Kerala High Court
Binish K.M vs Travancore Cochin Chemicals Ltd on 25 October, 2016
Author: K.Surendra Mohan
Bench: K.Surendra Mohan, K.Abraham Mathew
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938
WP(C).No. 3647 of 2013 (E)
---------------------------
PETITIONERS:
--------------------
1. BINISH K.M.
KULANGATH HOUSE, KADAVIL ROAD, THYKOODAM, VYTTILA.P.O., KOCHI-19.
2. ARUN KUMAR.O.R.
OTTAKANDATHILHOUSE, PARAVOOTHARA, MANNAM.P.O., N. PARAVUR.
3. JAYAN.M.A.
MAROTTICKAL HOUSE, CHERAI.P.O., PIN-683514.
BY ADVS.SRI.N.D.PREMACHANDRAN
SRI.D.AJITHKUMAR
SMT.AMBILY K.ARAVIND
RESPONDENTS:
-----------------------
1. TRAVANCORE COCHIN CHEMICALS LTD.
UDYOGAMANDAL.P.O., REPRESENTED BY ITS MANAGING DIRECTOR-683501.
2. STATEOF KERALA
REPRESENTED BY SECRETARY TO INDUSTRIES, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3. K.K. BASHEER
KOCHERI HOUSE, KUTTIKKATTUKARA.P.O., PATHALAM-683501.
4. K.K. ABDUL OFFAR
KALLEPADATHU HOUSE, ELOOR EAST,UDYOGAMANDAL, PIN-683501.
5. T.V. BABU
THADATHIPARAMBIL HOUSE, MANJUMMEL.P.O., UDYOGAMANDAL, PIN-683501.
6. V.M. SUDHEER
VALLOPPILLY THAZHAM, KUTTIKKAATTUKARA.P.O., ELOOR, PIN-683501.
7. T.V. RAVI
THOPPIL VEEDU, ELOOR VADAKKUMBHAGOM, UDYOGAMANDAL.P.O., PIN-683501.
8. M.K. ANILKUMAR
MARANGATTU HOUSE, ELOOR EAST, UDYOGAMANDAL.P.O., PIN-683501.
9. K.R. MANIKANTAN NAIR,
EDAMATTATHU HOUSE, THADANADU, CHOWARA.P.O.,ALUVA-683571.
10. M.P. ANTONY
MATHUMMEL HOUSE, MUPPATHADOM.P.O., ALUVA-683110.
WP(C).No. 3647 of 2013 (E)
2
11. T.S. MUHAMMED
THOTTUKANDATHIL HOUSE, MUTTAR, VATTEKUNNAM, KOCHI-24.
12. K.J. ASHRAF
VADATHALAPARAMBU HOUSE, ELOOR SOUTH, UDYOGAMANDAL.P.O., PIN-683501.
13. T.K. SANTHOSH
ILLIKKATU HOUSE, C/O. C.K. UDAYAN, V.P. MARAKKAR ROAD, TOLL JUNCTION,
EDAPPALLY.P.O., PIN-682 024
14. V.V. ASOKAN,
VATTAPARAMBIL HOUSE, ERAMALLOR.P.O., PIN-680501.
15. M.A. GOPI
MEPPRINGAYIL HOUSE, ELOOR EAST, UDYOGAMANDAL.P.O., PIN-683501.
16. C.A. RATHEESH
KAPPATHARA HOUSE, MULLUPADY, PANAYIKULAM.P.O., PIN-683511.
17. P.A. ABDUL JABBAR
PALAKKUDIPARAMBU HOUSE, MANALIPARAMBU, ELOOR NORTH, PIN-683501.
18. T.K. JAMAL
THEKKUMPARAMBU, ERAMAM, MUPPATHADOM.P.O., PIN-683110.
19. K.K. YUSEPH,
KAVALAKKAL HOUSE, ELOOR NORTH, UDYOGAMANDAL.P.O., PIN-683501.
20. C.M. PONNU
MEKKARAPPARAMBU HOUSE, ELOOR EAST,PATHALAM, KUTTIKKATTUKARA,
ALUPRUAM.P.O., PIN-683501.
21. K.A. BALASUBRAMANIAN,
KOYYATTU HOUSE, ELOOR EAST, UDYOGAMANDAL.P.O., PIN-683501.
22. K.R. MOHAN SHAJI
AMRUTHA VILAS, KALACHUR ROAD, MANJUMMEL.P.O., UDYOGAMANDAL.P.O., PIN-683501.
23. K.A. KHAYAS
KANJIRATHUNGAL, KALAMASSERY.P.O., ERNAKULAM-683104.
24. K.H. HYDER
KATTIPARAMBU, EDAPPALLY NORTH.P.O., KOCHI-682024.
25. K.K. MAJEED
KOCHERI HOUSE, KUTTIKKATTUKARA.P.O., PATHALAM PIN-683501.
26. D. UDAYAKUMAR
MARANGATTU HOUSE, ELOOR EAST, UDYOGAMANDAL.P.O., PIN-683501.
27. K.P.AJITHKUMAR
KIZHAKKUMURI, EDAPPALLY NORTH.P.O., PIN-682024.
28. P.G. ANOOP
PADMALAYAM HOUSE, EDAPPALLY NORTH.P.O., KOCHI-682024.
29. T.K. JABBAR
THATTARUPARAMBU, MUPPATHADOM.P.O., ALUVA-10.
WP(C).No. 3647 of 2013 (E)
3
30. S. BABURAJ
KOTTAIRLAYIL HOUSE, ELOOR EAST, UDYOGAMANDAL.P.O., PIN-683501.
31. MOBIN KUNNATH
KUNNATH HOUSE, U.C. COLLEGE.P.O., ALUVA-683810.
32. K.A. SUHAIB
KANNANKARTH HOUSE, KUNJUNNIKARA, ULIYANNOOR.P.O.,ALUVA-683810.
33. JUSTIN KASPER,
PADATHURUTHIL HOSUE, ELOOR FERRY,UDYOGAMANDAL.P.O., PIN-683501.
34. T.S. STALIN,
THAIPURAYIL HOUSE, CHIRAKKAKOM, VARAPPUZHA-683517.
35. M.K. HASEEF
HASEENA COTTAGE, PANAYIKULAM.P.O., ALANGAD-683511.
36. P.B. AJITH KUMAR
PULLICKAL VADAKKEVEEDU, MAVELI LINE MUPPATHADOM.P.O., ALUVA-683110.
37. P.G. SREEJITH
PAYYAPPILLY HOUSE, TOG ROD, KALAMASSERY PIN-683104.
38. M.S. RATHEESH
RAM NIVAS, KARUMALLOOR.P.O., MENAKKAPPADY. PIN-683511.
39. C.A. ABDUL LATHEEF
CHINACKAL HOUSE, PALLILAMKARA, HMT COLONY.P.O., KALAMASSERY PIN-683503.
40. D. RAJESH KUMAR
AATHIRA, KARIPAI ROAD, KALAMASSERY-683104.
41. K. ANOOP
KARINGANAMKODATH, MUPPATHADOM.P.O., ALUVA-10.
42. T.V. ARAVIND
THANNIVEETTIL, MUDAKKUZHA.P.O., ERNAKULAM-683546.
43. N.K. VIPIN KUMAR
NALADY VEEDU, CHANDIROOR.P.O.,AROOR, PIN-688547.
44. AMAL THOMAS
KALLOOR HOUSE, CHIRAKKAKAM VARAPUZHA.P.O., PIN-683517.
45. C.G. AJITH
CCRA-26, ASWATHI HOUSE, CHANGAMPUZHA NAGAR, EDAPPALLY.P.O.,
ERNAKULAM, PIN-682024.
46. DHANISH ANTONY
KANNOTH HOUSE, ELOOR SOUTH,UDYOGAMANDAL.P.O., PIN-683501.
47. D. ANOOP
GOPURA HOUSE, ITI CHENAKKALA ROAD, KALAMASSERY.P.O., ERNAKULAM-683104.
48. P.A. SHIBU,
PERUMANATH HOUSE, ELOOR NORTH, UDYOGAMANDAL.P.O., PIN-683501.
49. SUBHAS C. MENON
AMBADY HOUSE, ELOOR EAST, UDYOGAMANDAL-683501.
WP(C).No. 3647 of 2013 (E)
4
50. SAJEEV.C.S.
KAINATH MADOM, VATTEKUNNAM, EDAPPALLY NORTH.P.O., KOCHI-24.
51. K.V.VINEESH
KARUPPASSERY VEEDU, NOCHIMA, NAD P.O, ALUVA 683 563.
52. V.A.NAZAR
VALLIKKATTIL HOUSE, U.C COLLEGE P.O, ALUVA683 102.
53. V.S.DHARMARAJ
VARATTUPADI HOUSE, KODUVAZHANGA, NEERIKODE 683 511.
54. K.T.JITHITH
KATTILEPARAMBIL HOUSE, CHERANELLORE P.O, ERNAKULAM 682 034.
55. GEORGE AUGUSTINE
KALAPARAMBATH, ALANGAD P.O, ALUVA 683 511.
56. S.SREEJITH
NATHOLIPARAMBIL HOUSE, MANJUMMEL P.O, ELOOR, UDYOGAMANDAL - 683 501.
57. P.A.AMEER
PATTAM PARAMBU HOUSE, VALIYATHUNAD, VELIYATHUNAD P.O, 682 313.
58. M.U.SANGEESH
MANALIPARAMBIL HOUSE, ELOOR NORTH, UDYOGAMANDAL P.O, 683 501.
59. N.S.SAJITHKUMAR
TCC LTD, UDYOGAMANDAL, NELLIPPILLY HOUSE- 683 501.
60. R.ARUNRAJ
THEKKANAMTHOLIL HOUSE, MUPPATHADAM P.O, ALUVA -10.
61. K.U.AKHIL
KARIEKKAPPILLYTHARA HOUSE, NAYARAMBALAM P.O, ERNAKULAM 682 509.
62. A.K.DHANESH
APPANAKKUSHY HOUSE, THURUTHISSERY,CHENGAMANADU P.O, ERNAKULAM 683 578.
63. K.H.ANAS
KUPPIYAN VEEDU, KARIKKODE, OKKAL P.O, ERNAKULAM 683 550.
64. P.A.MUHAMMED SHIHAB
POTTEEKATTIL HOUSE, EDAYAKUNNAM, SOUTH CHITTOOR, ERNAKULAM- 682 027.
65. K.M.AJIFAR
KARIMBINKATTIL HOUSE, ELOOR NORTH, UDYOGAMANDAL P.O, PIN-683 501.
66. SANJU SEBASTIAN
THAIKKOOTTATHIL HOUSE, KORAMBADAM, KOTHAD P.O, PIN- 682 027.
67. M.S.SHEHEER
MUTHUPARAMBIL HOUSE, THAIKKATTUKARA P.O, ERNAKULAM- 683 106.
68. RAGESH H.NAIR
HARISHREE, KIZHAKKEPURAM, NORTH PARAVUR, ERNAKULAM 683 513.
69. ANOOP JOSEPH
KARRIKASSERY HOUSE, PANDIKUDI, KOCHI 2.
WP(C).No. 3647 of 2013 (E)
5
70. ABISH V.A
VALAYAN KUNNIL, U.C COLLEGE, P.O, ALUVA-683 102.
71. M.A.SADIK
MADAKKAKATH HOUSE, ELOOR NORTH, UDYOGAMANDAL P.O, ERNAKULAM 683 501.
R1 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
R1 BY ADV. SRI.P.GOPINATH
R1 BY ADV. SRI.P.BENNY THOMAS
R1 BY ADV. SRI.K.JOHN MATHAI
R2 BY ADDITIONAL ADVOCATE GENERAL SRI.RENJITH THAMPAN
R3 TO 25 BY ADV. SRI.ASOK M.CHERIAN
R3 TO 25 BY ADV. SRI.S.KANNAN
R3 TO 25 BY ADV. SRI.R.ROHITH
R26-R48 BY ADV. SRI.P.RAVINDRAN (SR.)
R26-R48 BY ADV. SRI.M.R.SABU
R49-R71 BY ADV. SRI.A.JAYASANKAR
R49-R71 BY ADV. SRI.MANU GOVIND
R49-R71 BY ADV. SRI.JOPHY POTHEN KANDANKARY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-10-2016, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
cms
WP(C).No. 3647 of 2013 (E)
APPENDIX
PETITIONERS EXTS:
EXT P1: COPY OF NATIONAL TRADE CERTIFICATE DTD 7.7.2004 OBTAINED BY P1.
EXT P2: COPY OF CERTIFICATE OF TRAINING UNDER THE APPRENTICES ACT ISSUED BY R1
COMPANY TO P1 DTD 20.3.2007
EXT P3: COPY OF SSLC CERTIFICATE OF P1.
EXT P4: COPY OF CERTIFICATE OF REGISTRATION WITH THE EMPLOYMENT EXCHANGE.
EXT P5: COPY OF CERTIFICATE DTD 8.6.2001 OF P2 HAVING PASSED PRE-DEGREE EXAMINATION
OF M.G.UNIVERSITY.
EXT.P6:COPY OF EMPLOYMENT EXCHANGE REGISTRATION CERTIFICATE DTD.14.6.1999 ISSUED IN
FAVOUR P2.
EXT P7: COPY OF IDENTITY CARD DTD 29.11.2002 ISSUED TO P3 BY THE ESI CORPORATION.
EXT P8:COPY OF STATEMENT OF ACCOUNT SHOWING FOR THE YEAR 2011-2012.
EXT P9: COPY OF SETTLEMENT SIGNED BY THE MANAGEMENT AND 6 TRADE UNION LEADERS
FOR SHARING THE VACANCIES DTD 20.9.2011.
EXT P10: COPY OF APPOINTMENT ORDER DTD 22.10.2012 ISSUED BY R1
EXT.P11: COPY OF REPORT APPEARED IN KERALA KAUMUDI DAILY DTD 22.10.2012.
EXT.P12: COPY OF NEWS PAPER REPORT APPEARED IN MATHRUBHOOMI DAILY DTD.5.11.2012.
EXT.P13: COPY OF SETTLEMENT DTD 9.12.2006
EXT.P14: COPY OF GO(RT)NO.438/2007/ID DTD 29.3.2007
EXT.P15: COPY OF THE GOVERNMENT ORDER GO(RT) NO.942/2012/ID DTD 23.6.2012
EXT.P16: COPY OF THE CLARIFICATION SOUGHT BY THE FINANCE CONTROLLER DTD 22.11.2012
EXT.P17: COPY OF ALLTOMENT OF THE SUNDRY MONINEE WORKERS TO DIFFERENT SECTIONS
ISSUED BY THE COMPANY DTD 19.2.2013.
EXT.P18: COPY OF THE ANSWER GIVEN BY THE COMPANY DTD 31.1.2013 UNDER THE RIGHT TO
INFORMATIONACT.
EXT P19: COPY OF COMMUNICATION NO.P10/011/2013-14 DTD 16.4.2013 RECEIVED FROM THE
COMPANY INVOKING THE PROVISIONS OF R.I.ACT.
EXT.P20: COPY OF THE APPLICATION DTD 13.2.2013 SUBMITTED UNDER THE R.I.ACT.
EXT.P21: COPY OF THE CONTRACT WORK ORDER DTD.27.11.2012 ISSUED TO SRI.V.T.MANI
CONTRACTOR.
EXT.P22: COPY OF ORDER NO.C18 DTD 9.10.2012 ISSUED TO THE CONTRACTOR
K.N.SASEENDRAN.
RESPONDENTS EXTS:
EXT.R1(A): COPY OF THE STATEMENT NARRATING THE NAME AND OTHER DETAILS OF 69 SUNDRY
WORKERS.
/TRUE COPY/
P.S.TO JUDGE
cms
K.SURENDRA MOHAN &
K.ABRAHAM MATHEW, JJ
--------------------------------------
W.P.(C).No.3647 OF 2013
--------------------------------------
Dated this the 25th day of October, 2016
JUDGMENT
K.Surendra Mohan, J The petitioners challenge Ext P10 dated 22.10.2012 by which, 65 Sundry Nominee Workers have been permitted to work in the first respondent company. Petitioners 1 and 2 are unemployed persons. The third petitioner is a contract employee of the first respondent company. He claims to have been working as such for the past 17 years prior to the filing of the Writ Petition. The petitioners allege that the persons whose names are mentioned in Ext P10 have been recruited as employees of the first respondent company and that, such recruitment has been done without following the legal method for making such appointments, namely, inviting applications and conducting a proper process of selection. The allegation is that, the persons in Ext P10 have been appointed pursuant to Ext P9, which is a memorandum of settlement entered into between the representatives of the company and the trade union workers of the company. As per Ext P9 it has been stipulated that the unions could nominate workers of their choice. The company was also at liberty to nominate workers. It is stipulated that the company as W.P.(C).No.3647 OF 2013 2 well as the trade unions would have equal number of nominees. Such a recruitment as evidenced by Ext P10 on the basis of Ext P9 is nothing but back door appointment, violative of the provisions of our constitution. Therefore, this Writ Petition has been filed for the issue of appropriate orders and directions setting aside Ext P10.
2. This petition was initially heard by a learned Single Judge of this court. The learned Single Judge was of the view that this case was a public interest litigation that had to be considered by a Division Bench. Accordingly, as per an elaborate order dated 10.7.2013 this Writ Petition was referred to a Division Bench. The respondents are represented through counsel. We have heard the respective counsel. The question for consideration is whether the recruitment of the persons whose names are mentioned in Ext P10 are illegal and liable to be set aside.
3. According to Advocate Sri.N.D.Premachandran, who appears for the petitioners, the petitioners are unemployed youth who have a right to be considered for selection and appointment to the posts that are available in the service of the first respondent. The first respondent company has its own approved standing orders. The standing orders do not W.P.(C).No.3647 OF 2013 3 contemplate a category of workmen as "Sundry Nominee Workers". Such a category has been created only by Ext P9. It is alleged that, ultimately, the persons in Ext P10 would be absorbed into the regular service of the first respondent, thereby denying to the petitioners their right to be considered for appointment to the said posts. In support of his contention, the counsel places reliance on Ext P13 which is the copy of an earlier settlement dated 9.12.2006. It is contended that, similar workmen as in Ext P10 were regularised as per Ext P13.
4. Apart from the above, though Ext P10 tries to make out that the employees are nominees of contractors, there are actually no contractors in existence. In order to fill up the said lacuna, three of the workers themselves were later on designated as contractors. Reliance is placed on Ext P17 dated 19.2.2013 to contend that the workmen who were absorbed by Ext P10 were deputed to the different sections in the company. In short, it is contended that their services have been utilised in all the places of the company. They were all doing the work of regular employees. The above aspects are relied upon to contend that the workmen recruited by Ext P10 are in fact, regular workers and not W.P.(C).No.3647 OF 2013 4 contract workers as sought to be made out.
5. The counsel also places reliance on the decision of a Constitution Bench of the apex court in Secretary, State of Karnataka and others v. Umadevi and others (2006)4 SCC Page 1) to contend that, any appointments made other than in compliance with the process of selection as stipulated by the constitution are bad in law and liable to be set aside. The counsel also places reliance on the decision in Mahendra L.Jain and others v. Indore Development Authority and others (2005)1 SCC 639) and National Fertilizers Ltd. and others v. Somvir Singh (2006)5 SCC 493) in support of the proposition that illegal appointments or back door appointments have no sanctity in law and are liable to be set aside. An unreported judgment of a Division Bench of this court dated 7.7.2005 in WP(C) No.21467 of 2003 is also pressed into service. For the above reasons, according to the learned counsel Ext P10 is liable to be set aside.
6. Advocate P.Benny Thomas, who appears for the first respondent company as well as the Senior Counsel Sri.P.Ravindran, who appears for respondents 26 to 48, Advocate Manu Govind, who appears for respondents 49 to W.P.(C).No.3647 OF 2013 5 71 and Sri.Ashok M. Cherian, who appears for respondents 8 to 25, refute the contentions of the counsel for the petitioners.
7. According to the first respondent company, a public sector undertaking owned by the Government of Kerala, the company has not been making profit for the past ten years. Therefore, the permanent establishment of the company has been reduced considerably and no new recruitments are being made to the service. Many of its plants are shut down and its activities have shrunk to a very limited extent. The premises of the company consists of a sprawling 30 acres compound, with a number of buildings therein, that requires regular cleaning and maintenance. Such cleaning and maintenance were being undertaken by independent contractors. The unions representing the workmen of the contractors had been demanding for absorption of the employees of the contractors. It was in the context of the said demand and agitation that, a memorandum of settlement was worked out as evidenced by Ext P9.
8. Our attention is drawn to Ext P9 by the counsel Sri.P.Benny Thomas, who points out that the demand for absorption of the workmen had been turned down. It was W.P.(C).No.3647 OF 2013 6 only as a matter of settlement, the nominees of the contractors were being engaged, to attend to the cleaning work of the company. They are not persons, who are part of the regular workforce of the company. They continue to remain as workers of the contractors who have taken up the cleaning work of the company on contract. They are paid by the contractors. Their service benefits like contributions to the ESI, PF etc. are also borne by the respective contractors. The company only makes deductions and remittances to the concerned corporations. But such amounts are recovered from the contractors. The company therefore only discharges its obligations as the principal employer. Since appointments to any regular posts have not been made by the company or any person as alleged, it is contended that the allegations of the petitioners lack substance. The said allegations are therefore, only to be rejected.
9. According to the senior counsel Sri.P.Ravindran, what is under challenge in the Writ Petition is only Ext P10 which is a list of the workers. The memorandum of settlement on the basis of which the list was prepared is Ext P9, which is not under challenge. Therefore, it is contended W.P.(C).No.3647 OF 2013 7 that no relief could be granted in this case. According to the learned senior counsel, the workers whose names are given in Ext P10 are persons already working as contract workers. They have neither been regularised nor absorbed into the service of the company. They remain as "Sundry Nominee Workers". They are paid only the daily wages. They are not entitled to any of the other service benefits to which, the regular employees of the company are entitled. It is pointed out that they are workers who have been working for more than two decades on the same conditions. They have not been absorbed and there is no prospect of their being absorbed into the company.
10. Advocate Sri.Manu Govind, who appears for respondents 49 to 71 submits that petitioners 1 and 2 are persons who have no grievance to highlight. They are admittedly employees and their only right is to claim that they also should be considered as and when appointments are proposed to be made by the first respondent. Since the company has not sought to make any appointments they cannot have any grievance. One of the petitioners is a Sundry Nominee Worker who is said to be still working and therefore, cannot be said to be aggrieved. In the absence of W.P.(C).No.3647 OF 2013 8 a grievance, the petitioners are not entitled to any relief as prayed for.
11. Advocate Sri.Ashok M.Cherian, who appears for respondents 8 to 25 while supporting the contentions put forward on behalf of the other respondents justifies Ext P10 as only a settlement that applies to engaging workers for the sundry items of work available in the company. The company has been outsourcing such work. If at all Ext P10 affects anyone it is only the contractors who take up the said items of work. Since they have no complaints, the grievance of the petitioners lacks substance. Therefore, according to the counsel, the Writ Petition is only to be dismissed.
12. We have heard the submissions of the Additional Advocate General, who maintains that, no appointments as alleged have been made to the service of the first respondent. According to the Additional Advocate General, the works are intermittent in nature and not connected to the main activity of the company. The workers who are arrayed as respondents in this case are the workers of the contractors. There is no employer-employee relationship between the company and the said workers. The learned W.P.(C).No.3647 OF 2013 9 Additional Advocate General admitted that, as stated in paragraph 6 of the counter affidavit, since Ext P9 lacks transparency the Government would issue necessary directions to the company and would ensure that a transparent process is put in place for the purpose of engaging workmen to carry out the sundry works of cleaning and other activities.
13. Heard.
14. A perusal of Ext P9 memorandum of settlement shows that, the same is a settlement that has been entered into between the representatives of the first respondent company and the representatives of the trade unions. Though most of the trade unions are seen to represent the construction and contract workers, we find that there are representatives of other trade unions also. It is true that, as per Ext P9 the demand of the union for regularisation of the employees of the contractors has been turned down by the company. However, for carrying out works like painting of roof, machinery, cleaning etc. which are undertaken by contractors, the company had been engaging workers. Therefore, the parties have agreed that for carrying out such works nominee contract workers would be appointed. Clause W.P.(C).No.3647 OF 2013 10 1 of Ext P9 stipulates that equal number of nominee contract workers will be appointed by the management as management nominees. In other words, as per the said clause, both management as well as the unions are permitted to nominate the workers for appointment as "Sundry Nominee Workers". Though the word "appointment" used in clause 1 has been pressed into service by the counsel for the petitioners to attack the bona fides of the first respondent company, we feel that the same is only a loose expression. This is for the reason that, though the word "appointment" has been used, a perusal of the subsequent clauses reveal that the employees remain as workers of the nominee contractors. They do not come into regular establishment of the first respondent. However, Ext P9 leaves a lot to be desired.
15. It does not stand to reason why the company has been given a right to nominate workers of their choice. We also find a stipulation that equal number of nominees of the management as well as the trade unions shall be appointed. In other words, there would be nominees of the unions as well as nominees of the management. The reason for conferring such a right on the management is not W.P.(C).No.3647 OF 2013 11 forthcoming. We do not know on what basis or what criteria such nominees are selected or nominated. If the workers are the workers of the nominee contractors, why should the management select or nominate them? We are certain that, there is more than what meets the eye in the whole process that is agreed to as per Ext P9 and implemented by Ext P10. In the absence of paucity of materials we are not able to ascertain the real nature of the arrangement. It is further worth noticing that, Ext P9 has fixed an eligibility criteria. In the light of the stipulations contained in Ext P9, the allegation made by the petitioners that the workers in Ext P10 are intended to be absorbed at a later point of time cannot be brushed aside as absolutely baseless.
16. Ext P16 is another document on which reliance has been placed by the counsel for the petitioners. Ext P16 is the guidelines for engagement of the Sundry Nominee Workers and their payments dated 22.11.2012. There appears to be a note regarding the guidelines. It mentions that the liability on the first respondent as employer's contribution towards ESI, PF and others for such employees comes to Rs.17 lakhs per annum. According to the counsel for the first respondent, the above amount, though initially W.P.(C).No.3647 OF 2013 12 paid by the company as the principal employer, is later recovered from the nominee contractor. Ext P16 raises many other queries, regarding the position of the workers in Ext P10, relevant to the establishment of the company. In other words, the nature of arrangement that has been worked out in Ext P9 does not appear to be "transparent", to borrow the very expression used by the second respondent in its counter affidavit. However, except for the above fact, there is no material or evidence on record to indicate that the persons in Ext P10 have been made part of the regular establishment of the first respondent company. In other words, we do not find any material or evidence to support the allegation of the petitioners that the persons in Ext P10 have been regularly recruited. There is nothing on record to show that the first respondent has made appointment to any post borne on its service. In the absence of any such material or evidence, this Writ Petition has to fail. We also notice that, Ext P9 memorandum of settlement that forms the basis of Ext P10, has not been challenged in the Writ Petition. What appears, as reiterated by the Additional Advocate General as well as the counsel appearing for the other party respondents, is that, the workers whose names W.P.(C).No.3647 OF 2013 13 are listed in Ext P10 are workers of the nominee contractors and that they continue to remain as such. The company which is facing a financial crisis is not in a position to recruit additional employees into its service. They have also not done so. We are also assured that the workers whose names are listed in Ext P10 would not be absorbed into regular service of the first respondent, as apprehended by the petitioners. We record the said submission and accept the assurance.
17. Since no recruitment or appointment to any post of the first respondent has been made as alleged by the petitioners, the dicta laid down by the apex court in the decisions relied upon by the counsel for the petitioners have no application to the facts of the present case. In fact, there could be no quarrel regarding the said propositions. The respondents have also no dispute regarding the position of law. Their only case has been that, they have not made any appointment as alleged.
18. Before parting with this case, we shall refer to the stand taken by the second respondent in the counter affidavit filed in this case. It is necessary to do so to allay the misgivings that we have expressed above, while W.P.(C).No.3647 OF 2013 14 considering the sustainability of Ext P9.
19. Paragraph 5 and 6 of the counter affidavit read as hereunder:
"5. The work is intermittent in nature and miscellaneous and is on need basis. Since the 69 workers are engaged by the contractors the 1st respondent Company has no employer employee relationship with the workers. The company management has not appointed any person against any permanent vacancy in the Company.
6. This respondent have examined the P9 agreement. It is submitted that the 1st respondent Company should have engaged the labour contractors through a transparent process and not through nominations based on agreement with unions. In this circumstance, the 2nd respondent Government will issue direction to the Company to select labour contractors who will provide workers for carrying out sundry, cleaning works etc. thorough a transparent process and engagement will be governed by Contract Labour(Regulation & Abolition) Act, 1970."
20. The second respondent has also expressed doubt regarding the transparency of Ext P9. The assurance of the State that the Government would issue directions to the company in the matter is appreciable. In view of the above assurance we are of the view that, it shall be sufficient for the issue to be left, to be dealt with by the second W.P.(C).No.3647 OF 2013 15 respondent at the Government level.
In the result, this Writ Petition is disposed of directing the second respondent to take necessary action in the matter, as assured in paragraph 6 of the counter affidavit dated 3.8.2015 filed in the Writ Petition expeditiously.
Sd/-
K.SURENDRA MOHAN, JUDGE Sd/-
K.ABRAHAM MATHEW, JUDGE cms /True copy/ P.S.to Judge