Allahabad High Court
Hridesh Kumar And 13 Others vs State Of U.P. And 4 Others on 17 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2110, (2020) 1 ADJ 228 (ALL) (2020) 1 LAB LN 50, (2020) 1 LAB LN 50
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 39 Case :- WRIT - A No. - 19367 of 2019 Petitioner :- Hridesh Kumar And 13 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Abhishek Gupta,Chandra Bhan Gupta Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh Hon'ble Ashwani Kumar Mishra,J.
1. Petitioners have filed the present writ petition challenging an order passed by Chief Executive Officer, Greater Noida Industrial Development Authority (hereinafter referred to as ''the authority') dated 16.10.2018, whereby their claim for regularization has been rejected. This order has been passed pursuant to a direction issued by this Court in Writ Petition No. 15985 of 2018, dated 27.07.2018, which is reproduced hereafter:-
"Heard learned counsel for the petitioners and the learned counsel for the respondents Shri Mayank Singh holding brief of Shri B.B.Jauhari.
Shri B.B.Jauhari has filed memo of appearance on behalf of Greater NOIDA, which is taken on record.
Shri Mayank Singh has informed this Court that the petitioners had earlier filed a writ petition which was decided by a detailed order on 10.07.2013. He has raised preliminary objection regarding maintainability of the writ petition.
Learned counsel for the petitioners however says that a fresh cause of action has arisen after the Government Order dated 24.02.2016 and the petitioners may be allowed to make a representation in accordance with the aforesaid Government Order before the authority concerned i.e. the Chief Executive Officer, Greater NOIDA (respondent no. 3), which may be directed to be decided in accordance with law.
Accordingly, this writ petition is disposed of without entering into the controversy raised with a direction to the petitioners to make a representation to the respondent no. 3 within a period of two weeks from today. The respondent no. 3 shall consider the grievance of the petitioner and pass appropriate reasoned and speaking order within a further period of two months."
2. Petitioners have asserted in para 3 that they are working against different posts like Technician, Telephone operator, Electrician etc. and that some of them have also been promoted to higher posts. In para 4 of the writ petition it is stated that petitioners are continuously working without any break, to the satisfaction of the officers concerned, against permanent posts and are qualified for appointment to the posts in question. In para 7 of the writ petition it is disclosed that petitioners had earlier filed Writ Petition No. 36607 of 2013, which was dismissed on 10.07.2013, but a Special Appeal preferred against it, is pending. The order dated 10.07.2013, dismissing Writ Petition No. 36607 of 2013, is reproduced hereinafter:-
"The petitioner claims to be an association titled as Dainik Vetan Bhogi Karamchari Sangh, U.P. Greater Noida Audyogik Vikas Pradhikaran, has approached this Court with request to direct the respondents to consider the case of the members of the petitioner association for regularization on respective posts and further prayer has been made to extend all benefits to the members of the petitioner association as other regular employees are getting since the date of joining of their service.
On the matter being taken up today, Learned counsel appearing on behalf of Greater Noida Development Authority had made categorical statement to the effect that till today no policy for extending the benefit of regularization has been framed who are working in the establishment of the Authority. Once there is no policy decision to extend the benefit of regularization of service, the request made by the petitioner cannot be accepted as daily wagers even otherwise have no right to claim reglarization, unless and untill there is a scheme.
The law on the said subject has been laid down by Apex Court in the Case of Secretary State of Karnataka and Others Vs. Umadevi and others [2006 (4) SCC 1] that exercise of regularization shall not be taken as a matter of right.
It has been further contended on behalf of the petitioner Association that Rajkiya Vahan Chalak Mahasangh representing the drivers working in the respondent authority preferred Writ Petition No. 27557 of 2005 before this Court and the same was disposed of with a direction to the Authority to consider the case of the members of the petitioner therein for regularization on the post of driver. Against the said order of this Court the respondent Authority approached the Apex Court by means of Special Leav Petition. Apex Court in the said matter directed the Authority to undertake the exercise of recruitment for the posts of Drivers strictly as per the procedure prescribed in Greater Noida Industrial Development Authority Service Regulations, 1993 and that till the said process is completed, the services of the members of respondent therein shall not be terminated. Even in the said order of Apex Court, claim of regularisation has not been accepted.
In the facts of the present case when such is the accepted position that there is no policy formulated for extending the benefit of regularization, the request as has been made by the members of the petitioner association cannot be adhered to.
Here in the present case, once no process whatsoever for recruitment had taken place and there is no policy for extending the benefit of regularization, therefore, aforementioned judgment of the Apex Court will not come to the rescue and respite of the petitioner.
The writ petition is accordingly dismissed."
3. In para 9 of the writ petition it is contended that petitioners are working under the supervision and control of respondent authority as also its officers and wages are also being paid to them by the authority. Paragraphs 10 and 11 of the writ petition are relevant and are extracted hereinafter:-
"10. That it is pertinent to mention here that the appointment letter has not been issued to the petitioners by the respondent authority since they were working on different post under the supervision and control of respondent authorities and their works are in permanent nature thus they are entitled to be regularized/absorbed in the respondent department.
11. That it is stated that now the petitioners have come to know that the respondent authorities have issued some letter in respect of appointment of contractor through e-tendering and now respondents are interested to take work from the petitioner through contractor."
4. In paragraph 12 of the writ petition it is asserted that petitioners have worked for more than twenty years with the hope that they shall be regularized in the employment of authority. In para 13 it is alleged that work performed by petitioners are permanent in nature and the authority is not justified in undertaking work from them through E-tender (apparently referring to contract system). In para 15 petitioners state as under:-
"15. That the respondents were going to take work from the petitioners through contractor, under these circumstances petitioners were compelled to file Writ Petition No. 15985 of 2018."
5. Petitioners contend that a Government Order dated 24.02.2016 has now been issued which provides for regularizing the services of daily wagers, including contractual employees, in different departments and, therefore, a new cause of action has arisen for the petitioners to approach this court, notwithstanding, the dismissal of their earlier writ petition against which a Special Appeal is pending. Submission is that the Chief Executive Officer without taking note of the Government Order dated 24.02.2016 has proceeded to reject petitioners' claim for regularization. In para 22 it is stated that Chief Executive Officer has not discussed evidence of appointment of petitioners and the order impugned is illegal. In para 23 petitioners claim that they are working in Greater Noida for the last 20 years. In para 25 petitioners assert as under: -
"25. That it is stated that in view of the aforesaid fact the petitioners are to be treated as contractual employee of the Greater NOIDA and hence the order impugned passed by respondent No.3 is illegal."
6. In support of their claim petitioners have relied upon a Division Bench Judgment of this Court in Special Appeal No. 790 of 2018, decided on 12.04.2018, which shall be referred to, later.
7. Petitioners claim for regularization is rejected by the authority on following grounds:-
(i) A finding is returned that none of petitioners have ever been appointed directly by the authority, nor there exits any contract of employment in respect of petitioners. It is observed in the order that depending upon the requirement of the work the authority has been engaging persons through registered contractors, for a period of three months, and the payment of wages to such employees is also made by the contractors.
(ii) The authority only maintains records with regard to engagement of contractors, as also the number of persons engaged and the wages paid to them. Since petitioners have neither been appointed by the authority, nor there exist any contract of employment between the petitioners and the authority as such the petitioners are not liable to be treated as the employees of authority.
(iii) Order impugned further records that from time to time regular recruitment has been undertaken by the authority and it was open for persons such as petitioners, who claim to have been engaged through contractor, to have applied against it but the petitioners have not availed of such opportunity.
(iv) The order impugned further records that authority being a public authority any employment in it can only be granted after due advertisement of vacancy and persons engaged on contract basis, otherwise cannot be regularized against posts meant to be filled by direct recruitment.
(v) As per the order impugned the Government Order dated 24.02.2016, providing for regularization of contract employees is not found to be applicable upon the petitioners as necessary ingredients to invoke the provisions of the government order do not exist. It has also been observed that the provisions of newly created Centralized Service Rules of 2018 also would not be applicable since the appointing authority under the rules is the Government and not the authority.
8. Sri Ramendra Pratap Singh, who has appeared for the authority submits that the nature of enquiry which would be warranted in order to assail the findings contained in the order impugned would require leading of evidence for which the writ petition is not the appropriate forum. Learned counsel for the respondents places reliance upon a judgment of the Apex Court in case of Steel Authority of India Ltd. Vs. National Union Waterfront Workers, reported in 2001 (7) SCC 1, in order to submit that nature of enquiry warranted in the facts of the present case falls within the exclusive jurisdiction of the Industrial Adjudicator and a writ petition would not lie.
9. I have heard Sri C. B. Gupta, learned counsel for the petitioner; Sri Ramendra Pratap Singh, learned counsel for the respondent authority whereas learned Standing counsel on behalf of the State authorities and have perused the materials on record.
10. The pleadings made in the writ petition have already been noticed above. Although it is asserted that petitioners have been working for the last about 20 years but the averments made in that regard are absolutely vague. There is no date of appointment disclosed for any of the petitioner. It is also not specified as to which of the petitioner is working against which post. The petitioners have not specified as to who is the contractor through whom they have been engaged for performing work in the authority. The pleadings made in the writ petition, particularly in para 15 and 25 of the writ petition, would clearly go to show that petitioners admit that their engagement is through a contractor for performing different works in the authority. Petitioners do not dispute that no letters of appointment are issued to them by the authority, nor any contract of employment exists between petitioner and the authority.
11. Petitioners' claim for regularization has been rejected after returning a specific finding that no employer-employee relationship exists between the petitioners and the authority and that no records are maintained in respect of engagement of persons through contractor.
12. Engagement of persons through contractor is regulated by the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the Act of 1970). Engagement of worker through a contractor per se is not illegal under the Act of 1970. The Act merely regulates such engagement and it is only where the appropriate Government prohibits engagement of worker through contractor, by way of a notification issued under Section 10 of the Act of 1970, that such engagement would become impermissible in law.
13. Whether or not necessary safeguards contemplated in the Act of 1970 have been adhered to by the authority, while engaging persons through contractor, is also an aspect which would require leading of evidence. Petitioners contention that the contractor was merely a ploy employed by the authority to absolve itself of its responsibility in law also remains a matter of evidence to be led by the parties. It would be for the Industrial Adjudicator to ascertain, on the basis of evidence adduced before it, whether the engagement of workers through contractor is in accordance with the Act of 1970; that the provisions of the Act of 1970 have been complied with or that the engagement is sham or farce.
14. Question as to whether any contract of employment would come into existence, directly, between the principal employer and the contract worker can only be answered by the Industrial Adjudicator on the basis of evidence led by the parties before it. Whether such issues can be adjudicated directly in proceedings under Article 226 of the Constitution of India has been a subject matter of consideration in different cases before the Supreme Court. In some of the earlier decisions it was held that a writ petition would lie for such purposes (see:- Secretary, Haryana State Electricity Board v. Suresh, 1999 (3) SCC 601).
15. However, in R. K. Panda and Ors. v. Steel Authority of India and Ors., 1994 (5) SCC 304, the Apex Court held that the question whether the contract employees have become the employees of principal employer and the contractor is merely a camouflage are questions of fact which cannot be decided in writ jurisdiction. Paragraph 7 of the aforesaid judgment is reproduced hereinafter:-
"7. It is true that with the passage of time and purely with a view to safeguard the interests of workers, many principal employers while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact such a condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself-give rise to a right to regularisation in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smoke screen, as has been urged in this case, is a question of fact and has to be established by the contract labours on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer eliminating the contractor from the scene, is a matter which has to be established on material produced before the Court. Normally, the labour court and Industrial Tribunal, under the Industrial Dispute Act are the competent for a and to adjudicate such dispute on the basis of the oral and documentary evidence produced before them."
16. The issue ultimately came up for consideration before a Constitution Bench judgment of the Apex Court in Steel Authority of India Ltd. and others v. National Union Waterfront Workers and others (supra). The entire law relating to right of contract employees, in the light of the provisions of the Act of 1970, including claim of absorption in the employment of principal employer has been examined. It has been held that the Legislature never intended absorption of contract employees upon issuance of abolition notification under Section 10(1) of the 1970 Act. The Apex Court further held that neither Section 10 nor any other provision in the Act provide for automatic absorption of contract employees in the employment of principal employer. It has further been held that the provisions of the Act of 1970 neither contemplate creation of direct relationship of master and servant between the principal employer and the contract employees nor can such relationship be implied from the provisions of the Act. It would be worth noticing paragraphs 105, 120, 125 (3) and 126 of the Constitution Bench Judgment in Steel Authority of India (supra), which are reproduced hereinafter:-
"105. The principle that a beneficial legislation needs to be construed liberally in favour of the class for whose benefit it is intended, does not extend to reading in the provisions of the Act what the Legislature has not provided whether expressly or by necessary implication, or substituting remedy or benefits for that provided by the Legislature. We have already noticed above the intendment of the C.L.R.A. Act that it regulates the conditions of service of the contract labour and authorises in Section 10(1) prohibition of contract labour system by the appropriate Government on consideration of factors enumerated in Sub-section (2) of Section 10 of the Act among other relevant factors. But, the presence of some or all those factors, in our view, provides no ground for absorption of contract labour on issuing notification under Sub-section (1) of Section 10. Admittedly, when the concept of automatic absorption of contract labour as a consequence of issuing notification under Section 10(1) by the appropriate Government, is not alluded to either in Section 10 or at any other place in the Act and the consequence of violation of Sections 7 and 12 of the C.L.R.A. Act is explicitly provided in Sections 23 and 25 of the C.L.R.A. Act, it is not for the High Courts or this Court to read in some unspecified remedy in Section 10 or substitute for penal consequences specified in Sections 23 and 25 a different sequel, be it absorption of contract labour in the establishment of principal employer or a lessor or a harsher punishment. Such an interpretation of the provisions of the statute will be far beyond the principle of ironing out the creases and the scope of interpretative legislation and as such, clearly impermissible. We have already held above, on consideration of various aspects, that it is difficult to accept that Parliament intended absorption of contract labour on issue of abolition notification under Section 10(1) of the C.L.R.A. Act."
"120. We have also perused all the Rules and forms prescribed thereunder. It is clear that at various stages there is involvement of the principal employer. On an exhaustive consideration of the provisions of the C.L.R.A. Act we have held above that neither they contemplate creation of direct relationship of master and servant between the principal employer and the contract labour nor can such relationship be implied from the provisions of the Act on issuing notification under Section 10(1) of the C.L.R.A. Act, a fortiori much less can such a relationship be found to exit from the rules and the forms made thereunder."
"125 (3). Neither Section 10 of the C.L.R.A. Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under Sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
126. We have used the expression "industrial adjudicator as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of Jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/ Court whose determination will be amenable to juridical review."
17. The above judgment of the Constitution Bench clearly lays down that even where prohibition notification has been issued under Section 10 of the Act, 1976, there is no right of absorption of the contract labours and further enquiry into question of fact cannot be made in exercise of jurisdiction under Article 226 of Constitution of India and the appropriate forum to go into these issues is the Industrial Adjudicator.
18. The Constitution Bench judgment in Steel Authority of India (supra) has specifically overruled the earlier judgment of the Apex Court in Air India Statutory Corporation v. United Labour Union and Ors. (supra) which had taken a view similar to what is held in Secretary, Haryana State Electricity Board v. Suresh and Ors. (supra). As a matter of fact the Apex Court in Secretary, Haryana State Electricity Board vs. Suresh and others (supra) had followed the view taken in the Air India Statutory Corporation case which stood specifically overruled in Steel Authority of India Ltd. (supra).
19. The remedy for petitioners, in light of the law settled by the Supreme Court in Steel Authority of India (supra) would be to approach the Industrial Adjudicator, where all issues of facts can be examined by the competent forum with reference to the applicable provisions of law. The powers of Industrial Adjudicator are otherwise extremely wide by virtue of Section 11-A of the Industrial Disputes Act, 1947.
20. Coming to the Division Bench judgment of this Court in Special Appeal No. 790 of 2018, it transpires that facts had been adverted to by this Court in Special Appeal and the plea of alternative remedy came to be rejected. The respondents plea based upon a later judgment of the Apex Court in the case of Balwant Rai Saluja v. Air India Ltd., (2014) 9 SCC 407 was also rejected.
21. The judgment of the Apex Court in Balwant Rai Saluja (supra) was delivered by the Apex Court in a matter relating to canteen employees upon whom the provisions of Section 46 of the Factories Act were applicable. Provisions of the Factories Act required the management to set up a canteen. The Apex Court distinguished the previous judgment in the case of Steel Authority of India (supra) as the employees of statutory canteen were distinctly placed in the statutory scheme. This judgment apparently would have no applicability in the facts of the present case since petitioners are not the employees of statutory canteen. The Constitution Bench Judgment in Steel Authority of India (supra), however, was not placed before the Division Bench in special appeal no. 790 of 2018. In light of what has been observed above, as also the lack of specific pleading on the part of the petitioners with regard to the nature of their engagement and continuance etc., I am not inclined to entertain petitioners grievance directly in this writ petition by passing the law laid down by Constitution Bench in the case of Steel Authority of India Ltd. (supra).
22. In the aforesaid factual backdrop, this Court is of the considered opinion that petitioners' be relegated to the remedy of approaching Industrial Adjudicator in light of the law laid down by the Apex Court in the case of Steel Authority of India Ltd. (supra). However, in the facts of the present case it would be appropriate to direct the State Government to forthwith refer petitioners' claim to the appropriate Industrial Adjudicator for proceedings to be concluded at the earliest.
23. Writ petition, accordingly, fails and is dismissed. It is, however, provided that in case petitioners approach the appropriate authority of the State, their claim shall be referred to the appropriate Industrial Adjudicator, forthwith. The concerned Industrial Adjudicator shall make all endeavours to conclude the proceedings, at the earliest possible, without granting unnecessary adjournment except on payment of costs, by fixing early dates. In the facts of the case parties shall bear their own costs.
Order Date :- 17.12.2019 Abhishek Singh (Ashwani Kumar Mishra, J.)