Allahabad High Court
Hindustan Aeronautics Ltd. Thru G.M. ... vs Union Of India Thru Secy. Min. Of Labour & ... on 6 January, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 25 Case :- MISC. SINGLE No. - 2479 of 2015 Petitioner :- Hindustan Aeronautics Ltd. Thru G.M. Pramod Saxena Respondent :- Union Of India Thru Secy. Min. Of Labour & Employment & Ors Counsel for Petitioner :- Prakash Kumar Sinha,Akash Sinha Counsel for Respondent :- A.S.G.,Ankit Srivastava,Avinash Pandey,Dhanus Dhari Prasad Singh,Dhruv Mathur,Maneesh Kumar Singh,Navita Sharma Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for the parties.
2. This petition has been filed by the petitioner, challenging the Reference Order No.L-4201 1/72/2008-IR (DU) dated 18.5.2009 issued by the Secretary, Ministry of Labour and Employment, Government of India, respondent no.1, and the Award dated 15.1.2015 as published in the Official Gazette on 9.3.2015 passed by the respondent no.3, the Presiding Officer, Central Government Industrial Tribunal, Lucknow (CGIT) in Adjudication Case no.12 of 2009 in the said Reference, whereby the respondent no.3 has been pleased to hold that the order dated 27.7.2004 passed by the Deputy Chief Labour Commissioner (Central) is legal and binding on the parties and the petitioner is liable to pay wages equal to the wages at the minimum scale of wages paid to the regular unskilled Group-A workmen of HAL, Korwa Unit and to give other benefits as are admissible to them w.e.f. 1.2.2003.
3. The petitioner has also challenged the notice dated 10.4.2015 issued by the Regional Labour Commissioner (Central), Lucknow, directing the petitioner to comply with the Award dated 15.1.2015.
4. Learned counsel for the petitioner has raised more or less the same arguments that have been raised by him in his challenge to the order dated 27.7.2004 passed by the Deputy Chief Labour Commissioner (Central) in Writ Petition No.7347 (SS) of 2004, which has been dismissed by this Court today after hearing the learned counsel for the parties, by a detailed judgment and order.
5. A further argument that has been raised, which needs to be dealt with by this Court is that once a quasi judicial adjudication had been done under Rule 25(2)(V)(b) of the Central Rules of 1971, there was no need for the respondent no.1 to make a Reference to respondent no.3 for adjudication of the matter as to whether the demand made by the labourers for compliance of the order dated 27.7.2004 was legal and justified. The immediate cause for the Reference being made by the respondent no.1 to respondent no.3 was that a charter of demand was raised by the respondent no.2 on 24.1.2008. Notice was issued to the petitioner. The Assistant Labour Commissioner at Allahabad dealt with the matter, where the HAL pleaded that the order dated 27.7.2004 passed by the Deputy Chief Labour Commissioner (Central) under the Rules of 1971 was already challenged in Writ Petition No.7347 (SS) of 2004 and that it had not attained finality and, therefore, the demand made by the contract labourers for compliance of the same and extension of benefits provided in the same would not be entertained.
6. On 8.12.2008, the Assistant Labour Commissioner (Central), Allahabad forwarded its conciliation failure report to the Secretary, Ministry of Labour and Employment, Government of India, respondent no.1, who in turn, issued the Reference Order impugned in this petition under the Industrial Disputes Act, 1974 to the CGIT, Lucknow. The Reference so made is being quoted hereinbelow:
"Whether the demand of the Korwa Safai Karmchari Union that order made by the Deputy Chief Labour Commissioner (Central) on 27/7/2004 for payment of wages equal to the wages at the minimum of the scale of wages paid to regular unskilled workers of HAL, Korwa and other benefits and service conditions should be implemented in full by the management of HAL, Korwa is legal and justified? If yes, what relief the workmen concerned are entitled to?"
7. After receipt of the Reference order, the petitioner filed its preliminary objection before the respondent no.3 on 8.12.2009, saying that the members Korwa Safai Karmchari Union were not directly recruited employees of HAL, Korwa Division and they were the labourers of the sanitation contractor and the HAL, Korwa Division is simply the principal employer in terms of the CLRA Act, 1970. The HAL alone could not have been made a party to the said adjudication case and the words in the Reference order referring HAL as the employer were misconceived.
8. Moreover, a preliminary objection was also raised with regard to Writ Petition No.7347 (SS) of 2004 also pending, challenging the order dated 27.7.2004. The respondent no.2 filed its reply to the said written statement and evidence of employer's witnesses was recorded and that of the witnesses of the workmen. The employer relied upon the judgment of the Supreme Court in Steel Authority of India and others vs. National Union Waterfront Worker and others, (2001) 7 SCC 1 and Para-125 thereof.
9. In Para-125 of the judgment rendered in the said case, mention has been made with regard to abolition notification being issued under Section 10 of the CLRA Act, 1970, which it has been observed cannot lead to a logical conclusion that the contract labourers are entitled to automatic absorption. The Supreme Court observed that unless the proper adjudication is done by the authority concerned that even after the abolition notification is issued, the employers are continuing with the contract labourers under a sham contract, which contract labourers are indeed the employees of the employer and not of the Contractor, no direction for absorption can be issued. The Supreme Court overruled the judgment in Air India Statutory Corporation prospectively and declared that any direction issued by any Industrial Adjudicator or any Court including the High Court for absorption of contract labourers, following the judgment in Air India case would hold good and will not be set aside, altered and modified, if said direction had been given effect to and had become final; but with regard to other adjudication, which was still going on in pursuance of abolition notification under Section 10(1) of the CLRA Act, in an industrial dispute brought before it by any contract labourers in regard to conditions of service, the industrial adjudicator would still have to consider the question whether the contractor has been introduced either on the ground of having undertaken to produce any given result for the establishment, or for supply of contract labourers for work of the establishment under a genuine contract, or is a mere camouflage to negate the effect of various legislation and in case the contract is found not to be genuine, but mere camouflage, the so called contract labourers will have to be treated as employees of the principal establishment and will be directed by the Industrial Adjudicator to be kept in service in the establishment concerned, subject to the conditions as may be specified by the Industrial Adjudicator. If on the other hand, contract is found to be genuine, in pursuance of issuance of prohibition notification under Section 10(1) of the CLRA Act, the Principal Employer is only required to give preference to erstwhile contract labourers, if found suitable, by relaxing the condition with regard to minimum age and other eligibility criteria.
10. It has been submitted by the learned counsel for the petitioner before this Court that no doubt a prohibition notification had been issued with regard to HAL Unit at various places including Nasik, Hyderabad etc. but an exemption had been given to Korwa Unit in Lucknow specifically by the Government of U.P. by issuing necessary notification in this regard. The contract labourers are continuing to be engaged under a genuine contract. Their wages and conditions of service were determined by the Labour Commissioner under the Rules of 1971 for Lucknow Unit, which order was affirmed by the High Court and the SLP was dismissed thereafter. With regard to Korwa Unit, although adjudication had been done by the Labour Commissioner, the writ petition was still pending before this Court, therefore, the wages and other conditions of service as fixed by the order dated 27.7.2004 could not be made the cause of action for a fresh adjudication under the Industrial Disputes Act by the Industrial Adjudicator.
11. Sri Manish Kumar Singh has fairly submitted that once a proper adjudication was done by the appropriate authority under the CLRA Rules of 1971, there was no need for making a Reference with regard to demand no.8 of charter of demands filed by the workers on 24.1.2008. There were several other demands raised in the charter of demands, which could have been referred to the Industrial Adjudicator for adjudication. The legality or validity of the order dated 27.7.2004 was not questioned and could not have been questioned by the workmen in whose favour the order had been made by the competent authority. No doubt, a writ petition was filed for enhancement, namely, Writ Petition No.1213 (SS) of 2005 by the workers, but learned counsel for the respondents has been instructed by his client not to press the said writ petition.
12. This Court having gone through the pleadings and having heard the submissions made at the Bar, is of the considered opinion that the Reference order was superfluous in so far as the demand raised by the contract labourers for compliance of the order dated 27.7.2004 issued by the Deputy Chief Labour Commissioner (Central) under the 1971 Rules was concerned. The adjudication by the respondent no.3 was a needless exercise. The respondent no.2 could have been directed straightaway to take decision for compliance of order passed by the Deputy Chief Labour Commissioner (Central) under the CLRA Act and the Rules framed thereunder.
13. This Court has also gone through the Award dated 15.1.2015. It finds that it is a reiteration of the adjudication already undertaken under the Central Rules of 1971 in between respondent no.2 and the petitioner.
14. This Court does not find, however, any good ground to show interference as this Court has already dismissed Writ Petition No.7347 (SS) of 2004 and Writ Petition No.1213 (SS) of 2005, which raised a challenge to the order dated 27.7.2004.
15. This writ petition is disposed of accordingly as substantial justice has been done between the parties.
Order Date :- 6.1.2020 Sachin