Central Administrative Tribunal - Chandigarh
Ramesh Chander Son Of Sh. Jage Ram vs Union Of India Through The Secretary on 22 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.170-CH-2007 Orders pronounced on: 22.05.2013 Orders reserved on : 10.05.2013 CORAM : HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J) HONBLE MR. RANBIR SINGH, MEMBER (A) 1.Ramesh Chander son of Sh. Jage Ram, H.No. 25, Pipliwala Town, Bank Colony, Manimajra. 2.Bachan Singh son of Shri Partap Singh, H.No. 1867, Burail, U.T. Chandigarh . 3.Sham Lal S/o Late Shri Rati Ram, H.No. 1013, Housing Board Colony, Dhanas, U.T. Chandigarh. 4.Jagjivan Ram S/o Late Sh. Balbir Singh H.No. 1430, V & P.O. Derabassi District Mohali. 5.Sanjeev Kumar son of Narinder Kumar, House No. 50, Shakti Nagar, Derabassi, Distt. Mohali. 6.Manjeet Singh son of Shri Balbir Singh, House No. 212, Village Mohali, Distt. Mohali. 7.Ravinder Singh son of Shri Kulwant Singh, House No. 195, Dasmesh Nagar, Kharar, District Mohali. 8.Surjeet Singh son of Shri Mahendar Singh, Village Dadu Majra Colony, House No. 3002, U.T. Chandigarh. . Applicant By : Mr. Shailendra Sharma, Advocate. Versus 1.Union of India through the Secretary, Ministry of Finance (Department of Revenue), New Delhi. 2.Commissioner, Central Excise, Plot No. 19, Central Revenue Building, Sector 17, Chandigarh. By : Mr. Sanjay Goyal, Advocate Respondents O R D E R
JUSTICE S.D. ANAND, JM
1. On an averment that they had been engaged by the Department directly as Daily wagers at different points of time, the applicants raise a grievance that the respondents tried to change the nature of their employment, along with about 25 other Casual Labourers, to contractual in the year 2001. On point of fact, the averment proceeds, they had never been employees of a Contractor and they had been directly engaged by the Department. That they were performing those very duties which are performed by regular hands and that they had been appointed against sanctioned posts was the further averment made by the applicants.
2. Certain identically employees had filed an O.A. (No.800-CH-2001 titled Kiran Pal and Ors. Vs. Union of India & Others) which was decided by a learned Coordinate Bench of this Tribunal on 14.8.2002. In allowance thereof, the Tribunal directed that the applicants therein would be treated to be in the direct employment of the Department and that they would be eligible to be considered for purpose of regularization, as and when vacant posts therefor were available.
3. The respondents therein filed a Judicial Review Challenge (CWP No.7983-CAT-2003) which came to be negatived on 23.5.2003. An SLP filed by the official respondents against that order, too, came to be dismissed in limine by the Honble Apex Judicial dispensation.
4. The services of the applicants, in the meantime, came to be terminated vide impugned orders dated 14.3.2007 (Annexure A-1), the validity whereof was challenged by the applicants by filing this O.A.
5. It would be apparent, from a perusal of the averments made in the course of the O.A., that the applicants have raised a precise plea for allowance of the O.A. in accord with the judgment in Kiran Pals case (supra).
6. Respondents aver that the applicants had been engaged as Casual Labourers for different durations during the period 2002-2004 but that they were not in employment at all during 1.4.2004 to 10.3.2006. The applicability of Kiran Pals case (supra) was controverted.
7. An identical controversy came up for consideration before a learned Full Bench of the Punjab and Haryana High Court in CWP No.13619 of 2012 (O&M) Union of India & Another Vs. Ram Pal & Others decided on 22.2.2013, and on deep analysis of law on the point, the High Court held that decision in Kiran Pals case is not correct law in view of the law laid down by the Constitution Bench of the Honble Apex Court in Steel Authority of India Ld. Vs. National Union Water Front Workers, 2001 (7) SCC 1. In support of the view obtained, the High Court relied upon the detailed reasoning adopted by a Division Bench of that Court in CWP No.12472-CAT-2006 (Union of India & others Vs. Ramesh Singh etc.) decided on 2.12.2009. That reasoning, quoted by the learned Full Bench, is extracted hereunder :-
The issue whether a workman engaged by the Contractor can deemed to be an employee of the principal employer in the event of prohibition of engagement of Contract Labour in terms of Contract Labour (Regulation and Abolition) Act, 1970 or where there is no notification prohibiting engagement of contract labour was subject matter of consideration before the Honble Supreme Court in Steel Authority of Indias case (supra). The Supreme Court has reversed its earlier judgment in Air India Statutory Corp. vs. United Labour Union, (1997) 9 SCC 377 prospectively. It was held that the provisions of the Contract Labour (Regulation and Abolition Act, 1970 neither expressly or by necessary implication provide for automatic absorption of contract labour on issuing a notification by the appropriate Government prohibiting engagement of contract labour.
In Municipal Corporation or Grater Mumbai vs. K.V. Shramik Sangh and others, (2002) 4 SCC 609, it was held by Honble Supreme Court that absorption of contract labour cannot be automatic and is not for the Court to give such direction and the appropriate forum is, to seek remedy before an industrial adjudicator. In A.P. SRTC and others vs. G. Srinivas Reddy and others (2006) 3 SCC 674, there was a dispute whether there was no notification prohibiting engagement of contract labour. The Supreme Court considered its earlier judgment in Air Indias case (supra) and Secretary, Haryana SEB Vs. Suresh, (1999) 3 SCC 601 and held to the following effect:
11. In this case, there was no notification under Section 10 (1) of the CLRA Act, prohibiting contract labour. There was also neither a contention nor a finding that the contract with the contractor was sham and nominal and the contract labour working in the establishment were, in fact, employees of the principal employer himself. In view of the principles laid down in Steel Authority the High Court could not have directed absorption of the respondents who were held to be contract labour, by assuming that the contract-labour system was only a camouflage and that there was a direct relationship of employer and employee between the Corporation and the respondents. If the respondents want the relief of absorption, they will have to approach the Industrial Tribunal/Court and establish that the contract labour system was only ruse/camouflage to avoid labour law benefits to them. The High Court could not, in exercise of its jurisdiction under Article 226, direct absorption of the respondents, on the ground that work for which the respondents were engaged as contract labour, was perennial in nature.
Later on in Steel Authority of India Ltd. vs. Union of India and others (2006) 12 SCC 233, it was reiterated that neither the Labour Court nor the writ Court could determine the question as to whether the contract labour should be abolished or not . the same is within the exclusive domain of the appropriate Government. It was also held to the following effect:
24. When, however, a contention is raised that the contract entered into by and between the management and the contractor is a sham one, in view of the decision of this Court in Steel Authority of India Ltd. an industrial adjudicator would be entitled to determine the said issue. The industrial adjudicator would have jurisdiction to determine the said issue as in the event if it be held that the contact (sic) purportedly awarded by the Management in favour of the contractor was really a camouflage or a sham one, the employees appointed by the contractor would, in effect and substance, be held to be direct employees of the management.
8. The claim raised by the applicants being based upon the view obtained in Kiran Pals case (supra), cannot be held to be sustainable in view of the law announced by the Full Bench of the Punjab & Haryana High Court in Union of India & Another Vs. Ram Pal & Others (supra) for the very reasons noticed in the course of the latter judicial pronouncement which (reasons) stand extracted in the preceding para of this order.
10. In the light of aforementioned discussion, the applicants deserve to be non-suited and we so hold accordingly.
(JUSTICE S.D. ANAND) MEMBER (J) (RANBIR SINGH) MEMBER(A) Place: Chandigarh Dated: __.05.2013 HC*