Karnataka High Court
Indian Oil Corporationltd., vs Karnataka Petroleum & Gas Workers Union on 22 February, 2013
Equivalent citations: 2013 LAB. I. C. 2132, 2013 (2) AIR KANT HCR 613, (2013) 137 FACLR 875, (2013) 5 KANT LJ 404, (2013) 2 LAB LN 683, (2013) 2 KCCR 83, (2013) 1 CURLR 1084
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION Nos.1829/2012 &
WRIT PETITION NOS. 1837-1840 OF 2012 (GM-RES)
BETWEEN:
Indian Oil Corporation Ltd.,
No.29, P. Kalinga Rao Road
(Mission Road)
Bangalore-560 027
Represented by its
Deputy General Manager - LPG
By Sri Chandran. ..Petitioner
(By Sriyuths C.K. Subramanya and B.C. Prabhakar, Advs.,)
AND :
1. Karnataka Petroleum &
Gas Workers Union
CITU Office, Udayanagar
Dooravaninagar Post
Bangalore-560 016
Represented by its President
Sri Gopala Gowda H.N
2. Asst. Labour Commissioner (Central)
Office of the Labour Commissioner (Central)
"Shiram Sadan", III Cross, III Main
2
II Phase, Tumkur Road, Yeshwanthpur
Bangalore-560 022.
3. The Management
V.K. Enterprises
C/o Indion Oil Corporation Ltd.,
LPG Bottling Plant
Devanagonthi
Bangalore-560 067
Represented by its Proprietor
Sri S.V. Ramaraju.
4. M/s. Major Arvind Murabatte
Contractor
C/o Indian Oil Corporation Ltd.,
LPG Bottling Plant
Kanagala, Belgaum-591225
Karnataka
Rep by its Proprietor
Major Arvind Murabatte.
5. V.K. Enterprises
C/o Indian Oil Corporation Ltd.,
LPG Bottling Plant, KIADB Area
Machenahalli, Nidige P.O.
Shimoga-577 222, Karnataka
Represented by its Proprietor
Sri S.V. Ramaraju. ..Respondents
(By Sri N.V. Vijay, CGC., for R2;
Sri T.S. Anantharam, Adv., for R1;
Sri Ramesh Upadhyaya, Adv., for R3 to R5)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India praying to direct the 1st
respondent, their Agents, supporters, associates, patrons,
3
members and accomplices from holding any strike,
agitation, Dharna, Gherao, picketing, slogan shouting,
within a radius of 500 meters of all the three
establishments of the petitioner situated in the Karnataka
State as indicated in Annexures-A,B and C etc.,
These Writ Petitions coming on for preliminary hearing
in 'B' group this day, the Court made the following :
ORDER
Petitioner - Indian Oil Corporation Limited is a Government of India Undertaking. The main activity of the petitioner's company is supply and distribution of petroleum products including Liquefied Petroleum Gas ('LPG' for short). In Karnataka, bottling plants have been established by the petitioner - Corporation at Devanagonthi, Hosakote taluk, Bangalore Rural district; Shimoga and Belgaum. In the LPG bottling plants, cylinders are being filled, loaded into trucks and sent to Distributors located in various markets across the State. The distributors would undertake door delivery of the LPG cylinders to customers. According to the petitioners, all 4 these three bottling plants put together fill around 1,00,000 LPG cylinders per day and supply to customers and around 32,00,000 LPG customers are serviced through LPG bottling plants.
2. The Government of Karnataka in exercise of its powers under sub-clause (d) of Clause-8 of Section-2 of the Official Secret Act, 1923 declared all the three places of bottling plants as prohibited places for the purpose of the said Act as per Annexures-A, B and C dated 8.10.2003, 26.11.2004 and 11.10.2004 respectively. The Government of India has issued a notification as per Annexure-D dated 14.7.2011 to the effect that the petitioner - Corporation/ industry is a Public Utility Service for the purpose of the Industrial Disputes Act, 1947 ('ID Act' for short). The Government of India has also declared the petitioner as a 'Controlled Industry' as per the Industries (Development & Regulation) Act, 1951 vide Annexure-E dated 16.1.2001. According to the petitioner, as a public sector undertaking, 5 the petitioner has a public duty to maintain uninterrupted supply of petroleum products including LPG to meet the cooking requirements of households, hotel industries, auto LPG requirements of public transport and other industrial uses and any disruption in the supply will result in great hardship and inconvenience to the members of the public, particularly to the people below poverty line.
3. Respondent No.1 -Karnataka Petroleum & Gas Workers Union, Udayanagar, Bangalore is a Union of contract labourers. The Contractors negotiate the service conditions of their labourers including revision of wages etc., with the first respondent recognized Union and sign a periodical wage settlement. The latest settlement signed by the 1st respondent - Union was on 24.10.2008. The said settlement is still in operation since the said settlement is not replaced by a new settlement. Copy of the settlement dated 24.10.2008 is produced at Annexure-F. The 1st respondent - Union has submitted Charter of Demands 6 dated 23.3.2011 to the three contract agencies (Respondent Nos.3 to 5). It is needless to observe that the settlement is only between independent contract agency and the recognised trade Union. However, the settlement will be made known to the petitioner - Corporation. The Charter of Demands dated 23.3.2011 submitted to three contract agencies by the 1st respondent Union is also forwarded to the petitioner's Management. The main demand of the Union is to hike the wages to certain extent. Copy of the Charter of Demands submitted by the 1st respondent is produced at Annexure-G to the writ petition. Ultimately, the Contractor having felt that the demand made by the 1st respondent cannot be met with, sought the intervention of the Assistant Labour Commissioner (Central) for amicable settlement/ conciliation. As of now, the conciliation proceedings are pending. In the meanwhile, the 1st respondent - Union started holding strike in all the three establishments of the petitioner situated in Karnataka 7 state. In view of the same, the petitioner has approached this Court by filing these writ petitions for a direction to the 1st respondent or its agents, supporters, associates etc., not to hold any strike, agitation, Dharna, Gherao, picketing, slogan shouting etc. within the radius of 500 meters of all the three establishments of the petitioner situated in Karnataka State. Certain consequential reliefs are also sought for.
4. While issuing notice on 17.1.2012, this Court granted an interim order restraining the 1st respondent, their agents, supporters, associates etc., from holding any strike, agitation, Dharna, Gherao, picketing, slogan shouting etc., within the radius of 500 meters of the three establishments of the petitioner situated at Hosakote Taluk, Bangalore Rural district; Hukkeri taluk, Belgaum district and at Machenahalli Industrial Area, Nidige, Shimoga taluk. The said interim order continues till this date. 8
5. The Respondent No.1 has opposed the writ petitions by filing statement of objections. According to Respondent No.1, since the petitioner - Management has specifically taken up the contention that there is no relationship of employer and employee between the workmen of Respondent Nos.3,4 and 5 with the petitioner establishment and as the petitioner has not accepted the principles of master and servant, the petitioner has no right to approach this Court under the guise of alleged violation of Sections 22, 23 and 24 of the I.D. Act; though the petitioner is responsible to consider the grievance of the 1st respondent - Union, it has not considered their grievance on the ground that members of the 1st respondent are not the workmen of the petitioner company. Since the members of Respondent No.1 are not employees under the petitioner, the provisions of Section 22(1)(d) of the I.D. Act are not applicable to the facts of this case and therefore there is no prohibition for the 1st respondent to go on strike. 9
6. Before proceeding further, it is relevant to note certain provisions of the I.D. Act and the Contract Labour (Regulation and Abolition) Act, 1970 {'Contract Labour Act' for short).
Section 22(1) of the I.D. Act reads thus:
22. Prohibition of strikes and lock-outs: (1) No person employed in a public utility service shall go on strike, in breach of contract:-
(a) without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or
(b) within fourteen days of giving such notice;
or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.10
Section 22(1)(d) of the I.D. Act thus makes clear that no person employed in a public utility service shall go on strike, in breach of contract during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. Hence there is a bar for every person employed in a public utility service to go on strike during the pendency of the conciliation proceedings. In the matter on hand, undisputedly the petitioner is declared as a public utility service. So also it is undisputed that the conciliation proceedings are pending before the Conciliation Officer as per law.
7. It is relevant to note here itself that the word, 'contract workman' or 'contract labour' is not defined in the I.D. Act. However, Section 2(1)(b) of the Contract Labour Act deals with the contract labour also. Section 2(1)(c) defines 'contractor'. Section 2(1)(d) defines 'controlled industry'. The aforementioned definitions read thus: 11
2(1)(b): a workman shall be deemed to be employed as "contract labour" in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer.
2(1)(c): "contractor", in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor.
2(1)(d): "controlled industry" means any industry the control of which by the Union has been declared by any Central Act to be expedient in the public interest.
Section 2(1)(g) of the Contract Labour Act defines 'principal employer' and it is also relevant for adjudication of this matter. The same reads thus:12
2(1)(g) "principal employer means-
(i) in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf.
(ii) xxx xxx
(iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named.
(iv) xxx xxx Section 2(1)(b) of the Contract Labour Act thus makes clear that a workman shall be deemed to be employed as 'contract labour' in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contactor, with or without the knowledge of the principal employer.13
The word, 'contractor' as defined under Section 2(1)(c) of the Contract Labour Act in relation to establishment, means a person who undertakes to produce a given result for the establishment through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor. Undisputedly, the petitioner is the 'controlled industry' as defined under Section 2(1)(d) of the Contract Labour Act.
8. From the aforementioned facts, it is clear that Respondents 3,4 and 5 are undisputedly contractors and they have supplied the contract labour for the work of the petitioner establishment. Hence, they squarely fall within the definition of 'contractor' as defined under Section 2(1(c) of the Contract Labour Act. So also the members of Respondent No.1 - Union are contract labourers and their services are hired in connection with the work of the petitioner by a contractor. Thus the members of the 1st 14 respondent - Union come within the definition of 'workman' for the purpose of this matter.
So also there cannot be any dispute that the petitioner is a principal employer inasmuch as the contract labourers though are working as labourers appointed by the Contractor, in fact undertake the work assigned to them by the petitioner. Though they are paid through contractors and though they are appointed by the contractor, the petitioner is the principal employer of the 1st respondent - Union inasmuch as the contract labourers are working in the establishment of the petitioner.
9. Chapter-V of the Contract Labour Act deals with welfare and health of contract labour. Under Section-16 of the Contract Labour Act, the canteen/canteens need to be provided and such canteen/canteens should be maintained by the contractor for the use of such contract labour, so also the contractor is liable to provide rest rooms as 15 contemplated under Section-17 of the Contract Labour Act and other facilities such as wholesome drinking water, latrine etc., are to be provided by the Contractor as per Section-18 of the Contract Labour Act. The first aid facilities also are to be provided by the Contractor to the contract labour as per Section-19 of the Contract Labour Act. In case if the contractor fails to provide the amenity/amenities required to be provided under Section- 16, Section-17, Section-18 or Section-19 of the Contract Labour Act for the benefit of the contract labour employed in an establishment, such amenity/amenities shall be provided by the principal employer within such time as may be prescribed as contemplated under Section-20 of the Contract Labour Act. May be, all expenses incurred by the principal employer in providing the amenity can be recovered by the principal employer from the contractor, subsequently.
16
Under Section-21 of the Contract Labour Act, contractor shall be responsible for payment of wages to each of the contract labourer. Every principal employer shall nominate a representative duly authorized by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed under sub-section (2) of Section-21 of the Contract Labour Act. Duty is also cast on the contractor to disburse wages in presence of the authorized representative of the principal employer as per Section 21(3) of the Contract Labour Act. In case if the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor. Thus it is clear from the scheme of 17 the Contract Labour Act that it is the primary duty of the contractor to make payment and to see the welfare of the contract labour. However if the contractor fails to take care of the welfare of the contract labour as contemplated under the Contract Labour Act and fails to pay the wages through the contractor, it is the duty of the principal employer to take care of welfare of the contract labour and to pay the wages on the due date and it is open for the principal employer to recover the same. Thus it can be safely said that the petitioner being the principal employer is impliedly responsible for welfare of the contract labour including the payment of wages etc.,
10. At the cost of repetition, it may be noted that during the pendency of conciliation proceedings before the Conciliation Officer, no person employed in a public utility service shall go on strike, in breach of contract. As aforementioned, though the members of the 1st respondent
- Union are employed by the respective contractors, the 18 petitioner being the principal employer is liable to take care of the welfare of the contract workmen including payment of wages, in case the contractors fail in their duty to provide amenities and wages to the contractor. Thus in effect, the members of the 1st respondent - Union, who are employed in public utility service though as contract labourers through contractors also are impliedly bound by the provisions of Section 22(1)(d) of the I.D. Act. Therefore the contention of learned counsel for Respondent No.1 that the members of the 1st respondent are not employees of the petitioner and hence the provisions of Section 22(1)(d) of the I.D. Act are not applicable to the members of the 1st respondent - Union cannot be sustained.
Since the permanent employees of the petitioner do not have privilege to go on strike during the subsistence of conciliation proceedings, the contract workmen cannot be conferred with the privilege of going on strike, particularly 19 having regard to the fact that the petitioner is handling highly explosive substance i.e. petroleum product.
11. Even assuming that the provisions of Section 22(1)(d) of the I.D. Act are not applicable to the contract workmen and that they may go on strike ignoring the provisions of Section 22(1)(d), they may be entitled to do so not in the premises of the petitioner, but in front of the offices of Respondent Nos.3,4 and 5. It is not open for the contract labourers to go on strike either within the campus of the petitioner or immediately outside the campus of the petitioner since they are not really aggrieved against the petitioner. According to them, they are aggrieved by the inaction of the contractors. If it is so, the 1st respondent - Union could have gone on strike, if in their opinion, the provisions of Section 22(1)(d) of the ID Act are not applicable, in front of the offices of respective contractors.
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In any event, the members of the 1st respondent - Union may not be entitled to go on strike, that too within the premises of the petitioner or immediately outside the premises of the petitioner, particularly when the conciliation proceedings are pending.
12. During the course of arguments, it is brought to the notice of the Court by the learned advocate for the petitioner that recently a settlement has taken place on 20.10.2012 in between another Union of workmen i.e. Indian Oil Contract Employees' Union and Contractor viz., Shri S. Vijaya Ram Raju (Respondent Nos.3 and 5). Under the said settlement, the basic pay of the contract workman is enhanced to Rs.7,500/- from Rs.4,900/-. It is also brought to the notice of the Court by filing memo dated 20.1.2013 that totally 103 contract workmen are working in the above establishment and out of them, 54 contract workmen have already signed the settlement dated 20.10.2012 and are getting its benefit.
21
13. Sri Anantharam, learned advocate for Respondent No.1 raised yet another contention regarding maintainability of the writ petition against Respondent No.1, which is the Employees' Union on the ground that the 1st respondent cannot be termed as authority within the meaning of Article-12 of the Constitution and hence suit may be maintainable. The Respondent No.1 is the registered body under the Trade Unions Act. It is a legal person and owes a duty under the statute. One of the duties under the I.D. Act is not to go on strike unless the provisions of sub-section (1) of Section 22 of the I.D. Act are complied with. The Parliament has thought of imposing restrictions on the employees from striking the work enumerating the conditional prohibitions. Article-226 of the Constitution confers powers on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. As has been held by the Apex Court in the case of ANDI MUKTA S.M.V.S.S.J.M.S TRUST 22 .VS. V.R. RUDANI reported in (1989)2 SCC 691, the term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12 of the Constitution of India. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. As aforementioned, in the matter on hand, the 1st respondent being the registered body under the Trade Union Act is a legal person and pose a duty under the statute including the one provided under Section 22(1)(d) of the I.D. Act. In this context, it is relevant to note paragraphs 20 and 21 of the judgment in the case of ANDI MUKTA S.M.V.S.S.J.M.S TRUST cited supra.
"20. The term "authority" used in Article 226, in the context, must receive a liberal meaning 23 unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.
21. In Praga Tools Corporation .vs. C.A. Imanual {(1969)1 SCC 585} this Court said that mandamus can issue against a person or body to carry out the duties placed on them by the statutes even though they are not public officials 24 or statutory body. It was observed: (SCC p.589, p. 6: SCR p.778) It is, however not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities.
(Emphasis supplied)
14. Though Sri Anantharam, learned advocate for Respondent No.1 argues that the aforementioned dictum may not be applicable to the facts of the case inasmuch as the 1st respondent is the Union of contract labourers, this Court is unable to accede to the contention of the first 25 respondent. Even if the 1st respondent is the Union of contract labourers registered under the Trade Unions Act, the principle laid down by the Apex Court in the aforementioned decision is applicable to such respondent also.
However, I hasten to add here itself that this order should not be meant that in every matter of this nature, the parties may rush to this Court by filing writ petitions. The parties who pray for the reliefs similar to the one prayed in these writ petitions may have to approach the Civil Court as a general rule. Only under extraordinary and exceptional circumstances and in the case of extreme urgency, this Court may exercise jurisdiction under Article-226 of the Constitution of India in such matters. Since this Court visualizing the extreme urgency in the matter has granted interim order while issuing notice to the respondents herein, these writ petitions are disposed of on merits. 26
In view of the above, the following order is made:
The 1st respondent, its agents, supporters, associates, patrons, members and accomplices are directed not to hold any strike, agitation, Dharna, Gherao, picketing, slogan shouting, within a radius of 500 meters of the three establishments of the petitioner situated at Hoskote taluk, Bangalore Rural District: Hukkeri Taluk, Belgaum District and at Machenahali Industrial Area, Nidige, Shimoga Taluuk.
Accordingly, the petitions stand allowed.
Sd/-
JUDGE Gss/-