Kerala High Court
K.Prasad vs The Airports Authority Of India (Nad) on 16 October, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 6TH DAY OF APRIL 2016/17TH CHAITHRA, 1938
WP(C).No. 3251 of 2010 (F)
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AGAINST THE AWARD IN ID 151/2006 (OLD NO.ID 17/2003)of CENTRAL
GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM DATED 16-10-2009
PETITIONER:
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K.PRASAD,
T.C.NO.78/2468 (OLD 34/1129)
SREE CHITHRA NAGAR, NEAR AIR PORT,
VALLAKKADAVU.P.O, THIRUVANANTHAPURAM-8.
BY ADV. SRI.S.JAMES VINCENT
RESPONDENT(S):
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1. THE AIRPORTS AUTHORITY OF INDIA (NAD),
TRIVANDRUM INTERNATIONAL AIRPORT,
VALLAKKADAVU.P.O, THIRUVANANTHAPURAM-8,
REPRESENTED BY ITS DIRECTOR.
2. THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, 38/377, A3,
KARITHALA LANE, KARSHAKA ROAD,
ERNAKULAM, KOCHI-682 016.
ADDL.3.M/S.R.K.ELECTRICALS,
ENGINEERS & CONTRACTORS,
PRA-53, PUTHUPPALLY LANE,
MEDICAL COLLEGE P.O,
TRIVANDRUM - 695 011.
ADDL.4.M/S.NEW ELECTRICALS,
"SIVACHAITHANYA",
KADAKKAL LANE,
KANNAMMOOLA, MEDICAL COLLEGE P.O,
TRIVANDRUM - 695 011.
(ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DT.24.06.2015 IN
I.A NO.1743 OF 2015)
R,R1 BY ADV. SRI.V.SANTHARAM
RADDL-RR4 BY ADV. SMT.M.HEMALATHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 16-02-2016,THE COURT ON 06-04-2016 DELIVERED THE
FOLLOWING:
WP(C).No. 3251 of 2010 (F)
A P P E N D I X
PETITIONER'S EXHIBITS
EXT.P1: TRUE COPY OF AGREEMENT NO.01/EE(C)/AMD(E)/Tvm/1991-92
EXECUTED BY M/S.R.K.ELECTRICALS WITH THE 1ST RESPONDENT.
EXT.P2: TRUE COPY OF TEMPORARY PERMIT NO.S-04001 DT.16.2.1993 ISSUED
TO THE PETITIONER BY THE 1ST RESPONDENT.
EXT.P3: TRUE COPY OF NOTIFICATION NO.SO.1114(E) ISSUED BY THE
GOVERNMENT OF INDIA IN GAZETTEE NO.680 DT.16.11.1999.
EXT.P4: TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DT.3.10.2001 IN
OP NO.4507/1997.
EXT.P5: TRUE COPY OF PETITION SUBMITTED BY THE PETITIONER TO THE
ASSISTANT LABOUR COMMISSIONER (CENTRAL) ON 31.1.2002.
EXT.P6: TRUE COPY OF ORDER NO.L-11011/16/2002-IR(M) DT.17.3.2003
ISSUED BY THE GOVERNMENT OF INDIA.
EXT.P7: TRUE COPY OF STATEMENT OF CLAIM FILED BY THE PETITIONER ON
5.4.2003 IN I.D.NO.17/2003.
EXT.P7(a): TRUE COPY OF ADDITIONAL CLAIM STATEMENT FILED BY THE
PETITIONER ON 15.2.2005 IN I.D.NO.17/2003.
EXT.P8: TRUE COPY OF WRITTEN STATEMENT FILED BY R1 IN I.D.NO.17/03 IN
OCTOBER, 2003.
EXT.P9: TRUE COPY OF WRITTEN STATEMENT FILED BY R3-
M/S.R.K.ELECTRICALS ON 12.8.2003 IN I.D.NO.17/03.
EXT.P9(a): TRUE COPY OF WRITTEN STATEMENT FILED BY THE 4TH
RESPONDENT-m/S.NEW ELECTRICALS ON 7.7.03 IN I.D.NO.17/03.
EXT.P10: TRUE COPY OF THE PETITION FILED BY THE PETITIONER ON
24.7.2007 IN ID NO.151/2006 FOR PRODUCTION OF RECORDS.
EXT.P11: TRUE COPY OF COUNTER AFFIDAVIT FILED ON BEHALF OF THE
MANAGEMENT ON 25.2.2008 BY MRS.JOHN NELLIMALA SARAI.
EXT.P12: TRUE COPY OF PROOF AFFIDAVIT DT.7.7.08 FILED BY SRI SANJEEV
MENGHAL IN I.D.NO.151/2006.
EXT.P13: TRUE COPY OF THE ORAL TESTIMONY OF SANJEEV MENGHAL DEPOSED
AS MW-1 IN I.D.NO.151/2006 ON 27.7.2009.
EXT.P14: CERTIFIED TRUE COPY OF AWARD DT.16.10.2009 IN I.D.151/2006
PUBLISHED UNDER NOTIFICATION NO.CGIT.LC/EKM/AWARD/ID.151/2006/697
DT.1.12.2009.
EXT.P15 (COLLECTIVELY): TRUE COPIES OF ORDER NOS.AAI/EDPA/2-39/2003
DT.6.6.2003, NO.AAT/PERS/1054/2/VOL.III/1771 DT.9.6.03, REPORT
DT.9.6.03 AND OFFICE ORDER NO.AAT/PERS/1054/2/VOL.III/921 DT.10.6.03
(4 Nos), ISSUED BY THE 1ST RESPONDENT, IN THE MATTER OF
K.S.VIJAYAKUMAR.
WP(C).No. 3251 of 2010 (F) : 2 :
EXT.P16 (COLLECTIVELY): TRUE COPIES OF OFFICE ORDERS
NO.AAI/PERS/1200/548/2218 DT.26.12.03, AAI/EDPA/2-39/2003 DT.8.6.04
AND AAT/PERS/1200/548/2004/2386 DT.11.6.04 (3 Nos) ISSUED BY THE 1ST
RESPONDENT.
EXT.P17 (COLLECTIVELY): TRUE COPIES OF ORDER NO. A.12024/01/2004-EH
DT.30.11.04, AND OFFICE ORDER NO. A.12024/01/2004-EH/2237 DT.30.11.04
ADDRESSED TO THE AIRPORT DIRECTOR, TRIVANDRUM, WITH A COPY TO
K.S.VIJAYAKUMAR (2 Nos).
EXT.P18: TRUE COPY OF OFFICE ORDER NO.AAT/PERS/1200/548/2250
DT.2.12.2004 ISSUED BY THE 1ST RESPONDENT.
EXT.P19: TRUE COPY OF THE INTERIM ORDER DT.3.12.04 IN WPC
NO.35057/2004 OF THIS COURT (WITH A LEGIBLE COPY THEREOF).
EXT.P20: TRUE COPY OF ORDER DT.17.1.07 IN CIVIL APPEAL NO.281/2007
ARISING OUT OF SLP(C) NO.4908/2005 FILED BY THE 1ST RESPONDENT BEFORE
THE HON'BLE SUPREME COURT.
EXT.P21: TRUE COPY OF ORDER NO.A-12024/01/2004 DT.27.2.2007 ISSUED BY
THE 1ST RESPONDENT.
EXT.P22: TRUE COPY OF ORDER NO.A.12024/01/04-EH(Pt.F) DT.27.7.07
ISSUED BY R1 (WITH A LEGIBLE COPY THEREOF).
EXT.P23: (COLLECTIVELY): TRUE COPIES OF THE APPLICATION DT.31.12.2008
SUBMITED BY M.MOHANAN UNDER THE RTI ACT, AND REPLY
NO.AAT/RTI/2008/673 DT.23.1.2009 ISSUED BY THE PUBLIC INFORMATION
OFFICER TO M.MOHANAN.
EXT.P24: TRUE EXTRACT OF DECLARATION MADE BY THE INTERNATIONAL
AIRPORT AUTHORITY OF INDIA IN ITS 94TH MEETING.
EXT.P25: TRUE COPY OF APPLICATION DT.15.4.08 FILED BY THE PETITIONER
IN THE TRIBUNAL.
EXT.P26: TRUE COPY OF JOINT AWARD DT.10.3.2008 IN I.D.NOS.127/2006 &
149/2006 AS PUBLISHED IN THE GAZETTE OF INDIA DT.21.6.08.
EXT.P27: TRUE COPY OF AWARD DT.28.8.2008 IN I.D.51/2006 AS PUBLISHED
IN THE GAZETTE OF INDIA DT.3.1.2009.
1ST RESPONDENT'S EXHIBITS
EXT.R1(a): TRUE COPY OF THE O.P.NO.4507/1997 FILED BY THE PETITIONER
BEFORE THIS COURT.
EXT.R1(b): TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY R1
IN I.D.NO.17/2003.
EXT.R1(c): TRUE COPY OF THE JUDGMENT DT.22.11.2001 IN CWP
NO.6540/1999 OF THE HIGH COURT OF DELHI AT NEW DELHI.
EXT.R1(d): TRUE COPY OF THE JUDGMENT DATED 24.7.2002 IN LPA
NO.530/2002 OF THE HON'BLE DIVISION BENCH OF HIGH COURT OF DELHI.
EXT.R1(e): TRUE COPY OF THE ORDER DT.31.1.2003 IN I.A.NO.1-2 IN SLP
(CIVIL) OF -- 2003 OF THE HON'BLE SUPREME COURT OF INDIA.
/TRUE COPY/
P.S TO JUDGE
P.V ASHA, JJ.
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W.P(C) No.3251 of 2010
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Dated this the 6th day of April, 2016
JUDGMENT
This Writ Petition is filed challenging the award Ext.P14 of the Central Government Industrial Tribunal-cum-Labour Court, Ernakulam, in I.D No.151/2006 in which the demands raised by the petitioner were found unjustifiable. The reference made under Section 10(1)(d) of the Industrial Disputes Act was on the issues: (1) whether the demand of the petitioner, who was working as a contract Labour under the 1st respondent - Airport Authority of India, Trivandrum as Electrician/Wireman through the contractors - respondents 3 and 4 (M/s R.K. Electricals and M/S New Electricals), for regularisation w.e.f 1.3.1994, was justified; and (2) whether the contract entered into between the Airport Authority and the contractors, ie. between the 1st respondent and respondents 3 and 4, was a genuine or sham contract.
2. In the claim statement/additional claim statement W.P(C) No.3251 of 2010 2 Exts.P7 and P7(a), the petitioner claimed that he, along with 22 other workmen had been engaged by the respondents as contract labour under the International Airport Authority of India, Trivandrum ('IAAI' for short) from 1.5.1991 onwards, in the electrical wing for installation, repair and maintenance work, for a period of 33 months, till 28.02.1994. It was claimed that, they were under the control and supervision of the Director of Airport, Trivandrum, till they were denied employment. The petitioner had earlier filed O.P No.4507 of 1997 before this Court challenging the denial of employment. The contract labours unions had also filed various Original Petitions challenging the denial of employment to contract labourers and challenging the notification issued by the central Government under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the 'CLRA Act, 1970') prohibiting contract labour to the extent it did not include work in electrical wing of IAAI. During the pendency of that O.P, the Central Government issued notification dated 16.11.1999 prohibiting contract labour in electrical work in the premises of the International Airport authority. W.P(C) No.3251 of 2010 3 Thereupon, the petitioner and others claimed absorption alleging that, the electrical works were inevitable for the functioning of the Airport and engagement of contract labours after prohibition was notified, was not legal. O.P. 4507 of 1997 was disposed of by Ext.P4 judgment dated 30.10.2002 observing that, the issue was covered by the decision of the Apex Court in Steel Authority of India Limited and others v. National Union Water Front Workers & others [(2001) 7 SCC 1]. The petitioner was given the liberty to work out his remedies on the basis of the said judgment. Thereafter, the petitioner took up the matter before the Assistant Labour Commissioner submitting Ext.P5 petition dated 31.1.2002, requesting to refer the dispute to the Industrial Tribunal. On the basis of that request, the Government of India referred the dispute to the Industrial Tribunal, Kollam as per Ext.P6 and the same was numbered as I.D No.17 of 2003. The dispute in respect of one Mr.P.Balakrishnan Nair also was referred along with that of the petitioner. On formation of the Central Industrial Tribunal, the I.D was transferred to it and renumbered as I.D No.151/2006. The management-the 1st respondent, filed their written statement - Ext.P8. The contractors M/s.R.K.Electricals and New Electricals also filed W.P(C) No.3251 of 2010 4 their written statements. 2 witnesses were examined on behalf of the workman as WW 1 and WW2. Documents Exts.W1 to W54 were marked. The management examined MW1 and marked documents Exts.M1 to M20.
3. The petitioner points out that, even though he filed a petition seeking a direction to the management to produce various records in their custody, the Tribunal did not pass any positive orders. It is stated that, the Assistant Manager, Legal had filed an affidavit stating that the records were not available. According to the petitioner, though he produced the copies of the documents, which he obtained on application under the Right to Information Act, those were not allowed to be marked based on objections raised by the 1st respondent. The petitioner has got a further case that, similar documents were marked in other cases like I.D No.51, 127 and 149 of 2006 and photocopies of several documents were marked therein and it was only in his case that the Tribunal disallowed his request. The petitioner points out that, MW1 who was examined on behalf of the management was not at all conversant with the facts of the case. However, the Tribunal, rejected his claims. The learned counsel for the petitioner raised serious allegations that, the Tribunal W.P(C) No.3251 of 2010 5 tried to go behind Ext.P6 order of reference on the ground that the petitioner had not raised any contention as to 'sham contract' in the Original Petition, which he had filed before this Court, despite the fact that the issue referred for adjudication was whether the contract was genuine or sham. According to him, the Tribunal did not go into the issue on the basis of the evidence adduced.
4. On the other hand, the case of the management is that, the petitioner's demand before the Industrial Tribunal was based on the contentions raised by him in the Original Petition; his case, all along was that, his engagement in the Electrical Wing was through a contractor, along with 22 other employees; all the industrial disputes raised in that respect were dismissed by the very same Tribunal; the Tribunal arrived at the findings on the basis of the materials before it noticing the inconsistent stand adopted by the workman; subsequent to the pronouncement of the judgment in SAIL (supra), the petitioner took a new plea changing his stand in tune with the decision rendered therein, which runs contrary to what he had pleaded earlier. The case of the management was that, there was no master-servant relationship between the petitioner and the W.P(C) No.3251 of 2010 6 Airport Authority; even going by the claim of the petitioner, his engagement in the Airport Authority in the electrical division, was by the contractor; he was paid by the contractor; there was no control for the 1st respondent over any of the service conditions of the labourers engaged by the contractors; there was no notification prohibiting contract labour in the electrical division of the Trivandrum Airport and therefore, the Industrial Tribunal did not have any jurisdiction to entertain the dispute; the petitioner's claim that contract labour was abolished in 1999 and the petitioner who had completed 240 days of work, was entitled to the benefit under Section 25 G & H of the Industrial Disputes Act and for regularisation as in the case of a worker in the Airport Authority was unsustainable; during the pendency of the Original Petition No.4507 of 1997 filed by the petitioner, the Central Government issued notification dated 16.11.1999 prohibiting contract labour in the electrical wing of the Airport. The petitioner had contended that the electrical work was inevitable for the day-to-day functioning of the Airport and there was acute necessity of electricians in the Airport. He claimed absorption pointing out that, sufficient number of vacancies were available for absorption and regularisation of the contract W.P(C) No.3251 of 2010 7 labourers including the petitioner. In the claim statement, the petitioner had pointed out that the management had admitted in their counter affidavit that the petitioner was working as an Electrician from 1.5.1991 to 28.2.1994, along with all attendant benefits; the 1st respondent admitted the contract entered into between respondents 3 and 4; it was stated that regular employees were not appointed for electrical works at the initial stage; at any rate, the petitioner and others engaged through contractors were never under the control or supervision of the 1st respondent; control if any exercised, was only with respect to the security aspects which were essential requirements for the Airport. there was no master and servant relationship between the 1st respondent and the petitioner; no right will accrue to the petitioner as against the 1st respondent on completion of 240 working days under the contractor, as claimed; the notification issued by the Government under Section 10 prohibiting electrical works in the Airport was quashed by the High Court of Delhi, which was confirmed by the Apex Court and hence there was no prohibition for the contract appointment of electrical workers. It was further contended that, the judgment of the Apex Court in SAIL (supra) did not have any application in the W.P(C) No.3251 of 2010 8 case, as long as there was no prohibition for the electrical works; the contentions as to sham contract were raised only to suit the occasion for the purpose of seeking the benefit of the judgment in SAIL as the petitioner or any other worker did not have any such claim before this Court in the Original Petition.
5. In the additional claim statement also the petitioner's claim was that, he was employed through the contractors M/s. R.K.Electricals and New Electricals from 1.5.1991 to 28.2.1994. He claimed that he was selected after verification of his qualification and even police verification by IAAI; he was engaged through the contractor only to evade the statutory liabilities; he was not given the benefits under the Provident Fund or ESI; materials for the electrical works were directly supplied to them on directions of the supervisors of the Airport Authority and the supervisors had the right to punish or discontinue them from work in the event of any defect or fault in their work; they were working under the instructions of the permanent staff of IAAI; their duty time was finalised on directions of the officials of IAAI; the contractors did not have any licence or registration under the CLRA Act, 1970; payment of salary was made through the contractors in order to deny the W.P(C) No.3251 of 2010 9 statutory benefits; they were doing the same work as that of regular employees of IAAI; identity cards and entry pass were issued to them which would go to show that, they were having control and supervision over the workmen like the petitioner and 2 persons who were working along with him were made permanent after a period of 6 months.
6. By a petition dated 24.7.2007, the petitioner sought direction to the 1st respondent to produce a series of documents like contract agreement entered into between the 1st respondent and the contractors - respondents 3 and 4, the tender inviting contractors for engaging wiremen and khalasis for IAAI from 1.5.1991, the documents showing the date of functioning of IAAI, at Trivandrum Airport, the details regarding the electrical employees from 1.5.1991 to 28.2.1994 and salary details of several persons named, registration details of the contractors, contract labour registration of the 1st respondent, licence issued to the contractors, attendance register and wage register of Electrical contract employees, date of coverage of employees provident fund and ESI to the contractors, log book showing the daily work done by the contract employees and the details regarding electrical equipments in the working area. The W.P(C) No.3251 of 2010 10 management filed Ext.P11 counter affidavit producing 17 agreements executed between them and the contractors - respondents 2 and 3. Regarding the tenders inviting contractors it was stated that, those were misplaced and not immediately available. Regarding the salary details called for, it was stated that, the claimant did not state any reason for production of the same and if at all it was required, it was open for the claimant to make the employees as witnesses and call for the details. It was further stated that, it was not fair for them to produce the details without the concurrence of the employees mentioned therein. Moreover, it was stated that the details for the period from 1991 to 1994 were not immediately available. The licence, registration particulars, attendance register, wage register, log book, ESI coverage, P.F, etc. were stated to be in the custody of the contractors and not with them. The registers of the management were also stated to be not traceable. It was further stated that, the reasons for calling for the document were not stated in the petition and hence the petition was not maintainable. In effect, they produced 17 agreements entered into between the contractors and the management. The contractors who were respondents in the I.D also filed counter affidavits stating that, W.P(C) No.3251 of 2010 11 all the records relating to the contract labour were taken by the Airport Authority and it was difficult for them to furnish the details of engagement of the petitioner and other workmen. However, it was stated that, they were having contract work with the Airport Authority. The 4th respondent stated that, the period of contract was only for 5 months and the work was being executed under his direct supervision. The 4th respondent further stated that, the contract was terminated on 28.2.1994 since there were frequent interruption in the work caused by the labourers and it had become difficult for him to continue to work.
7. MW1 who was examined on behalf of the management was Manager (Engineer - Electrical) of the 1st respondent. Though he deposed that, he was not aware of the nature of the employment, nature of payment to the workers or nature of work executed by the petitioner, he deposed that, there were contracts in the Electrical Department from 1991 onwards, ie. with effect from 1.4.1991 after the Trivandrum Airport was declared as an International Airport. He stated that, the contract labourers engaged by the contractors were controlled and supervised by the contractors themselves. However being a highly sensitive security area, the works in the premises were W.P(C) No.3251 of 2010 12 being monitored by the Airport officials but not supervised or controlled by them. The original agreements Exts.M2 to M18 entered into between various contractors were marked through him. He also deposed that, there was no prohibition in engaging contract labour in electrical work in the Airport. It was further stated that the contract by which contract labourers were engaged through contractors, had expired, long back and the Airport was functioning without availing services of persons like the petitioner, who were contract labourers. He denied the allegation regarding absorption of certain persons, who were engaged through contractors. As to the claim raised by the petitioner with respect to prohibition of contract labour, it was stated that the notification of prohibition issued in 1999 was quashed by the High Court of Delhi and that judgment was affirmed by the Supreme Court of India. He stated that the contract with respondents 3 and 4 were genuine and not sham and there was no prohibition for entering into such contracts. He also pointed out that temporary permits were issued to even contract labourers on account of the fact that the entire premises of the Airport is highly secured area and entry pass is required for ingress and egress of any worker on account of W.P(C) No.3251 of 2010 13 security reasons. He expressed his unawareness regarding, availability of any provision to engage contract labour in the Airport, the number of employees engaged during 1991-1994, whether contractors engaged were having licence, the persons who were supervising or controlling the workmen, their disciplinary authority, reasons for non attestation of the agreement, the reason for denying employment to the workman from 28.2.1994 or denial of payment if any from February, 1994, the salary paid to the contract labours or to the regular electricians in 1991. However, he deposed that the workmen were not under the control or supervision of the IAAI though it was admitted that, he did not have any direct knowledge about the employment of workmen during 1991-1994 as he was not working in the Trivandrum Airport.
8. The petitioner who was examined as WW1 in the chief examination stated that, he was a workman under respondents 3 and 4 - M/s.R.K.Electricals and New Electricals, during the period from 1.5.1991 to 28.2.1994 along with 23 other labourers; they were supervised and controlled by the Assistant Engineer initially and thereafter when the National Airport Authority of India was brought under the International Airport Authority, W.P(C) No.3251 of 2010 14 they were supervised by the supervisors of IAAI. They were reporting for duty before the Airport Officials and doing the very same job as in the case of regular hands. They used to submit leave applications to the A.E, who prepared their shift rosters and took disciplinary action. At any rate, it was stated that, wages were paid not in the presence of the officials of the Airport Authority. Identity cards were issued to them as in the case of the regular hands. But that card was collected from them and thereafter temporary cards were issued. He deposed that the contract was a camouflage. The temporary pass issued to him and the letter of the New Electricals requesting for issuing pass were marked as W1 and W2 respectively. A certificate issued by the R.K Electricals on 20.08.1991 and memo issued to him on 4.11.1991 assigning him duties at the Airport were marked as W3 and W4. According to him, contractors could be engaged only after inviting tenders notifying in news papers and there were no such tenders. He deposed that, the conditions of service of the contract labours under the Airport were not produced though the management was directed to produce the same. He also stated that the log book, if produced, would have shown that the Assistant Engineer was supervising his work. He further W.P(C) No.3251 of 2010 15 deposed that, Photostat copies produced by other labourers in other 2 cases were marked without any objection. He further deposed that, as on 1.5.1991, when he was initially engaged there was no contractor. R.K Electricals came in the picture only subsequent to his direct engagement by the Airport. However, he said that there was no order of appointment. He also deposed that, his case was not considered for regular appointment on account of the pendency of the case filed by him. He had a further case that one Mr.Vijayakumar, who had also filed a case, was called for an interview. However he admitted that, he was working under the contractors. According to him, all the records relating to the work done by him were in the custody of the 1st respondent and the nature of his duties would be clear from the log book, attendance register, etc. which were in the custody of the Airport. He agreed that pass was issued to him, as it was was required for anyone to enter the area with high security system. According to him, 2 of the labourers who were engaged along with him were absorbed in the establishment within a period of 6 months. He admitted that in the Original Petition filed by him, he had not stated that he was employed by the Airport Authority or that he was working under the Airport W.P(C) No.3251 of 2010 16 Authority. He stated that he did not have any direct knowledge of agreement if any executed between contractors and the management. He also admitted that, he did not have a case in the Original Petition that the contract was sham. He admitted that payment was being made by the contractor and there was no salary slip. According to him, the attendance register and log book would prove his engagement under the direct control of the authority. He further admitted that they were disengaged on expiry of the period of contract between the management and New Electricals in 1994. According to him, since he was having all the qualifications required for electricians and there was requirement of personnel for doing electrical work, he was entitled to be regularized as electrician by virtue of the work done by him for a period of 33 months during 1991-1994 and for regularization.
9. After considering the evidence and materials on record, the Tribunal passed Ext.P14 award rejecting the claim of the petitioner. As already stated, the questions for consideration were whether the contract was sham or genuine and whether the petitioner was entitled for reinstatement and absorption. The Tribunal found that the petitioner had admitted that he entered W.P(C) No.3251 of 2010 17 service as contract labourer as in the case of similar other 22 contract workers in the electrical wing. The Tribunal observed the inconsistency in his pleadings regarding the nature of his employment, in order to suit the situation. Pointing out that in Ext.M1, which is the copy of Original Petition filed by him - O.P No.4507/1997 before this Court, his case was that he was engaged by the contractors who are respondents 3 and 4 herein; the grievance in that O.P and other original petitions filed by the labourers union, was that in the notification issued by the Central Government under Section 10 of the 1970 Act prohibiting contract labour on certain items of work in the premises of the Airport, electrical work was not included. That exclusion was challenged as arbitrary. A direction was sought to the Central Government to include the electrical work in the notification and to the 1st respondent to absorb all the 23 contract labours including him. The Tribunal found that, the case of the labourers' Union as well as the workers in Ext.P2 in M1 claim statement filed before the Assistant Labour Commissioner was also that, they were engaged by those contractors - respondents 3 and 4, on the basis of licenses obtained by them from competent authority under the provisions W.P(C) No.3251 of 2010 18 of Contract Labour (Regulation and Abolition) Act, 1970. Their claims were under the provisions of the 1970 Act and the Rules framed thereunder. The issue regarding denial of wages by the contractors on par with the regular employees was taken up before the Labour Enforcement Officer, who issued Ext.W11 to M/s.New Electricals calling for their reply on the request of the petitioner and on the demand of wages in accordance with Rule 25 of the CLRA Rules, 1971. The Tribunal further found that, the petitioner had filed O.P No.4507/97 apparently for deriving the benefit of the judgment in Air India Statutory Corporation v. United Labour Union [(1997) 9 SCC 377], in which it was held that, on issuance of notification under Section 10, the contract labours will become employees of the principal employer. But by the time the Original Petition came up for hearing, the judgment in Air India Statutory Corporation (supra) was already overruled by a Constitution Bench by the judgment in SAIL's case (supra). Under those circumstances, the O.P was disposed of in the light of the judgment in SAIL's case (supra) and leaving open the remedies available to the petitioner. Thereupon the petitioner and other contract labours approached the Assistant Labour Commissioner on 14.3.2002 W.P(C) No.3251 of 2010 19 alleging that, the contract entered into was sham and the intention was to wriggle out of the statutory obligations of a master towards its servants. The Tribunal observed that, the pleadings were shaped in the new claim statement in tune with the parameters laid down in SAIL's case (supra), wherein the Apex Court held that the contract labours will have to be treated as employees of the principal employer once it was found that contract entered into was sham. The Labour Court noticed the inconsistent pleadings and observed that, the contentions as to sham contract was taken up as a new plea. However, the Tribunal considered the question whether the contract was sham or not. Referring to the judgment in Workmen of Nilgiri Co- operative Marketing Society Ltd. v. State of Tamil Nadu [(2003) 3 SCC 514], the Tribunal found that in the case of the petitioner, there was no order of appointment or order of termination by the principal employer. Even according to the petitioner workman, his case was that he entered service through the contractor. Therefore, the management was not the appointing authority. In Nilgiri's case (supra), the Apex Court held that the court was required to consider not only the control or supervision, but also the factors like who is the appointing W.P(C) No.3251 of 2010 20 authority, who is the pay master, who can dismiss, how long an alternative service lasts, the extent of control and supervision, the nature of job- whether it is professional or skilled job, nature of establishment, right to reject etc. The Tribunal found that the petitioner's case was that, he was engaged by contractors. Though he claimed that he was supervised and controlled by the officials of the Airport, ie. by the Assistant Engineer and supervisors mentioned by him, no material was available to substantiate his case. Noticing that the petitioner did not summon or examine any of the contractors or even any other workers to substantitate his claims, and eventhough MW1 expressed his ignorance over the supervision and control, it was the duty of the workman to prove his claim and he did not discharge the onus on his shoulders to prove his claim. The Tribunal further found that the workman had admitted that wages were paid by the contractor and not by the 1st respondent, which shows that pay master was the contractor. The Tribunal found that the workman could have summoned the contractors and called for the documents like attendance register, log book etc. when the management filed an affidavit stating that those documents were in the custody of the contractors. It was also W.P(C) No.3251 of 2010 21 observed that the principal employer would not maintain attendance register or log book of a contract labourer. In the absence of evidence to prove the claims of the petitioner that power to take disciplinary action vested in officers of the 1st respondent, or that the petitioner was working under direct supervision of the 1st respondent and in the absence of any material to show that the contract between the 1st respondent and respondents 2 and 3 were sham, the Tribunal found that the demands were unjustified. Moreover when contract labour was not prohibited in the Airport, there was nothing illegal in employing contract labour in the electrical wing. The contention that the contractors did not have license or registration was also considered and it was found that if at all there was no such registration or license, those will not enure to the benefit of the petitioner, because such contingencies will only result in penal consequences to them and not in any automatic absorption of the contract labourers. Relying on the judgment in Dena Nath v. National Fertilisers Ltd.[(1992) 1 SCC 695] it was held that, non-registration will only have penal consequences and will not enable absorption of the contract labourer. The Tribunal further relied on paragraph 105 of the SAIL's case (supra) wherein it W.P(C) No.3251 of 2010 22 was held that, there cannot be any automatic absorption of contract labourers even if there is any violation of the provisions contained in Sections 7 or 12 of the Act, as far as no such consequences are provided under the Act. It was also noticed that, even according to the petitioner, there was no prohibition of contract labourers in the notification of 1976. When it was included in the 1999 notification, the High Court of Delhi quashed it, which was affirmed by the Apex Court, as evident from Exts.M19 and M20. In the above circumstances, the Tribunal arrived at the conclusion that the workman was only a contract labourer who worked under different contractors and hence he was not entitled to absorption or reinstatement. It was also found in SAIL's case (supra) that, when the contract was not found genuine and there was a prohibition notification, then the erstwhile contract labourers should be given preference at the time when the principal employer proposes to employ regular hands. As there was no such notification in the present case prohibiting contract labour, the workman was held not entitled to any preferential treatment for the employment. Hence the Tribunal, after considering all the aspects and the contentions raised by the parties, found that the contract was genuine and W.P(C) No.3251 of 2010 23 the demand of the petitioner for regularisation was not justified.
10. The petitioner filed this Writ Petition challenging the award alleging that the Tribunal did not afford him an opportunity to cross examine the WW2, who produced the documents summoned by him and there was absolute violation of the principles of natural justice. It was his further contention that, eventhough he filed a petition for production of documents, which were materials to adjudicate the issue, the Tribunal did not take up any action on it when the management filed an affidavit saying that those documents were not easily available or not available. The petitioner points out that, copies of all those documents were obtained by him on an application under the Right to Information Act. However, when those documents were produced before the Industrial Tribunal, it was not willing to accept the same on the ground that those were photocopies. He has also a case that in similar cases filed by other employees, the very same Tribunal had accepted the photocopies in evidence and he was subjected to a discriminatory treatment in the matter. According to him, the Tribunal ought to have viewed the matter with sympathy towards a workman instead of approving whatever was stated by the management. It was pointed out W.P(C) No.3251 of 2010 24 that, as he had pleaded in the Original Petition that his engagement was through the contractors, he was entitled to explain the matter further and to say that his engagement was by the principal employer. According to him, as on 1.5.1991 - the initial day of his engagement, there was no contractor. The Contractor was engaged from 10.5.1991 onwards and therefore at least for the first 10 days, the employment was directly under the principal employer - the 1st respondent.
11. The management has filed a detailed counter affidavit in the Writ Petition producing the copy of the Original Petition No.4507 of 1994 as well as the claim statements, in order to show that the petitioner did not have a case that, his engagement was under the 1st respondent.
12. I heard Sri. James Vincent, the learned Counsel appearing for the petitioner and Sri. V.Santharam, the learned Counsel appearing for the 1st respondent elaborately and considered the rival contentions with reference to the pleadings and the relevant records.
13. The learned counsel for the petitioner Sri S.James Vincent pointed out that, the Tribunal seriously erred in applying the ratio in Nilgiri's case (supra). According to the learned W.P(C) No.3251 of 2010 25 counsel, there was no contractor on intermittent periods which could be seen from the agreements Exts.M12, M17, M9, M15 and M4 saying that, there were no contractual agreements at least for a total period of 285 days between 15.8.1991 to 28.2.1994, because there was no contractual agreement for the periods from 15.08.1991 to 27.10.1991, 30.01.1992 to 20.01.1993, 22.07.1993 to 21.09.1993, 23.11.1993 to 28.02.1994. It was further argued that, reliance on Dena Nath's case (supra) for the limited purpose of denying relief to the petitioner was not at all correct when the dicta laid down therein on other points were not considered. It is his further case that Exts.W55 to 57 were not included in the appendix to the award. According to him, the evidence adduced by examining WW1 was not effectively contradicted by MW1. It was argued that, the adjudication of the issue with reference to the date on which the cause of action arises, as held in Rameshwar & Ors. v. Jot Ram & Anr. [(1971) 1 SCC 34], on the date a suitor institutes the legal proceedings. He relied on the judgments in Rameshwar & Ors. v. Jot Ram & Anr. [(1976) 1 SCC 194], Gaya Prasad v. Pradeep Srivastava [(2001) 2 SCC 604], G.C.Kapoor v. Nand Kumar Bhasin & W.P(C) No.3251 of 2010 26 Ors. [(2002) 1 SCC 610], Shakuntala Bai & Ors. v. Narayan Das & Ors. [(2004) 5 SCC 772], Usha P.Kuvelkar v. Ravindra Subrai Dalvi [2008(1) KLT 398] in support of his contentions. It was argued that a particular relationship between an employer and an employee is genuine or of camouflage through the mode of contractor, is essentially a question of fact to be determined on the basis of features of relationship, the written particulars of employment and actual nature of employment and the same is to be raised and proved before the Industrial adjudicator. Referring to SAIL's case (supra) it was argued that, whether the contract labourers have b ecome the employees of the principal employer or whether the engagement and employment of labourers through contractor are mere smokescreen, are questions of fact to be established by the contract labourers on the basis of requisite material. According to the learned counsel, when the workman had discharged his initial burden, management was duty bound to examine the competent persons who are conversant with the facts. It was argued that, under Section 106 of the Evidence Act, the petitioner had discharged his burden by proving Ext.P1 agreement, clause 24 of which provides for the supervision, W.P(C) No.3251 of 2010 27 direction and control of the Airport Authority over the contract labourers. It was argued that the management could not adduce any evidence to rebut the testimony of WW1 by examining MW1, who was totally ignorant of any of the matters relating to the issue involved. It is also his case that the management refused to produce the documents requested by him. As several such documents were stated to be not available, the workman had obtained and furnished the photocopies of the same. It is argued that the Tribunal ought to have drawn adverse inference against the management for non production of the records called for and for not examining proper officials, instead of accusing the workman, for deviation in the pleadings, which cannot nonsuit the workman.
14. Relying on the Nilgiri's case (supra) it is contended that, it is a case where documents were available with the management and they refused to produce the same and therefore it was necessary to draw adverse inference against the management. The judgment in P.Kuvelkar v. Ravindra Subrai Dalvi [2008(1) KLT 398] of the Apex Court was also relied on in support of the contention that, the issue to be considered is with W.P(C) No.3251 of 2010 28 reference to the date of filing of the petition. It was therefore contended that, the quashing of the notification by the High Court of Delhi affirmed by the Supreme Court was irrelevant in the matter. As per Section 10(4) of the I.D Act, the parties have to go by the reference and not behind that. It was argued that the contention raised by the 1st respondent to the effect that, the Tribunal did not have any jurisdiction to consider the case, since there was no prohibition of contract labourers, cannot be accepted. The respondents ought to have taken such a contention and challenged the reference then and there. Therefore, they are estopped from taking any such contention. The judgments of the Apex Court in Devilal Modi v. Sales Tax Officer, Rattam & Ors. [AIR 1965 S.C 1150], Vijayakumar v. Commissioner of Excise [1994(1) KLT 942], the judgment of the Apex Court in G M ONGC SHILCHAR V. ONGC Contractual Workers Union [2008 (2) LLJ 1071 and Laxmi Starch Ltd. And another v. The Kundra Factory Workers Unions and others [ILR 1992 (2) Kerala 646] were relied on by the learned Counsel. It was further argued relying on State of T.N and another v. S.Subramaniam [AIR 1967 S.C 509 that, admission made in the pleadings can be explained later and W.P(C) No.3251 of 2010 29 therefore the Tribunal ought not have rejected his contentions on the ground of inconsistency in the pleadings.
15. On the other hand Sri. Santharam, the learned Counsel for the IAAI , stoutly opposed the contentions, relying on a series of judgments and reminding this Court of the limitation in exercising judicial review over the award of the Tribunal. Relying on the judgment of the Supreme Court in Sugarbai M.Siddiq v. Ramesh S.Hankare [(2001) 8 SCC 477] it was contended that, this Court is to see whether the Tribunal had jurisdiction over the matter, whether there is any procedural irregularity in passing the order, ie. the Court has to look into the decision making process and not the decision. The learned counsel also relied on the decision in State of T.N and another v. S.Subramaniam [(1996) 7 SCC 509]. It was pointed out that, the very same Tribunal had adjudicated the case of other labourers and dismissed the I.D and the I.D in respect of another individual referred as in the case of the petitioner was also dismissed by the Tribunal. Admittedly all the 23 workmen were engaged together and, in these circumstances, there was no reason to adopt another view in the matter.
16. As much has been argued as to the inconsistency in W.P(C) No.3251 of 2010 30 the pleadings, it is necessary to have a look at the Original Petition and the claim statements filed by the petitioner. As pointed out by the learned Counsel for the the first respondent, the 1st sentence in the statement of facts of the Original Petition filed by the petitioner is that, he was engaged by M/s.R.K.Electricals and New Electricals as contract labourer to work as Electrician/Wireman for installing, repairing and maintaining the electrical installations/fittings of the 1st respondent. In the Original Petition he did not have a case that his engagement was directly under the 1st respondent or that the contract between respondents 3 and 4 was sham, apparently because such a contention became available after the SAIL's (supra) judgement of the Apex Court. Ext.P1 of that O.P was the claim statement dated 12.01.1994 filed by the workman before the Assistant Labour Commissioner, produced as Ext.R1(a) along with the counter affidavit. In that claim statement also, his claim was regarding the engagement under the contractors - respondents 3 and 4, and the claim was for difference in wages for the period from 1.5.1991 to 30.09.1993 from the 3rd respondent and for the period from 1.10.1993 onwards from the 4th respondent. The complaint was that, the contractors were W.P(C) No.3251 of 2010 31 not complying with the conditions stipulated in Rule 25(2)(v)(a) of the CLRA Rules. By that statement they claimed payment of difference in wages by the principal employer, as provided under Section 21(4) of the CLRA Act. The petitioner challenged Ext.P3 notification therein, ie. notification dated 9.12.1976 issued under Section 10(1) of the CLRA Act, 1970 to the extent it excluded electrical work, while prohibiting sweeping, cleaning, dusting and watching of buildings owned and occupied by establishments under the Central Government saying that, electrical work forms an integral part of the work of the Airport, without which it cannot function. Ext.P4, in that O.P was a representation by the petitioner who was the General Secretary of the Thiruvananthapuram International Airport Contractor Workers Congress, wherein he had requested for inclusion of electrical works in the 1976 notification so as to permit the contract workers engaged in the electrical/wiring work and maintenance for being covered by the notification. The list of 23 persons, who were engaged as contract labours for the electrical/wiring work of IAAI, was appended to the representation Ext.P4. The name of the petitioner was given as Sl.No.3 mentioning the period of service as 1.5.1991 to W.P(C) No.3251 of 2010 32 28.2.1994 with a total service of 33 months. As rightly found by the Tribunal, the contentions as to sham contract, direct supervision, disciplinary control, etc. were raised as a consequence of the judgment in SAIL's case. But the fact that the notification issued in 1999 prohibiting contract labour in the IAAI was quashed and such notification therefore ceased to exist, is made known to the petitioner only after the ID leading to Ext.P14 award was referred for adjudication. The petitioner is seen to have altered his pleadings in order to come within the parameters laid down in SAIL's case (supra). The case of the respondents all along was that, they were monitoring all the works in the premises of IAAI, for reasons of security, in the highly sensitive area. But that monitoring cannot amount to direct control or supervision of contract workers so as to change the nature of engagement. The issuance of entry pass will not enable the petitioner to claim regularisation; it will not also indicate any master-servant relationship between the petitioner and the management, since as a security measure, entry pass was necessary for a person to enter the Airport. As rightly contended by the respondents the contention as to sham contract, etc. was taken for the first time only after the judgment W.P(C) No.3251 of 2010 33 in SAIL's case (supra) was rendered by the Apex Court. But there was no prohibition of contract labours. Even though the electrical work was included in the notification in the year 1999, that notification was set aside by Ext.R1(c) judgment affirmed by the Apex Court in Ext.R1(e). When the notification is already set aside, there is no merit in the contention that the issue had to be considered as on the date when notification was issued in 1999. The case of the petitioner is that admissions can be explained subsequently. Any extent of inconsistency is nowhere permitted. I am unable to find any similarity in the factual or legal circumstances of this case with those which arose in the judgments relied on by the petitioner, where the expalnation was only with respect to the date of death.
17. Having considered the rival contentions, I find that the Industrial Tribunal has considered all the contentions of the petitioner, despite the fact that it pointed out the inconsistency in the pleadings, rightly. At least from 10.5.1991, the petitioner's engagement was only through the contractor. There was no prohibition of contract labour as far as electrical wing was concerned. The Tribunal has rightly found that, the non- registration of the contractor will not result in re-instatement or W.P(C) No.3251 of 2010 34 absorption of the petitioner as Electrician. The petitioner had admitted the engagement through contractor by his own averments in the Original Petition filed by himself as well as in the representations and claim petitions he filed in his capacity as Secretary of a labourers' Union. Sufficient opportunity was given to the petitioner to adduce evidence. The non production of the documents by the 1st respondent or the refusal to permit photocopies to be marked, have not resulted in any grave injustice to the petitioner, in the circumstances of the case.
18. The Tribunal has rightly rejected the claim, relying on paragraphs 125.5 of the judgment in SAIL's case (supra) wherein the the Apex Court laid down the consequences of issuance of a notification of prohibition under Section 10(1) of CLRA Act and the matters which the industrial adjudicator has to consider. In this case, there is no notification prohibitng contract labour in the electrical wing of the 1st respondent. The petitioner seeks regularisation/absorption in the electrical wing on the strength of his engagement for the period from 1991- 1994, despite the fact that he was engaged by contractors where contract labour was permissible. The Tribunal examined the case of the petitioner with reference to the parameters laid down in W.P(C) No.3251 of 2010 35 para 125.5. of the judgment in SAIL v. National Union Waterfront Workers [(2001) 7 SCC 1] and found that, there was no justification in the demand for absorption of the petitioner, as in the case of others engaged along with him. The relevant portion of the judgment is as follows :
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications."
19. It cannot be disputed that there is no notification W.P(C) No.3251 of 2010 36 prohibiting contract labour. Therefore, we need not go into the consequences. As rightly contended by Sri V.Santharam, the learned counsel appearing for the 1st respondent, relying on the judgment Palakkal Martin v. Ansar.C & Ors. [ILR 2014 (3) Kerala 819], this Court is not supposed to re-appreciate the evidence or the findings on facts; the exercise of judicial review over an award passed by the Tribunal is circumscribed to cases where the findings are perverse, or vitiated by violation of the principles of natural justice or by consideration of irrelevant matters, or non-consideration of relevant matters, or by bias.
In these circumtances, I do not find any circumstances warranting interference of this Court. Hence this Writ Petition is dismissed.
Sd/-
P.V.ASHA Judge rtr/