Karnataka High Court
Smt. Baligar Chandbi W/O Baligar Khaja ... vs The State Of Karnataka on 26 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:10643
WP No. 102060 of 2024
IN THE HIGH COURT OF KARNATAKA, R
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.102060 OF 2024(S-RES)
BETWEEN:
SMT. BALIGAR CHANDBI
W/O. BALIGAR KHAJA MAINUDDIN,
AGE: 30 YEARS, OCC: CONTRACT EMPLOYEE,
R/O: 248, MAIN ROAD, NEAR GOVERNMENT
HOSPITAL, 5TH WARD, HIREHADAGALI,
HUVINAHADAGALI, TQ: HUVINAHADAGALI,
DIST: VIJAYANAGARA - 583 216.
... PETITIONER
(BY SRI ROSHAN SAHEB CHABBI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THE DEPARTMENT OF AGRICULTURE,
Digitally signed
REP. BY ITS PRINCIPAL SECRETARY,
by V N
BADIGER
4TH FLOOR, 3RD GATE,
Location: High M. S. BUILDING, BENGALURU - 01.
Court of
Karnataka
2. THE JOINT DIRECTOR OF AGRICULTURE,
OFFICE OF THE JOINT DIRECTOR OF AGRICULTURE,
BEHIND CENTRE OF NATIONAL COLLEGE,
N. C. COLONY, HARIHARA ROAD,
HOSAPETE, TQ: HOSAPETE,
DIST: VIJAYANGARA - 583 203.
3. THE DEPUTY DIRECTOR OF AGRICULTURE,
BEHIND CENTRE OF NATIONAL COLLEGE,
N. C. COLONY, HARIHARA ROAD,
HOSAPETE, TQ: HOSAPETE,
DIST: VIJAYANGARA - 583 203.
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WP No. 102060 of 2024
4. THE ASSISTANT DIRECTOR OF AGRICULTURE,
OFFICE OF THE ASSISTANT DIRECTOR OF
AGRICULTURE, HUVINAHADAGALI,
TQ: HUVINAHADAGALI,
DIST: VIJAYANAGARA - 583 219.
5. THE AGRICULTURE OFFICER,
RAITA SAMPARKA KENDRA,
HUVINAHADAGALI, TQ: HUVINAHADAGALI,
DIST: VIJAYANAGARA - 583 219.
6. OM SECURITY SERVICE AND MAN POWER AGENCY,
REP. BY ITS PROPRIETOR,
OFFICE AT. HOSPET ROAD,
NEAR 2ND GATE, CANTONMENT,
BALLARI, DIST: BALLARI - 583 104.
7. PANNAGA ENTERPRISES MAN POWER SUPLY OFFICE,
REP. BY ITS PROPRIETOR SMT. YASHASWINI,
OFFICE AT 228, 2ND FLOOR,
1ST MAIN ROAD, 2ND STAGE,
GOKULAM, MYSORE - 570 002.
8. SHRI PRAVEEN KYALAKATTI,
AGE: MAJOR, OCC: ACCOUNTANT,
R/O: C/O: RAITA SAMPARKA KENDRA,
HUVINAHADAGALI, TQ: HUVINAHADAGALI,
DIST: VIJAYANAGARA - 583 219.
...RESPONDENTS
(BY SRI P.N.HATTI, HCGP FOR R1 TO R5;
NOTICE TO R6 TO R8 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OF
MANDAMUS OR A WRIT OF ANY OTHER NATURE DIRECTING THE
RESPONDENTS NO. 2 TO 5, AND DIRECTING THE OTHER
CONCERNED RESPONDENTS, TO PERMIT THE PETITIONER TO
CONTINUE TO WORK IN THE SAME POST IN WHICH SHE WAS
WORKING BEFORE THE PERIOD OF MATERNITY LEAVE, BY
CONSIDERING ANNEXURE-H AND J DATED 24/01/2024 BY MAKING
PAYMENT OF THE ENTIRE ARREARS WHICH ARE DUE TO THE
PETITIONER AND FOR WHICH THE PETITIONER IS LEGALLY
ENTITLED, ALONG WITH AN INTEREST AT THE RATE OF 24% , TILL
THE DATE OF ITS REALIZATION AND IMPOSE COST ON THE
RESPONDENT AUTHORITIES, TO MEET THE ENDS OF JUSTICE AND
EQUITY AND ETC.,
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WP No. 102060 of 2024
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 24.07.2024, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING;
ORDER
1. The State and its instrumentalities, who are excepted to act as "model employers" are finding one after the other reason not only to brazenly flout the constitutional mandate, which they are obligated to uphold and implement in the process of public employment, but also have systematically engaged, to say the least, in conscious exploitation and abuse of constitutional and statutory rights conferred on the citizens seeking public employment. Present case is a classic example of such brazen act. Stance adopted by the State and its instrumentalities, when questioned, is making bold in defending its action with its usual leitmotif of complete denial of existence of privity of contract and relationship of employer and employee, thereby leaving the employee at lurch without any statutory protection even after having made them to work for over a decade. This after series of -4- NC: 2024:KHC-D:10643 WP No. 102060 of 2024 cautions and deprecations by the Apex Court and various High Courts all of which has fallen as its deaf ear.
2. THE CASE OF THE PETITIONER:
(a) The petitioner in this case had apparently entered into an agreement dated 09.05.2014 with certain Man Power Serving Agency known as M/s. Smart Detective and Allied Services (India) Pvt. Ltd., Bengaluru. In furtherance to which she was appointed on contract basis to the post of Accountant at Raitha Samparka Kendra (Kasaba), Huvinahadagali by respondent No.4 - Assistant Director of Agriculture, Huvinahadagali in terms of an Office Order dated 16.06.2014. Admittedly, the petitioner has been working as Accountant at the Office of respondent No.4 from the date of said appointment till the month of May-2024.
(b) The petitioner conceived for her second child and as suggested / advised by her consultant Gynecologist to take rest for at least six months, she submitted -5- NC: 2024:KHC-D:10643 WP No. 102060 of 2024 her request letter dated 05.05.2023 to respondent No.5 - Agricultural Officer, Raitha Samparka Kendra, Huvinahadagali seeking sanction of maternity leave from 06.05.2023 to 31.08.2023. Pursuant thereof, respondent No.4 issued a letter dated 22.06.2023 to the then operating agency - respondent No.6 namely OM Security Services and Man Power Agency intimating the grant of maternity leave. On completion of her maternity leave from 06.05.2023 to 31.08.2023, the petitioner reported herself before respondent No.5 - Agricultural Officer, Huvinahadagali along with a letter dated 01.09.2023 expressing her readiness and willingness to join her work. However, to the shock and dismay of the petitioner, she was orally informed by respondent No.5 that respondent No.8 namely one Praveen Kyalakatti was working in her place and accordingly denied and declined to permit the petitioner to continue her work.-6-
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(c) The petitioner approached respondent No.4 - the Assistant Director of Agriculture seeking redressal of her grievances, who asked her to wait for few days as he would obtain required permission from the concerned authorities permitting her to resume the work. Acting upon the assurance so made, the petitioner waited expecting the positive response.
She has been following up with respondent No.5 regarding her grievances, who kept on assuring her of positive response. However, when the petitioner approached respondent No.5 during third week of January - 2024, she was yet again denied permission to continue her work and even refused to answer to her quarries. After the expiry of the maternity leave period, the salary of the petitioner has also been stopped by the respondents' authorities causing her severe financial distress and constraints.
(d) The petitioner having no other option, made a representation dated 24.01.2024 to respondent -7- NC: 2024:KHC-D:10643 WP No. 102060 of 2024 Nos.2 & 3 - the Joint Director of Agriculture & the Deputy Director of Agriculture, requesting them to permit her to resume her work in her earlier post. It is further contended that except making assurance, the respondents - authorities have not taken any action, constraining her to approach this Court. The petitioner being entitled to receive her salary and also the statutory benefits as provided under the provisions of the Maternity Benefit Act, 1961 (for short "the Act, 1961") is before this Court seeking relief as sought for in the petition.
3. CASE OF THE RESPONDENT - STATE:
(a) In the statement of objection to the above writ petition the respondent - State while denying the case of the petitioner has contended that the petitioner is working as an "outsourced employee" in the Office of respondent No.5 in terms of an agreement dated 09.04.2014, which she had entered into with one M/s. Smart Detective and Allied -8- NC: 2024:KHC-D:10643 WP No. 102060 of 2024 Services (India) Pvt. Ltd., Bengaluru. That, the said outsourcing contract is yearly contract. That, the State Government on expiry of the yearly outsourcing contract would issue tenders by advertisement and the successful bidders would supply employees on outsourcing contract basis.
That, the outsourcing agency in turn would enters into individual contracts with the employees. That, the State would make payment directly to the outsourcing agency, who in turn make payments towards the salaries / wages and other benefits to their employees.
(b) That, there is no privity of contract between the employees and the State and there is no relationship of employer and employee between them. As such, the petitioner who is an outsourced employee cannot claim the benefits directly from the respondents.
That, relief / grievance, if any, is required to be -9- NC: 2024:KHC-D:10643 WP No. 102060 of 2024 addressed only by the outsourcing agencies, who had deputed the petitioner at the respondents' place.
(c) That, the document produced at Annexure-D is an agreement dated 09.05.2014, which is valid only for a period of one year and whereas the maternity leave as sought for by the petitioner is for the period between 06.05.2023 to 31.08.2023 and as on the said date, the said outsourcing agency namely M/s.
Smart Detective and Allied Services (India) Pvt. Ltd., Bengaluru with whom the petitioner had entered into an agreement was not in existence. That the last outsourcing agency with whom the petitioner had entered into an agreement was respondent No.6 namely OM Security Services and Man Power Agency, whose contract to provide man power was valid between 01.11.2022 to 30.06.2023.
(d) That, for the year 2023-24 a separate bid had been issued for procurement of man power by respondent No.2 and respondent No.7 namely Pannaga
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 Enterprises is the present outsourcing agency. That, there is no document produced by the petitioner regarding she having entered into any contract / agreement with respondent No.7. As such in the absence of any contract between the present outsourcing agency and the petitioner, she cannot claim any relief of continuity of service, as her earlier contract has come to an end. The petitioner as matter of right cannot claim the benefit of maternity leave. On these grounds, the State has sought for dismissal of the petition.
4. SUBMISSIONS OF THE COUNSEL FOR THE PETITIONER:
(a) Learned counsel appearing for the petitioner drawing attention of this Court through the Office Order dated 16.06.2014 produced at Annexure-A submitted that the respondent Nos.1 to 5 by issuing the said Office Order have acknowledged the petitioner to be their employee, though on the contractual basis. He also refers to a communication, dated 22.06.2023
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 produced at Annexure-F issued by respondent No.4 to one OM Security Services and Man Power Agency
- respondent No.6 forwarding the request of the petitioner for grant of maternity leave between 06.05.2023 and 31.08.2023. Thus, referring these two documents, learned counsel for the petitioner submits that the petitioner has been rendering continuous services as an Accountant between the period of 16.06.2014 to 22.06.2023 and she had proceeded for maternity leave. Thus, he submits that in the light of the said documents, the respondents -
authorities cannot deny the petitioner to be the employee working as Accountant.
(b) He referred to the Official Memorandum dated 23.06.2023 produced at Annexure-C to the writ petition, by which the respondent - State Government had consented for extension of the benefit of maternity leave to the women employees working in the Corporation / Boards / Government
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 Institutions on contract basis. It is his submission that since the said benefit of maternity leave has been extended to the employees like the petitioner, she was entitled to avail the maternity leave and without granting the same, respondents - authorities could not have denied / declined the permission to resume the work after completion of maternity leave.
(c) Learned counsel also referred to the provisions of Sections 2, 3(e), 3(o) and 5 of the Act, 1961 to contend that in terms of the said provisions, the petitioner being the woman employee is entitled for the benefit under the Act, 1961.
(d) He also referred to the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (for short "the Act, 1970") and submitted that the respondent - State cannot deny the protection envisaged under the said Act from the petitioner being exploited.
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(e) That, merely because a camouflage arrangement has been entered into between the State and the outsourcing agencies, year after year, the statutory safeguards and benefits which the petitioner is entitled to cannot be denied and deprived of.
(f) That, whoever raises the voice against oppression is punished with dismissal / termination of service on the premise of there being no employer and employee relationship and the petitioner is one such victim of exploitation and oppression by none other than the State, which is meant to protect the interest of the employees like the petitioner. He further submits that there is no law presently in place to protect the interest of the employees like that the petitioner, that too against the State and the petitioner has no other option but to approach this Court seeking grievances of her rights.
(g) He relies upon the following judgments:
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(i) Secretary, H.S.E.B. Vs. Suresh and Ors., passed in Civil Appeal No.190/1991, dated 04.04.1999;
(ii) Mahanadi Coalfields Ltd., Vs. Brajrajnagar Coal Mines Workers' Union, passed in Civil Appeal Nos.4092-4093/2024, dated 12.03.2024;
(iii) State of U.P. and Anr. Vs. Ehsan and Anr., passed in Civil Appeal No.5721/2023, dated 13.10.2023;
(iv) Pigeon Education Technology India Pvt.
Ltd., Vs. Directorate of Enforcement and Ors., passed in W.P. No.11532/2023, dated 19.09.2023;
(v) The Madras Aluminium Co. Ltd., Vs. the Tamilnadu electricity Board and Anr., passed in Civil Appeal Nos.7224-7226/2009, dated 06.07.2023;
(vi) Workmen of BEML Ltd., and Ors. Vs. UOI and Anr. passed in W.P. No.573/2023, dated 21.06.2024;
(vii) The Management of M/s. Tata Advanced System Ltd., Vs. the Secretary to Department of labour and Ors., passed in W.P. No.7674/2023, dated 18.01.2024;
(viii) B.H.E.L. Workers; Association Hardware and Ors. Vs. UOI and Ors.,1
(ix) R.K. Panda and Ors. Vs. Steel Authority of India and Ors.2;
(x) All India Food and allied Workers Union
Vs. Delhi State Civil Suppliers
3
Corporation
1
1985 SCC (1) 630
2
(1994) 5 SCC 304
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(xi) Sri. Raman S/o.Minichinnappa and Ors.
Vs. the Aeronautical Development Agency and Ors., passed in W.A. Nos.7641- 56/1996, dated 05.03.1998;
(xii) Smt. Nanjamma W/o. Late Shri Oblesh Vs. UOI and ors., passed in W.P. Nos.19936-19938/1999 & Connected matters, dated 18.03.2005;
(xiii) The Aeronautical Development Agency Vs. Smt. Nanjamma W/o. Late Oblesh, passed in W.A. No.2571/2005, dated 23.05.2012;
(xiv) Smt. Nanjamma W/o. Late Oblesh and Ors. Vs. the Aeronaautical Development Agency and Ors., passed in CCC Nos.1384- 1396/2013 (Civil), dated 23.09.2013;
(xv) Smt. Nanjamma W/o. Late Oblesh and Ors. Vs. the Aeronaautical Development Agency and Ors., passed in CCC Nos.1384- 1396/2013 (Civil), dated 20.12.2013;
(xvi) Smt. Nanjamma W/o. Late Oblesh and Ors. Vs. the Aeronaautical Development Agency and Ors., passed in CCC Nos.1384- 1396/2013 (Civil), dated 25.02.2014;
(xvii) N. Nagendra Rao & Co. Vs. State of A.P.4;
(xviii) Nandini Sundar and Others Vs. State of Chhattisagarh5;
(xix) Sushanta Tagore and Others Vs. Union of India and others6;
396 (2002 DLT 194 4 (1994) 6 SCC 205 5 (2011) 7 SCC 547 6 (2005) 3 SCC 16
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5. SUBMISSION OF THE LEARNED HCGP:
(a) Reiterating the contents of the statement of objections and taking this Court through the tender document produced at Annexure-R1 he submitted that the petitioner is neither a contract labourer nor there is any relationship of the employer and employee between the respondents
- authorities and the petitioner.
(b) That, the petitioner was employed through a contact which was entered into between the State and outsourcing agency and there is no privity of contract between the petitioner and the State. The appointment, conditions of service and benefits of service are governed in terms of agreement entered into between the petitioner and the outsourcing agencies, year after year, and the respondent - State is not answerable or responsible for any breach therein. As such the
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 petitioner cannot claim the relief as sought for in the writ petition.
(c) That, the official memorandum produced at Annexure-C in page No.24 of the writ petition purportedly extending the benefit of the Act, 1961 is not applicable to the case of the petitioner, as the petitioner is not a Government Employee and an employee working directly under the respondents - authorities.
(d) That, reliance placed on by the learned counsel for the petitioner on the judgments referred to are of no avail. Hence, seeks for dismissal of the petition.
6. Heard. Perused the records.
7. THE POINTS THAT ARISE FOR CONSIDERATION ARE:
(a) Whether the respondent - authorities in the facts and circumstances of the case are justified in adopting the stand of petitioner not having any legally enforceable rights against them on the
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 premise of there being no relationship of employer and employee between them?
(b) Whether the petitioner is entitled for the relief as sought for?
ANALYSIS
8. Before adverting to the issues involved in this petition, submissions and the counter submissions made by the parties, relevant at this juncture to encapsulate the following excerpts from the judgments of the Apex Court in the context of the facts and circumstances of the present case:
(a) In the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and others7 the Apex Court referring to the constitutional obligation of the State in the public recruitment process at paragraphs Nos.2, 3, 4 & 6 has held as under:
"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is 7 (2206) 4 SCC 1
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.
3. A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed."
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(b) In the case of Shankar Mukharji and others Vs. Union of India and others8 dealing with the State engaging contract employees at paragraph No.5 has held as under:
"5. It is surprising that more than forty years after the independence the practice of employing labour through contractors by big companies including public sector companies is still being accepted as a normal feature of labour- employment. There is no security of service to the workmen and their wages are far below than that of the regular workmen of the company. This Court in Standard-Vaccum Refining Co. of India Ltd. v. Its Workmen, [1960] 3 SCR 466 and Catering Cleaners of Southern Railway v. Union of India & Anr., [1987] 1 SCC 700 has disapproved the system of contract labour holding it to be 'archaic', 'primitive' and of 'baneful nature'. The system, which is nothing but an improved version of bonded-labour, is sought to be abolished by the Act. The Act is an important piece of social legislation for the welfare of labourers and has to be liberally construed."
(c) In the case of Secretary, H.S.E.B. Vs. Suresh and other9 dealing with the object, reason and purpose of the Act, 1970, inevitability of entering into labour contracts and also the approach of Courts in applying 8 (1990) (Supp) SCC 668 9 (1999) 3 SCC 601
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 doctrine of "lifting the veil", at paragraph Nos. 1, 2, 9, 10, 11, 12, 13, 14, 17 & 18 has held as under:
"1. The doctrine of equality as enshrined in the Constitution promised an egalitarian society and the Contract Labour (Regulation & Abolition) Act, 1970 is the resultant effect of such a constitutional mandate having its due focus in that perspective. This Court in Minerva Mills' case ( AIR 1980 SC 1789) in no uncertain terms laid down that the equality clause in the Constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at the inequalities arising on account of vast social and economic differentiation and is thus consequently an essential ingredient of social and economic justice. In short, this Court has equated the security clause in the Constitution so as to mean that the people of the country ought to be secured of socio-economic justice by way of a fusion of Fundamental Right and Directive Principles of State Policy. As a matter of fact this Court has been candid enough on more occasions than one and rather, frequently to note that socialism ought not to be treated as a mere concept or an ideal, but the same ought to be practised in every sphere of life and be treated by the law courts as a constitutional mandate since the law courts exists for the society and required to act as a guardian-
angel of the society. As a matter of fact the socialistic concept of society is very well laid in Part III and Part IV of the Constitution and the Constitution being supreme, it is a bounden duty of the law courts to give shape and offer reality to such a concept.
2. In this context reference to the Constitution Bench decision of this Court in Nakara's case (D.S. Nakara & Ors Vs. Union of India) (AIR 1983 SC 130) seems to be rather apposite. This Court stated that democratic
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 socialism aims to end poverty, ignorance, disease and inequality of opportunity. The primary impact of socialism as a matter of fact is to offer and provide security of life so that the citizens of the country may have two square meals a day, and maintenance of a minimum standard of life, it is expected, would lead to the abridgment of the gap between the have-s and have not-s. The feudal exploitation and draconian concept of law ought not to outweigh the basic structure of the Constitution, or its socialistic status.
9. The High Court did in fact note with care and caution the doctrine of `lifting of veil' in industrial jurisprudence and recorded that in the contextual facts and upon lifting of the veil, question of having any contra opinion as regards the exact relationship between the contesting parties would not arise and as such directed reinstatement though, however, without any back wages. While it is true that the doctrine enunciated in Soloman vs. Soloman (1897 Appeal Cases page
22) came to be recognised in the corporate jurisprudence but its applicability in the present context cannot be doubted, since the law court invariably has to rise up to the occasion to do justice between the parties in a manner as it deems fit. Rescopound stated that the greatest virtue of the law court is flexibility and as and when the situation so demands, the law court ought to administer justice in accordance therewith and as per the need of the situation.
10. Turning attention, however, on to the legislative intent in the matter of enactment of the Act of 1970, at the first blush itself, it appears that in expression of its intent, the legislature very aptly coined the enactment, as such, for regulation and abolition of contract labour. Conceptually, engagement of contract labour by itself lends to various abuses and in accordance with devout objective as enshrined in the Constitution and as
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 noticed herein before, this enactment has been introduced in the statute book in the year 1970, to regulate contract labour and to provide for its abolition in certain circumstances since prior to such, the factum of engagement of contract labour stood beset with exploiting tendencies and resulted in unwholesome labour practice.
11. Incidentally, however, be it noted that the legislature did not feel it expedient to do away with the contract labour altogether, since there are several fields of employment where it is not otherwise possible to have continuous employment and as such, regard being had to the necessities of the situation, the Act of 1970 provides for continuation of contract labour. As a matter of fact the legislature in the enactment, has itself provided various provisions pertaining to the working conditions of contract labour, provided however engagement of contract labour becoming invariable or necessary in the interest of the industry concerned.
12. The legislation therefore subserves twin purpose, to wit:
(i) to abolish the contract labour; and
(ii) to regulate the working conditions of contract labour wherever such employment is required in the interest of the industry.
13. There is however, a total unanimity of judicial pronouncements to the effect that in the event, the contract labour is employed in an establishment for seasonal workings, question of abolition would not arise but in the event of the same being of perennial in nature, that is to say, in the event of the engagement of labour force through intermediary which is otherwise in the ordinary course of events and involves continuity in the work, the legislature is candid enough to record
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 its abolition since, involvement of contractor may have its social evil of labour exploitation and thus the contractor ought to go out of scene bringing together the principal employer and the contract labourers rendering the employment as direct, and resultantly a direct employee. This aspect of the matter has been dealt with great lucidity, by one of us (Majmudar,J.) in Air India Statutory Corporation etc. vs. United Labour Union & Ors. etc. [JT 1996 (11) SC 170].
14. While recording concurrence with Ramaswamy, J. and but: presenting his own reasons therefor Majmudar, J. observed (SCC pp. 443-44 para 69) "It has to be kept in view that contract labour system in an establishment is a tripartite system. In between contract workers and the principal employer is the intermediary contractor and because of this intermediary the employer is treated as principal employer with various statutory obligations flowing from the Act in connection with regulation of the working conditions of the contract labourers who are brought by the intermediary contractor on the principal's establishment for the benefit and for the purpose of the principal employer and who do his work on his establishment through the agency of the contractor. When these contract workers carry out the work of the principal employer which is of a perennial nature and if provisions of Section 10 get attracted and such contract labour system in the establishment gets abolished on fulfilment of the conditions requisite for that purpose, it is obvious that the intermediary contractor vanishes and along with him vanishes the term `principal employer'. Unless there is a contractor agent there is no principal. Once the contractor intermediary goes the term
- 27 -
NC: 2024:KHC-D:10643 WP No. 102060 of 2024 `principal' also goes with it. Then remains out of this tripartite contractual scenario only two parties - the beneficiaries of the abolition of the erstwhile contract labour system i.e. the workmen on the one hand and the employer on the other who is no longer their principal employer but necessarily becomes a direct employer for these erstwhile contract labourers. It was urged that Section 10 nowhere provides for such a contingency in express term. It is obvious that no such express provision was required to be made as the very concept of abolition of a contract labour system wherein the work of the contract labour is of perennial nature for the establishment and which otherwise would have been done by regular workmen, would posit improvement of the lot of such workmen and not its worsening. Implicit in the provision of Section 10 is the legislature intent that on abolition of contract labour system, the erstwhile contract-workmen would become direct employees of the employer on whose establishment they were earlier working and were enjoying all the regulatory facilities on that very establishment under Chapter V prior to the abolition of such contract labour system. Though the legislature has expressly not mentioned the consequences of such abolition, but the very scheme and ambit of Section 10 of the Act clearly indicates the inherent legislative intent of making the erstwhile contract labourers direct employees of the employer on abolition of the intermediary contractor. It was contended that contractor might have employed a number of workmen who may be in excess of the requirement and, therefore, the principal employer on abolition of the contract labour may be burdened with excess workmen. It is difficult to appreciate this contention. The
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 very condition engrafted in section 10(2)(d) shows that while abolishing contract labour from the given establishment, one of the relevant considerations for the appreciate Government is to ascertain whether it is sufficient to appoint considerable number of whole time workmen. Even otherwise there is an inbuilt safety valve in Section 21 of the Act which enjoins the principal employer to make payment of wages to the given number of contract workmen who he has permitted to be brought for the work of the establishment if the contractor fails to make payment to them. It is, therefore, obvious that the principal employer as a wordly businessman in his practical commercial wisdom would not allow contractor to bring larger number of contract labour which may be in excess of the requirement of the principal employer. On the contrary, the principal employer would see to it that the contractor brings only those number of workmen who are required to discharge their duties to carry out the work of the principal employer on his establishment through, of course the agency of the contractor. In fact the scheme of the Act and regulations framed thereunder clearly indicate that even the number of the workmen required for the given contract work is to be specified in the licence given to the contractor."
17. Needless to note at this juncture that the Contract Labour Regulation Act being a beneficial piece of legislation as engrafted in the statute book, ought to receive the widest possible interpretation in regard to the words used and unless words are taken to their maximum amplitude, it would be a violent injustice to the framers of the law. As a matter of fact law is well settled by this court and we need not dilate much by reason, therefor to the effect that the law courts
- 29 -
NC: 2024:KHC-D:10643 WP No. 102060 of 2024 exist for the society and in the event of there being a question posed in the matter of interpretation of a beneficial piece of legislation, question of interpreting the same with a narrow pedantic approach would not be justified. On the contrary, the widest possible meaning and amplitude ought to be offered to the expressions used as otherwise the entire legislation would loose its efficacy and contract labour would be left on the mercy of the intermediary.
18. As noticed above Draconian concept of law is no longer available for the purpose of interpreting a social and beneficial piece of legislation specially on the wake of the new millennium. The democratic polity ought to survive with full vigour: socialist status as enshrined in the Constitution ought to be given its full play and it is in this perspective the question arises - is it permissible in the new millennium to decry the cry of the labour force desirous of absorption after working for more than 240 days in an establishment and having their workings supervised and administered by an agency within the meaning of Article 12 of the Constitution - the answer cannot possibly be in the affirmative - the law courts exist for the society and in the event law courts feel the requirement in accordance with principles of justice, equity and good conscience, the law courts ought rise up to the occasion to meet and redress the expectation of the people. The expression `regulation' cannot possibly be read as contra public interest but in the interest of public."
9. The points that arise in this petition needs to be addressed in the light of the aforesaid pronouncement of the Apex Court.
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024
10. Claim for redressal of grievance of the employees with regard to breach of their statutory rights to avail the maternity benefit under the Act, 1961, is no more res integra, in view of the decisions of the Apex Court in the case of Corporation of Delhi Vs. Female Workers (Muster Roll) and another10, followed by the Coordinate Bench of this Court in the case of B.S. Rajeshwari Vs. State of Karnataka passed in W.P. No.10677/2020 dated 04.02.2021. However, since the State has taken a contention of non-application of the provisions of the Act, 1961 to the case at hand on the premise of petitioner being employed through an outsourcing agency, relevant to refer to the definitions of the terms "Employer", "Establishment", "Woman" as defined under Sections 3(d), 3(e) & 3(o) respectively of the Act, 1961 are as under:
3. Definitions.- XXXXX
(d) "Employer" Means-10
(2000) 3 SCC 224
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024
(i) in relation to an establishment which is under the control of the Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;
(ii) In relation to an establishment under
any local authority, the person
appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;
(iii) In any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such persons;
(e) "Establishment" means-
(i) a factory;
(ii) a mine;
(iii) a plantation;
(iv) an establishment wherein persons are
employed for the exhibition of
equestrian, acrobatic and other
performances;
[(iv-a) a shop or establishment ; or]
(v) an establishment to which the provisions of this Act have been
- 32 -
NC: 2024:KHC-D:10643 WP No. 102060 of 2024 declared under sub-section (1) of Section 2 to be applicable;]
(o) "Woman" means a woman employed, whether directly or through any agency, for wages in any establishment."
11. It is also relevant note that the provisions of Section 5 of the Act, 1961, which is as under:
"5. Right to payment of maternity benefit.--
(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.] Explanation.--For the purpose of this sub-
section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, 3 [the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest].
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 4 [eighty days] in the twelve months immediately preceding the date of her expected delivery:
Provided that the qualifying period of 1 [eighty days] aforesaid shall not apply to a woman
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 who has immigrated into the State of Assam and was pregnant at the time of the immigration.
Explanation.--For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, 2 [the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall be 4 4 [twenty-six weeks of which not more than eight weeks] shall precede the date of her expected delivery:] [Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:] [Provided further that] where a woman dies during this period, the maternity benefit shall be payable payable only for the days up to and including the day of her death: [Provided also that] where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the Child.]"
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024
12. It is also necessary to refer the provisions of Section 2 of the Act, 1961, which is as under"
"2. Application of Act.-- [(1) It applies, in the first instance,--
(a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances;
(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:
Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.
(2) [Save as otherwise provided in 6 [sections 5A and 5B], nothing contained in this Act] shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply for the time being."
13. The aforesaid provisions read in the light of the official memorandum dated 23.06.2022 produced at
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 Annexure-C to the writ petition makes it clear that, the benefit of the Act, 1961 has been extended even to the woman employees who are working on contract basis, the said official memorandum is extracted herein under"
"C¢üPÀÈvÀ eÁÕ¥£ À À «µÀAiÀÄ: gÁdå ¸ÀPÁðgÀzÀ E¯ÁSÉU¼ À À°è ºÁUÀÆ CAUÀ ¸ÀA¸ÉÜU¼ À À °è UÀÄwÛUÉ (Contract) DzsÁgÀzÀ ªÉÄÃ¯É PÁAiÀÄ𠤪Àð»¸ÀÄwÛgÀĪÀ ªÀÄ»¼Á £ËPÀgj À UÉ ªÀiÁvÀÈvÀé (ºÉjUÉ) gÀeÉ ¸Ë®¨sÀåªÀ£ÀÄß «¸ÀÛj¸ÀĪÀ PÀÄjvÀÄ.
****
gÁdå ¸ÀPÁðgÀzÀ E¯ÁSÉU¼ À °À è ºÁUÀÆ CAUÀ ¸ÀA¸ÉÜU¼ À ÁzÀ
¤UÀªÀÄ/ªÀÄAqÀ½/¸ÁéAiÀÄvÀÛ ¸ÀA¸ÉÜU¼
À °
À è UÀÄwÛUÉ DzsÁgÀzÀ ªÉÄïÉ
PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀ J¯Áè ªÀÄ»¼Á £ËPÀgj À UÉ F PɼPÀ A À qÀ
µÀgÀvÀÄÛU½
À UÉƼÀ¥ÀlÄÖ ªÀiÁvÀÈvÀé (ºÀjUÉ) gÀeA É iÀÄ ¸Ë®¨sÀåªÀ£ÀÄß «¸ÀÛj¸À®Ä ¸ÀPÁðgÀ ¸Àºª À ÀÄw¹zÉ.
1. ªÀiÁvÀÈvÀé gÀeAÉ iÀÄ£ÀÄß gÀeA É iÀÄ ¥ÁægA À ¨sz À À ¢£ÁAPÀ¢AzÀ UÀjµÀ× 180 ¢£ÀU¼ À ª À ÀgÉUÉ (MAzÀÄ £ÀÆgÀ JA¨sv À ÀÄÛ ¢£ÀU¼ À ÀÄ) ªÀÄAdÆgÀÄ ªÀiÁqÀ§ºÀÄzÀÄ.
2. UÀ¨sð À ¸ÁæªÀ CxÀªÁ UÀ¨sð À ¥ÁvÀ¢AzÀ UÀ¨ð sÀ zsÁgÀuÉAiÀÄÄ ¥ÀAiÀiÁðªÀ¸Á£ÀUÉÆAqÀ ¸ÀAzÀ¨sð À zÀ°è ªÀiÁvÀÈvÀé gÀeA É iÀÄÄ 6 ªÁgÀU¼ À £ À ÀÄß «ÄÃgÀ¨ÁgÀzÀÄ.
3. EAvÀºÀ gÀeÉUÁV ¸À°è¹zÀ CfðAiÀÄÄ £ÉÆÃAzÁ¬ÄvÀ ªÀÈwÛ¤gÀvÀ ªÉÊzÀåjAzÀ ¥Àqz É À ¥Àª æ ÀiÁt ¥ÀvÀæ¢AzÀ ¸ÀªÀÄyðvÀªÁVgÀ¨ÃÉ PÀÄ.
4. ªÀiÁvÀÈvÀé gÀeAÉ iÀÄ ªÉÄÃ¯É vÉg¼ À ÀĪÀ £ËPÀgg À ÀÄ gÀeA É iÀÄ ¤PÀl¥ÀǪÀðzÀ°è ¥ÀqA É iÀÄÄwÛzÀÝ ªÉÃvÀ£PÀ ÉÌ ¸ÀªÀÄ£ÁzÀ ªÉÃvÀ£ª À £À ÀÄß gÀeÉAiÀÄ CªÀ¢A ü iÀÄ°è ¥ÀqA É iÀÄ®Ä CºÀðjgÀÄvÁÛg.É
5. JgÀqÀÄ CxÀªÁ ºÉZÀÄÑ ªÀÄPÀ̼£À ÀÄß ºÉÆA¢gÀĪÀ ªÀÄ»¼Á UÀÄwÛUÉ £ËPÀgj À UÉ F ªÀiÁvÀÈvÀé gÀeA É iÀÄ£ÀÄß ªÀÄAdÆgÀÄ ªÀiÁqÀvPÀ ÀÌzÀÝ®è.
- 36 -
NC: 2024:KHC-D:10643 WP No. 102060 of 2024 ªÀiÁvÀÈvÀé gÀeÉUÁV ¸À°è¸ÀĪÀ CfðAiÉÆA¢UÉ ¸ÀA§A¢üvÀ UÀÄwÛUÉ ªÀÄ»¼Á £ËPÀgg À ÀÄ F PÀÄjvÀÄ ¸ÀéAiÀÄA-WÉÆõÀuA É iÀÄ£ÀÄß ªÀiÁvÀÈvÀé gÀeÉAiÀÄ£ÀÄß ªÀÄAdÆgÀÄ ªÀiÁqÀĪÀ C¢üPÁjUÉ ¸À°è¸v À PÀ ÀÌzÀÄÝ.
6. UÀÄwÛUÉ DzsÁgÀzÀ ªÉÄÃ¯É £ÉêÀÄPÀUÉÆAqÀ ªÀÄ»¼Á £ËPÀgÀjUÉ UÀjµÀ× 180 ¢£ÀU¼ À ª À ÀgÉUÉ ªÀiÁvÀÈvÀé gÀeÉAiÀÄ£ÀÄß F PɼPÀ A À qÀAvÉ ¤AiÀÄvÀUÉƽ¸ÀvPÀ ÀÌzÀÄÝ.
1. ²æêÀÄw X EªÀgÀ M¥ÀàAzÀzÀ CªÀ¢ü ¢£ÁAPÀ:
15/07/2021 jAzÀ ¥ÁægAÀ ¨sªÀ ÁV ¢£ÁAPÀ: 14/07/2022PÉÌ ªÀÄÄPÁÛAiÀĪÁUÀÄvÀÛz.É CªÀgÀÄ ¢£ÁAPÀ: 01/05/2022 gÀAzÀÄ ªÀiÁvÀÈvÀé gÀeA É iÀÄ ªÉÄÃ¯É vÉg½ À zÀÝ°è ºÁUÀÆ CªÀgÀ UÀÄwÛUÉ CªÀ¢A ü iÀÄÄ «¸ÀÛj¸À®àqÀ¢zÀÝ°è CªÀgÀ ªÀiÁvÀÈvÀé gÀeA É iÀÄ CªÀ¢A ü iÀÄ£ÀÄß M¥ÀàAzÀzÀ UÀjµÀ× CªÀ¢A ü iÀĪÀgÉUÉ CAzÀgÉ ¢£ÁAPÀ: 14/07/2022 gÀªÀgÉUÉ ¹Ã«ÄvÀUÉƽ¸ÀvPÀ ÀÌzÀÄÝ.
2. MAzÀÄ ªÉÃ¼É CªÀgÀ UÀÄwÛUÉ CªÀ¢Aü iÀÄÄ «¸ÀÛj¸À®àlÖ°è DUÀ CªÀgÀÄ UÀjµÀ× 180 ¢£ÀU¼À À ªÀiÁvÀÈvÀé gÀeA É iÀÄ£ÀÄß ¥ÀqA É iÀÄ®Ä CºÀðjgÀÄvÁÛg.É
3. F ¸Ë®¨sÀåªÀ£ÀÄß ¢£ÁAPÀ: 01/04/2022 jAzÀ eÁjUÉ §gÀĪÀAvÉ ªÀÄAdÆgÀÄ ªÀiÁqÀ¯ÁVzÉ."
14. A rather intriguing stand is adopted by the respondent State in the statement of objections, wherein it is contended that the petitioner has been employed in the establishment of Respondent No.5 through M/s. Smart Detective and Allied Services (India) Pvt. Ltd., Bengaluru in terms of agreement dated 09.05.2014 and that the said agreement is valid only for a period of one year and that the said outsourcing agency is no more in existence and in
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 its place several agencies were allotted outsourcing contract by the State through tender process and one Pannaga Enterprises Man Power Supply Office -
respondent No.7 in the present petition was rendering its services in providing / supplying human resources as on the date when the petitioner had sought for maternity leave.
15. This Court taking note of the submissions made on behalf of the State and wanting to apprise itself of the modes operandi being adopted by the respondent -
authorities in appointing the employees, by order dated 21.06.2024 had called upon the respondent - authorities represented by the learned HCGP to furnish the details as to the process / method and manner in which the appointment of the employees as that of the petitioner was made by them. In response to which learned HCGP had sought time enabling him to submit records pertaining to the appointment of the petitioner and the process of engaging the services of the outsourcing agencies.
- 38 -
NC: 2024:KHC-D:10643 WP No. 102060 of 2024 However, no records in justification of its stand taken are produced except the following documents furnished along with the statement of objections, which are:
(i) Tender document for providing man power services to the Office of Joint Director of Agriculture, Vijaynagar and subordinate Offices, dated 28.10.2022 (Annexure-R1).
(ii) Work Order dated 19.11.2022 issued by Joint Director of Agriculture, Vijaynagar addressed to one Ajjappa Renuka, Proprietor of Om Sai Security Services and Man Power Agency (Annexure-R2).
(iii) Agreement dated 25.11.2022 entered in to between Joint Director of Agriculture, Vijaynagar and Ajjappa Renuka, Proprietor of Om Sai Security Services and Man Power Agency (Annexure-R3).
(iv) Tender document for providing man power services to the Office of Joint Director of Agriculture, Vijaynagar and subordinate Offices RSK Stock Maintenance dated 17.07.2023.2022 (Annexure-R4).
(v) Work Order dated 09.08.2023 issued by Joint Director of Agriculture, Vijaynagar addressed to one Yashswini, Proprietor of Pannaga Enterprises Man Power Supply Office (Annexure-R5).
(vi) Communication dated 01.08.2023 from Pannaga Enterprises Man Power Supply Office and to Joint Director of Agriculture, Vijayanagar (Annexure-R6).
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024
(vii) Communication dated 19.06.2023 by the Agriculture Officer to the Assistant Director of Agriculture, Huvinahadagali (Annexure-R7)
(viii) Communication dated 20.06.2023 issued by Assistant Director of Agriculture to Om Sai Security Services (Annexure-R8).
(ix) Communication dated 01.07.2024 issued by Assistant Director of Agriculture to Pannaga Enterprises (Annexure-R9).
(x) Reply by Pannaga Enterprises dated 01.07.2024 (Annexure-R10)
16. Referring to the aforesaid documents, learned HCGP contended that the services of the Man Power Serving Agencies have been engaged by awarding them annual contract through tender process and that the employees like petitioner would be deputed by the successive Man Power Serving Agencies. The petitioner who was deputed in the year 2014 by the then Man Power Serving Agencies has not entered into any new contract with the present Man Power Serving Agencies namely Pannaga Enterprises - respondent No.7.
17. The aforesaid defence set up by the State based on the documents referred to above, in the absence of
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 plausible explanation has led to gaping holes exposing the false facade of defence. The following are the few amongst various questions that have remained unanswered by the respondent - authorities for the consideration of this Court:
(i) As to the provision of law, Rule or Regulations under which the Joint Director of Agriculture, Vijayanagar - respondent No.2 is engaging the services of the purported Man Power Servicing Agencies?
(ii) As to how the respondent - State which is obligated under directive principles of State Policy enshrined in the Constitution of India is ensuring the welfare of employees especially women employees in the matter of their service benefits, in the case of this nature?
(iii) As to how the respondent - State is ensuring obligation casted on it to abolish perennial contract labourers and their safety as envisaged under the Act, 1970?
(iv) As to how an employee like the petitioner who was admittedly appointed by the respondents' authorities in terms of office order dated 30.05.2014 / 16.06.2014 (Annexure-A) continued to render service for almost ten years even when according to the respondent - State there were successive changes in the alleged Man Power Servicing Agencies year after year
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 and the petitioner did not enter into individual agreements with them?
(v) No explanation is given as to the authority who maintains muster roll / daily attendance register or who supervises or controls the terms of service of the employees like that of the petitioner. This is for the reason even from the documents furnished by the respondent - authorities as noted above, the purported agencies are located at places like Bengaluru, Mysore and Ballari and it is incomprehsible that such agencies would have daily / regular / periodically control and supervision of the employees like the petitioner?
(vi) As to the reason why the respondent -
authorities no adhering to the repeated directions given by the Apex Court to ensure regular appointments strictly following the mandate of the constitution pertaining to public appointments?
18. Necessary also to refer to the provisions of the Karnataka Transparency in Public Procurement Act, 1999 (for short "the Act, 1999") which mandates ensuring transparency in the public procurement of goods and services by streamlining the procedure in inviting, processing an acceptance of tenders and includes contract execution management by procurement entities and the
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 matters related thereto. Nothing is brought on record with regard to applicability or non-applicability of the provisions of the said Act, 1999 to the purported contracts which respondent authorities are entering year after year with the purported Man Power Supply Agencies.
19. Offering no explanation to the aforesaid questions amongst others would only compel the Constitutional Courts to infer that the respondent -
authorities have more to hide than to answer. For, a prudent mind would not be convinced with the so called inability of the State to adhere and implement its own Laws, Rules and Regulations governing the public employment.
20. Thus, from the reading of the aforesaid provisions of law, and the pronouncements of the Apex Court and from the statement of objection filed by respondent - State along with the documents produced therewith as noted above, it is clear that when the doctrine of "lifting of the veil" is applied to the facts of the
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 instant case, the petitioner has indeed made out a case for outright rejection of the contentions of the respondent -
State of there being no relationship of employer and employee between the petitioner and the respondent No.4.
21. It is not the case of the respondent - authorities that the petitioner has not worked from 16.06.2014 till she went on deemed maternity leave on 06.05.2023. Further, it is necessary to note that the requirement of the services of the employees like petitioner is continuous with compelling need to the respondent - authorities. The services of the petitioner therefore cannot be termed either as temporary or adhoc in nature. In fact, from the records it is clear that the respondent - authorities were depending on the services of the petitioner and her absence had caused them extreme inconvenience. Such is the need and necessity of the said post having sufficient work load though out and year after year. Necessary to refer averments made in paragraph No.9 of the Statement of Objections, wherein it is pleaded that :
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 "Further the period of leave submitted by the petitioner co-insides with the monsoon session primarily sowing seed distribution period at the respondent NO.5 office. There was inconvenience in the respondent No.5 - Office duty to provide timely and effective service of seed distribution to the farmers. Hence, respondent No.5 has requested respondent No.4 to make alternative arrangement of manpower in place of the petitioner. Respondent No.4 has requested respondent No.6 to provide the same to give better service to the farmer at Annexures-R7 and R8"
22. The aforesaid aspect of the matter would reveal that the nature of the post held by the petitioner is not temporary as sought to be contended. Admittedly, the petitioner has not entered into any subsequent agreements with any outsourcing agencies other than M/s.
Smart Detective and Allied Services (India) Pvt. Ltd., after 16.04.2014. She has been allowed to work year after year by the respondents. She has been admittedly paid salaries uptill 5th September 2023. This perennial period of employment of the petitioner, even as held by the Apex Court is the factor to determine the relationship of employer and employee. Merely because the State has set up the theory of "outsourcing contract", "man power
- 45 -
NC: 2024:KHC-D:10643 WP No. 102060 of 2024 outsourcing agency", "intermediatery contracts" etc., and conveniently and interchangeably using the same, the entitlement of the petitioner guaranteed under the Constitution and the Statute for maternity leave and other benefits cannot be ignored. This is nothing but a well thought over modes operandi adopted by the respondent -
State to shirk its responsibility of complying with various constitutional and statutory obligations in the domain of public employment.
23. It is settled principle of law that an adhoc employee cannot be replaced by another adhoc employee and he can be replaced only by another candidate who is regularly appointed by following regular procedure prescribed. The Apex Court in the case of Ratanlal and others Vs State of Haryana and others11 at pargraph No.1 has held as under:
"1. In all these petitions the common question which arises for decision is whether it is open to the State Government to appoint teachers on an ad hoc basis at the commencement of an academic year and terminate their services before 11 (1985) 4 SCC 43
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 the commencement of the next summer vacation, or earlier, to appoint them again on an ad hoc basis at the commencement of next academic year and to terminate their services before the commencement of the succeeding summer vacation or earlier and to continue to do so year after year. A substantial number of such ad hoc appointments are made in the existing vacancies which have remained unfilled for three to four years. It is the duty of the State Government to take steps to appoint teachers in those vacancies in accordance with the rules as early as possible. The State Government of Haryana has failed to discharge that duty in these cases. It has been appointing teachers for quite some time on an ad hoc basis for short periods as stated above without any justifiable reason. In some cases the appointments are made for a period of six months only and they are renewed after a break of a few days. The number of teachers in the State of Haryana who are thus appointed on such ad hoc basis is very large indeed. If the teachers had been appointed regularly, they would have been entitled to the benefits of summer vacation along with the salary and allowance payable in respect of that period and to all other privileges such as casual leave, medical leave, maternity leave etc. available to all the Government servants. These benefits are denied to these ad hoc teachers unreasonably on account of this pernicious system of appointment adopted by the State Government. These ad hoc teachers are unnecessarily subjected to an arbitrary "hiring and firing" policy. These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on an ad hoc basis with miserable conditions of service. The Government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The policy of 'ad hocism' followed by the State Government for a long period has led to the breach of Article
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 14 and Article 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model employer."
Similarly the Apex Court in the case of Hargurpratap Singh Vs State of Punjab and others12 at paragraph No.3 has held as under:
"3. We have carefully looked into the judgment of High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appointments are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly."12
(2007) 13 SCC 292
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24. As rightly contended by learned counsel for the petitioner, by filing the statement of objections contending petitioner not being in service any more, the respondent -
authorities have unceremoniously and impliedly terminated her services. Though in an attempt to fill up this lacuna, documents in the nature of communications at Annexures-R9 & R10 of even dated 01.07.2024 are produced, the same falls flat on its face. In that, Annexure-R9 is a communication addressed by Assistant Director of Agriculture - respondent No.4 from his Office at Huvinahadagali purportedly enquiring with the Pannaga Enterprises - respondent No.7 as to the documents, if any, furnished by the petitioner with regard to her employment at respondent No.5 and Annexure-10 is a purported reply by the respondent No.7 from its office at Mysore to the effect of it not receiving any such application from the petitioner. The aforesaid letters bear the very same date i.e., 01.07.2024 raising serious doubts about the authenticity of the said letters being "sent", "received" and "replied" on the very same date. So much
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 to reflect the traits of respondent - State being "model employer".
25. In the words of the Apex Court, "the primordial constitutional value is that it is the responsibility of any organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law." (Nandini Sundar and others Vs. State of Chattisgarh13).
26. It is equally settled law that a case of wrongful denial of employment for no fault of workman would not restrict an order of reinstatement and continuity of service with all benefits. The Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others14 at paragraph Nos.22 & 23 held as under:
"Para No.22: When the termination is held to be bad in law, if the employer wants to deny the back wages and entitlement of employee to get consequential benefits then it is for employer to plead and prove that the employee was gainfully 13 (2011) 7 SCC 457 14 (2013) 10 SCC 324
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 employed. In the absence of the same denial of back wages and consequential benefits would be rewarding the employer for the illegal act done by him.
Para No.23: when the termination is held to be illegal, the employee would be entitled to full back wages except to the extent that he was gainfully employed during the enforced idleness. That is the normal rule."
CONCLUSION:
27. For the aforesaid reasons and analysis, this Court is of the considered view that the petitioner has been unjustifiably denied of her entitlement of maternity leave and has been shown exit doors illegally. This Court in exercise of its power under Article 226 of the Constitution of India, do not see any reason not to extend the benefit of reinstatement with consequential benefits including the benefit contemplated under the Act, 1961.
28. The points raised above are answered accordingly.
29. Hence, the following:
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NC: 2024:KHC-D:10643 WP No. 102060 of 2024 ORDER
(i) The petition is partly allowed;
(ii) Respondent Nos.2 to 5 are directed to forthwith permit the petitioner to assume charge of the post at which she was working prior to she going on maternity leave i.e., prior to 06.05.2023 and permit her to continue until regular appointments are made by the respondent - authorities to the said post in accordance with law;
(iii) The petitioner will also be entitled to back wages and respondent Nos.2 to 5 shall also ensure payment of the same along with all the benefits as contemplated under the Maternity Benefit Act, 1961 as amended from time to time for the period as permitted thereunder;
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(iv) Respondent Nos. 2 to 5 shall pay Rs.25,000/- towards the cost of this petition to the petitioner herein.
SD/-
JUDGE VNP*/CT-ASC List No.: 1 Sl No.: 38