Madras High Court
Jet Airways (India) Ltd., Link ... vs Jet Airways Thozhilalar Sangam ... on 21 June, 2000
Equivalent citations: 2000(4)CTC243, [2001(88)FLR150], (2000)IILLJ1033MAD
Author: K. Raviraja Pandian
Bench: K. Raviraja Pandian
ORDER
Judgement Pronounced by N.K.Jain, ACJ.
1. This writ appeal has been filed against the interim order of stay granted in W.M.P.No.27581 of 1999 in W.P.No.18879 of 1999 dated 30.12.1999.
2. The brief facts that are necessary for the disposal of the writ appeal are as follows:
The Jet Airways (India) Ltd., is running air services throughout the country. It entered into an agreement on a contract of labour with M/s.Proteam from 11.7.1998 to 31.12.1999 and M/s.Team V Corporate Services, Chennai from 1.1.1999 to 31.12.1999 respondents 4 and 5 respectively, for doing services like loading, unloading, driving, operating certain ground services equipments, etc.,
3. The petitioners-sangam in W.P.No.18879 of 1999 on 24.11.1999 filed writ petition contending that the workers of the sangam had worked for about 3 to 5 years and since there was a demand from the workers for 20% bonus, the third respondent- management has terminated the services of 100 workers. They also alleged that the 3rd respondent management introduced contract labour system, and displaced the contract of service between the Jet Airways and its workers, which is contrary to the decision of the Supreme Court in Workmen of FCI v. FCI, 1985 (2) LLJ 4. Therefore, they submitted that the removal of 168 workers by the Management Jet Airways (India) Ltd., is arbitrary, illegal and against the provisions of the Act. They also filed W.M.P.No.27580 of 1999 for an interim injunction restraining the 3rd respondent from engaging any other persons in the place of the 168 workers. W.M.P.No.27581 of 1999 for an interim direction to provide employment on daily wages as before, to the 168 workers, and W.M.P.No.29242 of 1999 for an interim injunction restraining the respondents from recruiting fresh hands in the place of the petitioners without first employing the 168 workers.
4. The third respondent-Jet Airways filed a counter affidavit denying the allegations as alleged in the writ miscellaneous petitions. Third respondent-Jet Airways has also filed a detailed counter affidavit in the writ petition, denying the allegations as alleged, and also denied the fact that the alleged 168 workers are working from 1993/94 and 1995. It is stated that none of the alleged workers was ever employed by the third respondent. It is stated that all the employees were recruited by the 4th and 5th respondents, and the third respondent-Jet Airways is in no way responsible for their recruitment. It is also stated that the contracts with the 4th and 5th respondents were not in existence on the date of filing of the writ petition, and a new contract was entered into with the 6th respondent. It is further contended that under the Scheme of the Act, conciliation officers were appointed to hold the conciliation proceedings and since the conciliation has not been closed by the conciliation officer on the date of filing of the writ petition, the prayer for issuance of mandamus to refer the dispute is totally premature and as such, it cannot be countenanced. It is also contended that providing employment, on daily wages pending disposal of the industrial dispute, has no legal basis.
5. The learned Single Judge, on considering the affidavits and other available records pertaining to W.M.P.Nos.27580, 27581 and 29242 of 1999, and the case laws cited, and after a detailed discussion, directed the third respondent in W.M.P.No.27581 of 1999 to provide work to 168 workers who were previously employed by the contractors viz., M/s.Proteam, Chennai (4th respondent) and M/s.Team-V Corporate Services, Chennai (5th respondent) on daily wages basis, on the same conditions of work as that are applicable to them earlier. Hence, the present writ appeal is before us.
6. We have heard the parties. Impleading the petition in C.M.P.No.1956 of 2000 is allowed and M/s.Universal Services, Chennai is impleaded as 6th respondent in the writ appeal. We have heard the vacate stay petition.
7. Mr.A.L.Somayaji, learned Senior Counsel appearing for the appellant/management-Jet Airways submits that the writ petition itself is not maintainable, as the appellant, being a private body, has not come within the ambit of "State" under Article 12 of the Constitution of India. The learned Senior Counsel further submits that the writ petition filed by the petitioner-sangam is a mis-conceived one. It is submitted that the learned Single Judge has failed to consider the prayer in W.M.P.No.27581 of 1999 in the right perspective, which was beyond the scope of the main prayer. The prayer in the present writ petition, seeking a direction to refer the dispute to adjudication is a premature one, when the conciliation officer has not yet submitted his failure report. It is also submitted that the 168 workers of petitioner-sangam were not engaged by the appellant directly, but engaged by the 4th and 5th respondents. The learned Senior Counsel further submits that 100 workers engaged by the 4th respondent were terminated on 14.11.1999 and they were offered with retrenchment compensation. So far as the other 68 workers, who are engaged by the 5th respondent were concerned, their contract came to an end on 31.12.1999. In any view of the matter they are not in the employment of the appellant/management. It is also submitted that now they are no more under employment of 4th and 5th respondents, and their services have already been terminated. They had already raised a dispute relating to non-employment. The new contractor has also started performing his contractual obligations and duties. It is further submitted that the relief granted by the learned Single Judge, cannot even be granted by the Industrial Tribunal pending adjudication, unless it is found that the contract was sham or nominal. Counsel submits that the writ petition was filed only with a view to obtain the second relief of employment, which otherwise cannot be granted by the Appropriate Authority. It is also submitted by the learned senior counsel that the learned Single Judge has erred in considering the reasonings and decisions of the Supreme Court, as those cases are distinguishable to the facts of the present case. The decisions in 1998 (1) LLJ 235, Mathura Refinery Mazdoor Sangh v. IOC Ltd., and 1987 SCC 777 are not applicable to the case on hand, as those establishments were instrumentalities of the State and the directions were given invoking Article 142 of the Constitution of India. Learned counsel further submits that the finding/observation of the learned Single Judge are self-contradictory. The learned counsel submitted that the appellant is a private employer and as such not amenable to writ jurisdiction. The learned Single Judge at paragraph-8 of his judgment observed that it was not proper to decide the maintainability of the writ petition at that stage, when other respondents have not been served with notice and have not entered appearance, but still ordered interim direction. The learned Single Judge has wrongly applied the case laws and treating the present case as an exceptional case granted interim direction, which is liable to be set aside.
8. Mr.N.G.R.Prasad, learned counsel for the first respondent submits that such direction as sought for by the workers-sangam can be issued. As a matter of fact, when these workers demanded bonus in October 1999 submitting their Charter of Demands, the contract which was subsisting upto 31.12.1999 was cancelled on 14.11.1999. The learned counsel relied on the decision in Mathura Refinery Mazdoor Sangh v. IOC Ltd., , wherein when the matter was pending before the Advisory Board, status quo was granted. He also relied on the decisions in Gujarat Surat (Hazjra.) Kamdar Karmachari Union and others v. State of Gujarat, 2000 (1) LLJ 823, Air India Statutory Corporation v. United Labour Union, and International Airports Authority employees' Union v. Airport Authority of India and others, . Lastly it is submitted that the order of the learned Single Judge needs no interference.
9. Mr.Vijay Narayan, learned counsel for the 6th respondent-Universal Services, Chennai, the new contractor who was impleaded as a party in the writ appeal, filed a detailed counter affidavit. Learned counsel submits that the 6th respondent, a regular contractor of the appellant/management, is doing the business of providing manpower for various works, on contract basis and he has taken the present contract on 14.11.1999. Learned counsel further submitted that the 6th respondent has made an open offer to the past workers to join with them. Out of 100 workers 9 workers have joined, and the rest did not join. It is also submitted that 68 workers are working with the 5th respondent and that contract was also taken by the 6th respondent. Only 7 workers have rejoined out of the past 68 workers with the 6th respondent, and 61 did not join, and therefore they recruited new workers. The learned counsel further submitted that 5th respondent has fulfilled all the requirements which are necessary as per the terms of the licence.
10. In reply to this, the learned counsel Mr.N.G.R.Prasad submitted that the first respondent/petitioner filed an impleading petition on 3/5.2.2000 to implead the 6th respondent as party to the proceedings. Thereafter, he filed reply on 16.4.2000 denying the facts.
11. Mr.Vijay Narayan, learned counsel for the 6th respondent in the rejoinder submitted that the past workers are only entitled to invoke their right, if any, against 4th and 5th respondents. But in the garb of interim order, they are not entitled to any relief, that too when the 6th respondent was not made as a party in the proceedings pending on the file of the learned Single Judge. It is also submitted that R6 in all bona fides made a request to the past workers to come for work, but when they refused R6 had no other option except to engage other set of workers. It is also submitted that those workers are already working for about 7 months. Whereas even considering the period, some of the past workers have worked with the 4th and 5th respondents for only about 7 or 8 months. So, the observation in Mathura Refinery Case, as relied on by Mr.N.G.R.Prasad that who have put in service for 5 years or more shall continue in service, is not applicable. Learned counsel further submitted that in view of the decision in 1989 (2) LLJ 392 and A.P. Case and Gujarat Case, first respondent is not entitled for the relief sought for and the order could not be implemented as the new workers joined were not impleaded as party in the proceedings pending on the file of the learned Single Judge.
12. Mr.A.L.Somayaji, learned Senior Counsel for the appellant in rejoinder submitted that the contention that the Charter of Demands are already pending since 1996, and so the argument that on account of charter of demands the contract with R4 was terminated is on the face of it wrong. As a matter of fact they were not prepared to continue the work on the same price. Under the circumstances, for doing day to day operations, the contract was given to R6. Learned counsel further submitted that the cases relied on by the learned Single Judge are distinguishable with the facts of the present case, as stated below, and further those directions were issued invoking Article 142 of the Constitution of India, in the particular circumstances of those cases.
(i) Surat (Hazira) Kamdar Karmchari Union and others v. State of Gujarat and others, 2000 (1) LLJ 823. He further submitted that the said case is not applicable, as in that case, prayer sought for was seeking abolition of contract labour system under Essar Steel Ltd., and for that they sought a direction against the State of Gujarat for a reference to the State Advisory Contract Labour Board constituted in that behalf under the provisions of Contract Labour (Regulation and Abolition) Act, 1970, and in that case, there was an apprehension that because of the efforts taken by the petitioner-Union to organise the employees, the workmen concerned would be terminated from their services. Before termination they have approached the court and while issuing notice, interim protection was granted, whereas in the instant case, workers have already been terminated.
(ii) Mathura Refinery Mazdoor Sangh v. Indian Oil Corporation Ltd., Mathura Refinery Project, Mathura and another, . It is not helpful, as in that case IOC is an instrumentality of the State and the petitioners whose services have been terminated were the employees of contractors, working in Mathura Refinery Project and termination was justified. In that context it was observed that till the Central Advisory Board makes its recommendations they should be given employment on minimum pay scale of its regular employees. Further workmen amongst contract labourers, who have put in 5 years of service or more at Mathura Refinery shall be continued. Thus the observation regarding status quo is only for the persons who are in seniority as on that date, and also the observation only for the persons who are for 5 years or more. But in the instant case, they have already ceased to be workers. So no direction to continue in service can be issued on that basis.
(iii) Air India Statutory Corporation, Etc., V. United Labour Union And Others . In that case while considering the notification prohibiting employment of contract labour under Section 10(1) of the Act, issued by the Central Government for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishments in respect of which the appropriate Government under the Act is the Central Government, the Supreme Court held that the appropriate Government is the Central Government from the inception of the Act. Another crucial question which was considered by the Apex Court in that case was whether the High Court was right in directing enforcement of the said notification issued by the Central Government. The Apex Court concluded that though there was no express provision in the Act for absorption of the employees whose Contract Labour System stood abolished by publication of the notification under Section-10(1) of the Act in a proper case, and the court can direct the appropriate authority to act in accordance with law and submit a report to the Court and based thereon relief should be granted. While considering the matter interim order was granted by the Court initially and then it was allowed to continue, whereas in the present case, workers have already been terminated and no notification under Section 10(1) of the Act was issued prohibiting the employment of contract labour.
(iv) International Airports Authority Employees Union and another v. Airport Authority Of India and others, . That case is also not applicable as in that case it was held that writ petition was maintainable against Airport Authority and orders passed by the Government regarding contract was existing whereas, the appellant herein is not an instrumentality of the State.
13, The learned Senior Counsel Mr.A.L.Somayaji also relied on an unreported decision of a Division Bench of this Court in W.A.No.161 of 1999, dated 29.4.1999, wherein the learned Single Judge, while considering the matter, when the main relief was for direction to complete the conciliation proceedings within a time frame, instead of giving direction, granted the injunction of a final nature and the management is ordered not to shift the machinery and transferring the employees to Mumbai, Baroda or Patna. The interim relief granted by the learned Single Judge in Writ Miscellaneous Petition was under challenge in W.A.No.161 of 1999 and the Division Bench while considering the various case laws cited before it held that since the writ petition itself is held to be not maintainable, no question of giving any direction will arise. However, it advised the Assistant Commissioner of Labour to dispose of the conciliation proceedings at an early date. According to learned senior counsel this case has not been followed. The learned Senior Counsel also argued that the renewing of such licence upto 31.12.1999, cannot by itself give any right to the contract workers. Therefore, in the facts of the given case, the direction given is not tenable and liable to be set aside.
14. We have heard the learned counsel for the respective parties and perused the materials on record. So far as the legal position is concerned, it is not disputed by either side. Each case depends upon the facts and circumstances of its own. It is also settled that generally this Court will not interfere with the interim orders passed by the courts, unless some special circumstances warranted for the same. What is to be seen is that whether in the facts and circumstances of the given case, such directions are justified and can be granted according to law. We have given our anxious consideration to the point of issue, taking into consideration the facts, the respective arguments and the case laws cited. The facts culled out will show that the main relief itself has been granted by way of interim order, observing that it will not create any right on either parties. No doubt, courts can pass appropriate orders to safeguard the interest of either of the parties, but at the same time, when initially the prayer is only to refer the matter for adjudication relating to non-employment and also permanency of 168 workers and which was ultimately referred to for adjudication, thereafter on making subsequent application to provide employment to 168 workers, such directions could not have been granted. As a matter of fact nothing survives in the writ petition. Further, admittedly services of the first respondent-workers have been terminated. The respective contracts were not in existence after 14.11.1999. A new contract has come into force between the appellant and the 6th respondent on 14.11.1999. New worker's right has been accrued. Under the fact situation, there is no special circumstances/reasons for the learned Single Judge to give the impugned direction, even without hearing the 6th respondent, more particularly, when the matter is still pending decision before the appropriate authority. The cases relied on by Mr.N.G.R.Prasad, as discussed above, are not applicable and helpful in the facts and circumstances of the case for granting interim order. In view of this, we are of the opinion that there was no special circumstance, warranting to issue directions, as granted by the learned Single Judge, on the basis of the decisions of the Apex Court, mentioned and discussed as above. In our humble opinion, the order of the learned Single Judge dated 30.12.1999 is not sustainable in law and liable to be set aside, and accordingly, it is set aside.
15. Considering the arguments for the final disposal, though the 4th and 5th respondents have not been served, but the affected parties R6, management and workers have been heard at length, as agreed. As discussed above, the matter is subjudice before the appropriate forum. As such, in the facts of the given case, no direction can be issued, exercising the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. That apart, the alleged facts are disputed questions of facts, needs investigation and cannot be gone into the writ jurisdiction, more particularly, when the matter is still pending before the appropriate forum. Under these circumstances, the writ petition is dismissed as not maintainable. However, the Appropriate Authority is directed to adjudicate the matter as early as possible and in accordance with law. It is made clear that any observation made in this judgment will not prejudice the case of either side.
16. In view of what we have discussed above, in the result the writ appeal is allowed. The writ petition is dismissed. The interim relief granted by the learned Single Judge in W.M.P.No.27581 of 1999 in W.P.No.18879 of 1999 dated 30.12.1999 is set aside. There will be no order as to costs. Consequently, C.M.P.Nos.714 and 1956 of 2000 are disposed of accordingly.