Orissa High Court
Prafulla Kumar Swain And Others. vs Indian Oil Corporation Ltd. And Others on 18 October, 2016
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.12835 of 2016
In the matter of application under Section 226 and 227 of the
Constitution of India.
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Prafulla Kumar Swain and Others.
...... Petitioners.
- Versus-
Indian Oil Corporation Ltd. and Others.
...... Opposite Parties.
Counsel for Petitioners : M/s. Debendra Mohanta, Y. Dalei.
Counsel for Opp.Parties : Mr. Surya Kanta Padhi, Sr. Advocate,
M/s. Debaraj Mohanty, A. Mishra, B.P.
Panda and D. Behera (for O.P.1 & 2)
M/s. Akshaya Kumar Pandey, D. N.
Mishra and P.K. Samal (for O.P.4)
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 18.10.2016
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S. N. Prasad, J.The petitioners who are workers working as contract labourers having been engaged by opposite party no.4 have preferred this writ petition for issuance of direction upon the opposite parties to allow them to continue for the identified job as per annexure-3 and regularize the petitioners. 2
2. The fact of the case of the petitioners in short is that pursuant to the work order issued in favour of opposite party no.4 by opposite party no.1 the petitioners have been engaged as contractors workers in pursuance to the notice inviting tender as contained in Annexure-A/1 annexed to the counter affidavit filed on behalf of opposite party no.1 and the said contract was valid up to 31st July, 2016 but in the midst of subsistence period of terms of the contract they have been disengaged which compelled them to prefer this writ petition seeking direction to provide them identified job as per Annexure-3 which is a Memorandum of Settlement arrived at under Section 12(3) of the Industrial Disputes Act, 1947 entered in between opposite party no.4 and the representative of the workmen. But according to the petitioners the opposite party no.1 is not following the terms and conditions of the Memorandum of Settlement which is contrary to the provision of Section 18 of the Industrial Disputes Act, hence this writ petition.
3. Counter affidavit has been filed on behalf of opposite party no.1 and referring to the said affidavit learned Sr. Counsel representing Indian Oil Corporation Ltd. has submitted that the petitioners are not the workers engaged by opposite party nos.1 or 2, rather they have been engaged by opposite party no.4 in whose favour work order was issued as would be evident from Annexure-A/1 annexed to the counter affidavit wherein as per the terms and conditions of the contract the contractor has to engage 21 nos. of contract workers on regular basis for round the clock operation to perform the scheduled jobs as described in tender schedule.
3
It has been stated that as per the Letter of Intent issued in favour of opposite party no.4 on 16.07.2014 the contract will be effective for a period of two years with a renewal option for one year based on the performance and IOC's discretion. Clause 2 of the work order contains a condition that opposite party no.4 must deploy required manpower to perform the work without any interruptions. As per clause 5 of the work order, the IOC may terminate the contract from the locations at any point of time without any prior notice in case it is observed that the work performance is not in line with the locations expectations and interest.
On 30th August, 2014 an agreement was executed in between opposite party no.1 and 4 which contains a condition under clause no.7 that the contractor will employ competent and efficient workers to ensure that the work is done correctly. Any loss caused on account of contractor's workers negligence or any sub-agents including road transport employed by him, theft, default or any commission or conduct shall be made good by the contractor and in pursuance of the tender and after the work having been allotted in favour of opposite party no.4 the contract labourers were engaged by opposite party no.4 for execution of the work and at present the contract period of opposite party no.4 has already been over since the contract was valid till 31 st July, 2016.
4. After having heard learned counsels for the parties and after going through the record and after appreciating the rival submissions of learned counsels representing the parties, the prayer sought for by the petitioners has been disputed by opposite party no.1 by stating that the 4 petitioners have been engaged by opposite party no.4 in pursuance to the contract, validity of which has already been expired on 31st July, 2016.
It further transpires from the Memorandum of Settlement U/s.12(3) of the Industrial Disputes Act, i.e. Annexure-3 to the writ petition which is the sole basis for the petitioners to file this writ petition, that the said agreement has been entered into in between the contractor and the representative of the workmen before the Regional Labour Commissioner (Central), Bhubaneswar which is a bipartite settlement and opposite party no.1 was never been a party to the same, thus the claim of the petitioners have been seriously disputed by opposite party no.1 regarding the relationship of employer and employee, hence we sitting under Article 226 of the Constitution of India refrain ourselves from adjudicating the issue raised by the petitioners in this writ petition on account of disputed question of fact, hence we are not inclined to entertain this writ petition. Accordingly writ petition is dismissed.
However, the petitioners are at liberty to raise their dispute before the appropriate forum, if they are so advised.
With this observation, the writ petition is disposed of. ......................... .........................
S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 18th October, 2016/mkp