Bombay High Court
Shri Vijay S/O Shridhar Borkar vs The Senior Regional Manager, Food ... on 12 January, 2016
Author: Z.A. Haq
Bench: Z.A. Haq
1 WP1986.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO .1986 OF 2014
Sheetal Prasad Kamal Prasad Dwivedi,
Aged 47 years, Occupation - Nil,
R/o At Ashok Nagar, Akot File,
Near Ramdas Math, Akola. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), Mistri Bhawan,
Dinisha Waccha Road, Mumbai-400 020.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .1989 OF 2014
Shri Vijay s/o Shridhar Borkar,
Aged 46 years, Occupation - Nil,
R/o New Tarfile, Akola, District-Akola. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), Mistri Bhawan,
Dinisha Wachha Road, Mumbai-400 020.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
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WITH
WRIT PETITION NO .2580 OF 2014
Shri Sanjay s/o Bhimrao Gajre,
Aged 46 years, Occupation - Nil,
R/o New Tarfile, Akola, District-Akola .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2581 OF 2014
Shri Praveen s/o Shridharrao Bhayde,
Aged 42 years, Occupation - Nil,
R/o At Post Antora (Deora),
Taluka and District Amravati. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
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WITH
WRIT PETITION NO .2625 OF 2014
Shri Gautam s/o Ramdas Meshram,
Aged 47 years, Occupation - Nil,
R/o New Tarfail, Akola. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2804 OF 2014
Shri Jitendra s/o Dhyaneshwar Chaudhari,
Aged 42 years, Occupation - Nil,
R/o Post - Tiroda, Tahsil-Tiroda,
District-Gondia. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
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WITH
WRIT PETITION NO .2863 OF 2014
Shri Wasudeo s/o Namdeo Sarkate,
Aged 48 years, Occupation - Nil,
R/o C/o. J.T. Lonkar, Ambedkar Chowk,
Akot File, Akola. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2864 OF 2014
Shri Dinesh Singh Surajpal Singh Thakur,
Aged 41 years, Occupation - Nil,
R/o Shankar Nagar, Near Sarode School,
Akola. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
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5 WP1986.14
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2868 OF 2014
Shri Bhawrao s/o Shankarrao Sabale,
Aged 47 years, Occupation - Nil,
R/o Apatapa Road, Akola. ig .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2869 OF 2014
Smt. Halima wd/o Sadik Khan,
(Legal heir of Late Sadik Allaudin Khan)
Aged 50 years, Occupation - Nil,
C/o Ayub Khan, Goregaon,
Taluka - Goregaon, District - Gondia. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
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6 WP1986.14
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .3032 OF 2014
Rajesh s/o Bhaidas Borkar,
Aged 44 years, Occupation - Private,
At Post Govindpur, Taluka - Gondia,
District - Gondia. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .3035 OF 2014
Shri Vikas s/o Mahadev Kharat,
Aged 37 years, Occupation - Nil,
R/o At Bhartia Bhaudha Vachnalay,
Ashok Nagar, Akola, District-Akola. .... PETITIONER
VERSUS
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7 WP1986.14
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .3040 OF 2014
Shri Aziz Ahmad s/o Abdul Razak,
Aged 45 years, Occupation - Nil,
R/o At Ashok Nagar, Purpidit Colony,
Qtr. No.226, Akola, District - Akola. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .3045 OF 2014
Shri Vijay s/o Haridas Borkar,
Aged 42 years, Occupation - Nil,
R/o Ganesh Nagar, Gondia, District-Gondia. .... PETITIONER
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8 WP1986.14
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
ig WITH
WRIT PETITION NO .3077 OF 2014
Shri Sukhdeo s/o Sahadeorao Dhoke,
Aged 43 years, Occupation - Nil,
At Jalu, Post-Badnera, Tq.- Nandgaon
Khandeshwar, District - Amravati. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .3078 OF 2014
Shankar s/o Shriram Sarode,
Aged 41 years, Occupation - Nil,
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9 WP1986.14
At Palsod, Post Chohatta Bazar,
Tq. Akola, District Akola. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .3329 OF 2014
Chandanshiv s/o Shravan Sadanshiv,
Aged 49 years, Occupation - Nil,
At Ashok Nagar, Ramdas Math, Akola. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
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WRIT PETITION NO.3330 OF 2014
Ramesh s/o Kisanrao Natkut,
Aged 53 years, Occupation - Nil,
At Post Nibhora Nagar, Near Nemani
Godown, Badnera Road, Amravati. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .3331 OF 2014
Devidas s/o Bapurao Goyale,
Aged 51 years, Occupation - Nil,
At Sai Nagar, Near School, Amravati. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
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______________________________________________________________
Shri V.S. Kukday, Advocate for the petitioners,
Shri S.R. Deshpande with Shri J.K. Matale, Advocates for the
respondents.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 12
JANUARY, 2016.
th
ORAL JUDGMENT :
1. All these writ petitions are being disposed by the common judgment as the common issue is involved in the writ petitions.
2. Heard Shri V.S. Kukday, learned Advocate for the petitioners-employees and Shri S.R. Deshpande, learned Advocate for the respondents-employer.
3. Rule. Rule made returnable forthwith.
4. The employees have challenged the orders passed by the Central Government Industrial Tribunal answering the reference against them, concluding that the reference is bad in law as the Contractor has not been impleaded as party to the proceedings.
5. According to the employees, they were appointed as ::: Uploaded on - 16/01/2016 ::: Downloaded on - 31/07/2016 00:46:55 ::: 12 WP1986.14 Security Guards in November 1987 and they continued to be in the employment till March 1999. It is the case of the employees that the employer made a show that they are engaged through the Contractor and that they are the employees of the Contractor, though infact they had been employees of the respondents. The tenor of the statement of claim filed by the employees before the Tribunal shows this and the grounds are culled out in paragraph No.7 of the statement of claim filed by the employees before the Tribunal, which are as under :
"7. The Party No.1 has shown new contract after every 2 years. It was merely a farce to deny the claim of the Party No.2 of being regularised in service. In fact the Food Corporation of India is a corporation having huge material to stock. For watch and ward purposes, they need their own guards. If they want to allot this work of watch and ward to contractor, as per Contract Act, it is necessary to get first the corporation registered as a Principal Employer. The Party No.1 has no such Certificate of Registration. Similarly the so-called contractor has also no Licence of contract required under Contract Labour Act. These facts go to show that the Party No.1 has made only show that the deceased Party No.2 is engaged through the Contractor. Thus the Party No.2 is the employee of Party No.1. Therefore, in such a situation also the deceased workman became the direct employee of the Food Corporation of India management, and the management was an employer of the deceased workman. No doubt, even though the work is done initially under the contract, the Food Corporation of India has to supervise also whether the work is done or not. However, there is a difference between the nature of supervision. If the security guards are employed by the ::: Uploaded on - 16/01/2016 ::: Downloaded on - 31/07/2016 00:46:55 :::
13 WP1986.14 Food Corporation of India then the security guard are to be supervised so also the work, whereas if it is given on contract basis the Food Corporation of India has to only see whether the work is properly done or not, and if it is not done properly, then to inform the contractor. But in the matter of deceased workman the supervision work is done by the Food Corporation of India management through their officers. Therefore, the oral termination of the deceased workman, is illegal, unlawful and against the principle of natural justice."
6. The respondents-employer opposed the claim of the employees by filing their reply. The respondent pleaded that the employers were employed by the contractor and they were not the employees of the respondent. The respondent contended that the contractor was a necessary party and as the contractor was not impleaded, the complaints were liable to be dismissed for non-joinder of necessary party.
7. The Tribunal proceeded with the matter and after completing the trial of the proceedings, by the impugned orders, recorded that the reference is bad in law for non-joinder of the contractor to the proceedings.
8. After hearing the learned Advocates for the respective ::: Uploaded on - 16/01/2016 ::: Downloaded on - 31/07/2016 00:46:55 ::: 14 WP1986.14 parties and considering the documents placed on the record of the petitions, I find that the Tribunal has dealt with the matters under the misconception that the employees/workmen have themselves come out with the case that they were engaged by the contractor, as reflected from the observations of Tribunal in paragraph No.17 of the impugned order, which are as follows :-
"17. It is the own case of the workman that he was engaged by the contractor. So the contractor, who had engaged the workman, is a necessary party in the reference. The said contractor has not been added as a party in this reference. Due to non-joinder of necessary party, the reference is bad in law."
9. In paragraph No.15 of the impugned order the Tribunal has recorded that the contention of the employees regarding non-
registration of the respondents-employer as required by Section 7 of the Contract Labour (Regulation & Abolition) Act, 1970 and the contractor not having licence issued by the Regional Labour Commissioner under the Contract Labour (Regulation & Abolition) Act, 1970 is not considered by the Tribunal as according to the Tribunal such a plea has not been raised in the statement of claim. The observations of the Tribunal suffer from patent perversity. The employees have pleaded in paragraph 7 of the statement of claim that ::: Uploaded on - 16/01/2016 ::: Downloaded on - 31/07/2016 00:46:55 ::: 15 WP1986.14 the respondents-employer are not having certificate of registration and the contractor has no licence and these facts show that the respondents-employer made a show that the employees were engaged through the Contractor. In my view, the impugned orders are unsustainable in law as the Tribunal has proceeded in the matters on the erroneous consideration that there are no pleadings and challenges raised by the employees, when infact the pleadings are on the record.
It is well established that non-consideration of relevant pleadings or apparently erroneous consideration of the material on the record, vitiates the order.
10. In my view, the interests of justice would be sub-served by passing the following order :
(i) The orders passed by the Central Government Industrial Tribunal, Nagpur which are challenged in all these writ petitions, are set aside.
(ii) The matters are remitted to the Central Government Industrial Tribunal, Nagpur for deciding the reference, afresh.
(iii) The learned Advocates for the respective parties submit that as the matters are being remanded, the parties may be ::: Uploaded on - 16/01/2016 ::: Downloaded on - 31/07/2016 00:46:55 ::: 16 WP1986.14 granted an opportunity to amend the pleadings, produce documents and lead evidence, if required. The submission made on behalf of the petitioners and the respondents is accepted. The Central Government Industrial Tribunal, Nagpur shall grant an opportunity to the parties, if requested, accordingly.
(iv) As the matters are very old, the Central Government Industrial Tribunal, Nagpur is directed to dispose the matters expeditiously.
(v) The petitioners and the representatives/Advocates of the respondent shall appear before the Central Government Industrial Tribunal, Nagpur on 26-02-2016 and abide by the further orders in the matters.
11. Rule is made absolute in the above terms in all these writ petitions. In the circumstances, the parties to bear their own costs.
It is clarified that the issues raised in the matters on merits, are not considered and they are left open for consideration by the Central Government Industrial Tribunal, Nagpur.
JUDGE pma ::: Uploaded on - 16/01/2016 ::: Downloaded on - 31/07/2016 00:46:55 :::