Gujarat High Court
Shree Kutch General Mazdoor Sangh vs G K General Hospital Society & 3 on 19 August, 2016
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/8660/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8660 of 2016
With
SPECIAL CIVIL APPLICATION NO. 9440 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowedNo.
to see the judgment ?
2 To be referred to the Reporter or not ? Yes.
3 Whether their Lordships wish to see the fair copy ofNo.
the judgment ?
4 Whether this case involves a substantial question ofNo.
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SHREE KUTCH GENERAL MAZDOOR SANGH....Petitioner(s)
Versus
G K GENERAL HOSPITAL SOCIETY & 3....Respondent(s)
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Appearance:
MR TR MISHRA & SHRI YOGEN N. PANDYA ADVOCATES for the Petitioner.
MR. SOAHAM JOSHI AGP for the Respondent No. 2
MR. K.M. PATEL, SENIOR ADVOCATE with MR.VARUN K.PATEL,
ADVOCATE for the Respondent No. 1
NOTICE SERVED for the Respondent No. 3
UNSERVED-WANT OF TIM for the Respondent No. 4
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 19/08/2016
ORAL JUDGMENT
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1. These two petitions are filed by Shri Kachchh General Mazdoor Sangh ("the Union"). Following are the prayers made in para 8 of the first petition filed under Article 226 of the Constitution.
"8. In view of the aforesaid facts and circumstances of the case, it is prayed that the Hon'ble Court may be pleased to grant the following relief.
(A) That Your Lordships be pleased to issue an order, direction and/or writ in the nature of mandamus and/or any other appropriate writ, order or direction directing the respondent No.2 to immediately refer the dispute raised by the petitioner union to the Industrial Tribunal, for adjudication;
(B) That Your Lordships be further pleased to declare the impugned action of the respondent in deploying contract labour on permanent, perennial nature of job, as serious unfair labour practice and be further pleased to declare the impugned action of dispensing with the services of the workmen under the garb of termination of the Contractor, as illegal and amounting to unfair labour practice;
(C) Pending admission and final disposal of this petition, Your Lordships be pleased to restrain the respondent, their agents and servants from terminating and/or otherwise discontinuing the services of the services of the workmen on the ground of termination of Contractor;
(D) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice together with costs;"
2. For the same prayers, second petition is filed under Article 226 of the Constitution. The reason stated for filing the second petition for the same prayer by the same union is that when the first petition was filed, some of the workers were left out. As per the common facts stated in both the petitions, Sheth G.K. General Hospital ("the hospital") was set up in the year 1956 at Bhuj with a donation of Rs.5 lacs from Page 2 of 21 HC-NIC Page 2 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT Phinanthropist late Sheth Gordhandas Kharshedji. In the year 2001, entire hospital got collapsed and then, the Hon'ble Prime Minister released the donation of Rs.100 crore from the Prime Minister's Relief Fund for the purpose of rebuilding and modernization of General Hospital. On 31.3.2003, the new building of Sheth G.K.Hospital, Bhuj came to be inaugurated. On 27.8.2003, a society called G.K. General Hospital Society came to be formed and registered under the Societies Registration Act, 1860 to manage the Hospital. It is averred in the petition that the State Government then took the decision under resolution dated 16.6.2009 to take back the management of the said hospital from GK General Hospital Society and to hand over the Hospital to the Gujarat Adani Institute of Medical Science on lease for a period of 99 years. It is further averred in the petition that there are about 150 persons working for more than 10 years with the then G.K.General Hospital Society and now with Gujarat Adani Institute of Medical Science. Copy of list of workers working on contract for more than 10 years with notice of demand is annexed with the petition. It is stated that in response to the information sought from the hospital, particulars as regards contractors engaged by the hospital from2004 onward to 2011 were received by the petitioner as per which the workers have been working in the hospital as Ward Boy, Aaya, Stretcher Bearer, Barber, Sweeper, Liftman, Mali etc. It is further stated that out of 130 persons working with the hospital, about 10 to 20 persons are new and they have put in more than 3 to 4 years of service and the rest have put in uninterrupted and continuous service of more than 10 years and are being paid the wages less than the minimum rates of wages and no other facilities are being given to them. It is also stated that the Page 3 of 21 HC-NIC Page 3 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT petitioner came to know that the Management of Adani Group has brought about 10 to 15 persons for last one week and they are given training how to work as Aya, Ward Boy, Stretcher Bearer etc. and that the services of the workmen who are working for more than 10 years are likely to be discontinued as they have raised certain demands. It is stated that the respondent No.1, with a view to victimize the workers, wants to terminate the present contract so as to terminate the services of the workers working with the contractor. It is also stated that the work performed by the workers is of permanent and perennial nature and the contractor is only for namesake. On such and other averments, above referred prayers are made in the petitions.
3. In the first petition, the Court while issuing notice, ordered, by way of ad-interim relief that the workers in question whose details are on record shall not be terminated. Such ad -interim relief is in operation in the first petition. In the second petition, no such ad-interim relief is granted.
4. Learned advocate Mr. Mishra appearing for the petitioner in the first petition submitted that the workers whose names are in the list annexed with the petition are the workmen of the hospital and working for the last more than 10 years. Mr. Mishra submitted that even before the management of the hospital was handed over to respondent no.1 by the State Government, such workers were working in the hospital. Mr. Mishra submitted that though the work being performed by the workers is of permanent and perennial nature, they have been made to work under different contractors under sham and Page 4 of 21 HC-NIC Page 4 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT bogus contracts just to deprive them of their legitimate right to be treated as permanent workmen of the hospital and to get all benefits as permanent workmen, and therefore, the petitioner union served notice of demand to respondent no.1 to treat the workers as permanent employees of the hospital and give them all the benefits and now for such demand, conciliation proceedings before the respondent no.2 are pending. Mr. Mishra submitted that though it is the case of clear industrial dispute for the demands made by the petitioner union for the workers, the conciliation officer is not in a mood to finalize the conciliation proceedings which will result into delay in referring the industrial dispute to the Industrial Forum. Mr. Mishra submitted that pending the conciliation proceedings and till the reference is made to the industrial forum, if the services of the workers are discontinued, they will suffer great prejudice and, therefore, direction is required to be issued to respondent no.2 to immediately refer the dispute for adjudication and to protect the workers till the dispute is referred to the to the industrial forum in exercise of the powers under Article 226 of the Constitution of India.
5. Learned advocate Mr. Pandya appearing for the petitioner in the second petition while adopting the arguments of learned advocate Mr. Mishra, submitted that the workers for whom second petition is filed were left out when the first petition was filed and, therefore, there is no interim protection from this court in their favour. Mr. Pandya therefore submitted that the workers covered under the second petition may also be granted protection against the termination of their services till the reference is made for the demands of the workers to the industrial forum.
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6. Learned Senior Advocate Mr. K.M. Patel appearing with learned Advocate Mr. Varun K. Patel for respondent No.1 submitted that the petitions under Article 226 of the Constitution of India may not be entertained for the first prayer made in the petitions as it is only after receipt of failure report from conciliation officer, the concerned authority is to decide whether the powers under sec. 10 of the Act are required to be exercised. Mr. Patel submitted that even otherwise, since the respondent no.1 is not discharging any public function or duty, the petitioner cannot maintain the petitions against it under Article 226 of the Constitution of India. Mr. Patel submitted that as on today, the conciliation proceedings are pending and no relief in connection with such pending conciliation proceeding is asked in the petitions. Mt. Patel submitted that even otherwise, when there is no jurisdiction with the conciliation officer to grant any interim protection against the termination of the services of the workers, the petitioner is not entitled to ask for interim protection for the workers under Article 226 of the Constitution of India. Mr. Patel submitted that whether the workers have continuously worked for more than 10 years and whether the work performed by them was of permanent and perennial nature and whether the contracts under which they worked were sham, bogus or camouflage are all the disputed questions of fact which cannot be decided under Article 226 of the Constitution of India. Mr. Patel submitted that the petitioner has come with clear case that the workers concerned are contractor's workers and no evidence is placed in support of their say that they have been working with the hospital for the last more than 10 years. Mr. Patel submitted that the workers' tenure with their contractor had already Page 6 of 21 HC-NIC Page 6 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT come to an end but on account of interim relief granted by this Court, they are continued as contractor's workers and being paid idle wages. Taking the Court through the provisions of the Contract Labour (Abolition) Act, Mr. Patel submitted that in absence of any notification for abolition of contract labour or for prohibition to engage the workers under contract, the workers working under the contractor could not be said to be the direct employees of the hospital unless it is proved by evidence that the contract with the contractor to engage the workers was camouflage, sham and bogus. Mr. Patel submitted that if the respondent no.1 is directed to continue the workers in employment, the respondent no.1 will suffer great prejudice and irreparable loss which may not be compensated in terms of money whereas the workers will get all benefits if they succeed in the reference if made. Mr. Patel submitted that this court may also not consider the second prayer made in the petitions filed under Article 226 of the Constitution as unless it is established before the appropriate forum by evidence that the work alleged to have been performed by the workers is of permanent and perennial nature and that the contract was sham and bogus. Mr. Patel thus urged to reject both the petitions.
7. Learned A.G.P. Mr. Joshi submitted that there is no delay in holding conciliation proceedings. He submitted that the conciliation proceedings shall be finalized and appropriate report shall be made without delay.
8. Having heard the learned advocates for the parties, it appears that the prayers in the petitions are sought on the premise that the workers, for whom the petitions are filed, Page 7 of 21 HC-NIC Page 7 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT have been working with the hospital for the last 10 to 12 years, however, they are likely to be discontinued by taking vindictive action by terminating the contract as they have raised certain demands. It is stated in the petition that the hospital cannot run without Ward Boy, Aaya, Stretcher Bearer, Barber, Sweeper, Liftman, Mali etc. and such jobs performed by the workers are of permanent and perennial nature and the inter- mediatries have been brought with a view to avoid direct relationship between workers and the employer - the hospital and when the dispute is raised for better service conditions, the workers are threatened to face termination of their employment which is nothing but serious unfair labour practice and, therefore, they are required to be protected.
9. It appears that after serving notice to the respondent No.1, the proceedings are now pending before the conciliation officer - respondent no.2 as regards demand of the union that the workers shown in the schedule of the notice have been continuously working for the last many years in Class-IV Cadre under bogus and sham contract and they should be given all the benefits available to Class IV employees with the pay scale of the said category by treating them permanent employees of the hospital from the day they completed 240 days' work.
10. The respondent No.2 - Assistant Commissioner of Labour has filed affidavit in reply stating that the petitioner raised demands against G.K. General Hospital and Adani Institute of Medical Sciences and the conciliation case no.20 of 2016 has been registered. It is stated that in the conciliation proceedings, respondent no.1 has produced records for joining the contractor as party. It is stated that the function of the Page 8 of 21 HC-NIC Page 8 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT conciliation officer is to bring the parties to an amicable settlement and if they fail to arrive at amicable settlement, the conciliation officer has to submit failure report to the appropriate Government. It is also stated that there is no delay on the part of the conciliation officer as the action for the conciliation has already been initiated.
11. Affidavit in reply on behalf of respondent no.1 is also filed raising objection against the entertainability of the petitions under Article 226 of the Constitution on the ground that the respondent No.1 is private body and does not perform public duty and also on the ground that the petitions involve adjudication of disputed questions of fact as to whether there is relationship between the workers and the contractor or between the workers and the principal employer - the hospital and whether the workers have been working for more than 10 years. It is also stated that the contract of the contractor with whom the workers had worked for some time had come to an end and the new contractor has taken over from 9.5.2016 with its own workers, however, on account of the interim relief granted by this Court, the contract with the earlier contractor has been extended. It is also stated that the respondent no.1 is not the employer of the workers and there is no question for the respondent no.1 to terminate the services of the workers whose employer was the previous contractor.
12. As regards objection that the respondent no.1 is a private body and not discharging public function and, therefore, the petitions under Article 226 of the Constitution of India should not be entertained, it is required to note that the workers were engaged to do their job in the hospital known as Sheth G.K. Page 9 of 21 HC-NIC Page 9 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT General Hospital. The management of the said hospital was handed over to G.K. General Hospital Society. It is stated in the reply affidavit filed on behalf of respondent no.1 that the management, control and administration of the hospital is taken over by Gujarat Adani Institute of Medical Sciences (""GAIMS"") on Public - Private Partnership Basis ("PPP Model) as per the resolution passed by the Government dated 27.5.2009 and as per the subsequent agreement between the "GAIMS" and the Government dated 5.7.2013. As stated in the resolution dated 27.5.2009, the administration of G.K. General Hospital belonging to the Government was with G.K.General Hospital Society and in principle, it was decided to take back the hospital with the Government and to give it on 99 years' lease to the "GAIMS" to establish Medical College on PPP Model for developing it as a Teaching Civil Hospital on various conditions including that G.K. General Hospital shall continue to have the status of Civil Hospital and shall function for the works as provided in the resolution dated 19.2.2005 of the Health and Family Welfare Department of the State Government, and that the State Government shall nominate its committee under its appointed nominee to undertake the works of the Hospital and for its management, however, the Management of the College shall be independently done by the "GAIMS" without any interference by such committee. It is further provided that the "GAIMS" shall continue the Government staff and the contract basis staff for six months and they shall be given option whether to work on deputation or to go back to the State Government. Under the above such and the other conditions, it is decided to hand over the Hospital for its development as teaching hospital and to establish the Medical College. It appears that the above Page 10 of 21 HC-NIC Page 10 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT resolution was challenged by filing Writ Petition (PIL) NO.76 of 2011 before this Court. The Court while rejecting the said PIL vide its judgment dated 30.1.2012, has observed as under:
"We have also gone through the terms and conditions as laid down by the State Government in its resolution dated 27th May 2009. We are convinced by the fact that the conditions which have been imposed provide adequate safeguard to protect the interest of the Government as well as the people at large who are to take benefits of the medical services. Apart from giving free services to poor patients, few salient features of the Understanding which, according to us, are important, are as under:-
(a) the hospital management committee will be appointed under the Chairmanship of the Government nominee.
(b) the Gujarat Adani Institute of Medical Sciences will provide for all capital and revenue expenditure for the medical college and all income generated out of the medical college will be spent only on the development of the hospital.
(c) the name of the hospital shall remain the same i.e. Sheth G.K.General Hospital and shall be recognized as civil hospital and no change will be made in future so far as the name is concerned.
We have also noticed that the assets have been transferred for specific objects and if there is any change in the use of land, the land and the assets thereon will automatically revert to the Government without any compensation and the transfer of land by way of lease would be rendered void-ab-initio.
In short, while the title to the entire property remains with the State Government, the right of enjoyment has been given to the Society and, adequate care has been taken by way of imposing a condition that in case of change in use of the leased property by respondent no.6, the land and the assets thereon will be taken back by the Government without any compensation.
It is true that the Government took decision to handover the possession of the land in favour of Page 11 of 21 HC-NIC Page 11 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT respondent no.6 by entering into a lease deed of 99 years, but at the same time, the nominee of the State Government will head a Managing Committee for managing the affairs of the civil hospital.
We are convinced by the fact that there is adequate and sufficient voice of the Government in so far as the administration and supervision of the hospital is concerned. This is evident by the fact that the Committee of eleven Members constitutes three Members nominated by the Chairman in consultation with the Government of Gujarat and two Members nominated by the Government of Gujarat. At the same time, Gujarat Adani Institute of Medical Sciences has its Board of Governors which includes two Members of the State of Gujarat, namely, the Principal Secretary, Health and Family Welfare Department and the Principal Secretary, Finance Department. Beside this, we have also noticed and we have discussed this in the earlier part of our judgment that the Government had to enter into a lease deed of 99 years as one of the provisions of the Medical Council Act and the Regulations made thereunder. The concerned applicant i.e. GAIMS must possess 25 acres of land having a lease of 99 years.
We are of the view that taking into consideration the object with which the State Government has entered into an agreement with respondent no.6 on the basis of Public Private Partnership model, it cannot be said that the State property is being alienated for the augmentation of the income of the State or for the benefit of any individual, but for a laudable object of providing better health facilities and services to the people of the region of Kutch, more particularly, people hailing from a very poor and lower strata of the society. This comprehension or act done cannot be termed to be distribution of the State largesse to any chosen person or for enrichment of any one individual. There is no element of augmentation of the revenue enjoining an obligation to the State to secure the best market price in a market economy. Essentially, it is a policy decision of the State and the State would be well-within its right to enter into such an agreement to achieve the defined constitutionally recognized public purpose or goal setup by Part IV of the Constitution of India which can be termed as a 'public policy'.
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The decision of the State Government cannot be said to be, in any manner, illegal or the project can be said to be illegal or suffers from any malice or is not desirable or is one favouring a particular company. We are of the view that it would not become unreasonable or unconstitutional merely because it is unconventional in practice. As we have said earlier, time has come for the Governments to take such steps in the larger interest of the development of this nation."
13. In the case of Binny and another versus V. Sadasivan and others reported in 2005 (6) SCC 657, relied on by Mr. Patel, Hon'ble Supreme Court has observed that it is difficult to draw a line between public and private function when they are being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so.
14. From the resolutions, observations made by this Court in the PIL and the agreement, it appears that the control and interest of the Government in the Hospital for Medical Services to the people at large shall continue and the hospital shall continue to be recognized as Civil Hospital. In connection with the management of the civil hospital, when PPP Model is adopted, it cannot be said that the petition under Article 226 of the Constitution of India cannot be maintained against respondent No.1. The respondent No.1 is under obligation by virtue of the resolution and the agreement to ensure that the hospital functions as civil hospital for public at large.
15. However, the question still remains whether in the facts Page 13 of 21 HC-NIC Page 13 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT of the case, the prayers made in the petitions could be accepted. As regards first prayer, in ordinary circumstances, it is for the concerned authority of the State Government to decide whether to refer the dispute to Industrial Forum in exercise of the powers under section 10 of the Act after conciliation officer submits his failure report. However, in exceptional circumstances, the Court may consider to exercise its powers under Article 226 of the Constitution of India to direct the concerned authority to refer the dispute to Industrial Forum. In the case on hand, notice for demand was issued by the petitioner to respondent no.1 on 26.4.2016 and thereafter, the petitioner approached the conciliation officer on 9.5.2016 as stated in the affidavit in reply of respondent no.2. Thus, the conciliation proceedings are not pending for long time and are in process. The Court therefore finds that it would be appropriate if the procedure as contemplated in the Act is allowed to be followed i.e. to allow the conciliation officer to hold and conclude the conciliation proceedings and make appropriate report to the concerned authority of the Government. It will be then for the concerned authority of the Government to consider such report and take further appropriate action under the Act. In the case of Rashtriya Chemicals and Fertilizers Ltd. & Another versus General Employees' Association, reported in (2007) 5 SCC 273, the Hon'ble Supreme Court has held and observed in para 8 and 9 as under:
"8. It is now well settled that High Courts will not straightway direct the appropriate Government to refer the dispute. It is for the appropriate Government to apply its mind to relevant factors and satisfy itself as to the existence of a dispute before deciding to refer the dispute. We may refer to the following Page 14 of 21 HC-NIC Page 14 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT observations of this Court in Steel Authority of India Ltd. v. Union of India and Ors. [(Second SAIL Case, CLR p.667, para 18) "For the purpose of exercising jurisdiction under Section 10 of the 1970 Act, the appropriate Government is required to apply its mind. Its order may be an administrative one but the same would not be beyond the pale of judicial review. It must, therefore, apply its mind before making a reference on the basis of the materials placed before it by the workmen and/or management, as the case may be. While doing so, it may be inappropriate for the same authority on the basis of the materials that a notification under Section 10(1)(d) of the 1947 Act be issued, although it stands judicially determined that the workmen were employed by the contractor. The State exercises administrative power both in relation to abolition of contract labour in terms of section 10 of the 1970 Act as also in relation to making a reference for industrial adjudication to Labour Court or a Tribunal under Section 10(1)(d) of the 1947 Act. While issuing a notification under the 1970 Act, the State would have to proceed on the basis that the principal employer had appointed contractors and such appointments are valid in law, but while referring a dispute for industrial adjudication, validity of appointment of the contractor would itself be an issue as the State must prima facie satisfy itself that there exists a dispute as to whether the workmen are in fact not employed by the contractor but by the management. We are, therefore, with respect, unable to agree with the opinion of the High Court.
We would, however, hasten to add that this judgment shall not come in the way of the appropriate Government to apply its mind for the purpose of issuance of a notification under Section 10 of the 1970 Act."
9. The exception to the above is, when the Court finds that the appropriate Government refuses to make a reference of a dispute is unjustified. In such circumstances, the Court may direct the Government to make a reference Sankari Cement Alai Page 15 of 21 HC-NIC Page 15 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT Thozhilalar Munnetra Sangam, Tamil Nadu v.
Government of Tamil Nadu and Anr. (1983 (1) SCC
304); V. Veerarajan and Ors. v. Government of TN and TELCO Convoy Drivers Mazdoor Sangh v. State of Bihar)"
16. Similarly, as regards the second prayer to declare that the impugned action of respondent no.1 in deploying the contract labour on permanent and perennial nature of job is serious unfair labour practice and to further declare that the action dispensing with the services of the workers under the garb of termination of contract is illegal, the Court finds that such prayer appears to be concerning and connected with the matters pending consideration before the Conciliation Officer. In any case, whether the contracts were sham or bogus etc. and whether the workers have been performing perennial nature of work are the questions to be decided on evidence and the proper forum for such purposes is the industrial forum. It is not the case of the petitioner that though there is notification issued for prohibiting the contract labour,the workers are continued as a contract labour in defiance of the law and therefore, the powers under Article 226 of the Constitution of India are invoked. Therefore, when there is dispute as to whether the workers have actually worked for more than 10 years with the hospital and whether the contract under which they are made to work with the hospital is sham, bogus or camouflage or is just paper arrangement, this Court may not go into such dispute in exercise of its powers under Article 226 of the Constitution of India.
17. In the case of Ram Singh and others versus Union Territory, Chandigarh and others reported in (2004) 1 SCC Page 16 of 21 HC-NIC Page 16 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT 126, relied on by Mr. Patel, Hon'ble Supreme Court has held and observed in para 16 and 17 as under:
"16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. Conclusion Nos. 5 and 6 of the Constitution Bench decision of this Court in Steel Authority of India are decisive for purposes of this case which read as under : (SCC p.63, para
125) " 125/(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise , in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be Page 17 of 21 HC-NIC Page 17 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of para hereunder. (6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and wherein such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise, found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications."
17.In case of Steel Authority of India after recording the above conclusions, the Constitution Bench added : (SCC p. 63, para 126) "We have used the expression "industrial adjudicator" by design 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 judicial review."
18. In the case of International Airport Authority of India versus International Air Cargo Workers' Union and Another reported in (2009) 13 SCC 374, relied on by Mr. Patel, Hon'ble Supreme Court has held and observed in para 36 and 37 as under:
"36. But where there is no abolition of Page 18 of 21 HC-NIC Page 18 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT contract labour under Section 10 of CLRA Act, but the contract labour contend that the contract between principal employer and contractor is sham and nominal, the remedy is purely under the ID Act. The principles in Gujarat Electricity Board continue to govern the issue. The remedy of the workmen is to approach the industrial adjudicator for an adjudication of their dispute that they are the direct employees of the principal employer and the agreement is sham, nominal and merely a camouflage, even when there is no order under Section 10(1) of CLRA Act.
37. The industrial adjudicator can grant the relief sought if it finds that contract between principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employees and that there is in fact a direct employment, by applying tests like : who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employee the way in which the work should be done, in short who has direction and control over the employee. But where there is no notification under Section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the contract was sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise."
19. However, when the parties are before the conciliation officer, it is expected of the conciliation officer to finalize the conciliation proceedings at the earliest and to make appropriate report to the concerned authority of the State Government. Therefore, in order to ensure that the conciliation proceedings are concluded without any delay, the Court finds that appropriate direction could be issued to the conciliation officer to finalize the conciliation proceedings within time bound period and make appropriate report to the concerned authority of the State Government so that the concerned authority of the State Government may take further immediate action on the report.
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C/SCA/8660/2016 JUDGMENT
20. Learned Advocate Mr. Mishra however submitted that the dispute pending before the conciliation officer is concerning fate of more than 130 workers whose livelihood is dependent upon their employment with the hospital and, therefore, if the workers are not protected till the dispute is referred to the industrial forum,they will immediately lose the source of their livelihood. Mr. Mishra therefore submitted that this Court may issue appropriate direction to the respondent no.1 not to discharge the workers till the reference is made. Learned Senior Advocate Mr. Patel, on the other hand, submitted that if the reference is made to the industrial forum and ultimately, if the workers succeed before the industrial forum, they will get all the benefits in terms of money whereas if they are directed to be continued in the employment of the hospital and ultimately if they lose before the industrial forum, the respondent no.1 will suffer irreversible loss, in as much as, it would not be possible for respondent no.1 to recover any benefits gained by the workers on account of protection given to the workers. On behalf of the respondent no.1, different judgments are relied so as to press for the point that it is only the industrial forum which has to decide on the dispute raised if the reference is made and this court may not exercise its powers under Article 226 of the Constitution. However, when in the facts of the case, the Court is not considering the prayers made in the petitions by going into the merits of the case, the Court finds that no discussion on other judgments is required.
21. However, the Court finds that when the hospital wherein the workers have been working under the contracts is Page 20 of 21 HC-NIC Page 20 of 21 Created On Thu Aug 25 01:40:43 IST 2016 C/SCA/8660/2016 JUDGMENT recognized as civil hospital and handed over to respondent No.1 under PPP Model, the protection granted to the workers could be extended till the conciliation officer makes appropriate report to the concerned authority of the State Government and till expiry of 15 days from the date the State Government takes decision as to whether to refer the dispute to the Industrial Tribunal. As stated above, the interim protection is in operation only in the first petition. In second petition, there is no interim protection. However, if the workers covered under the second petition are in employment, they could also be extended such protection.
22. In view of the above, the petitions are not entertained for the prayers made therein as the conciliation proceedings are pending and thus stand disposed of leaving it open to the petitioner to pursue the alternative remedy available in law. However, the respondent No.2 - conciliation officer is directed to finalize the conciliation proceedings pending before him and to make appropriate report to the concerned authority of the State Government as required by section 12 of the Act within a period of six weeks from the date of receipt of this order. It is further directed that the workers covered in the first petition shall continued to be employed in the hospital till the conciliation officer finalize the conciliation proceedings and make appropriate report to the concerned authority of the State Government and till the expiry of 15 days from the date the State Government takes decision on the report of the conciliation officer. Such protection shall also stand extended to the workers covered under the second petition if they are in employment as on today with the hospital. Direct Service Permitted.
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(C.L.SONI, J.) anvyas Page 21 of 21 HC-NIC Page 21 of 21 Created On Thu Aug 25 01:40:43 IST 2016