial scrutiny a prima facie satisfaction by the Govemment is necessaxy and this is reiterated by the Apex Court also. Consideﬁng the matter from any angle, I "that the Government has committed an error in of reference as per Annexure~F' in W.P.No.133'70/ there is no reason for referring the diepute 'tar; the ofthef' 'L Union again, as sought forinWP.Ne}1_1iS3;$]'QO(§9..VAM '~ , «. Accordingly». w.P.No.41e5;,§eo9 ijmon 'is dismissed. W.P.No.133'FQ/2003' ement is aﬁowcd. The 3':mpug;ned"eﬁe1 " vgiated 5.5.2008 is quashed... :

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