Allahabad High Court
M/S Panki Thermal Power Station & ... vs P.O., Industrial Tribunal Iii U.P. ... on 11 April, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD
(AFR)
RESERVED ON 30.03.2017
DELIVERED ON 11.04.2017
Case :- WRIT - C No. - 13273 of 2000
Petitioner :- M/S Panki Thermal Power Station & Another
Respondent :- P.O., Industrial Tribunal Iii U.P. Kanpur & Another
Counsel for Petitioner :- P.K. Tripathi,M. Tripathi
Counsel for Respondent :- C.S.C.,B.N. Singh,R.K. Singh. Rajput
Hon'ble Mrs. Sangeeta Chandra,J.
This writ petition has been filed by the petitioners challenging the award dated 30th of September, 1998 passed by the Presiding Officer, Industrial Tribunal - III, U.P. Kanpur in Misc. Case No. 14 of 1991 as also the order dated 27.10.1999 in Review Application No. 27/D filed by the petitioners rejecting the same.
2. The Petitioners' case is that they are one of the Units of U.P. Rajya Vidyut Utpadan Nigam Limited, a government company, incorporated for generation of electricity. It is the case of petitioners that they engage contractors for doing work like cleaning of coal and handling of the same etc. and these contractors engaged workers to carry out the contract. One hundred eighteen such workers belonging to M/s. Basudev and Company Shahpur, Panaki, Kanpur - (Respondent No. 3) herein filed a claim for regularization which was referred under Section 4-K by the government to the Industrial Tribunal and was pending as Adjudication Case No. 64 of 1989.
3. In this Adjudication Case Respondent No. 2 - Kailash Nath was also one of the claimants along with one hundred seventeen other workmen. In this Adjudication Case the petitioners had taken a preliminary objection regarding its maintainability bringing on record that the workers were engaged through contractors and there was no employer and employee relationship. The terms and conditions of the contract were governed by the Contract Labour (Regulation and Abolition) Act, 1970.
4. The Respondent No. 2, Kailash Nath, filed a Misc. Case No. 14 of 1989 initiated through an application filed under Section 6-F of the U.P. Industrial Disputes Act alleging therein that during the pendency of the proceedings in Adjudication Case No. 64 of 1989, he had been disengaged on 15.09.1991, in violation of Section 6-E (3). This complaint/application filed under Section 6-F was treated by the Tribunal as a dispute and after taking of evidence it was decided in favour of the workman and a direction was issued for his reinstatement.
5. It is the petitioners' case that objections were filed to the Application under Section 6-F and the Superintending Engineer and Executive Engineer of Panki Thermal Power Plant had also appeared before the Presiding Officer and gave statement that the Respondent No. 2 was never engaged by them nor his services were terminated by them. The Respondent No. 2 was engaged by the contractor M/s. Basudev and Company whose contract ended on 15.09.1991 and after 15.09.1991 the contract was over, the contractor had withdrawn his workmen including the Respondent No. 2.
6. The Respondent No. 3 herein also filed an affidavit that he did the contract work for the petitioners and the terms of contract came to an end on 15.09.1991. The services of workman stood automatically terminated and the contractor could not be said to be liable for violation of Section 6-E of the U.P. Industrial Disputes Act. Respondent No. 2, Kailash Nath, in his statement contended that he was engaged by the Power Plant directly and his case for regularization was pending before the Tribunal, therefore, he could not be disengaged or his conditions of service altered during the pendency of the Adjudication Case without taking permission from the Tribunal.
7. The Respondent No.1 disbelieved the statement of Superintending Engineer, the Executive Engineer and the contractor and believed the Respondent No. 2 instead, and held that the concerned workman had continuously worked from 1984 to 1991 and the nature of work of the workman concerned related to the main work of the Power Plant. In Labour Legislation "if a workman has completed 240 days working, he could move for his regularization on the post on which he was working continuously. While in this case the Respondent No. 2 had worked for seven years and therefore, he should be regularized, but was deprived of this benefit during the pendency of the Adjudication Case No. 64 of 1989 his services being terminated without seeking prior approval of the Tribunal under Section 6-F." The Presiding Officer thereafter, gave an award to the effect that in lieu of violation of provisions of Section 6-E the Respondent No. 2 should be reinstated with continuity in service.
8. After the award dated 30.09.1998, was published on 12.11.1998, feeling aggrieved by the award the petitioners moved an Application under Section 6(6) for correction/recall, which too was rejected by the Tribunal holding that it can only correct clerical or arithmetical mistake in the award or errors arising therein from any accidental slip or omission, for all other purposes the Tribunal had become functus officio. It is relevant that before this Application under Section 6(6) dated 08.12.1998 was rejected by the Tribunal on 27.10.1999, the Adjudication Case No. 64 of 1989 was decided against all the one hundred eighteen - 118 labourers including the Respondent No. 2 vide award dated 30th of July, 1999 holding that the petitioner - Panki Thermal Power Station was justified not to regularise these labourers as there was no sufficient evidence to prove that there was a relationship of employer and employee between them.
9. When the matter was taken up in Court for hearing, the counsel for petitioner No. 1, Mr. Praval Tripathi holding brief of Mr. P.K. Tripathi, filed a supplementary affidavit bringing on record subsequent events during the pendency of this writ petition. In the said affidavit it was stated that after dismissal of the Adjudication Case No. 64 of 1989 the labourers filed a writ petition No. 13679 of 2000 against the award of the Labour Tribunal - III, Kanpur dated 30.07.1999. This writ petition remained pending. On the other hand, the labourers also had initiated proceedings under Rule 25(2) (v) (1) of the Contract Labour (Regulation and Abolition) Rules, 1975 claiming equal pay and other benefits as payable to regular employee of Panki Thermal Power Station and the said Application was allowed by the Labour Commissioner, U.P. on 06.08.1999. Against the order dated 06.08.1999 Panki Thermal Power Station filed writ petition No. 47303 of 1999 which was dismissed vide an order dated 11.07.2003 by this Court.
10. Against the order dated 11.07.2003 in writ petition No. 47303 of 1999 the petitioners approached the Supreme Court by means of Civil Appeal No. 1734 of 2003 which was allowed by the Supreme Court with a direction that since the workman had also filed writ petition No. 13679 of 2000 challenging the award dated 30th of July, 1999, rejecting the Adjudication Case No. 64 of 1989 and the "basic issue involved in both the writ petitions was with regard to status of the workmen concerned i.e. whether they were contract labourers or whether they were employee of the Appellant Corporation, it would be appropriate for the High Court to take up both the writ petitions together for disposal.
11. After this civil appeal was allowed on 15th September, 2005, both the writ petitions No. 47303 of 1999 and 13679 of 2000 were taken up together by the High Court. The High Court dismissed both the writ petitions; in one case upholding the order of Labour Commissioner for grant of equal pay/remuneration to the workmen engaged through contractor as that of regular workmen of the Thermal Power Plant on the ground that they performed similar nature of the work and therefore, they were entitled for similar benefits. With regard to the Adjudication Case No. 64 of 1989, the writ petition No. 13679 of 2000 filed by the labourers/workmen, the award of Tribunal dated 30.07.1999 was upheld on the ground that the Industrial Tribunal had come to the correct conclusion after considering all evidence on record that these workmen were employed through the contractors registered under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970. The moment assignment is completed the contract also comes to an end automatically. The workmen had no direct concern or connection with the principal employer and therefore, they were not entitled for regularization.
12. Against the judgment and order dated 09.04.2007, dismissing the writ petition No. 47303 of 1999 Panki Thermal Power Station again filed Special Leave Petition before the Supreme Court which was allowed and the order of Labour Commissioner awarding same pay/remuneration to contractual labourer as given to the regular employees of the Power Plant was set aside. The judgment of the High Court was held to have not clarified the situation whether the work done by the contractual labourers and regular employees was same in nature. The Supreme Court observed that "the pleadings and material on record led by both the parties seems not to have been correctly appreciated and the conclusion arrived at that they were workmen performing the same duties as were being performed by the regular employees, was without considering the material evidence on record."
13. The order of Labour Commissioner as affirmed in the writ petition No. 47303 of 1999 was set aside and the matter was remanded to the Commissioner to decide it afresh by the Supreme Court vide its judgment and order dated 11.02.2009.
14. As of now, the counsel for petitioners has argued that with regard to the similarity of nature of work or otherwise performed by contract labourer and regular employees of the Thermal Power Plant the dispute is pending before the Labour Commissioner. But one thing is clear from the judgment of the Hon'ble Supreme Court, that the terms and conditions of the employment of the workman including the Respondent No. 2 having been held to be governed by the Contract Labour (Regulation and Abolition) Act, 1970 and the Contract Labour (Regulation and Abolition) Rules, 1975, it is undisputed that the Respondent No. 2 being engaged through contractor would only continue till the contract continued. The contract ended on 15.09.1991 and therefore, the services of workman - Respondent No. 2 stood automatically terminated without any further action by the principal employer.
15. Since it was an automatic termination of worker according to the term of contract, it cannot be said that the terms and conditions of employment of the Respondent No. 2 were changed by the principal employer during the pendency of the Adjudication Case No. 64 of 1989. There being no relationship of employer and employee between the Thermal Power Plant and the Respondent No. 2 directly, it cannot be said that any action was taken by the petitioners in violation of Section 6-E of the U.P. Industrial Disputes Act and therefore, there was no need to seek any permission from the Tribunal where the Adjudication Case No. 64 of 1989 was pending.
16. It was also argued by Mr. Praval Tripathi that the Adjudication Case No. 64 of 1989 was itself filed for regularization by the workmen including the Respondent No. 2 and there was an admission to the effect that they were engaged through the contractor, but due to long continuance relief for regularization was claimed from the Power Plant.
17. On the other hand, Mr. B.N. Singh appearing for the Respondent No. 2 has pointed out the definition of 'Employer' as given under Section 2(i) of the U.P. Industrial Disputes Act where in sub-clause (iv) thereof it has been specifically provided that where the owner of any industry in the course of or for the purpose of conducting the industry, contracts with any person for the execution by or under such person of the whole or any part of any work, which is ordinarily part of the industry, the owner of such industry would be included in the definition of 'Employer'. Similarly, Shri B.N. Singh has also pointed out the definition of 'Workman' given under Section 2 (z) of the Act which does not in terms differentiate the persons employed directly by the industry or those who were employed by the contractor for the purpose of doing the work of the industry. Section 2(z) did not exclude contract labour in the U.P. Industrial Disputes Act as had been done under Clause (bb) of Section 2 (oo) of the Central Industrial Disputes Act. The Respondent No. 2 being a workman under the definition of Section 2 (z) whose claim for regularization was pending in the Adjudication Case No. 64 of 1989 before the Industrial Tribunal was clearly entitled to the protection given under Section 6-E of the Act. His Application under Section 6-E of the Act was, therefore, maintainable and was rightly entertained and allowed by the Industrial Tribunal.
18. It was also argued by Shri B.N. Singh that Since the Industrial Tribunal had clearly held that the workman was continuing since 1984 although the contractors under whom he was engaged kept on changing, he was also entitled for regularization, which being disputed question of fact, cannot now be gone into by the High Court sitting in writ jurisdiction. The finding of fact regarding continuance of work since 1984, even though outwardly engaged through a contractor, the relationship of employer and employee between the worker and industry was established beyond doubt and therefore, the award of Industrial Tribunal dated 30.09.1998 warrants no interference by this High Court. It was also argued that the Review Application No. 27 D of 1998 was also rightly rejected by the Respondent No. 1 because there was no clerical error or arithmetical mistake or slip or omission which could be corrected by the Tribunal in exercise of power under Section 6(6) of the U.P. Industrial Disputes Act.
19. The question before this Court is of a limited scope i.e. whether the workman (Respondent No. 2) had been engaged through contractor (Respondent No. 3) and whether his terms of employment were governed by such contract or not? If the terms of his employment were governed by the contract which, admittedly, ended on 15.09.1991 his services would be automatically terminated after the termination of contract and withdrawal of the workman by the contractor.
20. In the evidence filed before the learned Tribunal in the form of affidavits and oral statements of the Superintending Engineer and Executive Engineer and also the contractor, there was a specific statement that the contract had ended on 15.09.1991. The fact that the workman concerned falls within the definition of Section 2(z) or that the employer concerned would include the Panki Thermal Power Plant as per the definition given under Section 2(i) sub-clause (iv) would not govern the jurisdiction of this Court to look into the legality of the order passed by the Industrial Tribunal.
21. The scope of inquiry would be limited only to the extent whether there was a contract which ended on 15.09.1991? and; Whether in terms of the contract the services of the workman stood automatically terminated with 16.09.1991 i.e. day after the contract ended and the contract labourers were withdrawn by the contractor? This Court cannot countenance the argument that because the Adjudication Case No. 64 of 1989 was pending, there was violation of Section 6-E of the Act because once the contract stood terminated there could not be any extension of terms of contract through judicial fiat. The terms of the contract were not challenged at any stage by the workman concerned. The workman also did not dispute that he was engaged through a contractor, although there was certainly a dispute that since the workmen including the Respondent No. 2 performed the same duty as the regular employees of the Power Plant, they were entitled for same remuneration, and there was certainly also a dispute with regard to whether such workmen could claim regularization after having completed 240 days in a calender year in the industry concerned. These disputes were pending no doubt, but they have still to be adjudicated as per the orders of the Supreme Court. Therefore, it cannot be said that the employer Power Plant in this case had wrongly terminated the services of the workman - Respondent No. 2 during the pendency of the dispute in Adjudication Case No. 64 of 1989.
22. It is settled law that terms of contract cannot be changed in adjudication. The rights, title and interest of all the parties claiming under the contract, are bound by the strict terms in which such contract is formulated. Just because the Adjudication Case No. 64 of 1989 was pending, the terms of the contract could not be said to have been altered. This Court would certainly consider the question that if the Adjudication Case No. 64 of 1989 remained pending for ten years or more, whether ignoring the terms of employment in contract, the workman would be allowed to continue by the employer (the contractor in this case) even beyond the terms of his engagement. One hundred eighteen workmen had raised the dispute in Adjudication Case No. 64 of 1989; none but the Respondent No. 2 approached the Tribunal by filing the Application under Section 6-F of the Act. All the workmen were sailing in the same boat and all of them tacitly agreed that they being employed under the terms of contract for a definite period they could not seek continuation indefinitely during the pendency of the Adjudication Case No. 64 of 1989. Therefore, none approached the Tribunal for the relief as was sought by the Respondent No. 2.
23. For the facts and circumstances of the case and reasons mentioned herein above, the award of the Tribunal dated 30th of September, 1989 is liable to be set aside and is set aside.
24. The writ petition is allowed.
25. No order as to costs.
Order Date :- 11.04.2017 LBY