Andhra HC (Pre-Telangana)
The Executive Engineer, Apsrtc, ... vs K. Kanakaiah And Another on 12 June, 2015
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
WRIT PETITION Nos.4419 of 2002 and batch
12-06-2015
The Executive Engineer, APSRTC, Karimnagar. Petitioner
K. Kanakaiah and another. . Respondents
^Counsel for Petitioner : Smt. Danda Radhika
Standing Counsel for APSRTC
!Counsel for Respondent No.1: Sri M. Pitchaiah
Standing Counsel for APSRTC
<Gist:
>Head Note:
? Cases referred:
1)(2006) 4 Supreme Court Cases 1
2)AIR 1978 Supreme Court 1410
3)(2001) 7 Supreme Court Cases 1
4)(2008) 12 Supreme Court Cases 275
5)2011(1) ALD 234
6)(2009) 8 SCC 556
7)1995 (3) ALD 150 (DB)
8)AIR 2010 SC 3143
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
Writ Petition Nos.4419 and 20565 of 2002
COMMON ORDER:
In this writ petition filed under Article 226 of the Constitution of India, the petitionerExecutive Engineer, APSRTC, Karimnagar seeks to issue a writ of Certiorari and quash the award dated 27.08.2001 in I.D.No.102 of 2000 passed by the learned Chairman-cum-Presiding Officer, Industrial Tribunalcum-Labour Court, Godavarikhani, as the same is arbitrary and illegal.
2) The factual matrix of the case is thus:
a) On the reference made by the Government of Andhra Pradesh relating to the request of R.1K. Kanakaiah, a man-mazdoor on contract basis for regularization of his services, the Labour Court registered I.D.No.102 of 2000 and proceeded with the enquiry. The case of R.1/ claimant is that he was appointed as man-mazdoor on casual basis on
02.03.1992 in the Executive Engineers office, APSRTC, Karimnagar on daily wages, E.D bus passes were issued to him and he worked for more than 240 days. There was no intermediary contractor. He had every right to be regularized in service but the APSRTC did not accede to his request.
b) Whereas the Writ Petitioner/respondent filed counter and contended that the petitioner was not an employee of Corporation and there existed no relationship of master-and-servant between the parties. Certain civil works relating to construction of bus shelters etc, were entrusted to the contractor and the contractor employed the petitioner and some others as his man- mazdoor for executing the work and he paid the amounts to them. Therefore, the petitioner and others are not the employees of the Corporation. The contractor was paying daily wages to the men engaged by him. The Corporation has not maintained any attendance registers. E.D bus passes were issued to travel along with the site Engineers. Thus the Corporation prayed to dismiss the petition.
c) A perusal of the award would show that on appreciation of evidence on either side, learned Presiding Officer has held that admittedly the claimant has been working with the respondent/Corporation from 02.03.1992 onwards and it cannot be believed that the same person would be engaged from 02.03.1992 onwards by different contractors as contended by the APSRTC. If there was no relationship of master-and-servant between the Corporation and claimant, there was no necessity for engaging the claimant as man-mazdoor from 1992 onwards. The Presiding Officer further held that 8 years have elapsed since the date of engagement of claimant as man-mazdoor and still the fate of the claimant was hanging in the air without conferring the status of a regular workman of the Corporation. Learned Presiding Officer further held that even though it is shown that the claimant was engaged through a contractor, the said contractor can be ignored and the master-and-servant relationship can be recognized. Thus ultimately the Presiding Officer allowed the I.D and directed that the APSRTC shall regularize the services of the claimant as man-mazdoor from the date of publication of the award.
Hence the instant Writ Petition No.4419 of 2002 by the Executive Engineer, APSRTC challenging the award.
3) It may be noted that aggrieved by the award insofar as not ordering for the regularization of his service from the date of his initial engagement i.e, 02.03.1992 but ordering only from the date of publication of the award, R.1Kanakaiah also filed W.P.No.20565 of 2002.
4) Heard arguments of learned Standing Counsel for APSRTC and learned counsel for R.1Kanakaiah.
5 a) Challenging the award learned Standing Counsel for APSRTC firstly argued that the construction works of Depot in Nizamabad, Adilabad, Karimnagar etc., places were entrusted to the different contractors by the Engineering Section of APSRTC and the contractors in their turn executed the work as per the specifications given by the APSRTC by engaging workers by themselves on daily wage basis. In this process, the APSRTC has absolutely nothing to do with manpower engaged by the contractors. As such, the APSRTC has not issued any appointment letters to any of the worker engaged by the contractors and no muster roll was also maintained by it. Further, there is no post of man-mazdoor in APSRTC. R.1 Kanakaiah was one such persons engaged by the concerned contractor and R.1 worked in different regions i.e, Nizamabad, Adilabad and Karimnagar and he did not work only at Karimnagar. Learned counsel vehemently argued that absolutely there was no master-and-servant relationship between the Corporation and R.1 and the workers of his ilk. Learned counsel admitted that I.D cards and bus passes were issued to the workers engaged by the respective contractors. However, such issuance was only to facilitate the ingress and egress of R.1 and other workers into the depots but not because they were the employees of the Corporation. Inspite of all these facts, R.1 and others who are not the employees of the Corporation tried to enter into the Corporation by backdoor method by filing petitions in Labour Court and unfortunately without considering the facts and evidence in right perspective the Labour Court ordered for the regularization, which is illegal. Learned counsel contended that unless the appointment was made as per the relevant rules of appointment by making notification and calling for the qualified persons and conducting test and making a selection, the question of regularization does not arise as per the dictum laid down by Honble Apex Court in Secretary, State of Karnataka and others vs. Umadevi and others . Learned counsel contended that the present case is much worse in the sense that no appointment of the R.1 and others was made by the Corporation and in fact they were the workers engaged by the contractors and as such, they will not have any right to seek for regularization.
b) Nextly, learned counsel would contend, for another reason also, R.1 and others are legally not entitled for regularization in view of the provisions under Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 (for short A.P. Act, 1994). Expatiating it, learned counsel would argue that even assuming that R.1 and others were daily wage employees under the petitioner/Corporation, still they will not be entitled for regularization for the fact that they have not put up the required length of service by the cut off date as specified in Section 7 of A.P. Act, 1994. Learned counsel thus prayed to allow the writ petition.
6 a) Per contra, learned counsel for R.1 firstly argued that R.1 and other workers are the workmen of APSRTC and the respective contractors are only intermediaries and if the veil is lifted it would appear that APSRTC who hired R.1 and other workers through contractors for executing its works should be regarded as the master of R.1 and other workers. On this aspect he relied upon the following decisions:
i) Hussainbhai vs. The Alath Factory Tezhilali Union and others
ii) Steel Authority of India Ltd. and others vs. National Union Waterfront Workers and others .
He submitted that the Labour Court having found that R.1 and others have been working since long with APSRTC and they were issued bus passes and I.D cards and further, APSRTC could not name the contractor to whom it entrusted the work and who allegedly engaged R.1 and other workers, has rightly come to a conclusion that R.1 and others are workers of the Corporation and since their non-regularization for sufficiently long period amounts to unfair labour practice, allowed their I.Ds and directed the Corporation to regularize their services. To this extent, he submitted, the award passed by the Labour Court was perfectly right and did not suffer any vice of perversity and as such, this Honble Court may not interfere with the same. He relied upon the decision reported in General Manager, Oil and Natural Gas Commission, Silchar vs. Oil and Natural Gas Commission Contractual Workers Union on the principle that the High Court will not under its power of Judicial review, interfere with the award passed by the Industrial Tribunals unless the award suffers perversity or patent illegality.
b) Secondly, learned counsel argued that R.1 and other workers were engaged by the petitioner/Corporation for long without regularizing their services depriving their legitimate right which amount to unfair labour practice. On this aspect he relied upon the decision reported in Kodali Raju and others vs. APSRTC, Hyderabad and others .
c) Thirdly, learned counsel argued that the decision in Umadevis case (1 supra) cited by the petitioner has no application for two reasons. Firstly, the ratio in the said decision was that in the matter of public employment if rules were not followed and some employees were irregularly appointed, they cannot claim regularization through Court of law under Article 226 of the Constitution of India since their initial appointment was made without following rules. In the instant case, the contention of petitioner was not that the appointment of R.1 and others was made without following the procedure. On the other hand, its case is a total denial, inasmuch as they were never appointed by the Corporation and they were the employees of respective contractors. Secondly, for the reason that Umadevis case (1 supra) was differed with in a subsequent decision of Apex Court reported in Maharashtra State Road Transport Corporation and another vs. Casteribe Rajya Parivahan Karmchari Sanghatana observing that the power of Industrial and Labour Courts to take affirmative action in case of unfair labour practice was not at all considered in Umadevis case(1 supra).
d) Fourthly, he argued that the petitioner/Corporation has not raised its objection for regularization in terms of A.P. Act, 1994 before the Tribunal and therefore, it cannot raise that objection for the first time in this writ petition. Further, in a decision reported in Municipal Commissioner, Rajendranagar Municipality, R.R.District and others vs. Smt. D. Susheela and others , a Division Bench held that provisions of A.P. Act, 1994 have no overriding effect over the provisions of Industrial Disputes Act. He thus prayed to dismiss the writ petition filed by the Corporation and allow the writ petition filed by R.1.
7) In the light of above rival arguments, the point for determination is:
Whether R.1 is the workman under the petitioner/Corporation and entitled to regularization?
8) POINT: The respective contentions of the parties have already been setout supra. The precise case of the R.1 is that he has been working under petitioner/Corporation as Man-Mazdoor since 02.03.1992 onwards i.e, for more than 240 days and he was provided with I.D cards and bus passes and therefore, he is entitled to regularization. Whereas the contention of the petitioner/Corporation is that R.1 and others were engaged by the respective contractors and there existed no master-and-servant relationship between the petitioner/Corporation and R.1 and others and no notification was issued and no appointment was made at all and that was why no appointment letter was issued to any of them and hence R.1 and others cannot claim as the employees of the petitioner/Corporation.
9) On a conspectus of the facts and evidence, I find force in the contention of petitioner/Corporation. If really the Corporation engaged the services of R.1 and others, there must have been atleast a temporary appointment letter issued to them. No such appointment letter was filed by R.1. He mainly relies upon the I.D cards and bus passes issued by the Corporation. The reason for issuing them was properly explained by the petitioner. The I.D cards and bus passes were issued to R.1 and others to facilitate their ingress and egress at the work spots i.e, in Depots and bus stations and also to facilitate their travelling to the work sites along with the Engineers. Therefore, in my considered view, these documents will not confer the status of employee to R.1 and others. The burden is heavy on the R.1 to establish that he was employed by the Corporation particularly in the light of the contention that he was engaged by the Contractor but not the Corporation. However, R.1 failed to establish the existence of master-and-
servant relationship between him and the petitioner. It may be true that the petitioner failed to name the contractor who engaged the R.1 but more than that, R.1 was not given any appointment letter by the Corporation which will be a clinching document in the present set of facts to establish that R.1 is the employee of the petitioner/Corporation. Unfortunately the Labour Court has not analysed the facts and evidence in a proper perspective and it was simply swayed by the fact that the claimant has been working from 02.03.1992 onwards in the civil works of the Corporation. His working for any length of time under the contractor will not give him the status of employee of petitioner/Corporation unless the petitioner/Corporation hired the services of R.1 and others through the contractor. In the instant case, there is no cogent evidence to hold that either the petitioner/corporation engaged the services of R.1 and others directly by itself or hired their services through any contractor. Therefore, it can only be held that they were engaged by the contractor themselves. In Steel Authority of India Ltd.s case (3 supra) cited by respondent, while explaining the term contract labour, Apex Court observed thus:
Where a workman was hired in or in connection with the work of an establishment by the principal employer through a contractor, he merely acts as an agent so there will be master-and-servant relationship between the principal employer and the workman. But where a workman is hired in or in connection with the work of an establishment by a contractor, either because he has undertaken to produce a given result for the establishment or because he supplies workmen for any work of the establishment, a question might arise whether the contractor is a mere camouflage, if the answer is in the affirmative, the workman will be in fact an employee of the principal employer; but if the answer is in the negative, the workman will be a contract labour.
In the instant case as already observed, there is nothing to hold that the petitioner either appointed or hired R.1 by itself. Therefore, it cannot be said that contractor was only an intermediary and the real employer is the petitioner/Corporation.
a) Since R.1 and others are not the employees of petitioner/ Corporation, as they were neither directly employed by following rules of appointment nor hired directly nor hired through the contractors, R.1 and others will not have any legitimate claim to seek for regularization.
Consequently, the act of petitioner/Corporation denying regularization will not amount to unfair labour practice as contended by R.1 and others. In that context, the Kodali Rajus case (5 supra) cited by R.1 is of no avail to him. It is true that High Court under its power of Judicial review generally will not interfere with the awards passed by the Industrial Tribunals and Labour Courts unless they suffer with the vices of perversity and illegality. I am constrained to hold that it is one such occasion which compel this Court to interfere with the instant award since the Labour Court without there being any tangible material held as if R.1 and others were the employees of the Corporation.
10) In view of the above finding that R.1 and others are not the employees of petitioner/Corporation, the other contentions raised by the petitioner/Corporation to buttress its claim that they are not legally entitled for regularization are of academic interest. However, they are discussed and answered below.
11) The alternative contention of writ petitioner is that even assuming for argument sake that R.1 and others were employed by petitioner/ Corporation, still they are not entitled for regularization for the reason that their induction was without following any rules of appointment inasmuch as no appointment notification calling for the candidates was issued, no selection process was followed. In such a backdrop, as per the dictum laid down in Umadevis case (1 supra), R.1 and others cannot claim a legal right of regularization. In this context I perused Umadevis case (1 supra). In that case, the point engaged with the Full Bench of Apex Court was the rights if any of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees who were appointed/ recruited and continued for long in public employment dehorse the constitutional scheme of public employment. Delineating the entire case law on the subject, Honble Apex Court ultimately propounded thus:
Para 43: xxx Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, (emphasis supplied) or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme
a) Deprecating the practice of Courts swayed by the sympathy wave and directing continuance of the employees causing undue financial burden to the concerned institutions, the Apex Court observed thus:
Para 45: While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargainnot at arms lengthsince he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public employment which is not permissible.
Para 47: When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
b) In my considered view, the above observation of Honble Apex Court cannot be lost sight-of while considering the case of R.1 and others.
Thus, even assuming by virtue of their continuing to work with APSRTC, as its employees, still they cannot claim legitimate right of regularization since their inceptional engagement was without following any appointment procedure. Hence by virtue of this decision also they are not entitled to regularization. The contention of learned counsel for R.1 that Umadevis case (1 supra) has no application cannot be countenanced. When the appointees under irregular appointment themselves have no right of regularization by virtue of Umadevis case (1 supra), it can be equally said that R.1 and others who are not the employees of Corporation, cannot claim for regularization since they stand on much worse footing.
c) With reference to the argument of R.1 that Umadevis case (1 supra), was differed with in a subsequent Apex Courts decision, I have gone through the Maharashtra State Road Transport Corporations case (6 supra). In that case, Apex Court was dealing with the question whether the two complaints filed against Maharashtra State Road Transport Corporation alleging unfair labour practice under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short the MRTU and PULP Act) are maintainable. In that decision, the Apex Court referred Umadevis case (1 supra) and put a question to itself that whether the provisions of MRTU and PULP Act were denuded of the statutory status by the decision in Umadevis case (1 supra). In that context, Apex Court held that the provisions of MRTU and PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in Umadevis case (1 supra). By virtue of above observation of the Apex Court in a subsequent decision, I am afraid R.1 cannot contend that the Umadevis case (1 supra) has no application to the present case. So running the risk of pleonasm, it must be said even if R.1 and others were held to be employees of petitioner/Corporation, they cannot claim a legitimate right of regularization in view of Umadevis case (1 supra).
12) The next argument raised by learned counsel for petitioner/ Corporation was that the R.1 and others are not entitled for regularization in view of Section 7 of A.P. Act, 1994, which reads thus:
Section 7. Bar for regularisation of services: No person who is a daily wage employee and no person who is appointed on a temporary basis under Section 3 and no person who is continuing as such at the commencement of this Act shall have or shall be deemed ever to have a right to claim for regularisation of services on any ground whatsoever and the services of such person shall be liable to be terminated at any time without any notice and without assigning any reasons:
Provided that the services of those persons continuing as on 25th November, 1993 having completed a continuous minimum period of five years of service on or before 25th November 1993 either on daily wage, or nominal muster roll, or consolidated pay or as a contingent worker on full time basis, shall be regularized in substantive vacancies, if they were otherwise qualified fulfilling the other conditions stipulated in the scheme formulated in G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated the 22nd April, 1994;
Provided further that the services of a person who worked on part- time basis continuously for a minimum period of ten years and is continuing as such on the date of the commencement of this Act shall be regularized in accordance with the scheme formulated in G.O(P). 112, Finance & Planning (FW.PC.III) Department, dated the 23rd July, 1997.
Provided also that in the case of workmen falling within the scope of Section 25-F of the Industrial Disputes Act, 1947, one months wages and such compensation as would be payable under the said Section shall be paid in case of termination of services: Provided also that nothing in this Section shall apply to the Workmen governed by Chapter V-B of the Industrial Disputes Act, 1947.
Explanation: For the removal of doubts it is hereby declared that the termination of services under this section shall not be deemed to be dismissal or removal from service within the meaning of Article 311 of the Constitution or of any other relevant law providing for the dismissal or removal of employees but shall only amount to termination simpliciter, not amounting to any punishment.
a) According to learned counsel for petitioner/Corporation, even assuming that R.1 and others were the employees of petitioner/Corporation, still they are not entitled to regularization because none of them have completed the minimum period of five years as on 25.11.1993 as laid above. I find force in this argument. It must be noted that in the decision reported in A. Manjula Bhashini and others vs. The Managing Director, A.P. Womens Cooperative Finance Corporation Ltd. , Apex Court upheld the cut off date i.e, 25.11.1993 fixed in Section 7 of A.P. Act, 1994 and while setting aside the decision of Division Bench which extended cut off date to 19.08.1998, observed thus:
Para 42: The question which remains to be considered is whether the Division Bench was justified in holding that all daily wage employees who completed 5 years service on the date of enforcement of Act No. 27 of 1998, i.e., 19.8.1998 would be entitled to be considered for regularisation of their services. A reading of paragraphs 54, 67, 68 and 72 of the impugned judgment shows that even though the Division Bench did not find the cut off date i.e. 25.11.1993 specified in first proviso to Section 7 for determining the eligibility of daily wage employees for regularisation to be arbitrary, irrational or discriminatory, yet it changed the said date from 25.11.1993 to 19.8.1998 solely on the premise that Act No. 27 of 1998 was enforced with effect from that date. In our view, once the Division Bench negatived the challenge to the validity of Act Nos. 3 of 1998 and 27 of 1998, there was no warrant for altering the date of eligibility specified in first proviso to Section 7 of the 1994 Act and thereby extend the zone of eligibility of daily wage employees who could be considered for regularisation. As a corollary, we hold that the declaration made by the Division Bench that all persons who completed 5 years service as on the date of coming into force of Act No. 27 of 1998 would be entitled to be considered for regularisation of their services is legally unsustainable and is liable to be set aside.
b) In that view, R.1 who has been working since 02.03.1992, has not completed five years of service by the cut off date i.e, 25.11.1993 and not fulfilled the eligibility criteria fixed under Sec.7 of A.P. Act, 1994 is not entitled for regularization. The argument of learned counsel for R.1 that the provisions of A.P. Act, 1994 have no overriding effect of the provisions of I.D. Act, cannot be accepted. The decision relied upon by him in D.Susheelas case (7 supra) was rendered in respect of Section 9 but not Section 7 of A.P. Act, 1994.
13) So at the outset, on a conspectus of the facts and law, I hold that the award passed by the Labour Court is factually and legally not sustainable and hence the same is liable to be set aside.
14) In the result, Writ Petition No.4419 of 2002 filed by Corporation is allowed by setting aside the award in I.D.No.102 of 2000 passed by the learned Chairman-cum-Presiding Officer, Industrial Tribunalcum-Labour Court, Godavarikhani. Consequently, the Writ Petition No.20565 of 2002 filed by R.1Kanakaiah is dismissed.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J Date: 12.06.2015