Madras High Court
Kalidas K.R. And Ors. And Tamil Nadu ... vs Tamil Nadu Electricity Board And Ors. on 28 February, 1996
Equivalent citations: [1996(74)FLR2566], (1998)IIILLJ1116MAD
JUDGMENT Srinivasan, J.
1. Writ Petition No. 11348 of 1988 is by 167 persons for issue of a writ of mandamus directing the first respondent, Tamil Nadu Electricity Board, and the second respondent, Ennore Thermal Power Station, to regularise the services of the petitioners and absorb them in their services and pay them equal wages to that of the wages payable to a permanent security watchman of the respondent Board from the date of recruitment, or issue such other appropriate orders.
2. In short, the claim of the petitioners is that they are direct workmen of the first and second respondents for the reasons stated in the affidavit filed in support of the writ petition. In the counter-affidavit, the definite case of the respondents is that the petitioners are not direct employees and they are employees only under the contractor who is the third respondent, viz., Hindustan Security Detective Services. It was also pointed out in the counter-affidavit that the contract has been changed and the petitioners are no longer in service.
3. Though initially, interim injunction was granted in favour of the petitioners in W. M. P. No. 16728 of 1988 restraining the respondents from terminating the services of the petitioners, later, that was vacated by an order passed on January 12, 1989. In that order, the learned single judge observed that counsel for the petitioners requested that Respondents Nos. 1 and 2 may be directed to continue status quo for atleast four weeks to enable the workers to find out the alternative jobs. The learned single judge proceeded to say that as third party rights had intervened and that party is not impleaded in the writ petition, the time prayed for cannot be granted. After taking into consideration the facts and circumstances of the case, the learned judge directed Respondents Nos. 1 and 2 to maintain status quo for seven days from the date of the order, i.e., January 12, 1989.
It is represented that an appeal was filed against the said order. But, ultimately it was withdrawn.
4. When this writ petition is heard a preliminary objection is raised by the respondents counsel that none of the petitioners is in service and the reliefs prayed in the writ petition cannot be granted. An affidavit has been filed today before us, sworn to by a Junior Engineer, Mechanical Grade-1 in the operation division of the second respondent's Board station. In the affidavit it is stated that none of the petitioners in the writ petition is at present working as security guard in the Ennore Thermal Power Station. It is also stated that for the past seven years most of the petitioners are not working as security guards. As the affidavit is served on counsel for the petitioners only today, it is not possible for him either to deny or affirm the averments contained in the affidavit. He requested the Court to proceed as if none of the petitioners is in service. According to him, even if they are not in service at this state, as they were in service at the time when the writ petition was filed, subsequent change of circumstance cannot be taken advantage of by the respondents. In our opinion, it is not necessary for us to rest our conclusion on the question whether the petitioners are still in service or not.
5. The matter which has arisen for our consideration is not res integra. The question has been fully considered in two judgments of the Supreme Court of India and decided against the contentions put forward by the petitioners. The Supreme Court has clearly laid down that the question which is sought to be raised in this writ petition is a question of fact and it cannot be raised in a proceeding under Article 226 of the Constitution of India. The Supreme Court has pointed out that it is a matter which has to be proved by evidence and it can be done only before the Industrial Tribunal or Labour Court. In Parimal Chandra Raha v. LIC of India, (1995-II-LLJ-339) two questions arose for consideration under the Factories Act :
(I) Whether the appellants were deemed to be regular employees of the respondent-corporation and if the answer was in the affirmative (2) What pay-scales and other service conditions should be made available to them. The question related to the workers in the canteen. Following propositions of law were stated by the Supreme Court (at page 350) :
"(i) Where, as under the provisions of the Factories Act, it is statutorily obligatory on the employer to provide and maintain canteen for the use of his employees, the canteen becomes a part of the establishment and therefore, the workers employed in such canteen are the employees of the management.
(ii) Where, although it is not statutorily obligatory to provide a canteen, it is otherwise an obligation on the employer to provide a canteen, the canteen becomes a part of the establishment and the workers working in the canteen, the employees of the management. The obligation to provide a canteen has to be distinguished from the obligation to provide facilities to run canteen. The canteen run pursuant to the latter obligation, does not become a part of the establishment.
(iii) The obligation to provide canteen may be explicit or implicit. Where the obligation is not explicitly accepted by or cast upon the employer either by an agreement or an award, etc., it may be inferred from the circumstances, and the provision of the canteen may be held to have become a part of the service conditions of the employees. Whether the provision for canteen services has become a part of the service conditions or not, is a question of fact to be determined on the facts and; circumstances in each case. Where to provide canteen services has become a part of the service conditions of the employees, the canteen becomes a part of the establishment and the workers in such canteen become the employees of the management.
(iv) Whether a particular facility or service has become implicitly a part of the service conditions of the employees or not, will depend, among others, on the nature of the service/ facility, the contribution, the service in question makes to the efficiency of the employees and the establishment, whether the service is available as a matter of right to all the employees in their capacity as employees arid nothing more, the number of employees employed in the establishment and the number of employees who avail of the service, the length of time for which the service has been continuously available, the hours during which it is available, the nature and character of management, the interest taken by the employer in providing, maintaining, supervising and controlling the service, the contribution made by the management in the form of infrastructure and funds for making the service available, etc."
On the facts of that case, the Court held that the Life Insurance Corporation had explicitly accepted to provide canteen services and that they were under obligation to do so. Hence, the Court proceeded to grant certain reliefs prayed for by the petitioners therein. But, it is seen from the said judgment that the question whether a particular facility or service has become implicitly a part of the service conditions of the employees or not will depend upon several factors which have to be decided on the evidence.
6. That aspect of the matter has been considered by the Supreme Court in Gujarat Electricity Board, Ukai v. Hind Mazdoor Sabha, (1995-II-LLJ-790). After referring to an earlier judgment rendered by the Court in R. K Panda v. Steel Authority of India Ltd., (1997-III-LLJ(suppl.)-1202) it extracted the following passage from that judgment (at pp 1205-1206) :
"It is true that, with the passage of time and purely with a view to safeguard the interest of workers, many principal employers while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact such a condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself give rise to a right to regularisation in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such, at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contractor from the scene, is a matter which has to be established on material produced before the Court. Normally, the Labour Court and the Industrial Tribunal, under the Industrial Disputes Act, are the competent for a to adjudicate such disputes on the basis of the oral and documentary evidence produced before them."
7. Thus, the proposition laid down in Panda's case (supra) was reiterated by the Supreme Court in Gujarat Electricity Board's case, (supra). The conclusions arrived at in the latter case are stated as follows at page at p. 815 :
" (i) In view of the provisions of Section 10 of the Act, it is only the appropriate Government which has the authority to abolish genuine labour contract in accordance with the provisions of the said Section. No Court including the industrial adjudicator has jurisdiction to do so.
(ii) If the contract is sham or not genuine, the workmen of the so called contractor can raise an industrial dispute for declaring that they were always the employees of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of Section 10 of the Act will not bar either the raising or the adjudication of the dispute, when such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. It is only if the adjudicator comes to the conclusion that the contract is sham, that he will have jurisdiction to adjudicate the dispute. If, however, he comes to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of the contract labour under Section 10 of the Act and keep the dispute pending. However, he can do so if the dispute is espoused by the direct workmen of the principal employer. If the workmen of the principal employer have not espoused the dispute, the adjudicator, after coming to the conclusion that the contract is genuine, has to reject the reference, the dispute being not an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act. He will not be competent to give any relief to the workmen of the erstwhile contractor even if the labour contract is abolished by the appropriate Government under Section 10 of the Act.
(iii) If the labour contract is genuine a composite industrial dispute can still be raised for abolition of the contract labour and their absorption. However, the dispute will have to be raised invariably by the direct employees of the principal employer. The industrial adjudicator, after receipt of the reference of such dispute, will have first to direct the workmen to approach the appropriate Government for abolition of the contract labour under Section 10 of the Act and keep the reference pending. If, pursuant to such reference, the contract labour is abolished by the appropriate Government, the industrial adjudicator will have to give opportunity to the parties to place the necessary material before him to decide whether the workmen of the erstwhile contractor should be directed to be absorbed by the principal employer, how many of them and on what terms. If, however, the contract labour is not abolished, the industrial adjudicator has to reject the reference.
(iv) Even after the contract labour system is abolished, the direct employees of the principal employer can raise an industrial dispute for absorption of the ex-contractor's workmen and the adjudicator, on the material placed before him, can decide as to who and how many of the workmen should be absorbed and on what terms."
8. A perusal of the above passages show that the petitioners cannot get the reliefs prayed for by them in this writ petition even assuming that they continue to be in service. It may be open to them to approach the Industrial Tribunal and seek appropriate reliefs. In fact in Gujarat Electricity Board's case, (supra) the Supreme Court has observed that the remedy of the workmen was to raise appropriate industrial dispute as indicated in that judgment for appropriate reliefs and if such a dispute was raised, the Government should make a reference within two months of the receipt of the dispute and the industrial adjudicator should dispose of the same as far as possible within six months thereafter.
9. Learned counsel for the petitioners ultimately prays for such a direction to the Government. The Government is impleaded as a party only in W. P. No. 314 of 1989. The petitioner in that writ petition is a union by name Tamil Manila Thozhilalar Sangam. The prayer in the writ petition is to issue a writ of mandamus by directing the third respondent, viz., the Government of Tamil Nadu, to pass orders under Section 10 of the Contract Labour Act, abolishing contract employment in the security services of the second respondent factory belonging to the first respondent Board. If any direction could be issued to the Government it can be only in that writ petition and not in W. P. No. 11348 of 1988, in which the workers have themselves prayed for certain reliefs such as regularisation, etc.
10. In view of the categorical pronouncement of the Supreme Court, it is not possible to grant the reliefs prayed for in W. P. No. 11348 of 1988. That petition is dismissed.
11. As regards the prayer in W.P. No. 314 of 1989, the union, which has filed the writ petition is representing only the workers employed by the contractors. If they are so advised, it may be open to them to approach the Government for a reference to the Industrial Tribunal within the parameters laid down by the Supreme Court in Gujarat Electricity Board's case, (supra). If such an application is made to the Government by the concerned workers, the Government shall make a reference within three months from the date of receipt of the said application and the industrial adjudicator shall dispose of the same within one year therefrom. With the above observation, W. P. No. 314 of 1989 is also dismissed. There will be no order as to costs.