Karnataka High Court
Mpm Workers Union (Regd.) Bhadravati vs The Management Of on 23 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.45931/2011(L-RES)
BETWEEN:
MPM WORKERS UNION (REGD.),
BHADRAVATI, REPRESENTED
BY ITS PRESIDENT,
C/O. VISL EMPLOYEES ASSOCIATION,
NO.1 TRAINEES BLOCK,
NEW TOWN, BHADRAVATI,
SHIMOGA DISTRICT. ... PETITIONER
(BY SRI. SUBBA RAO, SR. COUNSEL, FOR
SRI. SATHEESH K.N. ADVOCATE FOR
SUBBA RAO & CO (NOC))
AND:
1. THE MANAGEMENT OF
MYSORE PAPER MILLS LTD.,
PAPER TOWN, BHADRAVATI,
SHIMOGA DISTRICT.
2. THE STATE OF KARNATAKA,
DEPARTMENT OF INDUSTRIES AND
COMMERCE, REPRESENTED BY
ITS PRINCIPAL SECRETARY,
NO. 107, 1ST FLOOR,
VIKAS SOUDHA,
DR. AMBEDKAR VEEDHI,
BANGALORE - 01.
... RESPONDENTS
(BY SRI. M.R.C RAVI, ADVOCATE FOR R1
SRI. KIRAN KUMAR, HCGP FOR R2)
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THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE COMMON AWARD DT 3.3.10 PASSED BY THE LEARNED
PRESIDING OFFICER, LABOUR COURT, MANGALORE IN ID NO.
27/99 AND ID NO. 25/11 VIDE ANNX-A AND TO DIRECT THE
RESPONDENT TO CONFIRM THE WORKMEN INVOLVED IN BOTH
THE CASES IN THEIR SERVICE GRANT THEM APPROPRIATE
SCALE OF PAY, ALLOWANCES AND ALL OTHER BENEFITS AS
APPLICABLE TO THE PERMANENT WORKMEN IN THE SEMI
SKILLED GRADE AS PER THE WAGE SETLEMENTS FROM TIME TO
TIME AND PAY ALL THE CONSEQUENTITAL MONETARY BENEFITS
AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
04/12/2020 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In the instant petition, petitioners-union has prayed for the following reliefs:
"to issue a Writ of Certiorari or any other appropriate Writ or Order or Direction to set aside the Common Award dated 03.03.2010 passed by the Learned Presiding Officer, Labour Court, Mangalore in I.D.R.No.27/1999 and I.D.R.No.25/2001 as produced at Annexure-A and to direct the Respondent to confirm the workmen involved in both the cases in their service, grant them appropriate scale of pay, allowances and all other benefits as applicable to the permanent workmen in the semi skilled grade as per the wage settlements from time to time and pay all the consequential monetary benefits, and/or to pass any other order/s as deemed fit in the facts and circumstances of the case in the interest of justice and equity.3
2. Petitioners-union/MPM Workers Union (Regd.), Bhadravati were temporarily appointed with the respondent- management of the Mysore Paper Mills Ltd. Bhadravati (Hereinafter referred to as "MPM" for short) during the period from 1989 to 1997 on various dates as is evident from the consolidated documents furnished by the petitioner-union. Abruptly, respondent - MPM changed the nature of employment of the workers like appointing one of the employee/worker as a contractor and other workers to work under the contractor as is evident from Annexure A44 which relates to appointment of contractors viz., Sri Basavarajappa, Sri Thippeshappa, Sri T H Shanmukha, Sri G A Shivashankar, Sri M B Dodappa Sri Ravi and Sri K N Chandrashekhara. All these contractors have been shown as both contractor as well as employee. The attendance register is maintained by the contractor and its title reveals as Mysore paper Mills Limited, Bhadravathi (hereinafter referred to as 'MPM' for short) vide Annexures 'A18 to A32'. Consequently, work order was issued as is evident from Annexure A46 addressed to Sri Thippeshappa T - contractor cum employee dated 11.01.99. Such arrangement of appointing one of the employee on contract basis so also other temporary employees to work under contractor is to 4 deprive regular services on par with the regular employees of respondent-MPM. Faced with these dates and events, a reference was made on 13.08.1999. There are two references i.e. one dated 13.08.1999 and the other 15.05.2001. References were dismissed in IDR No.27/99 and 25/01. Thus, petitioners-union questioned the validity of the order dated 03.03.2010 (Annexure - A) passed in IDR No.27/1999 and IDR No.25/2001.
3. Sri Subba Rao, learned Senior Counsel appearing on behalf of the petitioners-union submitted that there was no provision for appointing the petitioners-union through contractor on contract basis while appointing one of the employee as a contractor. Such arrangement continued up to 1999. Thereafter, respondent resorted to regular contract system. Regular contract system was introduced by the respondent only as and when references were ordered on 13.08.1999 and 15.05.2001. Further, learned Senior Counsel submitted that principle of Unfair Trade Practice is attracted. He quoted Section 2(ra) deals with 'unfair labour practice' means any of the practices specified with the Fifth Schedule and Item No.10 of Fifth Schedule relates to employ workman as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status 5 and privileges of permanent workmen. In support of the petitioners-union contention he relied on the following decisions:
Sl.No. PARTICULARS
UNFAIR LABOUR PRACTICE
1. The Workmen of the Food Corporation of India vs M/s Food Corporation of India reported in AIR 1985 (SC) 670 (Para Nos.9, 13, 15, 18)
2. Durgapur Casual Workers Union And Others vs Food Corporation of India and Others reported in (2015)5 SCC 786 (Para Nos. 8,11,13,14, 20 to 24) UNFAIR LABOUR PRACTICE/REGULARISATION
3. Oil And Natural Gas Corporation Limited vs Petroleum Coal Labour Union And Others reported in 2015(6) SCC 494 (Para Nos.14,16 to 28, 30, 31, 35 and 43) REGULARISATION
4. Mangalore University vs Smt Koshas Vegus in Writ Appeal Nos.2661-2681/2000 (Para Nos.5 and 13)
5. Shankar Mukherjee and Others vs Union of India reported in AIR 1990 (SC) 532 (Para Nos. 3,6 and 7)
6. Hussainbhai vs The Alath Factory Tezhilali Union and Others reported in AIR 1978 (SC) 1410 (Para Nos.5, 6 and 7) UNFAIR LABOUR PRACTICE/REGULARISATION
7. G.S.R.T.C. vs Workmen of S.T. Corporation reported in 1999(1) Laws 22(GJH) (Para Nos.19 to 25) 6
8. The Management of National Aerospace Laboratories vs Engineering and General Workers Union reported in 2015(1) Laws (Kar) 17 (Para Nos.22 to 30)
9. H.D. Singh vs Reserve Bank of India and Others reported in 1985(4)SCC 201 (Para Nos.13 and 14)
4. It was also contended that SECRETARY, STATE OF KARNATAKA AND OTHERS VS UMADEVI (3) AND OTHERS reported in 2006 (4) SCC 1 has no assistance in respect of workers who are governed by the Industrial Disputes Act, 1947. The labour court has not appreciated the aforementioned issues while rejecting references.
5. Per contra, learned counsel for the respondent/management has not disputed that the petitioners- union were appointed initially on temporary basis. Such arrangement was made during the period from 1989 to 1997. Thereafter, petitioners-union were appointed through contractor who was one of the employee and he was discharging both as a contractor and an employee. Such arrangement continued till 1999 and thereafter MPM resorted to regular contract system in appointing contractor under whom petitioner were working. In view of the aforementioned arrangement temporary employees of MPM seized to be employees of MPM.
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6. Learned counsel for the respondent further contended that the petitioners-union have entered into various settlements with the contractor as is evident from consolidated documents filed on 02.12.2020 vide Annexures R1 to R5 dated 03.02.1998, 15.09.2000, 04.05.2006 and 06.06.2008. Learned counsel for the respondent submitted that the petitioners-union have not questioned the validity of arrangement of temporary employees through contractors and they have not raised dispute. As long as they are not employees of the respondent-MPM, there is no infirmity in the award passed by the Labour Court. In support of the respondent's contention, he cited the following decisions:
(i) STEEL AUTHORITY OF INDIA VS UNION OF AND OTHERS reported in 2006(12) SCC 233 para 28 citation on 29-
8-2020.
(ii) NAND KUMAR VS STATE OF BIHAR AND OTHERS reported in (2014)5 SCC 300 (sub para 45) (UMADEVI Para 25) citation on 2-12-2020
(iii) STATE OF HIMACHAL PRADESH AND ANOTHER VS RAVINDER SINGH reported in (2008) 12 SCC 286 ( Para 10 and
11)
7. Learned counsel for the respondent in the consolidated statement and documents filed on 02.12.2000 pointed out at paragraphs 25, 26 and 27 that the respondents had provided non cash support to keep the company away from losses at the behest 8 of the Government of Karnataka for the years 2007-08, 2008-09 and 2009-10, in the year 2010-11 there were huge loss to MPM which had resulted in sick company in the month of July 2012 under the provisions of Sick Industrial (Special Provisions) Act, 1985 and have evolved schemes called 'Voluntary Retirement Scheme' (VRS) for permanent employees, 'Voluntary Separation Scheme' (VSS) for contract employees in the year 2017. Under VSS 1028 employees have opted including the petitioners-union herein. Petitioners-union have accepted benefit under VSS subject to result of the present petition. Petitioners-union are not entitled on parity with the regular employees of MPM. On this ground, learned counsel for the respondent relied on STATE OF HARYANA AND OTHERS & ORS. VS CHARANJIT SINGH AND OTHERS reported in 2006 (9) SCC 321.
8. Learned Senior Counsel for the petitioners-union in reply submitted that consolidated documents filed by the respondent vide Annexures - R1 to R5 vide letter dated 08.02.1998, representation dated 15.09.2000, settlement of revision of wages and other allowances dated 04.05.2006, settlement dated 06.06.2008, settlement dated 07.07.2010 and statement of infusion funds/incentives/concessions from the 9 Government during the period 2004-15 respectively, except letter dated 03.02.1998 rest of the events are all subsequent to the references dated 13.08.1999 and 15.05.2001. Therefore, the aforesaid documents do not assist the respondents.
9. Heard the learned counsel for the parties.
10. Questions for consideration in the present petition is whether:
(i) rejection of references in IDR No.27/1999 and IDR No.25/2001 could be interfered or not?
(ii) petitioner-union could be declared as employees of the respondent/MPM or not?
(iii) What relief the petitioner-union are entitled to?
11. It is undisputed that petitioners-union were all appointed on temporary basis with the MPM during the period from 1989 to 1997. Thereafter, MPM converted the nature of appointment of the petitioners-union and others as temporary employees of MPM to that of contract employees while appointing one of the temporary employee as a contractor cum contract employee. In other words, one of the employee would be acting as both contractor -cum- employee. Such arrangement continued 10 up to year 1999. Thereafter, regular contract system was resorted in accordance with law. Faced with these undisputed facts, petitioners-union raised dispute. Consequently, reference was ordered on 13.08.1999 and 15.05.2001. Extract of the references are reproduced hereunder:
The Government of Karnataka has made this Reference in respect of the workers consisting of 73 persons by its Order No. PÁE 941 PÁPÉÊ99 dated 13.08.1999 for adjudication by this Court.
1) PÉÊUÁjPÁ «ªÁzÀU¼ À À C¢ü¤AiÀĪÀÄ 1947 gÀ°è ªÁåSÁ夹zÀAvÉ CfðzÁgÀgÀÄ PÁ«ÄðPÀgÃÉ ?
2) CfðzÁgÀgÀÄ PÉ®¸À ªÀiÁqÀÄwÛzÀÝ: PÉ®¸À ªÀiÁqÀÄwÛgÀĪÀ£AÉ zÀÄ D¥Á¢¸À¯ÁVgÀĪÀ ªÀUð À PÉÊUÁjPÁ ¸ÁÜ¥£ À É CxÀªÁ ªÀÄAqÀ½ CxÀªÁ GzÀåªÀĪÀÅ PÉÊUÁjPÉAiÉÄ?
3) DqÀ½vÀ £ÁåAiÀÄ ªÀÄAqÀ½ C¢ü¤AiÀĪÀÄzÀ ¥ÀPæ g À t À 19 gÀAvÉ CxÀªÁ ¸ÀA«zsÁ£ÀzÀ 226£Éà C£ÀÄZÉÒÃzÀ CrAiÀÄ°è CfðzÁgÀ£ÄÀ ¸ÀA«zsÁ£ÁvÀäPÀ ¥ÀjºÁgÀ ¥ÀqAÉ iÀÄ®Ä CºÀð£É CxÀªÁ E®èªÃÉ ?
4) JA.¦.JA. ¨sz À ÁæªwÀ DqÀ½vÀªU À ð
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¢£ÀUÀÆ° PÁ«ÄðPÀg£ À ÀÄß (¥ÀnÖ ®UÀw¹ Û zÉ) CªÀgÀÄ PÉ®¸ÀPÉÌ ¸ÉÃjzÀ ¢£ÁAPÀ¢AzÀ
SÁAiÀÄAUÉƽ¸ÀzÃÉ EgÀĪÀÅzÀÄ ªÀÄvÀÄÛ SÁAiÀÄA PÁ«ÄðPÀjUÉ C£Àé¬Ä¸ÀĪÀ ªÉÃvÀ£À ªÀÄvÀÄÛ EvÀgÃÉ ¸Ë®¨sÀåU¼ À À£ÀÄß ¤ÃrgÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävª À ÃÉ ?
5) ºÁV®è¢zÀÝ ¥ÀPz Àë ° À è ¸ÀzjÀ PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?
2. Similarly, the Government of Karnataka has made this Reference by its Order No. 419 2001 dated 15.05.2001 in respect of the working by Sri. S. Raghunatha Rao Jadav & other 46 workmen/ by raising following points of dispute for adjudication by this court.
1) CzsÀåPÀg
ë ÀÄ, ªÉÄʸÀÆgÀÄ ¥ÉÃ¥Àgï «Ä¯ïì °. ªÀPð À gïì AiÀÄƤAiÀÄ£ï,
§£À±AÀ PÀj ¤®AiÀÄ, 2£Éà ªÀĺÀr, ºÁ®¥Àà ¸ÀPð À ¯ï, ©:ºÉZï.gÉÆÃqï.
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À ÁæªwÀ , EªÀgÀÄ J£ï. gÁªÀÄ£ÁxÀgÁªï eÁzÀªï ªÀÄvÀÄÛ EvÀgÉ 46 d£À (¥ÀnÖ ®UÀw¹ Û zÉ) ¢£ÀUÀÆ° £ËPÀgg À ÀÄUÀ¼À ¸ÉêÉAiÀÄ£ÀÄß SÁAiÀÄA ªÀiÁqÀ¨ÃÉ PÉA§ ¨ÉÃrPÉAiÀÄ£ÀÄß DqÀ½vÀªU À ðÀ , ªÉÄ:ªÉÄʸÀÆgÀÄ ¥ÉÃ¥Àgï «Ä¯ïì §zÁæªwÀ , EªÀg° À è JwÛgÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävªÀ ÃÉ ? 11
2) ºÁV®è¢zÀÝ°è ¸Àzj À PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ? Labour Court gave a finding that Issue Nos.1 to 3 in IDR No.27/1999 do not survive for consideration, Issue No.4 in the affirmative, Issue No.1 of IDR No.25/2001 in the negative, Issue No.5 of IDR No.27/1999 and Issue No.2 of IDR No.25/2001 - first party in both the cases is not entitled to for any reliefs. The Labour Court after due examination of records, evidence of witnesses and the decisions cited proceeded to reject both the references in IDR No.27/1999 and IDR No.25/2001.
12. The MPM's action in converting the nature of appointment of the petitioners-union from temporary to that of contract employees through one of the employee as a contractor is unheard in Labour Service Jurisprudence and it is also contrary to the principle of unfair trade practice. At the same time, petitioners-union failed to raise dispute as and when the aforesaid arrangements were made by MPM. Further, MPM proceeded to implement regular contract system like inviting tender and appointing contractor and other process. Consequently, petitioners-union were compelled to work under regular contractor. Thus, there are lapses on the part of MPM in making 12 contract arrangement so also on behalf of petitioners-union in not questioning the aforesaid arrangement of appointing them through contractor and one of the employee as contractor cum employee. Further, under the aforesaid references, one of the reference (issue) is not relating to nullify the conversion of temporary employees of MPM to that of contract employees under a contractor (one of the employee) and regular contractor.
13. The learned Senior counsel for the petitioners-union submitted that MPM has erred in resorting to change the nature of appointment of the petitioners-union in order to deny the service benefits to the temporary employees like wages, absorption etc., on par with regular employee. Such, arrangement is in the absence of source of power to the MPM and source of power was not pointed out by MPM. No doubt in the year 1999, MPM rectified the regular contract system. Such rectification was carried out after noticing that earlier contract system was a defective one. Such, regular contract system was implemented only as and when petitioners-union raised dispute. Therefore, the aforesaid arrangement amounts to unfair trade practice. On this point he 13 has quoted Section 2(ra) read with Fifth Schedule of The Industrial Disputes Act, 1947 (Item No.10) reads as under:
2[(ra) "unfair labour practice" means any of the practices specified in the Fifth Schedule;
2(ra)(10). To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.
14. Further, learned Senior Counsel relied on decision in Mangalore University cited supra and the relevant portion (Paras.6, 13 to 16) reads as under:
6. Feeling aggrieved, the University has filed W.A.Nos.2661-2681/2000 and the State Government has filed W.A.Nos. 4357 & 4479-98/2000. The Appellants have reiterated the contentions urged before the learned Single Judge. On the contentions urged, two questions arise for considerations:
(i) Whether respondents-1 to 21 are not entitled to absorption/regularisation, as they are not employees of the University ?
(ii) At all events, whether those who do not possess the minimum qualification prescribed for the posts of Sweepers (5th Standard) and those who are overaged, are not entitled to any relief?
13. The question for consideration therefore is whether the contract relating to cleaning/sweeping, awarded by the University to the First Respondent is merely a camouflage to avoid payment of wages in accordance with the pay-scales and extension of other employment 14 benefits and service conditions to the Sweepers or whether such contract is a bonafide and genuine arrangements by the University. It is no doubt true that this being question of fact, normally, the question will have to be decided by a fact finding Tribunal. But where the employer is a statutory Authority and where there is no serious dispute in regard to the facts which are easily ascertainable from the pleadings (averments which are affirmed by affidavit) and the undisputed documents filed in the writ proceedings, the question can be examined and decided in a proceedings under Article 226. It is thus clear that the Learned Single Judge was justified in examining and deciding the question as to whether the Labour Supply contract between the employer and the Contractor is a bonafide and genuine contract or a camouflage to avoid extending regular payscales and other employment benefits to the contract workers, on the basis of the pleadings affirmed by affidavits and documents filed in the writ petition.
14. The contract relates to sweeping and cleaning of the premises of the University. It is admitted by the University in its statement of objections that the Statute regulating Cadre and Recruitment has provided for 7 posts of Sweepers. It is also admitted that the number of posts have not been increased for several years, inspite of the University growing in size and the work load of sweeping and cleaning having increased manifold. Instead of increasing the number of posts of Sweepers, the University has chosen to restrict the sanctioned posts to 7 and get the additional work of sweeping and cleaning done through a Contractor.
15. The following mode of employment by the University is evident from the work orders/agreements entered by the University 15 with the contractor for providing labourer for sweeping/cleaning.
a) 21 Sweepers are engaged through a
Contractor who is also one among the 21
sweepers, to do the work of cleaning and
sweeping.
b) The contractor is required to provide 21
labourers daily during the period of contract. The contractor is not required to provide any cleaning material or equipment. The cleaning equipment as also the cleaning material are provided by the University. In other words, the contract is a pure and simple contract for supply of labour and nothing more.
c) All the labourers provided by the Contractor are required to work full time from 8.00am to 4.00pm on all working days except Sundays and General Holidays. The Sweeping and cleaning work is assigned to the 21 labourers including the contractor, by the University and they work as per the instructions and directions of the University issued in the form of Circulars and orders. The entire supervision and control over the work of sweeping and cleaning vests with the University and the Contractor has no role to play either in regard to deployment of the workers or supervising their work or in getting the work done.
d) The 'Contractor' who is also one of the 21 sweepers, is called as the cleaning squad leader/supervisor and not as a Contractor. The University pays a lump-sum of Rs.850/-
per month per worker including the Contractor, through the contractor (Note:
The monthly payment is subsequently increased during the pendency of the writ petitions). In other words, one of the 21 16 Sweepers is described as the contractor only for the purpose of disbursing the fixed wage of Rs.850/- to each of the 21 sweepers.
e) The work of sweeping/cleaning is neither seasonal nor temporary. It is a perennial work and, as admitted by the University itself, is gradually growing year after year.
Though cleaning contracts are awarded yearly, most of the sweepers have remained the same from 1987 (except for a few additions/ changes)
f) Respondents 1 to 21 have always proceeded on the basis that they are employees of the University on monthly wages and have been giving several representations for increasing their wages and for absorption/regularisation.
g) The University maintains a separate attendance register for the cleaning squad.
16. The above factors when taken cumulatively, clearly establish that the process of awarding sweeping/cleaning contract to a 'contractor' (who is one among the 21 sweepers) is nothing but a mere camouflage for facilitating the hiring of sweepers on paltry fixed monthly wages, thereby avoiding payment of normal wages (which is several times more that the fixed wages) and giving other service benefits. We have reached the said conclusion on the basis of undisputed documents and the averments made by the University itself in its statement of objections. We therefore hold that respondents 1 to 21 are really employees of the University employed for purpose of cleaning/sweeping and maintaining the premises of the University.
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15. The aforesaid contention could have been appreciated provided in one of the reference the issue would have been conversion of temporary employee to that of contract employee through one of the employee as a contractor is legal or not? The petitioners-union have failed to raise the dispute in respect of the aforesaid issue for the purpose of reference. Thus, the aforesaid contention as well as the cited decision do not assist the petitioners-union having regard to the factual aspect of the matter that they were working under contractor.
16. The learned counsel for the petitioners-union relied on the cases of HUSSAINBHAI, THE WORKMEN OF FOOD CORPORATION OF INDIA, SHANKAR MUKHERJEE in support of reliefs sought in the present petition. The decision do not assist the petitioners-union having regard to the factual aspect of the matter that there is no reference in respect of conversion of temporary employee to that of contract employee under one of the employees.
17. The decision of UMADEVI(3) do not assist the respondent as contended by the learned Senior Counsel and it would assist only as and when petitioners-union have made out a 18 case that they are temporary employees of MPM. Petitioners- union have not made out case that they are temporary employees for the purpose of considering their names for regularization and to extend consequential benefits for the reasons that initially petitioners-union were appointed during the period from 1989 to 1997 on temporary basis and thereafter, they seized to be employees of MPM. Petitioners-union were continued to work under regular contract system for the period from 1999 to 2017. That apart MPM evolved scheme called VRS for permanent employees and VSS for contract employees. Consequently, petitioners-union would fall under the VSS and they have accepted the benefits subject to result of the present petition.
18. Learned counsel for the respondent/MPM submitted that in view of the factual aspect that the petitioners-union were initially appointed on temporary basis under MPM and thereafter, they were asked to work under contract system and one of the employee being contractor cum employee. Such an arrangement was modified in the year 1999 asking the petitioners-union to work under regular contract system. The petitioners-union have neither raised a dispute nor obtained reference from the competent authority. Thus, petitioners-union have accepted the 19 aforesaid arrangement of working under contract system. It is further contended that as is evident from Annexures R1 to R5 dated 03.02.1998, 15.09.2000, 04.05.2006 and 06.06.2008, there was certain element of settlement among the petitioners- union and their contractors. Hence, there is no infirmity in the award of the Labour Court. With reference to the above contentions, respondent counsel cited decisions viz., SAIL, NANDA KUMAR, STATE OF HIMACHAL PRADESH (supra). However, learned Senior counsel for the petitioners-union submitted that respondent relying on documents at R.1 to R.5 are all subsequent to reference orders dated 13.08.1999 and 15.05.2001. Therefore, the aforesaid contention of the respondent do not assist the respondent. The aforesaid contention of the Senior counsel for the petitioners-union is to be accepted for the reasons that material information is required to be taken note of as on the date of references dated 13.08.1999 and 15.05.2001. Assuming that petitioners-union have entered into certain settlement, obviously for the reasons that they were low paid employees, in order to meet their livelihood they must have entered into certain settlement but that does not take away their right under the aforesaid two references. The cited decisions 20 do not assist the respondent in view of the above factual aspects of the matter.
19. The learned counsel for the respondent submitted that petitioners-union are not entitled to seek parity on par with the employees of the respondent/MPM. In support of the aforesaid contention he relied on the decision of STATE OF HARYANA (supra).
20. No-doubt, petitioners-union are not entitled to seek parity on par with the employees of the respondent/MPM as both petitioners-union who were working under a contractor and employees of the respondent/MPM form a separate class of persons. At the same time, one cannot ignore the fact that respondent-MPM in resorting to convert the petitioners-union status from temporary employees to that of contract employees under a contractor cum employee and further, accommodating petitioners-union as contract employees under regular contractor is in the absence of source of power and so also in order to deny regular service to the temporary employees. Infact, regular contract system was introduced as and when petitioners-union raised a dispute. Even petitioners-union have not raised a dispute as and when their status was converted from temporary 21 employees of respondent-MPM to that of contract employee under a contractor cum employee. The two references are not relating to the aforesaid issue. Therefore, one has to draw inference that petitioners-union have not raised the dispute in respect of the aforesaid issue. Thus, petitioners-union have not made out case so as to interfere with the award passed by the Labour Court dated 03.03.2010 in IDR No.27/1999 and IDR No.25/2001. However, there were lapses on both the parties as is evident from the aforesaid factual aspects. Had the petitioners-union continued to hold the post of temporary employees with the respondent- MPM, they would have got service benefits on par with those temporary employees whose services have been regularized and further, benefit of VRS instead of VSS.
21. Article 43-A of the Constitution of India relates to Participation of workers in Management of Industries - The State shall take steps, by suitable Legislation or in any other way, to secure the participation of workers in the Management of undertakings, establishments or other organizations engaged in any industry. MPM should have resorted to the law which was in vogue before converting nature of appointment of the petitioner- union from temporary employees to that of contract employee 22 under one of the employee as contractor cum employee. Even on this MPM has denied the participation of the workers relating to their service condition.
22. The respondent-MPM being an employer and part and parcel of State, should have been model employer and in not taking arbitrary decision like changing the status of the temporary employees to that of contract employee under a contractor cum employee in the absence of any provision or source of power. Therefore, in order to meet complete justice under Article 226 of the Constitution of India, it is necessary to mould the relief in terms of the following Apex Court decisions:
(i) M SUDAKAR vs V MANOHARAN AND OTHERS reported in 2011(1)SCC 484, para 14 reads as under:
14. The power to mould relief is always available to the court possessed with the power to issue high prerogative writs. In order to do complete justice it can mould the relief, depending upon the facts and circumstances of the case. In the facts of a given case a writ petitioner may not be entitled to the specific relief claimed by him but this itself will not preclude the writ court to grant such other relief which he is otherwise entitled. Further delay and laches do not bar the jurisdiction of the court. It is a matter of discretion and not of jurisdiction. The learned Single Judge had taken note of the relevant 23 facts and declined to dismiss the writ petition on the ground of delay and laches.
(ii) TAMILNADU ELECTRICITY BOARD vs SUMATHI AND OTHERS reported in 2000(4) SCC 543, para.7 which is relevant reads as under:
7. The respondents in these appeals before us have strongly relied on Article 21 of the Constitution to maintain their petitions under Article 226 of the Constitution. They referred to the following observations of this Court in the case of Nilabati Behera [(1993) 2 SCC 746 : 1993 SCC (Cri) 527] where this Court held thus: (SCC p. 767, para 32) "32. Adverting to the grant of relief to the heirs of a victim of a custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve 'new tools' to give relief in public law by moulding it according to the situation with a view to preserve and protect the rule of law."
Further the Court goes to hold in para 33 of the judgment: (SCC p. 768) "33. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the 24 courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations."
It was thus submitted that the respondents' right to life under Article 21 of the Constitution had been violated because of the negligence of the public authorities and that it was a well-settled legal proposition that the High Court under Article 226 of the Constitution had the power to award compensation in case of violation of fundamental rights by the State's instrumentality or servants and the award of compensation in proceedings for enforcement of fundamental rights under Articles 226 and 32 of the Constitution is a remedy available in public law. Finally it was submitted that the public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 226 by the High Court for infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law. Therefore, when the Court moulds the relief by granting compensation under Article 226 of the Constitution, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. It was, therefore, submitted by the respondents that the judgment of the High Court was right in law as compensation could be awarded under Article 226 for the infringement of fundamental rights of the citizens.
23. In that view of the matter, it is appropriate to extend some financial benefits to each of the employee of the petitioners- 25 union which is quantified at Rs.50,000/- per employee. The same shall be disbursed to the respective employee of the petitioners- union within a period of six months from the date of receipt of this order.
In the above terms, writ petition stands disposed.
Sd/-
JUDGE brn