Karnataka High Court
Workmen Of Bruhat Bengaluru Mahanagara ... vs Bruhut Bengaluru Mahanagara Palike on 11 July, 2024
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NC: 2024:KHC:26849
WP No. 9523 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.9523 OF 2023 (L-TER)
BETWEEN:
WORKMEN OF BRUHAT BENGALURU
MAHANAGARA PALIKE
REPRESENTED BY
BBMP COMPUTER OPERATORS AND
IT ENGINEERS UNION
(A REGISTERED TRADE UNION
REGISTERED UNDER THE TRADE UNION ACT, 1926),
(REPRESENTED BY ITS GENERAL SECRETARY),
HAVING ITS OFFICE AT
SURI BHAVAN, NO.40/5,
2ND B MAIN, 16TH CROSS,
SAMPANGI RAMA NAGAR,
BENGALURU-560 027.
...PETITIONER
Digitally signed
by SUMITRA
(BY SRI L. MURALIDHAR PESHWA, ADVOCATE)
SHERIGAR
Location: HIGH
COURT OF AND:
KARNATAKA
1. BRUHUT BENGALURU MAHANAGARA PALIKE
(REPRESENTED BY ITS CHIEF COMMISSIONER),
N.R. SQUARE,
BENGALURU-560 002.
2. M/S. KARNATAKA STATE ELECTRONICS
DEVELOPMENT CORPORATION LIMITED (KEONICS)
(A KARNATAKA GOVERNMENT UNDERTAKING)
A COMPANY REGISTERED UNDER THE
COMPANY'S ACT, 1956,
(REPRESENTED BY ITS MANAGING DIRECTOR)
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WP No. 9523 of 2023
TTMC, 'A' BLOCK, BMTC,
SHANTINAGAR,
BENGALURU-560 027.
3. RMS TECHNOLOGIES PVT. LTD.,
(A COMPANY REGISTERED UNDER THE COMPANY'S
ACT, 1956)
# 52/A, BYRAWA ARCADE,
11TH CROSS,
RAMAKRISHNAPPA LAYOUT,
MALAGALA NEW RING ROAD,
NAGARBHAVI,
BENGALURU-560 091.
...RESPONDENTS
(BY SRI SANJEEV B. L., ADV. FOR R1;
SRI NISHANTH A.V., ADV. FOR R2;
R3 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING FOR A WRIT OF
MANDAMUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION, DECLARING THAT THE COMMUNICATION, DATED
24.03.2023, BEARING NO.BBMP/SYS/PR/55/2015-16/CALL-3,
IN ANNEXURE-E, ISSUED BY THE FIRST RESPONDENT AS
ILLEGAL, UNFAIR, UNJUST AND ULTRAVIRES OF THE
CONSTITUTION OF INDIA AND AGAINST THE ARTICLE 14, 16,
21 AND 23 UNDER PART III OF THE CONSTITUTION AND
ARTICLE 38, 39, 43 AND 43 A UNDER PART IV OF THE
CONSTITUTION AND ALSO VIOLATIVE OF THE
CONSTITUTIONAL MORALITY; A WRIT OF MANDAMUS OR ANY
OTHER APPROPRIATE WRIT, ORDER OR DIRECTION,
DIRECTING THE FIRST RESPONDENT, THE BBMP TO ABSORB
THE PETITIONER WORKMEN AT THE POST WHERE THEY ARE
DISCHARGING THEIR DUTIES AND GRANT THEM ALL
CONSEQUENTIAL BENEFITS CONSEQUENT UPON AFTER
ABSORBING THEM INCLUDING FINANCIAL BENEFITS TO
WHICH THEY ARE ENTITLED TO IN LAW AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY (AT KALABURAGI BENCH THROUGH VIDEO
CONFERENCING), THE COURT MADE THE FOLLOWING:
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WP No. 9523 of 2023
ORDER
Petitioner is seeking the following reliefs:
"(a) A writ of mandamus or any other appropriate writ, order or direction, declaring that the communication, dated 24.03.2023, bearing No.BBMP/SYS/PR/55/2015-16/Call-3, in Annexure-E, issued by the First Respondent as illegal, unfair, unjust and ultravires of the constitution of India and against the Article 14, 16, 21 and 23 under Part III of the constitution and Article 38, 39, 43 and 43 a under Part IV of the constitution and also violative of the Constitutional morality;
(b) A writ of mandamus or any other appropriate writ, order or direction, directing the first respondent, the BBMP to absorb the Petitioner workmen at the post where they are discharging their duties and grant them all consequential benefits consequent upon after absorbing them including financial benefits to which they are entitled to in law; and
(c) Such other writ, direction or order as this Hon'ble Court may deem just and expedient in the circumstances of the case including award of costs."
2. Petitioner-Union is a registered trade union, registered under Indian Trade Union Act 1926, -4- NC: 2024:KHC:26849 WP No. 9523 of 2023 (hereinafter referred to as the 'Union' for the sake of brevity).
3. Brief facts leading to the filing of this writ petition is that, responding No.1 with regard to human resources required for its IT Department, invited tender through e-procurement and issued work order for outsourcing of the employees for IT department for a period of two years from 23.10.2017, and an agreement was entered into between the respondent No.1-BBMP and M/s. RMS Technologies Pvt. Ltd.-respondent No.3. As the work order was delayed for technical reasons, the work order with RMS Technologies was extended till finalization of the future tender. Respondent No.1, after the expiry of the period of contract with respondent No.3, decided to get outsourced IT personnel from M/s. KEONICS- respondent No.2 by letter dated 24.03.2023. The said information was provided to the RMS Technologies to provide service till 31.03.2023 and an order was passed on 20.03.2023 to KEONICS - respondent No.2 to provide -5- NC: 2024:KHC:26849 WP No. 9523 of 2023 manpower services of IT personnel and called upon them to execute an agreement, accordingly, on 23.03.2023 respondent No.2 executed an agreement with respondent No.1. Subsequently, respondent No.3 issued a letter requesting to continue their service till 30.04.2023 and the time was extended to 25.04.2023 and they were informed that their services would come to an end on that day and within that time they had to complete all the processing works. In light of the extension of time given to the respondent No.3 till 25.04.2023, respondent No.1 informed respondent No.2 to provide the services from 26.04.2023 and the contract of respondent No.1 with M/s. RMS Technology-respondent No.3 came to an end on 25.04.2023 and with that of the services of the outsourced employees provided by respondent No.3. The petitioner claims that the BBMP had engaged about 40 workmen, who are qualified in information technology, to work at their IT department. Many of these workmen are working for more than 15 years.
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4. It is submitted that the workmen who are engaged to work in the IT department of the BBMP are given various designation like Data Center Manager, Senior IT Coordinator, Junior IT Coordinator, Team Leaders, Senior Level GIS Engineers, Server/Data Based Administrator, Network Engineers, Senior Software Engineers/Application Support Engineer, Junior Software Engineers, System and Network Administrators. It is stated that the petitioner workmen are also well qualified and experienced. Taking the advantage of the unemployment situations, the BBMP has employed the workmen by falsely referring them as outsourced employees, which is nothing but another name for bonded labour. It is stated that respondent No.1 has been exploiting these workmen with the view to deprive them permanency, pay scales, seniority, promotions, revisions of pay and various other benefits which are available to other regular workmen of BBMP. It is stated that the method adopted by the BBMP to refer these workmen as outsourced employees and paying the wages through -7- NC: 2024:KHC:26849 WP No. 9523 of 2023 some outsourced agency is also against the Contract Labour (Regulation and Abolition) Act, 1972. The BBMP do not have any permission to engage workmen through contractors as per the Contract Labour (Regulation and Abolition) Act, 1972. It is the grievance of the petitioner- Union that the BBMP-respondent No.1 has addressed a communication to respondent No.3 stating that in future they will engage the human resources supplied through respondent No.2-KEONICS and in the said communication, the BBMP has instructed respondent No.3 to discontinue the services of human resources in the IT section, as the petitioner-workmen were given to understand that as per the agreement reached between BBMP and KEONICS, the wages to be provided to the employee should be substantially reduced, and this action of respondent No.2 is totally illegal, unfair and unjust with utter disregard to its social responsibility and also to victimize the workmen, who are members of the petitioner-Union.
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5. The petitioner is aggrieved by the communication issued by respondent No.1, which has seriously shattered the livelihood of the workmen, many of whom have been toiling for respondent No.1 for the past more than 15 years. The petitioner's contention is that the action on part of the respondent No.1 is illegal and unconstitutional and thus, approached this Court under Article 226.
6. Respondent No.1 filed statement of objections, inter alia, denying the petition averments and contended that the respondent has no permanent employees available in its IT division, agencies are selected through tender and through such agency, IT human resources service are procured on outsourcing basis and the payment in this regard are made to outsource employees through the agencies, who supply them to this respondent and in this regard, respondent No.1 enters into agreement with the agency/contractors and get the required IT human resources services as per the requirement. That -9- NC: 2024:KHC:26849 WP No. 9523 of 2023 there is no agreement between the workers supplied by the contractors and this respondent and nor this respondent has issued any work orders to those workers nor this respondent has paid any salary/wages to them and the terms are totally agreed with the agency as per the agreement entered between them. It is stated that there is no relationship of the employer and employee between the petitioner and this respondent and the petitioner is not entitled for any relief, much less, the reliefs sought for in this writ petition.
7. Heard Sri L. Muralidhar Peshwa, learned counsel for the petitioner and Sri B.L. Sanjeev, learned counsel for the respondent No.1 and Sri Nishanth A.V., learned counsel for respondent No.2. Respondent No.3 though served, has chosen to remain absent.
8. Material on record would indicate that service contract agreement is been entered pursuant to the tender notification issued between respondent No.1 and M/s. RMS Technologies Pvt. Ltd. - respondent No.3, the contract
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NC: 2024:KHC:26849 WP No. 9523 of 2023 agreement was valid for the period of two years extendable depending upon the performance of the service provider and mutual consent by both the parties. The terms and conditions as per the service contract agreement is as per condition Nos.13 and 33, which read as under:
"13. The staff of SP shall not have any claim for continuation in BBMP and SP shall be liable to comply with all the requirement of laws. The BBMP will not any residential or transport facility.
33. This appointment though agency shall not be construed as an appointment in any regular scale of pay or shall not be intended to give rise to any claims whatsoever as to appointment on permanent basis etc., in BBMP."
9. As per condition Nos.13 and 33 of the agreement, the work was supplied by the contractors and the workmen cannot claim continuation of their service or for making them permanent at this respondent.
10. Condition No.33 provides that the appointment through agency shall not be construed as an appointment
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NC: 2024:KHC:26849 WP No. 9523 of 2023 in any regular scale of pay or shall not be intended to give rise to any claim whatsoever as to appointment on permanent basis etc., in BBMP, as could be seen from condition Nos.13 and 33, contractor of respondent No.1 had agreed to supply qualified and experienced workmen for working in the IT division of this respondent and as per condition Nos.10 to 13 of the agreement, the contractors have supplied the workers with IT related qualification and experience and as per the said conditions of the agreement, the workers supplied by the contractors cannot claim continuation of their service or for making them permanent at this respondent. The petitioners- workmen are not appointed as permanent IT personnel as the permanent IT personnel are not available in the IT division as per the agreement entered into between respondent No.1 and such contractors depute/provide workers as per the requirement of respondent No.1, such as, technical works, election works and training works. Further, for the works done by those workers the payments have been made by the contractors who
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NC: 2024:KHC:26849 WP No. 9523 of 2023 provide/depute them and clause Nos.19 and 26 of the agreement reads as under:
"19. The personnel are employees of SP and will be subject to their overall control and superintendence and they are not subjected to any rules, regulations and service conditions of the BBMP.
26. Advisor IT shall have the right to instruct in writing to the SP to remove any person engaged for rendering services on account of misconduct or not found co-operative or unfit otherwise."
11. The petitioner has not produced any material to show that there was a relationship of the employer and employee between the petitioner and respondent No.1. The contract period was for a period of two years with the contractors, the services provided by the contractors have been closed and as per the rules, respondent No.1 has no control whatsoever over the personnel/petitioners outsourced through contractor and hence, the question of removing the petitioners from the services as alleged would not arise. After the expiry of the contract, respondent No.1 has entered into an agreement with KEONICS-respondent No.2 for providing IT personnel
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NC: 2024:KHC:26849 WP No. 9523 of 2023 required and since the petitioners are outsourced employees of respondent No.3, it is the responsibility of the said agency to take steps for their deputation and respondent No.1 is no way concerned with and condition No.19 of the agreement is clear to that aspect. The petitioners are claiming to regularize them when there was no relationship of employer and employee between the petitioner and respondent No.1, the petitioners very well knowing fully have worked with the contractors for the services to be provided to BBMP, the question of claiming regularization would not arise notwithstanding the long engagement of workmen in law and the law is well settled that the principles of service law that there cannot be a back entry of service into service of the State or State undertaking. At no point of time, the petitioner was appointed by respondent No.1 and the claim made by the petitioner is highly unsustainable and liable to be dismissed.
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12. Accordingly, the petition is dismissed as devoid of merits reserving liberty to the workers of petitioner-union to approach KEONICS - respondent No.2 by following proper procedure, if so, advised. On such request been made by the petitioner, the KEONICS to consider their appointment if it is permitted in accordance with law.
In the light of the dismissal of the writ petition, pending interlocutory applications, if any, would not survive for consideration.
Sd/-
JUDGE SWK List No.: 19 Sl No.: 2 CT: VD