Madras High Court
Chennai Petroleum Corporation Ltd vs Presiding Officer on 12 April, 2011
Author: S. Tamilvanan
Bench: S. Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 12.04.2011
CORAM
THE HONOURABLE MR.JUSTICE S. TAMILVANAN
W.P. Nos.29755 and 29756 of 2005
Chennai Petroleum Corporation Ltd.,
Manali
Chennai 600 068
Rep. by its Dy. Secretary .. Petitioner in both the W.Ps
-vs-
1. Presiding Officer
The Principal Labour Court
Chennai 600 104.
2. Mr V.Lakshmanan
3. MRL Industrial Co-operative Service
Society Ltd.,
Manali
Chennai 600 068. .. Respondents in W.P.No.29755 of 2005
1. Presiding Officer
The Principal Labour Court
Chennai 600 104.
2. Mr.S.Chellappan
3. MRL Industrial Co-operative Service
Society Ltd.,
Manali
Chennai 600 068. .. Respondents in W.P.No.29756 of 2005
Writ Petitions filed under Article 226 of Constitution of India, seeking an order in the nature of writ of Certiorari or any other writ or direction in the nature of writ, call for the records relating to the order, dated 02.08.2005 made in I.A.No.574 of 2004 in I.D.No.531 of 2003 and I.A.No.575 of 2004 in I.D.No.82 of 2004 passed by the first respondent and quash the same.
For Petitioner : Mr.Sanjay Mohan, Senior Counsel
for M/s. S.Ramasubramanian
& Associates
For Respondents : Mr.C.P.Sivamohan
for M/s. Ganesh & Ganesh for R2
Mr.S.Jayaraman for R3
COMMON ORDER
The writ petition in W.P.No.29755 of 2005 has been filed, seeking an order in the nature of writ of certiorari or any other writ or direction to call for the records relating to the order, dated 02.08.2005 made in I.A.No.574 of 2004 in I.D.No.531 of 2003 passed by the first respondent and quash the same.
2. The writ petition in W.P.No.29756 of 2005 has been filed, seeking an order in the nature of writ of certiorari or any other writ or direction to call for the records relating to the order, dated 02.08.2005 made in I.A.No.575 of 2004 in I.D.No.82 of 2004 passed by the first respondent and quash the same.
3. The Interlocutory Applications in I.A.No.574 of 2004 and I.A.No.575 of 2004 were filed by the second respondent in the respective Industrial Disputes raised under Section 11 of the Industrial Disputes Act, seeking an order to implead the proposed party as one of the respondents in I.D.No.531 of 2003 and I.D.No.82 of 2004. According to the petitioner, therein, the proposed party is the principal employer of the second respondent herein in the Industrial Disputes and the third respondent herein was only supplying its members, as workers to the proposed party, M/s. Chennai Petroleum Corporation Ltd., Manali, Chennai, according to its need. The salary of the said second respondent in both the writ petitions are being paid by the proposed party, the writ petitioner herein. The second respondent herein further averred that before the date of suspension by the third respondent herein, the second respondents had been interviewed only by the petitioner herein for providing employment as permanent employees. In the aforesaid circumstances, impleading the petitioner herein was just and necessary, accordingly, the petitioner herein was impleaded as second respondent in I.D.No.531 of 2003 and I.D.No.82 of 2004 before the Court below.
4. The petitioner herein, as proposed party filed counter stating that there was no master and servant relationship between the petitioner herein and the second respondents in the writ petitions and further, stated that the petitioner herein was not a principal employer within the meaning of Contract Labour (Regulation and Abolition) Act, 1970 and the third respondent herein is only a licensed contractor, as per the said Act. It is further contended that the petitioner herein is not a necessary party to the proceedings. The petitioner herein further submitted before the Court below that the petitioner is a public sector undertaking, functioning under the authority of Government of India and in so far as the petitioner is concerned, the appropriate Government would be the Central Government. The second respondent in both the writ petition further state that they were terminated from service, based on a criminal complaint given by the petitioner herein before the Manali Police station and charges punishable under Sections 379 and 380 IPC were framed against them, finally they were acquitted and no appeal was preferred by the petitioner herein, hence, the petitioner herein is a necessary party to be impleaded in I.D.No.531 of 2003 and I.D.No.82 of 2004.
5. The Court below, after considering the arguments and the materials available on record, by order, dated 02.08.2005, allowed the petitions, impleading the petitioner as necessary party. Aggrieved by which, these writ petitions have been filed by the writ petitioner herein.
6. Mr.Sanjay Mohan, learned Senior Counsel appearing for the petitioner mainly contended that there was no master and servant relationship between the petitioner and the second respondent herein to raise Industrial Dispute against the petitioner herein. The third respondent, MRL Industrial Co-operative Service Society Ltd., is only a licensed contractor, as per the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, hence requested the Court to allow the writ petitions and set aside the impugned orders, in so far as the petitioner, proposed respondent in the Interlocutory Application before the Court below is concerned.
7. The legal point for determination in these writ petitions is whether the order passed by the Labour Court, impleading the writ petitioner as one of the respondents in the Industrial Disputes raised by the second respondent in both the writ petitions is proper and legally sustainable ?
8. Learned counsel appearing for the petitioner in both the writ petitions further submitted that there is no employer and employee relationship between the petitioner and the second respondent herein. In support of his contention, the following decisions are cited by the learned counsel for the writ petitioner, to enlighten the Court on the legal aspect :
1. Steel Authority of India Ltd., vs National Union Waterfront Workers, 2001 (7) SCC 1
2. Bharath Heavy Electricals Ltd., vs. Anil and Ors., JT 2006 (10) SC 297
3. Britannia Industries Ltd., vs. P.O II Addl L.C., 2001 (2) L.L.N 447
4. Ashok Leyland Ltd., vs. Govt. of T.N., 1990 (1) L.L.N 267
9. In Ashok Leyland Ltd., vs Govt of T.N reported in 1990 (1) L.L.N 267, this Court (K.S.BAKTHAVATSALAM, J), while dealing with Sections 2 (s) and 10 of Industrial Disputes Act, 1947 and Section 21 of Contract Labour (Regulation and Abolition) Act, 1970, held that security service of the petitioner company done therein being a contractor was not a necessary party to be impleaded, so far as petitioner company therein was concerned in the Industrial Dispute. It was further held that when contract system is in vogue, workmen employed by contractor are not workmen of the company. It is seen that a reference was made by the Government with reference to the same in G.O.Ms.No.2746, dated 12.12.2008 as follows :
"Whether the demand that the security guards under contractors are eligible to get the same wages and other benefits enjoyed by the regular security guards of the Ashok Leyland Ltd., is justified; if so to give appropriate directions."
In the aforesaid writ petition, the same learned counsel, Sri.Sanjay Mohan, had appeared for the petitioner therein and undertook before the Court that whatever award passed by the Labour Court against the third respondent would bind the writ petitioner therein and assured that the petitioner company would not wriggle out of the award, so far in providing the benefit of the award, if any, to the workers, who were parties to the award, if occasion warrants under the Act 37 of 1970. It is seen that under the special circumstance, based on the undertaking given by the learned counsel appearing for the writ petitioner, that was decided by this Court. In the instant case, there is no such circumstance, to follow the said earlier decision, as a precedent.
10. In Employers in relation to Punjab National Bank vs. Ghulam Dastagir, reported in 1978-I L.L.J 312, in a reference under the Industrial Disputes Act, Mr.Justice KRISHNA IYER observed as follows :
"The reference assumes what really is the most contested point in the case as to whether Sri Ghulam Dastagir was the driver of the said bank. By definition, a workman means any person employed in any industry and so the basic jurisdictional issue is as to whether the respondent-workman was a person employed by the bank. If he was, his termination was illegal. If he was not, the reference to the industrial dispute was without jurisdiction. The Industrial Tribunal examined the matter at some length and came to the conclusion that the driver was employed by the bank. Consequently, a direction for reinstatement together with back-wages was made."
11. In Bharat Heavy Electricals Ltd., vs Anil and Ors., reported in JT 2006 (10) SC 297, the Hon'ble Supreme Court has held that where respondents are not recruited directly by Appellant-Company and was held that Labour Court would enable appellant either to directly employ respondents or employ them through contractor and accordingly, decided that Assistant Labour Commissioner was right in directing appellant therein to re-employ respondents either directly or through contractor. In the aforesaid decision, the Hon'ble Supreme Court has further held as follows :
"13. ...There is a difference between an individual dispute which is deemed to be a industrial dispute under Section 2-A of the said 1947 Act on one hand and an industrial dispute espoused by the union in terms of Section 2 (1) of the said 1947 Act. An individual dispute espoused which is deemed to be an industrial dispute under Section 2-A concerns discharge, dismissal, retrenchment or termination whereas an industrial dispute under Section 2 (1) covers a wider field. It includes even the question of status. This aspect is very relevant for the purposes of deciding the case. In the case of Radhey Shyam and Anr. vs. State of Haryana and Anr. 1998 II LLJ 1217 it has been held after considering various judgments of the Supreme Court that, Section 2-A contemplates nothing more than to declare an individual dispute to be an industrial dispute. It does not amend the definition of industrial dispute set out in Section 2 (k) of the Industrial Disputes Act, 1947 (which is similar to Section 2 (1) of the said 1947 Act). Section 2-A does not cover every type of dispute between an individual workman and his employer. Section 2-A enables the individual worker to raise an industrial dispute, notwithstanding, that no other workmen or union is a party to the dispute. Section 2-A applies only to disputes relating to discharge, dismissal, retrenchment or termination of service of an individual workman..."
12. As per Section 2 (g) of the Industrial Disputes Act, "employer" means -
(i) in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department;
(ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority."
Similarly, as per Section 2 (s) of the Industrial Disputes Act, the term "workman" is defined as follows :
"workman means any person (including an apprentice) employer in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as to consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person.
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative capacity, or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the officer or by the reason of the powers vested in him, functions mainly of a managerial nature."
13. The second respondent in both the writ petitions, who raised the Industrial Disputes, have categorically stated that the writ petitioner herein is the principal employer and their salary is being paid by the writ petitioner through the third respondent herein. The employees, who are the second respondent in both the writ petitions have specifically stated that they have been interviewed only by the writ petitioners for providing employment as permanent employees. Though learned counsel appearing for the writ petitioner has stated that there is no employer and employee relationship between the petitioner and the second respondent, the aforesaid contention is in dispute in the writ petitions and further argued that only on the complaint given by the officers of the writ petitioner, criminal case was filed against the employees, that ended in acquittal and hence, the writ petitioner is a necessary party in the Industrial Dispute.
14. In the aforesaid circumstances, as there are allegations against the writ petitioner, to decide the main relief sought for in the Industrial Disputes in I.D.No.531 of 2003 and I.D.No.82 of 2004, the petitioner must be given proper opportunity to raise any defence.
15. As per the decision reported in 1990 (1) LLN 267 (referred to above), it is seen that the learned counsel appearing for the petitioner had given an undertaking, as discussed earlier in this order. In the instant case, there is no such undertaking. Therefore, providing opportunity to writ the petitioner, a Government of India undertaking would be proper, to meet the ends of justice, instead of an undertaking, being given by the learned counsel for the petitioner, as that of the earlier case, that even in the absence of the writ petitioner, being a party, the Company would abide by the order, if any to be passed by the Court below.
16. In Britannia Industries Ltd., vs. P.O. II Addl. L.C., reported in 2001 (2) L.L.N 447, this Court (P.D.DINAKARAN, J), held that a Co-operative Society, registered under the Co-operative Societies Act, running a canteen, is a separate entity in the eye of law, under rule 70 (6) of the Tamil Nadu Factories Rules, 1958 and accordingly, the writ petition filed by Britannia Industries Ltd., was partly allowed. The aforesaid decision is not applicable to the facts and circumstances of the case, since the third respondent therein was only a Co-operative canteen and the Britannia Industries Ltd., was not held as principal employer.
17. In the instant case, there are prima facie materials to show that the writ petitioner might be the principal employer, as contended by the second respondent in both the writ petitions, hence, without prejudice to the claim of both the parties, I am of the view that the Court below has rightly decided to implead the petitioner herein as one of the respondents. In fact, impleading the petitioner is an opportunity provided to the writ petitioner to raise any defence available, before the first respondent, according to law. Since the matter is pending before the Court below, without prejudice to the claim and the plea of both the parties before the first respondent, I hold that there is no error or infirmity in the impugned order, so as to warrant any interference of this Court in these writ petitions and accordingly, these writ petitions are liable to be dismissed.
18. In the result, both the writ petitions are dismissed. Since the Industrial Disputes in I.D.No.531 of 2003 and I.D.No.82 of 2004 are pending for a long time, the Court below is directed to dispose the same, according to law, uninfluenced by the findings, if any by this Court in these writ petitions, within a period of six months from the date of receipt of a copy of this order, without seeking further extension of time. However, there is no order as to costs.
12.04.2011 Index : Yes Internet : Yes tsvn S. TAMILVANAN,J.
tsvn To The Presiding Officer Principal Labour Court Chennai 600 104.
Pre-Delivery Common order in W.P. Nos.29755 and 29756 of 2005 12-04-2011