Gujarat High Court
Akhil vs Union on 25 February, 2010
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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SCA/510/2010 13/ 13 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 510 of 2010
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AKHIL
GUJARAT GENERAL MAJDOOR SANGH - Petitioner(s)
Versus
UNION
OF INDIA & 2 - Respondent(s)
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Appearance
:
MR
TR MISHRA for Petitioner(s) : 1,
None for Respondent(s) : 1,
MR
HASMUKH THAKKER for Respondent(s) : 2,
MR NIRAV V JOSHI for
Respondent(s) : 3,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 25/02/2010
ORAL
ORDER
1. Heard learned advocate Shri T.R.Mishra for the petitioner, Learned advocate Shri Hasmukh Thakker for respondent No.2 and learned advocate Shri Nirav V. Joshi for the respondent No.3. Learned advocates Shri Thakker and Shri Joshi appear on caveat for resisting the granting of interim relief.
2. The petitioner, a registered Trade Union, has approached this Court under Article 226 of the Constitution of India challenging the order dated 5th January, 2010 passed by the respondent No.1 holding that as the claimants are engaged by the Contractor. The demand of the Union for regularization of 40 workmen in service of the principal employer i.e. the respondent No.2 cannot be construed as an industrial dispute and, therefore, the matter was deemed unfit for adjudication.
3. Shri Mishra learned advocate appearing for the petitioner contended that the petitioner-workmen have been working since years for the respondent No.2 and there exist all the ingredients which would go to show that the devise of engaging the workmen through Contractor which was mere a sham and bogus arrangement so as to deprive the workmen in whose behalf the regularization demand was raised from getting the benefit of permanent tenure and other benefits admissible to the permanent employees of the respondent No.2 establishment.
4. Shri Mishra, learned advocate for the petitioner submitted that the workmen initially raised dispute in respect of the wage revision, which came to be referred to the competent Court vide order dated 17.12.2007 and the competent Court has marked the same to be Reference (I.T.C.) No.1745 of 2008. The workmen were entitled to receive the wages which were payable to the employees of the respondent No.2 as they were also doing the same work. This reference is pending and the interim relief of status quo was granted therein which came to be later on vacated by the Court vide its order dated 6.11.2009 which was assailed by the Union by preferring Special Civil Application No. 12023 of 2009 which came to be disposed of by this Court (Coram: S. R. Brahmbhatt, J. ) vide order dated 20.11.2009. As per the order dated 20.11.2009, this Court without expressing any opinion on merits observed that the respondents were to follow the provisions of Industrial Disputes Act, 1947 and the order impugned in the petition shall in no way be construed as absolving the employer from discharging its statutory obligation under the provisions of Industrial Disputes Act, 1947 and other attending provisions of the law including Minimum Wages Act. The Union apprehended drastic steps of changing the contract and dispensed with the service and, therefore they deemed that the protection in terms have not been granted against the service condition and hence, filed Miscellaneous Civil Application No. 3077 of 2009 in Special Civil Application No. 12023 of 2009 which came to be rejected by this Court (Coram: S.R. Brahmbhatt, J. ) vide order dated 26.11.2009 wherein the Court observed that as the terms of reference did not refer to any dispute pertaining to the regularization, the status quo order qua service condition cannot be made as the same would not even amount to be in consonance with the main prayer for which the dispute being Reference (I.T.C.) No.1745 of 2008 was pending. The said order was assailed in Letters Patent Appeal No. 2344 of 2009 and the Court was pleased to reject the said Appeal vide order dated 2.12.2009. Shri Mishra learned advocate appearing for the workmen further submitted that the demand with regard to regularization was in fact pending since 1.12.2008. Therefore, the writ petition was filed being Special Civil Application No. No.12024 of 2009. At that time, the petition came to be filed as the petitioner came to know that the reference was proposed to be made on the terms which were not reflecting the real dispute between the parties and, therefore, with a liberty to approach the authorities, the said petition was sought to be withdrawn. The permission for withdrawal of the same was granted and the same came to be withdrawn vide order dated 20.11.2009. The petitioner, thereafter made representation on 23.11.2009 and during the pendency thereof, the petition, namely, Special Civil Application No. 13358 of 2009 came to be filed and that petition came to be withdrawn. In the meantime, the respondent No.1 passed order dated 5.1.2010 and, therefore, the petitioner was constrained to file the present petition challenging the order whereunder the respondent No.1 expressed its opinion that as the workmen who sought regularization were engaged by a Contractor, the dispute raised for regularization cannot be said to be industrial dispute and hence not fit for reference and adjudication. Therefore, this petition is filed. Shri Mishra learned advocate appearing for the petitioner further submitted that the law position as on date with regard to employees of the contractor and the right to seek regularization with the principal employer on their establishment that contract is merely a devise so as to deprive the workmen of the benefit of permanency as by now crystallized. Shri Mishra relying upon the decision in the case of Steel Authority of India Ltd. vs. Gujarat Mazdoor Panchayat and another reported in 2004-II- LLJ 970 submitted that in a given situation when the workmen are in a position to establish that their engagement through Contractor was merely a devise, then the factum of licence and no breach of provision of the Contract Labour (Regularization and Abolition) Act,1970 would be of no significance and the workmen will have right to seek appropriate relief which would include the relief for regularizing the service by the principal employer. Shri Mishra submitted that in the case of Steel Authority of India Ltd (Supra), the Court has taken note of the fact that there was a settlement with the Contractor yet that factor had not been held to be so strong a factor as to militate against accepting the plea of the workmen for regularization against the principal employer. Shri Mishra relied upon the decision of the Apex Court in the case of Sarva Shramik Sangh vs. Indian Oil Corporation Ltd. & Ors. reported in 2009 LLR 575 and submitted that the workman when is raising dispute with regard to contract arrangement being shame and bogus, the adjudicatory authority is only and only the forum under the Industrial Disputes Act, 1947 and the appropriate government shall have no right whatsoever to decide with regard to the contract being sham and bogus.
5. Shri Thakker, learned advocate appearing for the respondent No.2 contended that the petition itself is not maintainable as though the petition is styled to have been filed by the Union, the affidavit affirmed that the memo of petition is filed by the workman who has not even stated that whether he has been office bearer of the Union or not and as per the provision of the Trade Union Act,1926, the office bearer is entitled to file litigation and proceedings in the Court of law. Thus on that count, the petition is required to be dismissed as not maintainable without prejudice to the aforesaid contention. Shri Thakker further submitted that the petitioners' only anxiety is with regard to the maintaining the status quo with regard to service condition but that cannot be granted as any such attempt on their part has rightly been rejected by the Court on earlier occasion. Shri Thakker relied upon the order of this Court made on 26.11.2009 in Miscellaneous Civil Application No. 13077 of 2009 in Special Civil Application No. 12023 of 2009 wherein the Court had clearly observed that as the blanket order of status quo cannot be granted looking to the terms of reference, there was no whisper with regard to the contract being sham and bogus. Shri Thakker further submitted that having failed in their attempt to maintain status quo, the petitioner preferred one more petition being Special Civil Application No. 12024 of 2009 and Special Civil Application No. 13358 of 2009 which have been discussed hereinabove and submitted that the order of status quo qua service condition cannot be granted when the appropriate authority has decided that there exists no industrial dispute.
6. Shri Thakker learned advocate appearing for the respondent No.2 who appears on caveat further submitted that the Apex Court in the case of Steel Authority of India Ltd. vs. Union of India and others reported in (2006) 12 SCC 233 has held that when the Trade Union Act has espoused the cause of workmen and has taken a stand that they have been working under the contract, then it would not be permissible to them to take a contradictory stand that they were also workmen of the principal employer to raise such a mutually destructive plea, which was impermissible in law. In the instant case, the workmen have, in fact, entered into settlement with the Contractor respondent No.3 and thereafter on joining, the present petitioner union raised dispute which is not permissible under law. Shri Thakker further submitted that the workmen have in fact raised dispute which is subject matter of Reference (I.T.C.) No.1745 of 2008 therein they have taken a specific stand that they are workmen of the Contractor and they are entitled to receive the wages which are paid to the employees of the principal employer. Now, having been once taken this clear stand in an adjudicatory proceedings of Reference (I.T.C.) No.1745 of 2008 which would now not be taken to the workmen to raise demand that they are employees of the principal employer and the contract arrangement is sham and bogus and therefore they are entitled to the relief which they have sought for. This stand would directly be hit by the ratio laid down by the Apex Court in the case of Steel Authority of India (Supra).
Shri Thakker relied upon the following authorities.
1. International Airport Authority of India vs. International Air Cargo Workers' Union & Anr. reported in 2009 LLR 923.
2. Steel Authority of India Ltd. vs. Union of India and others reported in (2006) 12 SCC 233.
3. Himmat Singh and others vs. ICI India Ltd. and others reported in (2008) 3 SCC 571
4. Muniraj Singh Chauhan, Village Rangpuri vs. Union of India, Delhi reported in 2007-I-JJL(Delhi).
5. Thakor Nagjibhai Bhailal vs. IPCL now Amalgamated, Reliance Ind. Ltd. reported in 2009 JX(Guj) 182.
6. Secretary, Indian Tea Association vs. Ajit Kumar Barat and others reported in (2000) 3 SCC 93.
7. Nedungadi Bank Limited vs. K.P. Madhavankutty reported in 2000(2) SCC 455.
8. Bombay Union of Journalists vs. State of Bombay reported in AIR 1964 SC 1617.
9. Kalyan Singh vs. State of Uttar Pradesh and others reported in A.I.R 1962 SC 1183(V 49 C 168)
10. Mani Subrat Jain etc. vs. State of Harayana and others reported in AIR 1977 SC 276.
11. Uttaranchal Road Trasnport Corpn. and others vs. Mansaram Nainwal reported in (2006) SCC 366.
12. Director of Settlements A.P. and others vs. M.R. Apparao and another reported in AIR 2002 SC 1598.
On the other hand, Shri Mishra also relied upon the following authorities:-
1) Indian Oil Corporation Ltd. vs. Union of India & Ors. Reported in 2009 LLR 356.
2) G.M. ONGC, Shilchar vs. ONGC Contractual Workers Union reported in 2008 LLR 801.
3) Hussainbhai, Calicut vs. Alath Factory Thozhilali Union, Calicut and others reported in 1978 II LLJ 397
4) Ram Gopal and another vs. Airport Authority of India and others reported in 2001-III-LLJ(Suppl) 618
5) Telco Convoy Drivers Mazdoor Sangh and another vs. State of Bihar and others reported in 1989 II-LLJ 558.
6) Steel Authority of India Ltd. vs. Gujarat Mazdoor Panchayat and another reported in 2004-II-LLJ 970.
7) Ramruch Pande and others vs. State of Maharashtra and others reported in 2002-III-LLJ 600.
8) Steel Authority of India Ltd. and others vs. National Union Water Front Workers and others reported in 2001(4) L.L.N. 135.
9) Air India Statutory Corporation vs. United Labour Union and others reported in 1997(1) L.L.N. 75.
10) Sarva Shramik Sangh vs. Indian Oil Corporation Ltd. & ors. reported in 2009 LLR 575.
7. This Court has heard learned advocates for the parties.
8. This Court is of the prima facie view that when the Union of India is yet to be heard as notice is yet to be issued and when the learned advocate for the caveators were heard as the granting of the relief in any nature was being resisted, it would not be proper at this stage to elaborately deal with each and every submission made by learned advocate for the respondent No.2 whose submissions were adopted by learned advocate for the respondent No.3. However, in order to appreciate the prima facie case, the Court has to examine the facts and the matter in brief as well as the rival contentions made by the learned advocates for the petitioner as well as the respondent Nos. 2 and 3.
9. The fact remains to be noted that the petitioner Union is espousing the case of 40 workmen who have been engaged by the respondent Nos.2 and 3 as principal employer and contractor and the cause of these workmen was taken up by the Union as according to the petitioner they were not getting wages which were paid to the workmen employed directly by the principal employer and carrying out the same work. Therefore, the wage revision issue was taken up and the matter was referred to the competent Court being Reference (I.T.C.) No.1745 of 2008. At that time, the prayer made by the workmen for maintaining the status quo qua service condition had been negatived by the Court vide its order dated 6.11.2009. Being aggrieved thereby the Union preferred petition being Special Civil Application No. 12023 of 2009 wherein this Court (Coram: S. R. Brahmbhatt, J. ) also opined that as the subject matter of reference and the terms of reference did not specify anywhere that the workmen claimed to be employee of the contractor on contract being sham and bogus, the blanket relief of status quo cannot be granted, the same stand was reiterated in order dated 26.11.2009 passed in Miscellaneous Civil Application No. 3077 of 2009. This is being relied upon by Shri Thakker for respondent No.2 for supporting his submission that the workmen are interested in maintaining the status quo and this petition is one of such devise and as the workmen cannot take two stand which are mutually exclusively as per the decision of Steel(Supra), the petition is required to be rejected. The Court is unable to accept this submission at this stage as looking to the ratio of the decision in the case of 1995(5)SCC 27, the workmen can have right to establish that the contract engagement or their engagement through contractor is merely a devise so as to deprive them of their benefit admissible under the Industrial Disputes Act,1947 which may include the regular wages and other benefits with security of tenure in order to avoid the liability of this nature. The devise of sham and bogus allegation is to be viewed through that angle as it is narrated by the Division Bench of this Court in the case of Steel Authority of India Ltd.(Supra). This coupled with the latest decision of the Apex Court in the case of Sarva Shramik Sangh (Supra) go to show that even if there is a valid contract and if the contract is in terms and not in breach of any Contract Labour (Regulation & Abolition ) Act, 1970 then also if the workmen are in a position to establish that they have been engaged so as to avoid the permanency and they are capable of establishing the test laid down thereunder which would not justify the contract engagement and which would render the contract sham and bogus, then those conditions being fulfilled the appropriate relief can be granted.
10. In my view, when such a plea is raised and when the Court is examining sham and bogus arrangement, then those conditions being fulfilled the appropriate relief can be granted. In my view when such a plea is raised and when the Court is examining this aspect and when the appropriate authority i.e the respondent No.1 has decided straightway that as the workmen's cause is espoused by the petitioner Union, who are engaged by the Contractor, there exist no industrial dispute. In my view the prima facie it becomes the case for examination and in the meantime if the workmen are not protected, then they would be rendered unemployed and a situation will be created wherein the workmen will have to fend for themselves thenn what they are getting even today and that will create alarming situation and, therefore, when the impugned order is under consideration, this Court, when the Union of India is yet to be heard and when the Court is satisfied prima facie that the workmen opined to be protected, this Court is of the view that the workman needs to be protected and hence status quo qua service condition of the workmen be maintained till next date of hearing.
11. Let there be notice returnable on 16.3.2010. In the meantime, and till the returnable date there shall be ad interim stay qua service condition of the workmen. Direct service to respondent No.1. Learned advocate Shri Hasmukh Thakker for respondent No.2 waives service of notice on behalf of the respondent No.2 and Learned advocate Shri Nirav V. Joshi for the respondent No.3 waives service of notice on behalf of respondent No.3. Direct service to respondent No.1.
(S. R. Brahmbhatt, J. ) sudhir Top