Uttarakhand High Court
Harpal Singh vs Union Of India And Others on 19 March, 2018
Bench: K.M. Joseph, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Delay Condonation Application No. 4112 of 2015
In
Special Appeal No. 155 of 2015
Harpal Singh ........... Appellant
Versus
Union of India and others ............. Respondents
with
Special Appeal No. 152 of 2015
Raj Kishore ........... Appellant
Versus
Union of India and others ............. Respondents
Mr. S.K. Mandal, Advocate for the appellants in both the appeals.
Ms. Anjali Bhargava, Advocate for the respondents in both the appeals.
Dated: 19th March, 2018
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Sharad Kumar Sharma, J.
K.M. JOSEPH, C.J. (Oral) Since both these appeals raise common question, we dispose of the same by this common judgment. We take Special Appeal No. 155 of 2015 as the leading case. This appeal is lodged against the judgment in Writ Petition (S/S) No. 1411 of 2012.
2. There is delay of 199 days in filing Special Appeal No. 155 of 2015. In the circumstances, after hearing learned counsel for the parties, the delay will stand condoned. Delay Condonation Application will stand allowed.
3. Appellants in both the appeals are the writ petitioners. Writ Petition (S/S) No. 1411 of 2012 was filed seeking the following reliefs:
"I. Issue a writ order of direction in the nature of mandamus directing the respondents to implements the provision of Contract Labour (Regulation and abolition) 2 Act, 1970 as amended Act, 1986. To the respondent department.
II. Issue a order or direction in the nature mandamus directing and commanding the respondents to reinstated the services of the petitioner in the respondent department as class IV employee.
III. Issue a writ order of direction in the nature of mandamus directing and commanding the respondents to pay the minimum wages to the petitioners as it is being paid to the regular employees of the Department in the corresponding cadre."
4. Briefly put, the case of the appellant/writ petitioner is as follows:
The appellant/writ petitioner was engaged as a casual labourer on 01.11.1986 under the Sub Divisional Officer, Kashipur in the Department of Telecommunication. He worked from 01.11.1986 to 30.04.1987 and, thereafter, from 01.05.1987 to 31.10.1987. Thereafter, he continuously worked with the Department from 01.01.1996 to 01.12.1996. Reference is made to the scheme of grant of temporary status, which came into effect from 01.10.1989. The respondents did not give the benefits. In the year 2000, all the assets, services and liabilities of the Department of Telecommunication were transferred to the Bharat Sanchar Nigam Ltd. There is reference to Writ Petition (S/S) No. 1625 of 2004, which was admitted, and wherein interim order was passed that the writ petitioners/appellants be paid minimum pay scales as they are working since 1986.
Reference is also made to paragraph no. 53 of the judgment of the Hon'ble Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi and others. Annexure No. 3 purports to be the judgment rendered in Writ Petition (S/S) No. 1625 of 2004. The said writ petition came to be disposed of in the following manner:
"Learned counsel for the petitioner(s) has submitted that the petitioner has worked for more than 10 years. It was further submitted that the Hon'ble Apex Court in Secretary, State of Karnataka Vs. Umadevi 2006 AIR SCW p/1991 has held in para 44 that the Government should take steps to regularize as a one-time 3 measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The Apex Court has also held that the process must be set in motion within six months.
In view of the above observations made by the Hon'ble Apex Court, the learned counsel for the petitioner(s) wants to withdraw the petitioner with liberty to make representation before the appropriate authority.
Therefore, the petition is dismissed as withdrawn with liberty to make representation before the appropriate authority.
Stay order, if any, shall stands vacated.
On the basis of the same, the appellant/writ petitioner submitted representation vide Annexure No. 4. The same stood rejected vide Annexure No. 5 dated 25.03.2008 on the basis that he has never worked with the respondents. The further case of the appellant/writ petitioner is that during this period the respondents placed him under contractor Laxmi Engineer Mathura i.e. from 28.02.2006 as a result of which, the appellant/writ petitioner though had been working with the B.S.N.L., was shown as working with the contractor. Appellant/writ petitioner is getting Rs. 3,500/- per month by the contractor. Thereafter, the appellant/writ petitioner approached the Government of India in the Ministry of Labour, which in turn, referred the dispute for adjudication before the Labour Court. The Labour Court, vide its award dated 28.02.2012, rejected the claim of the appellant/writ petitioner. It is, thereafter, that the appellant/writ petitioner has approached this Court seeking the reliefs, which we have noticed.
5. The learned Single Judge, in the impugned judgment, took the view that the appellant/writ petitioner has a remedy available under the Administrative Tribunals Act, 1985. This was done on the basis of Rule 154 (c) of the Central Administrative Tribunal Rules of Practice, 1993. The same provides as follows:
4"(i) "154. Classification of cases subjectwise/departmentwise- (a) ..............
(b) ...............
(c) Subjectwise classification shall be made in accordance with Appendix VII, as may be modified by the Chairman from time to time."
6. Therefore, the learned Single Judge took the view that considering the aforesaid provision, the prayer made in the writ petition can be looked into by the Central Administrative Tribunal and the writ petition was dismissed on the ground of alternative remedy.
7. We heard Mr. S.K. Mandal, learned counsel on behalf of the appellants/writ petitioners and Ms. Anjali Bhargava, learned counsel on behalf of the respondents.
8. Mr. S.K. Mandal, learned counsel for the appellants/writ petitioners would submit that the reasoning of the learned Single Judge cannot be sustained as it is not supported by Section 14 of the Administrative Tribunals Act, 1985. Section 14 of the Administrative Tribunals Act, 1985 reads as follows:
"14. Jurisdiction, powers and authority of the Central Administrative Tribunal. -(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to -
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a Post connected with defence or in the defence services, being, in either case, a post filed by a civilian;
(b) all service matters concerning -
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause-(c) appointed to any civil 5 service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c) appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation or society or other body, at the disposal of the Central Government for such appointment.
(2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations or societies owned or controlled by Government, not being a local or other authority or corporation or society controlled or owned by a State Government:
Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of local or other authorities or corporations or societies.
(3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation or society, all the jurisdiction, powers and authority exercisable immediately before that 6 date by all courts (except the Supreme Court) in relation to -
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation or society; and
(b) all service matters concerning a person [other than a person referred to in clause (a) or clause (b) of sub-section (1) appointed to any service or post in connection with the affairs of such local or other authority or corporation or society and pertaining to the service of such person in connection with such affairs."
9. Therefore, we would have to examine whether the case of the appellants/writ petitioners would be covered by Section 14 of the Administrative Tribunals Act, 1985 or not. It is clear to us that the case of the appellants/writ petitioners cannot be brought under Section 14(1)(a) of the Administrative Tribunals Act, 1985, as the complaint of the appellants/writ petitioners does not relate to recruitment, and matters concerning recruitment to any All-India Service or to any Civil Service of the Union or a civil post under the Union or to a post in connection with the defence or in the defence services being held by a civilian. Equally, Clause (b) of sub-section (1) of Section 14, on its terms, is clearly inapplicable in the case of the appellants/writ petitioners on the face of it. The provision, which may apply is sub- section (3) of Section 14. But, herein also, we may notice that Clause
(a) of sub-section (3) of Section 14 refers to recruitment, and matters concerning recruitment to any service or post in connection with the affairs of such local or other authority or corporation or society. Proceeding on the basis that there is notification under Section 14(3) in regard to B.S.N.L., equally, service matters concerning a person other than a person referred to in clause (a) or clause (b) of sub- section (1) of Section 14 must be in reference to a person, who is appointed to any service or post in connection with the affairs of such local or other authority or corporation and pertaining to the service of such person in connection with such a post. In this case, we must 7 notice that there is an award already passed by the Labour Court. In the award, it has been found, inter alia, as follows:
"23. Since the claimant could not establish relationship of employer and employee between the parties, it cannot be said that he worked with the Nigam for last 20 years. One time step for regularization of the employees, who were irregularly appointed and worked for more than 10 years, as commanded by the Apex Court in Uma Devi (supra) is not applicable to the case of the claimant.
Under these circumstances, the Nigam cannot be burdened with any liability relating to reinstatement or regularization of services of the claimant. His demand for reinstatement and regularization of service w.e.f. 28.2.2006 in the service of the Nigam is neither valid nor justified. The issue is, therefore, answered in favour of the Nigam and against the claimant.
RELIEF
24. Since the claimant was not an employee of the Nigam no case either of reinstatement of his services or regularization is made out. Demand of the claimant for such relief is neither valid nor justified. No relief accrues to the claimant. An award is, accordingly, passed. It be sent to the appropriate Government for publication."
10. It be noticed that there is no challenge, as such, to this award. Therefore, we have to take it, as things stand, that there is no relationship of employer and employee between the appellants/writ petitioners and the respondents.
11. There remains Rule 154 of the Central Administrative Tribunal Rules of Practice, 1993, which is relied on by the learned Single Judge. Rule 154, to which, apparently, Appendix VII relates, inter alia, provides, undoubtedly, that the Division Bench would hear matters relating to absorption in Public Sector/Autonomous Bodies/Other Departments and Ad-hoc Appoitnments/Regularisation. Absorption in Public Sector/Autonomous Bodies/Other Departments can be understood in two different ways. It could be understood as meaning that a person, who is working and in respect of whom, there is a contract of appointment directly with the concerned Public Sector, Autonomous Body or other department, may lay a claim for 8 absorption. In such a case, undoubtedly, the provisions of the Central Administrative Tribunal Rules of Practice, 1993 would apply. But, as we have noticed, under the award of the Labour Court, it has been found that there is no relationship of employer and employee between the appellants/writ petitioners and the respondents. On the other hand, there is material to show that the respondents themselves understood the appellants/writ petitioners to be working under a contract. In this regard, we may notice Annexure No. 5, wherein it is, inter alia, stated as follows:
"Since the department did not engage you as Casual Labour at any point of time, the benefit of 1989 Regularization scheme cannot be granted to you. The benefit of aforesaid scheme was available to only those Casual Labours who were engaged by the Department directly and who fulfill other requirements as mentioned in the regularization scheme aforementioned.
Those workmen who had been hired by Contractor for doing some jobs in the Department are not entitled to the benefit of aforesaid scheme irrespective of the days they had put in. Further the office records of the concerned authority (GMTD Nainital) do not prove the fact that you were ever engaged by any authority under GMTD Nainital. As such your claim is not found to be genuine as per the provision of said scheme."
12. The other situation would be the situation like the present, where the claim for regularization and absorption is raised, but it is not raised by a person between whom and the respondents, there is a privity of employment. In such a case, we would think that having also regard to the provisions of Section 14 of the Administrative Tribunals Act, 1985, we would have to interpret the words "absorption" and "regularization" as meaning claims by persons, who have been engaged by the Public Sector, Autonomous Bodies or other departments. In this case, we are faced with a situation where the appellants/writ petitioners are engaged not directly but through a contract. In such circumstances, we would think that the learned Single Judge may not have been justified in taking the view that the 9 remedy of the appellants/writ petitioners lie under the Administrative Tribunals Act.
13. At the same time, Ms. Anjali Bhargava, learned counsel for the respondents would submit that the remedy of the appellants/writ petitioners lie before the Labour Court.
14. The appellants/writ petitioners are seeking enforcement of the Contract Labour (Regulation and Abolition) Act, 1970. It is relevant to notice that the Contract Labour (Regulation and Abolition) Act, 1970 does not by itself bring about the absorption of contract labour. In this regard, we may notice the judgment of the Hon'ble Apex Court in the case of Bhel Workers Association, Hardwar and others Vs. Union of India and other and connected cases reported in (1985) 1 SCC 630. Therein, the Hon'ble Apex Court, inter alia, held as follows:
"6. Thus we see that no invidious distinction can be made against contract labour. Contract labour is entitled to the same wages, holidays, hours of work and conditions of services as are applicable to workmen directly employed by the principal employer of the establishment on the same or similar kind of work. They are entitled to recover their wages and their conditions of service in the same manner as workers employed by the principal employer under the appropriate Industrial and labour Laws. If there is any dispute with regard to the type of work, the dispute has to be decided by the Chief Labour Commissioner (Central). It is clear that Parliament has not abolished contract labour as such but has provided for its abolition by the Central Government in appropriate cases under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. It is not for the court to enquire into the question and to decide whether the employment of contract labour in any process, operation or other work in any establishment should be abolished or not. This is a matter for the decision of the Government after considering the matters required to be considered under Section 10 of the Act. Similarly the question whether the work done by Contract labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment is a matter to be decided 10 by the Chief Labour Commissioner under the proviso to Rule 25 (ii) (v) (a). In these circumstances, we have no option but to dismiss both the writ petitions but with a direction to the Central Government to consider whether the employment of contract labour should not be prohibited under Section 10 of the Act in any process, operation or other work of the BHEL, Hardwar. There will also be a direction to the Chief Labour Commissioner to enquire into the question whether the work done by the workmen employed by the contractors is the same type of work as that done by the workmen directly employed by the principal employer in the BHEL, Hardwar."
15. A perusal of the aforesaid paragraph would show that the Hon'ble Apex Court has taken the view that the Parliament has not abolished contract labour as such but has provided for the mechanism for abolition under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. Next, we may also notice a Constitution Bench decision of the Hon'ble Apex Court in the case of Steel Authority of India Ltd. and others Vs. National Union Waterfront Workers and others reported in (2001) 7 SCC 1. It is relevant to notice that a three Judges Bench of the Hon'ble Apex Court in the case of Air India Statutory Corporation and others Vs. United Labour Union and others reported in (1997) 9 SCC 377 has taken the view that on issuance of the notification under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, the contract employees would have the right to automatic absorption and it will be open to the High Court to direct the same. The Constitution Bench proceeded to, inter alia, take the view that there is no such impact upon a notification being issued under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. The Hon'ble Apex Court took the view that even if there is abolition of the contract labour under Section 10, it does not give the right to the concerned employee to demand automatic absorption. It is apposite that we only refer to the following propositions, which have been laid down:
"125. The upshot of the above discussion is outlined thus:11
(1) (a) ............................
(b) ............................
(2)(a) ............................ (1) ............................ (2) ............................
(i) .....................
(ii) .....................
(b) ............................
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment.
Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
(4) We overrule the judgment of this court in Air India case prospectively and declare that any direction issued by any industrial adjudicator/any court including High Court, for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.
12(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
126. We have used the expression "industrial adjudicator" by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be Industrial Tribunal/Court whose determination will be amenable to judicial review.
16. Thus, the relief, which is sought by the appellants/writ petitioners, if it is meant as direction to abolish and to absorb, we would think that it may be misplaced. Even if there is abolition of contract labour, as laid down by the Hon'ble Apex Court under Section 10, there is no right of automatic absorption. This is a matter, which must necessarily engage the attention of the competent adjudicator, as laid down by the Hon'ble Apex Court. In this case, we are not informed as to whether there is any such notification issued under Section 10 of the Conract Labour (Regulation and Abolition) Act, 1970. Here, we must notice that the appellants/writ petitioners had approached this Court earlier seeking the relief of minimum scale of pay. That writ petition was got withdrawn with liberty to file a representation. Representation was filed. It stood rejected, but there is no challenge as such to the order rejecting the representation. In fact, the appellants/writ petitioners approached the Central 13 Government and the matter was referred for adjudication before the Labour Court. In the Labour Court, the case, which was set up, was that the appellants/writ petitioners were the employees of the respondents. This case has been repelled by the Labour Court and there is no challenge to the same.
17. In such circumstances, while we may not agree with the learned Single Judge regarding the maintainability of the writ petition, having regard to the remedy available under the Administrative Tribunals Act, we would think that the appeal is to be disposed of by setting aside the judgment, but finally disposing of the writ petition itself by leaving it open to the appellants/writ petitioners to seek appropriate remedy before the appropriate forum in regard to the relief. Accordingly, we do so.
18. The appeals are allowed as above.
(Sharad Kumar Sharma, J.) (K.M. Joseph, C.J.) 19.03.2018 19.03.2018 Rahul