Bombay High Court
Nassim Ahmed Jamir Ahmed & Ors. vs Shipping Corporation Of India Ltd. & ... on 15 September, 1995
Equivalent citations: 1996(2)BOMCR230, [1996(73)FLR1508], (1996)ILLJ1200BOM
JUDGMENT D.R. Dhanuka, J.
1. By this petition filed under Article 226 of Constitution of India, the petitioners have sought a declaration that the petitioners and the employees whose names are set out in list Exhibit 'A' to the petition are entitled to be regularised and/or treated as direct employees of the 1st respondent and not the employees of the contractor i.e., the respondent No. 2 in the petition. The petitioners have also sought issue of a writ of mandamus, direction or order directing the 1st respondent to regularise the services of the petitioners and other employees listed in the list Exhibit 'A' to the petition and treat them as regular employees of the 1st respondent from such date as may be fixed by this Honourable Court. The petitioners have further sought issue of a writ of mandamus so as to direct the 1st respondent to absorb the petitioners and other watchmen listed in Exhibit 'A' to the petition as its own employees, with retrospective effect. The petitioners have also sought certain consequential reliefs in this behalf by prayer (c) of the petition. By prayer (b) of the petition, the petitioners had in the alternative sought issue of a writ of mandamus directing the 3rd respondent to abolish the employment of contract labour as watchmen for the work and business of the 1st respondent. The petitioner have not pressed prayer (b) of the petition at the hearing of the petition. The petitioners have contended though not pleaded in the petition that the contract labour in relation to employment of 'contract labour' on and from 1st March 1977 inter alia in relation to watching of buildings owned or occupied by establishments in respect of which the appropriate Government under the Contract Labour (Regulation and Abolition) Act 1970 has stood abolished on and from 1st March 1977 and the case of petitioners falls within the purview of notification dated 9th December 1976 issued by the Central Government under Section 10(1) of the Act copy whereof is exhibit "K" to the petition. The petitioners are permitted to urge this contention on basis of factual averments made in the petition.
1A. In paragraph 4 of the petition, the petitioners have averred that the 1st respondent always had a regular and perennial need for watchmen and security staff to look after its ships, cargoes and containers in the Bombay Docks. There is no specific plea in the petition to the effect that the petitioners were employed as 'contract labour' to watch the buildings owned or occupied by the establishments in relation to which the Central Government was 'appropriate Government' under the Contract Labour (Regulation and Abolition) Act, 1970.
2. On 9th December 1976, the Central Government had issued a notification bearing No. S. O. 779(E) in exercise of the power conferred on it by sub-section (1) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. A copy of the said notification is Annexure Exhibit "K" to the petition. By the said notification, the Central Government prohibited employment of contract labour on and from the 1st March 1977 for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect of which the appropriate Government under the said Act was the Central Government. Proviso to the said notification is not relevant for the purpose of deciding this petition. The petitioners have averred in para 34 of the petition that the failure of the 3rd respondent to prohibit employment of contract labour in their case just as in the case covered by notification Exhibit "K" to the petition was arbitrary and discriminatory. At the hearing of the petition, the learned counsel for the petitioners did not press prayer (b) of the petition seeking issue of a writ of mandamus directing respondent No. 3 to abolish the employment of contract labour as watchmen for the work and business of the 1st respondent but contended that the employment of contract labour in the instant case had stood abolished by the above referred notification dated 9th December 1976. If so, the watchmen employed by respondent No. 1 through the contractors concerned must necessarily be treated as direct employees of respondent No. 1, submits the learned counsel for the petitioners. The Court is inclined to examine this plea though not found in the petition on merits limited in its scope and ambit to factual averments made in the petition. No leave has been obtained by the petitioners to file this petition in a representative capacity by invoking principles analogous to order 1 rule 8 of Code of Civil Procedure of otherwise.
3. On 16th April 1968, the respondent No. 1 awarded a "watchmen contract" in favour of Messrs. Menlyn and Company for the period ending 31st March 1970 for supply of watchmen to look after the cargo and the containers lying at the Docks etc. as more particularly set out therein. The said contract was renewed by respondent No. 1 from time to time and was implemented till about 9th January 1983. By letter dated 5th January 1983, the respondent No. 1 informed Messrs. Menlyn & Co. that the said contract for supply of watchmen at Bombay will cease to operate as from 9th January 1983. The respondent No. 1 thereafter appointed M/s. Moosa Services Company as its new contractor for supply of watchmen. On 25th April 1986, the respondent No. 1 awarded a written contract in this behalf to M/s. Moosa Services Company for supply of watchmen for security of cargoes etc., of the vessels of respondent No. 1 at Bombay. Once again, in the year 1988, tenders were invited by respondent No. 1 from various contractors for supply of watchmen for security of cargoes etc. of S. C. I. vessels at Bombay. Both Messrs. Menlyn & Co. as well as M/s. Moosa Services Company used to supply watchmen to several shipping companies for watching their cargoes etc., lying at the Docks etc. It is the contention of the petitioners that more or less the same watchmen who were in fact watching the cargo etc., of respondent No. 1 at the docks while Messrs. Menlyn & Co. were the contractors continued to do the same job even after the contract for the similar work was arrived at between respondent No. 1 and M/s. Moosa Services Company, the respondent No. 2 herein.
4. Some time in the year 1984, an industrial disputes raised by the Bombay Port Trust Employees Union against M/s. Menlyn & Co., the contractors employed by respondent No. 1 (whose contract herein was terminated by respondent No. 1 on 9th January 1983) was referred by the Central Government to Central Government Industrial Tribunal for adjudication. The said dispute was also in relation to the petitioners or at least some of them. The order of reference made in the reference hereinabove reads as under :
"Whether the action of the management of M/s. Menlyn & Co. Bombay in terminating the services of Shri Nanakhan and 651 other watchmen with effect from 10th January, 1983 is justified? If not, to what relief the concerned workmen are entitled?"
The Shipping Corporation of India, the respondent No. 1 in this petition, was not even impleaded as a party to the said dispute. The respondent use to obtain its registration as a 'principal employer' as contemplated under Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970. In the reference herein, the case of the workmen and the union was that the aggrieved workmen had the necessary privity of contract with Masers. Menlyn and Company alone and the said workmen were unlawfully retrenched by the employer company named in the reference i.e., M/s. Menlyn and Company. In this reference, Messrs. Menlyn and Company contended that Messrs. Menlyn and Company was merely a recruiting agent for the Shipping Corporation of India Ltd. The aforesaid defence plea was rejected by the Tribunal. On 24th October 1985, Dr. Justice R. D. Tulpule, President of the Central Government Industrial Tribunal No. 1 at Bombay made his award in the matter holding in terms that the Shipping Corporation of India Limited was not the real employer of the workmen and Messrs. Menlyn and Company was not a recruiting agent for respondent No. 1 as pleaded by it. Messrs. Menlyn and Company at Bombay failed to prove that Messrs. Menlyn and Company was a mere recruiting agent with reference to 652 watchmen who were retrenched by Messrs. Menlyn and Company on or about 10th January 1983. By the said award, the Central Government Industrial Tribunal granted relief to the workmen by directing payment of retrenchment compensation as set out therein. Being aggrieved by the said award, Messrs. Menlyn and Company preferred Writ Petition No. 2926 of 1986 in this Court impleading for the first time the Shipping Corporation of India Limited also as one of the respondents in the writ petition. On 30th March 1992, consent terms were arrived at between the parties to the said writ petition whereunder the said union agreed to a sum of Rs. 5 lacs towards full and final settlement of all the claims awarded by the Industrial Tribunal towards retrenchment compensation and also the amount of gratuity payable to the workers covered under the award. It is obvious from the copy of the consent terms filed in this Court in the above referred writ petition that the Shipping Corporation of India Limited had merely agreed to pay a sum of Rs. 3 lacs towards the lumpsum liability of Rs. 5 lacs set out in the said consent terms and Messrs Menlyn and Company and agreed to pay the balance of Rs. 2 lacs to the Bombay Port Trust Employees Union. The said Union for itself and the workers concerned agreed not to raise any further or other financial demands whatsoever on behalf of the workmen who were covered by the award dated 20th October 1985. The Consent terms do not indicate directly or indirectly that the respondent No. 1 had agreed to treat the concerned workman as its direct employees or absorb them in their Employment as such. Subsequent conduct of the parties also indicate prima facie continuous employment of concerned workmen as contract labour on the footing that the respondent No. 1 was the 'principal employer' as defined by the Contract Labour (Regulation and Abolition Act) 1970 and the workmen concerned were the contractors' employees. Documentary evidence on record prima facie leads to this inference though not conclusively. In the first round of litigation referred to hereinabove it was the case of the watchmen concerned themselves that their true and real employer was Messrs. Menlyn and Company and not Shipping Corporation of India Limited. In this situation, the learned counsel for the petitioner has submitted in the alternative that even if the petitioners and other watchmen listed in Exhibit 'A' to the petition were not the direct employees of respondent No. 1 from inception, they were liable to be considered as direct employees of respondent No. 1 at least for the period commencing from 10.1.1983 and all these workmen/employees are thus liable to be absorbed and/or regularised as employees of respondent No. 1.
5. The first question which is required to be considered by the Court is as to the whether the employment of contract labour on and from 1st March 1977 stood abolished in the instant case as well and as to whether the petitioners are justified in relying as notification No. S. O. 779(E) dated 9th December 1976 (Exhibit "K") to the petition for purpose of this petition. For the purpose of scrutinising this contention, the Court shall have to concentrate on two different aspects of the matter as formulated below :-
(a) Whether in the instant case contract labour was employed for "watching the buildings" (i.e., directly and substantially) within the meaning of the said expression used in the above referred notification?
(b) Whether the Central Government was the 'appropriate Government' in relation to the establishment of Shipping Corporation of India Limited on 9th December 1976 or 1st March 1977?
(c) Whether the Central Government is the appropriate Government within the meaning of the said expression for purpose of Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970 as well as the Industrial Disputes Act, 1947 as on today?
6. The petitioners have averred in paragraph 4 of the petition that the 1st respondent has had a regular and perennial need for watchmen and security staff to look after its ship, cargoes and containers in the Bombay Docks. The petitioners have averred in paragraph 8 of the petition that the respondent No. 1 had appointed the 2nd respondent as a contractor for supply of watchmen for watching its ships and cargoes in the Dock area at Bombay. Even the tenders invited by respondent No. 1 for supply of watchmen as late as 1988 were for supply of watchmen for security of cargoes of S. C. I. vessels at Bombay. The contracts arrived at between the respondent No. 1 on the one hand and Messrs. Menlyn and Company on the other hand on 16th April 1968 and 26th September 1979 and also between respondent No. 1 and Moosa Services Company on the other hand on 25th April 1986 do indicate that the watchmen were to be supplied by the said contractors to respondent No. 1 as 'contract labour' according to its need and requisition for looking after the cargoes at the Docks. The respondent No. 1 did issue letters to the Deputy Manager of the Docks during the years 1986, 1987 and 1988 copies whereof are at Exhibits "J" to "I" to the petition requesting the Deputy manager of the Docks to allow the watchmen of M/s. Moosa Services Company to guard the import/export cargo, containers and the vessels specified therein at shed No. 13. In my opinion, the supply of contract labour in this case was not for watching of the buildings owned or occupied by the establishments within the meaning of above referred notification No. S. O. 779(E) dated 9th December 1976. There is overwhelming material on record including the averments made in the petition itself that in the instant case the watchmen were employed through the contractors directly and substantially to look after cargoes, vessels and containers. In certain situations the cargo was required to be watched by the watchmen even when the same was lying in a particular shed. The watchmen were required to guard the cargo/containers of the vessels lying at particular shed and not employed to watch the buildings 'as such'. It would be doing violence to the language of the notification dated 9th December 1976 if such incidental watching of the shed, where the cargo was lying as aforesaid, if any, is to be construed an employment of the watchmen to watch the buildings owned or occupied by the establishments of respondent No. 1 within meaning of notification dated 9th December 1976 referred to hereinabove. Thus on any view of the matter, the notification Exhibit "K" to the petition is not applicable to the case of the petitioners. The petitioners themselves have so pleaded in paragraph 34 of the petition. Unfortunately, the petitioners have changed its original plea at this late stage as stated above which plea is found to be unsustainable in light of averments made in the petition and even otherwise. The affidavit in rejoinder filed on behalf of the petitioners does not improve the case of the petitioners.
7. It is necessary to consider as to whether the appropriate Government in relation to the establishment of respondent No. 1 was the Central Government within meaning of said expression as defined under section 2(1)(a) of Contract Labour (Regulation and Abolition) Act, 1970 prior to the amendment of the definition of the expression "appropriate Government" which amendment came into force only on 26th January 1986. Under section 2(1)(a) of the Contract Labour (Regulation and Abolition) Act, 1970 as it stood prior to its amendment of 1986, "Appropriate Government" was defined to mean and include as the Central Government in relation to establishments specified in section 2(1)(a) (i), (ii) or (iii) of the Act. In all other cases, the State Government was the 'appropriate Government'. The learned counsel for the petitioners has submitted that the establishment of respondent No. 1 always pertained to an industry carried on by it by or under the authority of the Central Government within meaning of the said word as defined under Section 2(1)(a) of the Act of 1970. The learned counsel for respondent No. 1 has submitted that the establishment of respondent No. 1 was not carried on at any point of time by or under the authority of the Central Government. The learned counsel for respondent No. 1 has submitted that the appropriate Government in relation to the establishment of respondent No. 1 at the material time was the State Government and not the Central Government. The learned counsel has submitted that thus on any view of the matter, the above referred notification dated 9th December 1976 can not be treated as applicable to respondent No. 1 in relation to their employment as contract labour to watch the ships, cargoes and containers at the Bombay Docks etc.
8. In paragraph 2 of the petition, it is averred that the 1st respondent is a Government of Indian enterprise and is entirely subject to the authority and control of the Central Government. It is further averred that the 1st respondent operates under the directions of the Union Ministry of Transport (Department of Surface Transport). This plea has neither been dealt with nor controverted in any of the facts having bearing on this plea in its affidavit in reply. The respondent No. 1 has been rather evasive on this aspect of the case. The learned counsel for the petitioner invited the attention of the Court to the description of respondent No. 1 itself on its letter heads as a Government of India enterprise as obvious illustratively from the letter Exhibit J-1 dated 9th September 1988. The description of Respondent No. 1 by it as 'Government of India enterprise' by itself does not constitute an admission of the fact that the industry of respondent No. 1 is run under the authority of Central Government within meaning of Section 2(1)(a) of the Act of 1970 but is certainly relevant to some extent for determination of the issue. It appears that the Central Government does exercise deep and pervasive control over the respondent No. 1.
9. The learned counsel for respondent No. 1 invited the attention of the Court to the ratio of the decision of the Supreme Court in the case of Heavy Engineering Mazdoor Union v. State of Bihar and others . In this case the Supreme Court held that the Heavy Engineering Corporation Limited could not be considered as an industry run by or under the authority of the Central Government within meaning of the identical expression as defined under Industrial Disputes Act, 1947 inasmuch as the said company was not running the industry as an agent of the Central Government but as a separate legal entity. It was held that the said company was a commercial corporation acting on its own behalf and not as agent of the Central Government. Relying on the ratio of this decision the learned counsel for respondent No. 1 submitted that the respondent No. 1 was a limited company incorporated or deemed to be incorporated as a company under the Companies Act No. 1 of 1956 and even if it was held to be a Government company it could not be legitimately argued that the industry of respondent No. 1 was carried on by respondent No. 1 under the authority of the Central Government within meaning of Section 2(1)(a) of the Act of 1970 or the relevant provisions of Industrial Disputes Act, 1947. I have gone through the unamended definition of the expression 'Appropriate Government' as well as its definition after amendment of the Act with effect from 26th January 1986. I have also gone through the definition of the expression 'appropriate Government' as set out in Industrial Disputes Act 1947 and its legislative history.
10. The learned counsel for the petitioners rightly relied upon the ratio of the judgment of Division Bench of this Court being judgment dated 20th April 1995 in Writ Petition No. 10 of 1995 and the ratio of various judgments of the Apex Court cited therein. In this case the Division Bench of our High Court held that International Airport Authority of India was run by or under the authority of the Central Government and the above referred notification dated 9th December 1976 was applicable to the said authority. In my opinion, the ratio of this judgment is directly applicable to this case. If so, it must be held that the appropriate Government in relation to the Industry of respondent No. 1 is the Central Government and not the State Government. It appears to me that the narrower test laid down in the above referred case of Heavy Engineering Mazdoor Union v. State of Bihar and others has undergone a change in the subsequent decisions of the Supreme Court and the test now laid down is of "deep and pervasive control". In the case of International Airport Authority referred to hereinabove, the Division Bench of our High Court relied on several later Supreme Court judgments and distinguished the judgment of the Supreme court in the case of Heavy Engineering Mazdoor Union v. State of Bihar and others. In the case of International Airport Authority of India, referred to hereinabove, A. V. Savant J. speaking for the Division Bench of our High Court referred to judgment of the Hon'ble Supreme Court in the case of Ramana Dayaram Shetty v. The International Airport Authority of India and others and observed that if the Central Government exercised deep and pervasive control over the concerned Corporation it would normally follow that the Corporation was an instrumentality of the State. The Division Bench of our Court referred to the judgment of the Hon'ble Smt. Sujata Manohar J. as she then was (Now Her Ladyship of the Hon'ble Supreme Court of India) in the case of International Airport Authority v. P. K. Srivastava and others reported in 1986, Maharashtra Law Journal page 491. The observations made by the Supreme Court in the case of C. V. Raman etc. etc. v. Management of Bank of India and another etc. etc. reported in 1988 II CLR 69 are of considerable significance. In this case, the Supreme Court laid down the test of deep and pervasive control of the Central Government over the State Bank of India and other nationalised banks as the relevant criteria to be applied for determining questions like the question under consideration. It was observed by the Supreme Court at the end of paragraph 11 of the above referred judgment at page 1378 of the report that the mere fact that the Corporation was a distinct justice entity with a corporate structure of its own and it carried on its functions on business principles, it did not follow that it was not an instrumentality or agency of the Central Government. It was observed by the Apex Court in this case that the formal ownership which was cast in the corporate mould was not of much significance and the fact remained that in reality it was the Government which acted through the instrumentality or agency of the Corporation. The learned counsel for respondent No. 1 relied on order passed by the Industrial Court on 14th September 1987 in Complaint (ULP) No. 987 of 1986 - Mogul Line Staff Union v. The Shipping Corporation of India Ltd. In this case, the Shipping Corporation of India had in terms pleaded as obvious from Para 6 of the order as under :-
"The first and the formost objection raised by Mr. Rele for the respondent company (i.e., The Shipping Corporation of India Ltd.) that Shipping Corporation of India Ltd. is a Government of India concern and is totally owned and managed by the Government of India and hence it is an industry carried on by or under the authority of Central Government and hence for any industrial dispute in case of the respondent company, the Central Government would be the 'appropriate Government' and not the State Government. It is not in dispute that S. C. I. is a totally owned and managed by Government of India."
This plea constitutes prima facie admission in respect of factual aspects of the matter indicated above. With all this, the industrial Court held that the 'appropriate Government' in relation to respondent No. 1 was the State Government and not the Central Government. I do not agree with the reasoning and conclusion of Industrial Court in this case.
11. After applying the relevant criteria to the facts of this case, I hold that the Central Government was and is 'the appropriate Government' in relation to Industry of respondent No. 1 at all times and it continues to be so for purposes of Contract Labour (Regulation and Abolition) Act, 1970 as well as industrial Disputes Act, 1947 under the unamended law as well as the amended law. I hold that the notification Exhibit "K" is not applicable to the case of the petitioner on the ground that the Contract labour employed in this case was not for watching the buildings owned or occupied by respondent No. 1 as such but was for watching the cargoes, vessels, containers, etc. at the Docks. Thus the basic issues raised by this petition as to whether the petitioners were contract employees of respondent No. 2 or the direct employees of respondent No. 1 shall have to be considered, independently of notification Exhibit "K" to the petition and not in light of the said notification.
12. The learned counsel for the petitioners submitted that the petitioners and other watchmen listed in Exhibit 'A' to the petition were and are liable to be treated as direct employees of respondent No. 1 and absorbed or regularised as such on any view of the matter from inception i.e., from the year 1968. The learned counsel for the petitioners submitted in alternative that in any event having regard to the ratio of the judgment of the Supreme Court, a writ of mandamus ought to be issued to respondent No. 1 directing the respondent No. 1 to absorb the petitioners and other watchmen listed in Exhibit 'A' to the petition as direct employees of respondent No. 1 and regularise their service as such on the footing aforesaid. The petitioners contend that the respondent No. 1 had entered into written contracts with the contractors Messrs. Menlyn and Company and respondent No. 2 merely as a device and subterfuge. The respondents seriously dispute the correctness of factual averments made by the petitioners in the petition in this behalf. The question to be asked is as to whether it is possible to resolve the serious factual controversy indicated above in this writ petition or whether the disputes herein are liable to referred to the appropriate forum for adjudication as permissible under Industrial Disputes Act, 1947.
13. The petitioners have averred in paragraph 3 of the petition that written contracts arrived at between the respondent No. 1 and Messrs. Menlyn and Company as well as the written contracts arrived at between the respondent No. 1 and Messrs. Moosa Services Company were sham documents. The question to be asked is - who was or is the real employer of the petitioners? The petitioners have contended that the concerned watchmen were continuously and exclusively working for the respondent No. 1 without any significant break although their names appeared only nominally in the muster rolls of the contractors concerned and it mattered not that the respondent No. 1 had changed the contractor in the year 1983. The petitioners have contended that the real and effective control and supervision over the work of watchmen concerned was in fact exercised by respondent No. 1 only and the concerned watchmen used to work for the business of respondent No. 1 at the premises of respondent No. 1 for a period of more than two decades. The petitioners have submitted that the respondent No. 1 had always accepted financial commitments in relation to the emoluments to be paid to watchmen concerned. The respondent No. 1 used to arrange for issue of Dock permits by contracting the Dock authorities in order to enable the watchmen concerned to enter the Docks and perform their duties. The petitioners have relied on documents copies whereof are annexed to the petition. The respondent No. 1 has seriously controverted each of the material averments made by the petitioners on this aspect of the case. The respondent No. 1 has denied that the respondent No. 1 was or is the real employer of the concerned watchmen. The respondent No. 1 has relied on the pleading of the watchmen themselves before the Central Government Industrial Tribunal in the reference which led to making of an award by Dr. Justice Tulpul in Reference No. CGIT-21/84. In the award made in this reference, the industrial Tribunal held that the privity of employment between the concerned watchmen and the contractors concerned only. The Industrial Tribunal held that Messrs Menlyn and Company was not a mere recruiting agent for respondent No. 1 as alleged by the contractor in its defence in the said reference. The respondent No. 1 has relied on the affidavits made by three other watchmen listed below :-
(1) Affidavit of Shri Gopalrao Venkatesulu dated 28.11.88.
(2) Affidavit of Shri S. Veeramuthuthu Sengada dated 28.11.88.
(3) Affidavit of Shri L. M. Jethumal dated 20.11.88.
Each of the said affidavits appear to support the case of respondent No. 1. The respondent No. 1 has furnished several details of "watchmen contracts" entered into both by Messrs. Menlyn and Company with several other companies like M/s. Mackinnon Mackenzine, M/s. Mazgaon Docks Limited, etc. The respondent No. 1 has contended that the contractors used to depute such watchmen for looking after the cargo and the ships as they deemed fit in light of the requisition made by the respondent No. 1 and identity of the watchmen concerned did differ from day to day and from time to time. These are the crucial factors having bearing on the question as to who was the real employer of the watchmen concerned and whether the contracts executed by and between the contractors and respondent No. 1 were sham documents and were resorted to merely as a device and subterfuge in order to circumvent the provisions of law. The respondent No. 1 has submitted that even the settlements/arrived at between the concerned workmen and the contractors including the last settlement dated 19th August 1992 clearly described Messrs. Moosa Services Company as the employer of the watchmen. The respondent No. 1 has contended that under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, the principal employer is statutorily responsible to see that proper wages are paid by the contractor to the watchmen employed for looking after the job entrusted to them. The principal employer may be liable to reimburse the contractor in respect of pecuniary liabilities which may arise during course of execution of the contracts. The learned counsel submits that the respondent No. 1 cannot be considered as direct employer of concerned watchmen merely because of respondent No. 1 agreeing to reimburse the contractor in respect of payment of bonus, gratuity etc. which may be paid by the contractor concerned to its workmen. All the factors are required to be properly evaluated by the fact finding Court before deciding the question as to who was or is the real employer of the petitioners and other watchmen listed in Exhibit 'A' to the petition. In my opinion, there are serious and bonafide factual disputes between the parties as broadly indicated above and the said disputes cannot be adjudicated upon by the Writ Court without recording evidence which exercise cannot be normally resorted to in a writ petition.
14. The learned counsel for the petitioners relied on ratio of the judgment of Supreme Court in the case of Hussainbhai v. The Alath Factory, Tozhilali Union and others . In his case Krishna Iyer J. speaking for the Apex Court observed that it was for the Court to ascertain of lifting the veil or looking at the conspectus of relevant factors governing the employment and ascertain as to who was the real employer of the workmen. It is therefore required to be ascertained by the fact finding Court in each case as to who is the real employer and as to whether the contract arrived at between the principal employer and the contractor is a smoke screen or not. Ordinarily, the disputed facts can be conveniently determined only by the adjudicator under the Industrial Disputes Act, 1947. In a rare case where there is ample and clinching material on record of the writ Court, the Writ Court may if it deems fit, in exercise of its judicial discretion decide the factual controversy also and grant appropriate reliefs to the parties concerned. In an appropriate case, the writ Court may issue a writ of mandamus against "the principal employer" concerned directing him to absorb the workmen concerned as his direct employees and regularise their services. It all depends upon cumulative effect of evidence on record of each case.
15. The learned counsel appearing on both sides have cited several authorities in support of their respective submissions across the Bar. I do not propose to refer to all the authorities as it does not appear to be necessary so to do. I shall refer to only such of the authorities cited at the bar on either side which appear to me to be directly relevant for the purpose of deciding this petition.
16. In paragraph 6 of its judgment in the case of R. K. Panda & Ors. v. Steel Authority of India & Ors. 1994 II CLR 402, the Supreme Court held that the question as to whether the employment of labour through a contractor was a mere camouflage and a smoke screen was a question of fact and bad to be established by contract labourers on the basis of the requisite material. It was held by the Court that it was not possible for High Court or Supreme Court while exercising its writ jurisdiction or jurisdiction under Article 136 to decide the factual disputes of this kind. It was held that in all such cases it was for the petitioners to establish before the appropriate Labour Court and/or Industrial Court that the contract arrived at between the principal employer and the contractor was a mere camouflage and the smoke screen. In that case however, the learned counsel for the Steel authority of India had made a statement before the Supreme Court at the earlier hearing to the effect that the management was prepared to give an option to all the workmen concerned either to accept the voluntary retirement of agree to be absorbed on the regular basis in the employment of the respondent-management. The statement of the learned counsel for Steel Authority of India is extracted in the judgment of the apex Court. The Supreme Court had passed several interim orders in that case as a result whereof the employees/workmen were already employed with the Steel Authority of India. After formulating the basic principle to be applied in such situation in paragraph 6 of the above referred judgment, the Supreme court reached the conclusion that having regard to the facts of that case and having regard to the fact that for several years the workmen were already working with the Steel Authority of India by virtue of the interim orders passed by the Supreme Court and other relevant factors, relief was required to be granted in that case so as to direct the Steel Corporation of India Limited to absorb the workmen concerned as direct employees of the Corporation although the said workmen were initially recruited as 'contract labour'.
17. In paragraphs 41, 42 and 45 of its judgment, in the case of Gujarat Electricity Board, Thermal Power Station, Ukal Gujarat v. Hind Mazdoor Sabha & Ors. reported in 1995 I CLR 697, the Apex Court held that if it was the belief of the workmen that the contract arrived at between the principal employer and the contractor was not a genuine contract, the workmen could raise a dispute in this behalf under the Industrial Disputes Act, 1947 and secure the appropriate service conditions from the principal employer on the footing that the workmen concerned were always the employees of the principal employer. In my opinion, both these judgments are directly relevant for purpose of deciding the controversies raised by this petition. It is not possible for the writ Court to record a finding of fact in respect of the disputed question as to whether the watchmen were the direct employees of respondent No. 1 or whether the contracts arrived at between the respondent No. 1 and the contractor was merely a smoke screen or a device and as to whether the petitioners and other watchmen listed in Exhibit 'A' to the petition were and are liable to be treated as direct employees of respondent No. 1 or liable to be absorbed or regularised as prayed for. It is necessary that the relevant factors relied on by the parties on either side by examined in detail by the adjudicator under Industrial Disputes Act, 1947 after recording the necessary oral and documentary evidence.
18. The Court is conscious of the gravity of the problem affecting the 'right to livelihood' of the workmen concerned. Laws delays are proverbial. In this situation, the Court propose to follow the precedent of the order passed by the Supreme Court in the case of Surendra Prasad Khugsal v. Chairman, M. M. T. Corpn. of India & Anr. and direct the Central Government to refer the disputes to Central Government Industrial Tribunal for adjudication within the time frame fixed by the Court. In this case also a writ petition was filed before the Supreme Court under Article 32 of the Constitution of India where workers on non-statutory canteens were claiming parity with other employees. After observing that the disputed questions of fact could not be resolved by the Supreme Court in writ petition under Article 32, the Court decided straightaway to direct the Delhi Administration to refer the Industrial dispute therein to the Industrial Tribunal under Section 10(1)(d) of the Industrial Disputes Act, 1947 and fixed a time framed for adjudication of such disputes keeping in mind the fact that the dispute had been pending since 1984-85. I propose to follow the same course.
19. The learned counsel for the petitioners did rely upon the judgment of the Supreme Court in the case of National Federation of Railway Porters, Vendors & Bearers v. Union of India and others reported in 1995 II CLR 214. In this case, the Supreme Court passed its order for absorption of the railway porters its order for absorption of the railway porters in view of the factual report of the Labour Commissioner made to the Court which was not controverted by the Railway Administration. In the writ petition herein, almost all the material facts averred on behalf of the petitioners are controverted and seriously controverted on behalf of the respondent No. 1.
20. The learned counsel for the petitioners relied on the judgment of the Supreme Court in the case of Ghaziabad Development Authority and others v. Shri Vikram Chaudhary & Ors. reported in 1995 II CLR 595. In this case services of daily wages employees working on certain projects were terminated. It was held by the Supreme Court that the public authority ought to follow the principles of Sections 25-F and 25G of the Industrial Disputes Act, 1947 while terminating the services of the daily wage employees. With respect, this judgment has no relevance for the purpose of deciding this case. The learned counsel for the petitioner did rely upon the judgment of the Supreme Court in the case of Parimal Chandra Raha & Ors. v. Life Insurance Corporation of India & Ors. reported in 1995 II CLR 194. In my opinion, this case is mainly an authority in respect of interpretation and application of the principles applicable to canteen workers deduced from section 46 of the Factories Act, 1948. The issue "as to who was or is the real employer of the watchmen concerned", is an issue of fact and the same shall have to be decided after considering all the circumstances and after considering and applying the real tests laid down in various judgments of the Supreme Court and this Court having regard to the proved facts of this case. The learned counsel for the petitioners also relied on Division Bench judgment of this Court in the case of Lalbavta Hotel & Bakery Mazdoor Union & Ors. v. Bharat Petroleum Corporation Ltd. & Ors. reported in 1993 I CLR 550. With respect, the ratio of this case does not appear to be relevant. In that case, the Central Government had passed an order to the effect that the Central Labour in respect of the canteen in Refinery run through the contractor could not be abolished. It was found by the Court that the Central Government had not passed the impugned order in the proceedings under section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 after applying the relevant criteria. Instead of remanding the proceedings back to the Central Government for consideration of the question of abolition of contract labour under Section 10 of the Act, the High court directly issued the necessary writ of mandamus having the effect of abolition of contract labour. In this case, no such relief is sought and no such question arises.
21. The learned counsel for the petitioners relied on the Division Bench judgment of this Court delivered at Panaji Bench on 5th July 1995 in Writ Petition No. 17 of 1994. In my opinion, the ratio of this judgment is also not relevant for the purpose of deciding this petition.
22. In view of the above, I pass the following order.
(a) The Central Government is hereby directed to refer the industrial disputes concerning to reliefs sought by prayers (a), (a-1), (a-2) and (c) of the petition to the Industrial Tribunal under section 10(1)(d) of the Industrial Disputes Act, 1947 within eight weeks from the receipt of the writ of this Court. The Industrial Tribunal will dispose of the said disputes as far as possible within nine months from the date of reference of the dispute keeping in mind that these disputes have been pending at least since the year 1988. In my opinion, the factual disputes raised in this petition are not capable of being resolved by the writ Court in this petition.
(b) The writ petition herein is finally disposed of in terms aforesaid.
(c) Having regard to the facts and circumstances of the case, there shall be no order as to costs.
(d) Issue of certified copy expedited.