Punjab-Haryana High Court
Panipat Cooperative Sugar Mills ... vs The Presiding Officer, Industrial ... on 12 December, 1996
Equivalent citations: (1997)116PLR110
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. By this judgment, I dispose of two civil writ petitions No. 8042 of 1994 titled 'The Management of The Panipat Co-op. Sugar Mills Ltd. v. The Presiding Officer and Anr.' and C.W.P. No. 9284 of 1995 titled 'Distillery Kamgar Sangathan v. The Presiding Officer and Anr; as in both the writ petitions common question of law and facts are involved.
2. Firstly coming to pleadings of writ petition No. 8042 of 1994 which has been filed by the Management of M/s Panipat Cooperative Sugar Mills Ltd. (Distillery Unit), Panipat, through its Director under Articles 226/227 of the Constitution of India, against the respondents for the issuance of a writ of certiorari for quashing of the award dated 23.2.1994 Annexure P.3 and order dated 21.9.94 Annexure P.4 passed by respondent No. l, Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak.
3. The case set up by the petitioner is that respondent No. 2, the General Secretary of the Distillary Kamgar Sanghathan made a charter of demand from the petitioner Management vide charter of demand and claimed that the persons mentioned in Annexure-A attached with the demand notice be regularised and difference of equal wages to regular working employees should also be paid to them. On receipt of the demand, the petitioner Management contested the claims. Thereafter, the matter was referred to respondent No. 1 for adjudication who passed the award Annexure P.3, vide which it was directed to management to treat all the petitioners as regular employees and further it was held that they are entitled to get difference between the pay to the confirmed employees of the factory. After the passing of the award Annexure P.3 dated 23.2.94, which was published in the gazette on 31.5.94, the Labour Court passed another order Annexure P.4 which could not be made as the Labour Court functus officio after the passing of the award Annexure P.3. Vide orders Annexure P.4, the Labour Court had modified the award Annexure P.3. The award Annexure P.3 has been contested on the grounds that the employees mentioned in Annexure-A attached with the demand notice were never employed by the petitioner-Management. They were never paid wages by it and the question of their regularisation does not arise. According to the management, the persons mentioned in Annexure-A of the demand notice, were the employees of the contractor which fact has not been properly adjudicated and appreciated by respondent No. l, Labour Court and as such the award Annexure P.3 and order Annexure P.4 are liable to be quashed being patently illegal and without jurisdiction.
4. This writ petition was contested by respondent No. 2 on the ground that the order Annexure P.4 was only to correct the clerical mistake occurred in award Annexure P.3 and as such the Labour Court did not become functus officio after the passing of the award Annexure P.3. Supporting the award, it is submitted on behalf of the contesting respondents that the persons mentioned in the Annexure attached with the demand notice were the employees of the management and they had been serving under the management for the last several years and they are entitled to be regularised like other regular employees and they are also entitled to the salary as given to the regular employees and in this manner, they are further entitled for the difference of pay which the respondent-workmen are getting and that of the regular employees.
5. Now I proceed to incorporate the brief pleadings of writ petition No. 9284 of 1995 filed by the Distillary Kamgar Sangathan praying for the writ of certiorari for rectifying the errors in the demand numbers in paras 5, 6, 18 and 23. It has been pleaded that 116 workers initially were engaged through a contractor but they were working for the management of respondent No. 2 from the year 1979-80. They are working as washing boys and their duty is to wash the bottles used in the distillery unit of respondent management. For all intents and purposes, they are the employees of the management though they were initially engaged through a contractor. The workmen are not being paid wages as fixed by the Sugar Board. Resultantly, the Union served a demand notice on the management. No settlement could be arrived at by the Conciliation Officer who submitted his failure report. The Govt. refused to refer the general demand notice of the petitioner for adjudication. Resultantly, the petitioner Union filed a writ in the High Court which issued directions to the State Govt. to refer the matter to the Labour Court. Resultantly, all the six demands mentioned in the demand notice were referred for adjudication to the Tribunal. After the service of general demand notice on 28.7.88 services of all 121 workers who raised demand No. 1 were terminated by respondent No. 2 on 1.8.88. These workers raised industrial issue Under Section 2-A of the Industrial Disputes Act, which was referred to Labour Court. During the pendency of these references, a settlement was arrived at between the workers and the management and all the 121 employees workmen succeeded in the award and in terms of the settlement annexure P.1. Demand No. 1 of the general demand notice given by 116 workmen pertained to their regularisation wages equal being paid to regular workers. On demand No. 1 the parties led evidence before the Labour Court who gave the award Annexure P.3 in favour of workmen and it was held that workmen are employees of respondent No. 2 and they are entitled to be regularised and are further entitled to regular wages with arrears. However, the award Annexure P.3 especially paras No. 5, 6, 8 and 23 some errors had occurred while mentioning number of demands. In fact, Union did not press demand No. 6 as it was admitted and conceded by respondent No. 2 and only demand No. 1 was pressed. However, it was wrongly noted in paras No. 5, 6 and 18 of the award that demand No. 6 was pressed and demands No. 1 to 5 were not pressed. In the present writ petition rectification has been sought of the award Annexure P.3.
6. The writ of the Union has been contested by the respondents by making out a case as stated in civil writ petition No. 8042 of 1994 and I need not to reproduce those averments of this writ petition when already reproduced above while narrating the facts of writ petition No. 8042 of 1994.
7. I have heard Shri C.B. Goel, Advocate, on behalf of the Management and Smt. Abha Rathore, Advocate, on behalf of the workmen and with their assistance have gone through the record of this case and I am of the considered opinion that writ No. 8042 of 1994 has no merit while writ petition No. 9284 of 1995 should be allowed.
8. The major stand of the management is that the workers mentioned in the demand notice are not its employees. Rather they are the employees of the contractor and as such they are neither entitled to be regularised nor they can claim difference of wages on the same line and pattern as are given to the confirmed/regular employees. The stand of the management is not tenable in view of the two vital facts. Firstly, the management itself terminated services of 121 employees. Only an employer has the right to terminate the service. By terminating the services of 121 employees including persons mentioned in the general demand notice, the management itself has admitted the relationship of employer and employee. After the service of general demand notice their services were terminated. Those retrenched workers raised industrial issue Under Section 2-A of the Industrial Disputes Act which was referred to the Labour Court for adjudication under section 10 of the Act and the settlement took place vide which the management undertook to absorb and reinstate 121 workers by giving them benefit of continuity of service on usual terms and conditions applicable to the workmen and the management. On this settlement all the workmen gave up their claim for back wages. In pursuance of the settlement, the management gave the jobs to all 121 retrenched employees.
9. All above factors would show that the workmen who were initially recruited with the assistance of the contractor were, infact, the employees of the management and not that of the contractor. It is true that once an award is passed and once it is published in the gazette after the expiry of 30 days the Labour Court becomes functus officio, but clerical mistakes can always be rectified. The impugned order Annexure P.4 is nothing but a rectification to the award Annexure P.3 passed by the Labour Court. I must say that the award is not a happily worded one that is why the necessity had arisen on the part of the workmen to file a counter writ No. 9284 of 1995 for the correction of some clerical errors committed on the part of the Labour Court. It is settled law that the object of justice is to advance its cause and not to create impediments in its smooth functioning.
10. The entire stand of the management in its main writ petition is that the employees shown in the demand notice were not their employees. I had already stated above that this stand is not born out from the stand of the management itself. What is true impart of creation of relationship of employer and employees was discussed in a Division Bench judgment of this High Court passed in writ petition No. 16033 of 1994, Secretary Haryana State Electricity Board v. State of Haryana, (Reported as (1995-2)110 P.L.R. 96) in which it was held that principle of lifting of veil to determine the existence of relationship of workmen and employer can be acted upon. In the cited case the workmen were employed by the Board through contractor at the initial stage but they were being treated as their own workmen by the Board. In the present case also the management first retrenched the services of the workmen engaged through the contractor. They were reinstated under the settlement. It will always be a question of facts whether the workmen were the employees of contractor or that of the management. In the present case after considering all the pros and cons, the Labour Court rightly held that the workmen were the employees of the Board. In para No. 20 of the award, the Labour Court after apprising the evidence and after hearing the contentions of the parties came to the right conclusion that the workmen were serving through management since 1979-80 and they had completed 13-14 years of service and as such they were entitled to be regularised as if they were to be treated as the employees of the management. The Labour Court also held rightly that the workmen brought evidence on record that they were the employees of the management and this fact was also admitted by Shri R.S. Ghangas. With approval para No. 22 of the award can be quoted as follows:-
"The workmen have brought on the record evidence and admitted by Shri R.S. Ghangas that they are the employees of the management/respondent Co. industry and further the workmen were to be treated as the employees of the management since their record of attendance are being maintained by the management."
11. Once the workmen are held to be the regular employees, they are definitely entitled to the regular pay scale as given to the regular employees and they could not be discriminated. In these circumstances, I do not see any infirmity in the order dated 21.9.94 by which some clarification were given by he Labour Court itself.
12. Smt. Abha Rathore, in support of the conclusion drawn by the Labour Court has referred to the citations reported as 1978 Labour and Industrial Cases, 1264 Hassain Bhai v. The Alath Factory, ; 1995(3) Services Cases Today 524, Gujarat Electricity Board v. Hind Mazdoor Sabha, and 1994(3) Services Cases Today 635 R.K. Panda v. Steel Authority of India, . The ratio of all these authorities is that the Labour Court can always lift the veil to determine the real relationship of employee and employer and is not to be swayed only on the factor that the labour was engaged through the instrumentality of a contractor.
13. In the light of above, writ petition No. 8042 of 1994 filed by the Management fails and is hereby dismissed; while writ petition No. 9284 of 1995 filed by the Distillery Kamgar Sangathan is hereby allowed as prayed for. Parties to bear their own costs in both the writ petitions.
14. Before I part with this judgment I would like to dispose of the Civil Misc. No. 17721 of 1996 filed by the Distillery Kamgar Sangathan praying for the issuance of directions to the management to treat 116 employees in the same manner as regular employees of the Sugar Mills. I am afraid that the directions prayed for in Civil Misc. can be issued in the writ petition of the workmen. The workmen who have been benefited under the award of the Labour Court can seek their remedy elsewhere according to law. Their major demands regarding regularisation and their entitlement of difference of pay had already been accepted and answered in their favour by the award itself. For the relief in the Civil Misc., the workmen benefited under the award can approach the authority in a legal manner. The civil Misc. stands disposed of in above terms.