Karnataka High Court
Tumkur Poura Karmikara Sangha (Regd) vs The Municipal Council Tumkur on 7 June, 2013
Bench: K.L.Manjunath, L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7th DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
WRIT APPEAL NO.3358/2009(L-RES)
BETWEEN
1 TUMKUR POURA KARMIKARA SANGHA (REGD)
JAIBEAM ROAD, SHANTHINAGAR
TUMKUR
REP BY ITS SECRETARY ... APPELLANT
(By Sri : M. NARAYANA BHAT, ADV. FOR M/S SUBBA
RAO & CO., FOR APPELLANT )
AND :
1 THE MUNICIPAL COUNCIL TUMKUR
REP BY ITS COMMISSIONER
2 THE STATE OF KARNATAKA
REP BY ITS SECRETARY
DEPARTMENT OF URBAN DEVELOPMENT AND
MUNICIPAL ADMINISTRATION
M.S.BUILDING
BANGALORE-01 ... RESPONDENTS
(By Sri : D.VIJAY KUMAR, AGA FOR R2 )
THIS WRIT APPEAL FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
20530/2007 DATED 18/02/2009.
2
THIS APPEAL COMING ON FOR HEARING THIS
DAY, MANJUNATH J, DELIVERED THE
FOLLOWING:
JUDGMENT
The concurrent findings of the Labour court as well as the Learned Single Judge are called in question by the appellant - Sangha.
2. According to the appellant, the appellant is a Trade Union of workers who are working in the Municipal Council of Tumkur, which has been registered under the Indian Trade Union Act 1947. The Union is formed to espouse the cause of the workmen working as Pourakarmikas who are involved in cleaning streets, public places and keeping the city in a clean and hygienic manner. It is also the case of the appellant that there are about more 250 persons who are working as Pourakarmikas and out of them more than 100 persons have put in services of more than 12 years and about 75 persons have put in services of 10 years and remaining persons have 3 been working in between to 7 to 10 years. Contending that the wages payable to these Pourakarmikas are less than 50% of the wages payable to the regular Pourakarmikas who are on the muster roll of respondent as permanent Pourakarmikas, therefore, a dispute was raised before the Labour Court, Bangalore in ID No.251/2002. The respondent - Municipality contended that there is no relationship of master and servant and the members of the appellant - Sangha were not employed by the Municipality. On the contrary they are all working under the contractor and that the Contract of maintenance of the streets and public places by the Municipality has been given on tender basis every year to the successful contractor. Therefore, it was contended that they are not entitled for the relief sought by them. Based on the contentions, the following two points were formulated by the Labour Court for its consideration:
1) Whether the management of Commissioner, Town Muncipality, Tumkur was justified in not regularizing 250 daily wage workers who have been working for 4 last 8 to 10 years by not paying wages in accordance with the rules and
2) Whether the management is justified in not providing uniforms, chappals/shoes or safety devices every year to Pourakarmikas?
3) If not, to what relief the workmen are entitled to?
3. The reference was rejected answering the points against the Sangha on the ground that no proper material was placed. Aggrieved by the same, the matter was carried by way of Writ Petition, which also has been rejected by the Learned Single Judge. Challenging the legality and correctness of the same, the present appeal is filed.
4. We have heard the learned counsel appearing for all the parties.
5. On perusal of the entire evidence and the records, this court has noticed that about 250 persons who are discharging their duties as Pourakarmikas are claiming their legitimate rights for equal wages for equal work. According to them, Municipality has not been paying the wages payable to them on par with 5 the permanent Pourakarmikas of the Town Muncipal Council, Tumkur. It is also contended by them, furnishing of uniforms, chappals/foot wares and other safety devices and other materials for cleaning the roads and collecting the garbage is mandatory to see that these Pourakarmikas health shall not be affected in any manner on account of the discharge of their duties. The appellants have also produced certain documents to show that they were working under the 1st respondent. But the contention of the 1st respondent that these persons were not employed by the 1st respondent but they were working through Contractor.
6. The contention of the appellant before us is the contractors had not registered their names in accordance with Sections-7 and 12 of the Contract Labour Regulations Act. Therefore, even if work has been entrusted to a Contractor and if some of the members of the appellant's Union are working under such Contractors, the 1st respondent has to be 6 considered as a principal employer and that they are entitled for equal wages for equal work. According to him, the Labour Court as well as the Learned Single Judge have not considered these aspects of the matter. In the circumstances, it is requested by the appellant to set aside the order and remand the matter for fresh consideration in accordance with law.
7. The learned counsel appearing for the respondents submits that the order of the Labour Court as well as the Learned Single Judge does not suffers from any infirmity. In the circumstances, they request the court to dismiss the appeal.
8. Having heard the counsel for the parties and on perusal of the evidence let in by the parties before the Labour Court, we are of the opinion that evidence has not been properly appreciated by the Labour Court and considering the background of this case, we cannot expect a poor Pourakarmika to keep the records because all the records will be maintained by the 1st respondent and not by members of the Sangha 7 who are illiterates coming from down trodden of the society. Therefore, it was the duty of Labour Court to find out, out of 250 employees how many of them were working under the respondent-1 and how many of them were allowed to work under the contractor and whether the contractor was paying the wages on par with other Pourakarmikas or not, if it is so, how the grievance of the members of the appellant - Sangha can be solved. We are also of the opinion if the Contractors to whom the alleged contract entrusted by the 5th respondent was a registered member under the provisions of Sections 7 and 12 of the Contract Labour Regulation and Abolition Act 1970 and if it is so what is the effect of such entrustment and how it affects the rights of the members of the appellant. Since these points are not addressed by the Labour Court as well as by the Learned Single Judge, we are of the view that both the orders are to be set aside, the matter required to be reconsidered by the Labour Court afresh in accordance with law enabling both the parties to let in evidence. 8
9. Accordingly, the appeal is disposed of setting aside both the orders of the Labour court as well as the Learned Single Judge and the matter to be reconsidered by the Labour Court afresh in accordance with law. It is needless to state, if any of the members of the appellant - Sangha were working under any of the Contractors, they are also required to be made as a party since they were not impleaded before the Labour Court. It is also open for the appellant to implead all other necessary parties for proper adjudication of the matter.
Sd/-
JUDGE Sd/-
JUDGE Ak