Kerala High Court
K.K. Thilakan And Ors. vs Fact Ltd. And Anr. on 24 July, 1991
Equivalent citations: (1992)IILLJ782KER
JUDGMENT Sreedharan, J.
1. Petitioners, 26 in number, were workers employed by contractor, Pigee Agencies. They were engaged, according to them, as workmen in connection with the manufacturing process of super phosphate in the Udyogamandal Division of the first respondent concern. They are, it is alleged, having continuous and uninterrupted service for more than ten years. On March 24, 1984, they were denied employment at the instance of Pigee Agencies. Thereupon an industrial dispute was raised regarding their absorption in the establishment of the first respondent. Government referred the issue for adjudication to the Labour Court, Brnakulam. After a detailed enquiry, Labour Court passed Exihibit P-1 award dated March 24, 1984. As per that award, the first respondent was directed to reinstate 32 workmen with continuity of service and benefit of arrears in back wages. That award was challenged by the first respondent before this Court in Original Petition No. 9986 of 1984. Learned Single Judge took the view that the award passed by the Labour Court is one without jurisdiction and consequently quashed the same. The union took up the matter before a Division Bench in Writ Appeal No. 400 of 1980. While agreeing with the view taken by the learned single Judge that the Labour Court was not entitled to examine and to take the view that the employees in question were really the employees of the first respondent, remitted the case to the labour Court for disposal afresh after deciding the actual dispute referred to it. Thereupon the Labour Court passed Exhibit P-4 award holding that the petitioners are not having any legal right to be absorbed in the service of the first respondent. This award is under challenge.
2. The issue referred to the Labour Court for adjudication is "absorption of the contract workers engaged in the bagging of superphosphate in the FACT Ltd., Udyogamandal Division, by the said management who were rendered unemployed with effect from March 23, 1980, on expiry of the contract entered into between the management and Pigee Agencies, Cochin". From this issue it is evident that the petitioners were the employees under the contractor, Pigee Agencies. Employees under the Pigee Agencies lost their employment on account of the termination of their contract. Consequently the workers seek absorption in the service of the first respondent. Absorption can only be of persons who are outside the establishment. A person who was outside the establishment when he seeks absorption as an employee he is in fact seeking employment in the establishment. If there arises a dispute regarding his absorption, can it give rise to an industrial dispute as defined under the Industrial Disputes Act? A workman should be employed by an employer. Only on an employment being given to him, can he be considered as a workman. Petitioners have no case that they were employed by the first respondent. They were employed by Pigee Agencies, a contractor under first respondent. When the contract came to an end they became unemployed. They seek absorption in service under the first respondent. They want to be taken into the service of the first respondent. In other words they are seeking employment under the first respondent. Petitioners who were never employed or engaged by the factory want themselves to be taken into its service. Unless they are so absorbed they cannot consider the first respondent as their employer. Nor can they be treated as workmen of the first respondent either. Their claim to the employment of the first respondent can never be considered as an industrial dispute. Their claim is not an industrial dispute as defined in Section 2(k) of the Industrial Disputes Act.
3. As stated earlier, petitioners have admitted that they were employed by the contractor, Pigee Agencies. Can an employee engaged by the contractor claim to be the employee of FACT Ltd., Udyogamandal Division ? Identical question was considered by me in Cominco Binani Zinc Ltd. v. T.P. Pappachan (1989-I-LLJ-452) (Ker). It was observed therein (at pages 454-455):
"The mere fact that the petitioner had the responsibility to provide and maintain a canteen under Section 46 of the Factories Act, cannot make them the ultimate employer of the workers engaged in the canteen for all purposes. Canteen may be run by independent contractors or by co-operative societies of the workers or may be run by the company itself in discharge of the obligation under Section 46 of the Factories Act. In the first two categories, the workers in the canteen cannot be considered to be the employees of the management. When the management entrusts the responsibility of running the canteen with a contractor the workmen employed and paid by such contractor cannot be treated as workmen of the management. There is no employer-employee reltionship between the management and such workmen. All claims of the workmen are to be met by the contractor or the society, as the case may be. If the canteen is run by the contractor or co-operative society, the employer in relation to the workers engaged in the canteen will be the contractor or the society."
This statement of the law has been approved by a Division Bench in Writ Appeal No. 232 of 1989. In Workmen of the Food Corporation of India v. Food Corporation of India, (1985-II-LLJ-4) (SC), their Lordships had to consider the status of an employee engaged by a contractor vis-a-vis the Food Corporation of India. Their Lordships observed (at page 9):
"'Workman' has been defined in the Industrial Disputes Act to mean 'any person (including an apprentice) employed in any industry to do.....' The expression 'employed' has atleast two known connotations but as used in the definition, the context would indicate that it is used in the sense of a relationship brought about by express or implied contract of service in which the employee renders service for which he is engaged by the employer and the latter agrees to pay him in cash or kind as agreed between them or statutorily prescribed. It discloses a relationship of command and obedience. The essential condition of a person being a workman within the terms of the definition is that he should be employed to do the work in that industry and that there should be, in other words, an employment of his by the employer and that there should be a reltionship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a 'workman' within the definition of the term as contained in the Act - Dharangadhara Chemical Works Ltd. v. State of Saurashtra, (1957-I-LLJ-477). Now where a contractor employs a workman to do the work which he contracted with a third person to accomplish on the definition as it stands, the workman of the contractor would not, without something more, become the workman of that third person. Therefore, when the contract system was in vogue, the workmen employed by the contractor were certainly not the workmen of the Corporation and no claim to that effect had been made by the Union."
In the light of the above pronouncements, it is necessarily to be held that the petitioners were never the workmen of the first respondent. Petitioners were only seeking employment under the first respondent.
4. Under Section 10 of the Industrial Disputes Act where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may refer the dispute to a Labour Court for adjudication. So the power under Section 10 can be exercised by the Government only when there exists an industrial dispute. Industrial dispute as defined in Section 2(k) of the Act cannot exist between an employer and persons seeking employment under them. The very dispute that was referred was the issue regarding absorption in the service of the first respondent. As I have held earlier, petitioners were never workmen under the first respondent. So there could not have been an industrial dispute between the petitioners on the one hand and the first respondent. Consequently there was no dispute as defined in Section 2 (k) of the Industrial Disputes Act for the Government to refer to the Labour Court. The jurisdiction of the Labour Court to entertain the dispute was challenged by the first respondent in the statement filed before it. It is trite law that the validity of the reference can be gone into by this Court even after the award is passed. In Shambu Nath v. Bank of Baroda (1978-I-LLJ-484), Their Lordships observed (at page 486):
"No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award."
The said observation applies on all fours to the facts before me. Since the petitioners were at no point of time employees of the first respondent, there was no possibility of any industrial dispute arising between them. Consequently there could not have been any reference of any industrial dispute for adjudication by the Labour Court. The reference to the Labour Court was ill-conceived.
5. The last argument advanced by Shri A.X. Varghese, the learned counsel representing the petitioners, was based on Articles 14 and 16 of the Constitution. According to counsel, first respondent admitted that some of the workers under the contractor were absorbed in the service of the first respondent. Since these petitioners have not been so absorbed, according to counsel, the action of the first respondent is arbitrary and violative of the fundamental rights under Articles 14 and 16 of the Constitution. The answer to this contention can be found in the judgment of a Division Bench of this Court in P. Karunakarn v. Chief Commercial Supdt., (1983) 1 KLJ 570.
"Before parting with the case we would like to remind ourselves that when dealing with cases of this type we should not confine our attention to the problems of only the petitioners who seek relief before this Court, particularly in the context of fundamental rights under Articles 14 and 16 of the Constitution of India in the matter of employment in public service. It is of vital importance in a country like ours where there is large-scale unemployment that we should not ignore the possibility of infringing fundamental rights in the matter of equality of opportunity of young men who are entitled to seek equal opportunity in the matter of employment in public service. Persons who thus get entry into the private employment under a contractor not wholly based on considerations of merit and not by giving equality of opportunity in the matter of employment if allowed to enter into regular service by their absorption in railway it will entail infringement of equality of opportunity for young men in the country in the matter of seeking employment in the railway administration. The rights of that unknown class should not be forgotten when we deal with cases of this type and what is pressed before us is only the equities of persons who are before us. Before issuing any directions we would like to remind ourselves about the existence of that class of unemployed who are waiting for equal opportunity in the matter of employment so that their rights are not curtailed by such backdoor entry into public service."
This observation applies on all fours to the facts before me. First respondent is a public sector undertaking. Equal opportunity in the matter of employment should be extended to all unemployed seeking employment. Petitioners were employed by a contractor engaged by the first respondent. That cannot confer on them any preferential claim to be appointed in its service. So the petitioners are not entitled to "be absorbed" in the service of the first respondent.
6. In view of what has been stated above, I find no merit in this original petition. It is accordingly dismissed.