Andhra HC (Pre-Telangana)
Unknown vs The General Secretary And Others on 23 September, 2014
Bench: L.Narasimha Reddy, Challa Kodanda Ram
THE HONBLE SRI JUSTICE L.NARASIMHA REDDY AND THE HONBLE SRI JUSTICE CHALLA KODANDA RAM
W.A.No.707 of 2013
23-09-2014
The Management of LPG Filling Plant, HPCL and another. Appellants
The General Secretary and others. .Respondents
Counsel for the appellants: Ms. V. Uma Devi
Counsel for respondents: Sri M.Pitchaiah & Sri M.V.S.Sai Kumar
<GIST:
>HEAD NOTE:
?Cases referred:
1.1975 LIC 1218
THE HONBLE SRI JUSTICE L.NARASIMHA REDDY
AND
THE HONBLE SRI JUSTICE CHALLA KODANDA RAM
W.A.No.707 of 2013
JUDGMENT:(Per LNR,J) This writ appeal is filed against the order, dated 21.01.2013 passed by the learned Single Judge in W.P.No.20588 of 2002. The petitioners therein are the appellants.
Briefly stated, the facts are that; the appellants have established LPG Filling Plant at Tadepalli, Guntur District and another Plant at Kondapalli, Krishna District. Different categories of workers are engaged to carry out the functions in the respective Plants. The union of the workers at Tadepalli Plant approached the Government with a request to refer an Industrial Dispute to the Labour Court, Guntur in relation to the regularization of services of 52 workmen. It was pleaded that the workmen were being engaged as Contract Labour in contravention of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (for short the Act) and in that view of the matter, the appellants herein need to be treated as principal employer. It was also alleged that the appellants violated certain settlements entered into between the management and the workers union.
The Government referred the dispute under Section 10(1)(c) of the Industrial Disputes Act (for short the I.D. Act) to the Labour Court, Guntur. After contest by the parties, the Labour Court passed an award dated 26.09.2001 holding that the demand for regularization of services of claimant Nos.10 to 24 and 26 to 47 is justified and that they are entitled for regularization from the date of their engagement either directly or through labour contractor. A direction was also issued for regularization of their services by absorbing them against the posts in the appellant-corporation within six months.
Challenging the award passed by the Labour Court, the appellants filed W.P.No.20588 of 2002. They pleaded that the relief granted by the Labour Court is outside the scope of reference and contrary to the provisions of law. It was mentioned that there was nothing common for the 52 workmen named in the award and even after recording a finding to the effect that many of them were engaged only for temporary duties, direction was issued for their regularization. The appellants further pleaded that in case the grievance of the trade unions was that the engagement of the workmen was contrary to the provisions of the Act, the labour contractor ought to have been made a party for proper verification of facts and effective adjudication of the matter.
On behalf of the respondents, a counter affidavit was filed opposing the writ petition. It was stated that the appellants have resorted to a method of engagement of workers, contrary to the provisions of the Act. They pleaded that after taking into account, the factual and legal aspects into account, the Labour Court passed the award, and no interference is warranted.
Learned Single Judge took note of the fact that the settlement was arrived at between the appellants on the one hand and some of the workmen on the other hand and dismissed the writ petition to that extent as not pressed. As regards other workmen, the writ petition was dismissed, thereby upholding the award. Hence, this writ appeal.
Learned counsel for the appellants submits that the very terms of reference are outside the scope of the Industrial Dispute, particularly when there was no similarity of the alleged grievances of the workmen and no complaint as to violation of any particular provision of law. He submits that the Labour Court itself found that in many cases, the engagement of the employees was purely on temporary basis or ad hoc in nature and accordingly, the relief was denied to them. It is also argued that the Labour Court has simply undertaken the comparison of the duties performed by different categories of workers and directed that the relief of regularization must be extended to some of the workers, without verifying whether there existed any vacancies or whether the procedure prescribed for appointment of employees of that category was followed. He placed reliance upon certain precedents.
Learned counsel for the respondents, on the other hand, submits that when a reference is made under Section 10(1)(c) of the I.D.Act, it is not necessary that there must exist any specific or individual grievances and that the matter of general concern can constitute the subject matter of reference. He submits that the fact that the Labour Court has differentiated the cases of various categories of employees, clearly demonstrates the objectivity exhibited by it and that no exception can be taken to the award. He further submits that the learned Single Judge has taken correct view of the matter. He too cited certain precedents in support of his contentions.
The question referred to the Labour Court by the Government under Section 10(1)(c) of the I.D.Act reads as under:
Whether the demand of the General Secretary, LPG Filling Plant Workers and Muttah Union and the General Secretary, Coastal District Petroleum Products Workers Union, Tadepalli, for regularization of services of 52 following workmen before the management of LPG Filling Plant, Tadepalli is justified? If so, to what relief the workmen are entitled?
Based upon the claim statements filed on behalf of the workmen, and the counter filed by the appellants herein, the Labour Court framed the following points for consideration:
(i) Whether the claim is maintainable against the IInd respondent?
(ii) Whether the reference made by the State Government is not valid as pleaded by the respondent?
(iii) Whether the demand of the General Secretary, LPG Filling Plant Workers and Muttah Union and General Secretary, Coastal District Petroleum Plant Workers Union, Tadepalli, for regularizing the services of 52 workmen before the management of LPG Filling Plant, Tadepalli is justified?
(iv) If so, to what relief the workman are entitled to?
Two witnesses were examined on behalf of the workmen and one witness on behalf of the appellants herein. The Labour Court took note of the Judgment of the Supreme Court in Hindustan Aeronautics vs. Workmen and another and other precedents. The nature of relief granted by the Labour Court has already been mentioned in the preceding paragraphs.
The points touching the maintainability of the I.D. against the second appellant, and the legality of reference were answered against the appellants herein. It was not even pointed out by the appellant as to how the reference did not accord with Section 10(1)(c) of the I.D. Act. Before us also, no serious arguments were advanced in relation thereto.
The appellants admitted that out of 52 persons, as regards whom, the relief was claimed, persons at serial Nos. 1 to 9 are permanent employees at Kondapally, claimant Nos.10, 11, 12 19,21,23.,26,43, 46 and 47 are contract labour and claimant Nos.28, 29, 30,31,32,34,37,38,39 and 41 are muttah workers. It was further mentioned that claimant Nos.13 to 19, 22, 23 and 27 have already settled their claims before the Assistant Commissioner of Labour. In the course of discussion, it emerged that claimants at serial Nos.22 to 27 are casual labour and 36 to 44 are transport workers. A semblance of comparison of duties was also undertaken. On the ground that the appellants themselves admitted that they have engaged claimants 10 to 47, but failed to prove that those persons were employed through labour contractor, the relief of regularization was granted, of course, by undertaking further classification of those workers, depending upon the nature of duties and method of engagement.
In case, the complaint of the respondent was only about the contract labour being engaged, to perform duties in the core activity; in contravention of the provision of the Act; necessary discussion in that behalf was required to be undertaken. The prohibition against engaging contract labour gets attracted only when they are made to discharge duties in core activity. There may be other violations, which, if proved, would make the agency, that is availing the services, the principal employer, by itself.
From a careful reading of the award, it is clear that except making an observation that the appellant failed to furnish the details of contract labour, no finding was recorded with reference to any particular provision of the Act. Further, the nature of relief that can be granted with reference to that enactment would only be in terms of ensuring that the employee is not abruptly discontinued by citing reasons, such as expiry of the contract, in case, the violation is proved.
From the text of reference as well as the points framed by the Labour Court, it is clear that the relief was claimed only in the form of regularization. It is too well known that the Act does not provide for regularization of the employees, even if the violations are proved. Though regularization can be treated as a service condition, the relief in that behalf can be extended, if only it finds place in the relevant service rules, or standing orders, or statutory settlements. No such provision of law or instrument is referred to, much less was relied upon. The Labour Court did not even take note of the fact that the disputes in relation to some of the workmen were settled amicably.
We are of the view that the matter needed a totally different approach. The Labour Court was under obligation to take into account, the developments that have taken place so far, namely, the amicable settlement arrived at between the parties or regularisation of services of employees, if any, and to concentrate only on such of the employees who still have any grievance, than to treat the problem, as that of the respondent- union, in general.
We, therefore, partly allow the writ appeal by modifying the order of the learned Single Judge and thereby, the award of the Labour Court to the effect that,
(a) the reference made at the instance of the respondent shall be treated as unworkable since there is no uniformity in the conditions of appointment or nature of grievances of the employees, represented by it;
(b) as regards such of the employees whose (i) services were regularised by the management or (ii) settled by payment of lumpsum amount or compensation, the I.D shall stand rejected; and
(c) in case, any individual employees have any grievance about the retrenchment or discontinuance from service, it shall be open to them to raise individual disputes under Section 2-A(2) of the I.D.Act.
The miscellaneous petition filed in this writ appeal shall also stand disposed of. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J ______________________ CHALLA KODANDA RAM, J Date: 23.09.2014