Karnataka High Court
The Managing Director Karnataka Milk ... vs Kmf Employees Federation(R) on 13 January, 2016
Equivalent citations: 2016 LAB. I. C. 1183, 2016 (1) AKR 821, (2016) 2 CURLR 1093, (2016) 2 KANT LJ 512, (2016) 2 KCCR 83, (2016) 2 LAB LN 696, (2016) 148 FACLR 1105
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P.No.1115/2007 (L-RES)
c/w
W.P.Nos.19077/2006, 4082/2007 AND 4083/2007
(L-RES)
W.P.No.1115/2007
BETWEEN:
1. THE MANAGING DIRECTOR
KARNATAKA MILK FEDERATION LTD.,
CENTRAL OFFICE
DR.M.H.MARIGOWDA ROAD
BANGALORE-560 029
2. THE MANAGING DIRECTOR
KOLAR MILK UNION LTD.,
KOLAR DAIRY, MULBAGAL ROAD
HUTHUR POST
KOLAR-563 102
3. THE MANAGING DIRECTOR
MANDYA MILK UNION LTD.,
GEJJALAGERE PRODUCTS DAIRY
GEJJALAGERE-571 428
MADDUR TALUK
MANDYA DISTRICT
4. THE MANAGING DIRECTOR
HASSAN MILK UNION LTD.,
HASSAN DAIRY, INDUSTRIAL ESTAE
B.M.RAD, HASSAN -573 201
5. THE MANAGING DIRECTOR
SHIMOGA MILK UNION LTD.,
SHIMOGA DAIRY, MECHENAHALLI
NIDIGE POST
SHIMOGA-577 222
2
6. THE MANAGING DIRECTOR
DAKSHINA KANNADA MILK UNION
MANGALORE DAIRY, KULASHEKAHARA
MANGALORE-575 002
7. THE MANAGING DIRECTOR
BIJAPUR & BAGALKOT MILK UNION LTD.,
BIJAPUR MILK DAIRY,
SHEPHERED HALL, S.S.ROAD
BIJAPUR-586 101
8. THE MANAGING DIRECTOR
RAICHUR-BELLAR AND KOPPAL MILK
UNION LIMITED, BELLARY DAIRY
INFANTRY ROAD, NEAR FIRE STATION
BELLARY-573 104
9. THE MANAGING DIRECTOR
MYSORE-CHAMARAJANAGAR DIST.,
CO-OPERATIE MILK PRODUCERS'
SOCIETIES UNION LTD.,
SIDDARTHANAGARA
MALE MAHADESHWARA ROAD
MYSORE-570 011
... PETITIONERS
(BY SRI. M R C RAVI, ADV.)
AND:
KMF EMPLOYEES FEDERATION ®
NO.24, MADUVANTHI, CHIKKABOMMASANDRA
1ST CROSS, YELAHANKA NEW TOWN
BANGALORE-560 065
REP. BY ITS GENERAL SECRETARY
L.KALAPPA
... RESPONDENT
(BY SRI.K B NARAYANA SWAMY, ADV. FOR
M/S. M C NARASIMHAN ASSOCIATES)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DT. 9.11.2006 PASSED BY THE GOVERNMENT AS PER
ANNEXURE C.
3
W.P.No.19077/2006
BETWEEN:
THE BANGALORE URABN AND
RURAL DISTRICT CO-OPERATIVE MILK
PRODUCERS SOCIETIES UNION LTD.,
THE BANGALORE MILK UNION-BAMUL
DR. M H MARIGOWDA ROAD
BANGALORE-560 029
REP. BY MANAGING DIRECTOR
... PETITIONER
(BY SRI. ABHINAV R, ADV. FOR
M/S. KUMAR & KUMAR)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF LABOUR
M S BUILDING
BANGALORE-560 001
REP. BY ITS SECRETARY
2. THE KMF EMPLOYEES FEDERATION
NO.24, MADHUVANTHI
CHIKKABOMMASANDRA
1ST CROSS, YELAHANKA NEW TOWN
BANGALORE- 560 065
REP. BY ITS GENERAL SECRETARY
3. THE COMMISSIONER OF
LABOUR IN KARNATAKA,
KARMIKA BHAVAN
BANNERAGHATTA ROAD,
BANGALORE-560 029
... RESPONDENTS
(BY SRI. T S MAHANTESH, AGA. FOR R1 & 3
SRI. K B NARAYANASWAMY, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE ORDER PASSED BY R1 VIDE ANNEX-K.
DATED 9.11.2006 TO THE WRIT PETITION.
4
W.P.No.4082/2007
BETWEEN:
THE DHARWAD DISTRICT
CO-OPERATIVE MILK PRODUCERS
SOCIETIES UNION LTD.,
VIDYAGIRI POST,
DHARWAD 580004
REP. BY ITS MANAGING DIRECTOR
... PETITIONER
(BY SRI. ABHINAV R, ADV. FOR
M/S. KUMAR AND KUMAR)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF LABOUR
M.S.BUILDING
BANGALORE-01
REP. BY ITS SECRETARY
2. THE K M F EMPLOYEES FEDERATION
NO.24, MADHUVANTHI
CHIKKABOMMASANDRA
1ST CROSS,
YELAHANKA NEW TOWN
BANGALORE-65
REP. BY ITS GENERAL SECRETARY
3. THE COMMISSIONER OF
LABOUR IN KARNATAKA
KARMIKA BHAVAN
BANNERAGHATTA ROAD
BANGALORE-560 029
... RESPONDENTS
(BY SRI. T S MAHANTESH, AGA. FOR R1 & 3
SRI. K B NARAYANASWAMY, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE ORDER PASSED BY THE R1 DT.9.11.2006 AT
ANNEX-J TO THE WRIT PETITION.
5
W.P.No.4083/2007
BETWEEN:
THE BELGAUM DISTRICT
CO-OPERATIVE MILK PRODUCERS
SOCIETIES UNION LTD.,
BELGAUM
REP. BY ITS MANAGING DIRECTOR
... PETITIONER
(BY SRI. ABHINAV R, ADV. FOR
M/S. KUMAR AND KUMAR)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF LABOUR
M.S.BUILDING
BANGALORE-01
REP. BY ITS SECRETARY
2. THE K M F EMPLOYEES FEDERATION
NO.24, MADHUVANTHI
CHIKKABOMMASANDRA
1ST CROSS,
YELAHANKA NEW TOWN
BANGALORE-65
REP. BY ITS GENERAL SECRETARY
3. THE COMMISSIONER OF
LABOUR IN KARNATAKA
KARMIKA BHAVAN
BANNERAGHATTA ROAD
BANGALORE-560 029
... RESPONDENTS
(BY SRI. T S MAHANTESH, AGA. FOR R1 & 3
SRI. RAVI HEGDE, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE ORDER PASSED BY THE R1 DT.9.11.2006 AT
ANNEX-J TO THE WRIT PETITION.
THESE WRIT PETITIONS HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING :
6
ORDER
The petitioners in all these petitions are the Co- Operative Milk Producers Societies/Unions/Federations of different Districts in the State of Karnataka. The respondents are the Employees Federation/Unions which are espousing the cause of its members who are seeking regularisation of their services in the petitioner Societies/Unions/Federations. In all these petitions, the petitioners have a common grievance with regard to the order dated 09.11.2006 made by the Government referring the dispute under Sections 10(1)(c) and (d) of the Industrial Disputes Act, 1947 ( 'I.D Act' for short) to the Labour Court for adjudication. Hence these petitions are taken up together, heard and disposed of by this common order.
2. The gist of the case between the parties is stated herein. The petitioners are the District Milk Unions and Federation which undertakes the enhancement of milk production and in that regard would aid the Rural milk producers by dairy 7 development activity on a Co-Operative basis. In order to perform its activities, the petitioners in addition to the regular workers have been engaging contract labourers to perform the work in some of the areas of its activity as according to the petitioners the work performed in such areas is not of perennial nature. The work performed by the contract labourers is the work which is available for a limited period and not of the nature to be performed by employing regular workmen. Hence, contact labourers are engaged for such activity and are being paid as per the labour regulations.
3. The respondent employees Unions which are espousing the cause of such contract labourers who are its members are disputing the position and are contending that the work performed by its members who are such labourers is perennial in nature. They contend that the contracts are sham and is a ruse to continue to exploit the workmen and indulge in unfair labour practice. As such they have raised a dispute with regard to the same, seeking regularisation of their 8 services. The Government after taking note of these aspects has referred the same for adjudication by the Labour Court, through the impugned order dated 09.11.2006.
4. The petitioners while assailing the same would contend that at the first instance a reference with regard to abolition of contract labour was made by the Government, the petitioners had assailed the same before this Court in W.P.No.25277/1994 and connected petitions. The Government order was quashed by the order dated 12.03.1998, the matter was allowed to be decided by the Government itself in exercise of the power under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the CL (RA) Act' for short). The Government on consideration had passed an order to abolish, which was assailed by the petitioners herein, through W.P.No.3576/2002 and connected petitions. This Court by the order dated 05.08.2005 had set aside the order of abolition in four of the areas of its activity 9 while in respect of three areas of its activity, it was upheld and reconsideration was ordered. The said order was confirmed in W.A.Nos. 3316/2005 and connected appeals. The petitioners therefore contend that in such background, when the respondent Employees Union having failed in that regard and when they contend that they are contract labourers once again raising a dispute seeking regularisation will not arise. Hence, they contend that the reference made is without justification and is not sustainable. It is also contended that the petitioners are Co-operative Societies and in view of the provision contained in Section 70(2) of the Karnataka Co-Operative Societies Act the reference made under the I.D Act is incompetent. In that view they seek that the order of reference dated 09.11.2006 be quashed.
5. In the above background, I have heard Sri Ramachandran, Sri. Abhinav Ramanand respective learned Counsel for the petitioners, Sri. T.S.Mahantesh, learned Government Advocate and 10 Sri. K.B.Narayanaswamy, learned Counsel for the respective respondents and perused the petition papers.
6. The contention with regard to the provisions of the I D Act not being applicable since the petitioners are Co-Operative Societies need not detain this Court for long since this Court has already considered this issue earlier. The issue relating to the absorption of the contract labourers had arisen for consideration before this Court in W.P.No.27441/2004(L-Res) between the same parties in the context of an endorsement dated 24.06.2004 issued by the Commissioner of Labour declining to entertain the claim of the contract labourers. This Court by the order dated 24.10.2005, on having adverted to that aspect of the matter was of the view that the dispute is not covered under Section 70 of the Co-Operative Societies Act and the ID Act alone is applicable. It was therefore directed that it is for the Government to take a decision in terms of Section 10 of ID Act as the Commissioner of Labour has jurisdiction. Pursuant to such direction, the consideration is 11 undertaken and the order of reference is made. Hence the challenge to the jurisdiction or the forum made at this stage cannot be accepted, though the issue as to whether the reference is warranted may arise for consideration at the instance of the petitioners.
7. In that regard, as contended by the learned Counsel for the petitioners it is true that an issue had arisen before this Court in W.P.No.25277/1994 and connected petitions which was disposed of on 12.03.1998 relating to the regularisation of the contract labourers which is also an issue at present. However, what is necessary to be taken note is that the same had arisen for consideration in the context that the Employees Unions were seeking regularisation by abolishing the contact labour in terms of CL (RA) Act. It is in that context this Court was of the view that it is at the outset for the Government to decide the question of abolition since such power is vested with it under Section 10 of CL (RA) Act and the dispute relating to abolition itself could not have been referred to the 12 Labour Court under Section 10 of ID Act. In so far as that proceedings, as brought on record the consideration was made and the abolition of contact labour was made by the Government in seven different areas of operation carried out by the Milk Unions which was assailed by them in W.P.No.3576/2002 and connected petitions, disposed on 05.08.2005. This Court set aside the abolition of contract labour in four areas of operation, directed reconsideration but upheld the abolition in three areas of operation. The order attained finality in W.A.No.3316/2005 and connected appeals through the order dated 20.02.2013.
8. In order to consider whether the impugned reference order dated 09.11.2006 is competent, in that background, it is necessary to take note of the terms of reference which reads as hereunder;
"1. xx xx
2. xx xx
3. xx xx 13
4. ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ð, PÉ.JA.J¥sï. JA¥Áè¬Äøï AiÀÄƤAiÀÄ£ï
(j) ¨ÉAUÀ¼ÀÆgÀÄ EªÀgÀÄ DqÀ½vÀªÀUÀðzÀªÀgÁzÀ PÀ£ÁðlPÀ ¸ÀºÀPÁj ºÁ®Ä GvÁàzÀPÀgÀ ¸ÀAWÀUÀ¼À MPÀÆÌl (PÉ.JA.J¥sï), ¨ÉAUÀ¼ÀÆgÀÄ ºÁUÀÆ gÁdåzÀ E¤ßvÀgÉ f¯Áè PÉÃAzÀæUÀ¼À°è ªÀ»ªÁlÄ £ÀqɸÀÄwÛgÀĪÀ EzÀgÀ E¤ßvÀgÉ 13 ¸ÀºÀPÁj ºÁ®Ä GvÁàzÀPÀgÀ ¸ÀAWÀUÀ¼À°è ¸ÀĪÀiÁgÀÄ 2000 UÀÄwÛUÉ PÁ«ÄðPÀgÀÄ PÀ¼ÉzÀ 10 jAzÀ 20 ªÀµÀðUÀ½AzÀ SÁAiÀÄA PÁ«ÄðPÀgÀÄ ¤ªÀð»¸ÀÄwÛgÀĪÀ PÉ®¸ÀªÀ£Éßà ¤ªÀð»¸ÀÄwÛzÀÝgÀÆ ¸ÀºÀ EªÀgÀ£ÀÄß ¸ÉêÉUÉ ¸ÉÃjzÀ ¢£ÁAPÀ¢AzÀ ¸ÉêÉAiÀÄ£ÀÄß ¸ÀPÀæªÀÄUÉƽ¸ÀzÉà PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ ¤ÃqÀ¨ÉÃPÁzÀ J¯Áè ¸Ë®¨sÀåUÀ½AzÀ ªÀAavÀgÀ£ÁßV ªÀiÁrgÀÄvÁÛgÉAzÀÄ CgÉÆæ¹gÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävÀªÉÃ?
5. DqÀ½vÀªÀUÀðzÀªÀgÁzÀ PÀ£ÁðlPÀ ¸ÀºÀPÁj ºÁ®Ä GvÁàzÀPÀgÀ ¸ÀAWÀUÀ¼À MPÀÆÌl (PÉ.JA.J¥sï), ¨ÉAUÀ¼ÀÆgÀÄ ºÁUÀÆ f¯Áè PÉÃAzÀæUÀ¼À°è ªÀ»ªÁlÄ £ÀqɸÀÄwÛgÀĪÀ EzÀgÀ E¤ßvÀgÉ 13 ¸ÀºÀPÁj ºÁ®Ä GvÁàzÀPÀgÀ ¸ÀAWÀUÀ¼ÀÄ gÁdåzÀ f¯Áè PÉÃAzÀæUÀ¼À°è ªÀ»ªÁlÄ £ÀqɸÀÄwÛgÀĪÀ ¸ÀA¸ÉÜUÀ¼À ¸Àé®à ¥ÀæzÉñÀUÀ¼À°è UÀÄwÛUÉ PÁ«ÄðPÀgÀ£ÀÄß PÉ®¸ÀPÉÌ £ÉëĹPÉÆArzÀÄÝ, EªÀgÀÄ ¤ªÀð»¸ÀÄwÛgÀĪÀ PÉ®¸ÀªÀÅ ¤gÀAvÀgÀ ¸ÀégÀÆ¥À ºÁUÀÆ ¸ÁPÀµÀÄÖ CªÀ¢üAiÀÄzÀ®èªÉAzÀÄ ºÉüÀÄvÁÛ, ¸ÀzÀj ¸ÀA¸ÉÜUÀ¼ÀÄ ¸ÁªÀðd¤PÀ G¢ÝªÉÄAiÀiÁVzÀÄÝ, F UÀÄwÛUÉ PÁ«ÄðPÀgÀ£ÀÄß SÁAiÀÄAUÉƽ¹zÀgÉ ¸ÀA¸ÉÜUÀ¼À ªÉÄÃ¯É C¥ÁgÀªÁzÀ DyðPÀ ºÉÆgÉ©zÀÄÝ ¸ÀA¸ÉÜUÀ¼ÀÄ vÀ£Àß ¨sÁgÀzÀ ªÉÄïÉAiÉÄà PÀĹzÀÄ©zÀÄÝ ªÀÄÄaѺÉÆÃUÀĪÀ ¸ÀA¨sÀªÀ«gÀĪÀÅzÀjAzÀ EªÀgÀÄUÀ¼À ¸ÉêÉAiÀÄ£ÀÄß SÁAiÀÄAUÉƽ¸À¯ÁUÀzÉAzÀÄ ºÉüÀÄwÛgÀĪÀÅzÀÄ ¸ÀjAiÉÄÃ?"
(emphasis supplied) 14
9. A perusal of the same will disclose that the purport of the reference presently made for adjudication is not in similar terms as had been made earlier and was quashed by this Court in W.P.No.25277/1994 and connected petitions dated 12.03.1998. Instead, what has been presently referred is the dispute as to whether the management is justified in not regularising the contract labourers who have been performing similar work as that of the regular workers for the last 10 to 20 years and whether it would be burdensome to the societies, if regularised. If that be the position, it is clear that the issue referred is entirely of a different nature which could not have been decided by the Government itself summarily as it will require adjudication by the Labour Court based on the evidence that will be tendered by the parties on the rival disputed questions.
10. The learned Counsel for the petitioners would however rely on the decision of the Hon'ble Supreme Court, in the case of Steel Authority of India Ltd. and 15 another -vs- State of West Bengal and others (2009- I-LLJ-241) to contend that such reference is not competent when admittedly the petitioners claim to espouse the cause of contact labourers. The law laid down in the said decision on referring to its earlier decision is that, a reference of dispute regarding absorption of contract workmen cannot be sustained in the absence of a plea that the contract is sham and bogus. In that light the Hon'ble Supreme Court has held the reference in the cited case as unsustainable. The facts therein will disclose that the case put forth itself was that the members of the Union were working as contract labourers with Bardhan and Co., under the Principal employers, yet absorption was sought.
11. As against the said position, in the instant facts, among other contentions the Employees Union has also disputed the very validity and genuineness of the contracts while raising the dispute before the Commissioner of Labour. One such petition filed under Section 12 of ID Act is at Annexure-E in 16 W.P.No.4082/2007. The relevant portions relied upon by the learned Counsel for the respondents is extracted hereunder for better appreciation, which is as follows;
5. It is further required to be stated at this juncture that regarding the employees who are called as contract labourers at different places throughout the state under the second party. The contention of the 2nd party Federation is that these workmen, who are called as contract labourers, are not its employees and they are the employees of the contractors and the same is far from truth. The so called contractors are in fact mythical and have been set up.
6. xxxxxx
7. xxxxxx
8. xxxxxxx The daily wage what is being paid to the contract labourers are less than minimum wages. No separate Dearness Allowance or any other allowance is paid to these contract labourers. The permanent or even the permanent workmen doing the similar work gets gross wages of about Rs.7,500/- per month.
9. xxxxx
10. xxxxx
11. It is submitted that from the facts narrated above, it is manifest that these workmen have been deprived of not only equal pay for equal 17 work, but also they are deprived of regular scales of pay and various allowances. They are also deprived of security of service by treating them as contract labourers though most of them have been put in continuous service of more than 10-15 years. The nature of work which they are performing is of a perennial and permanent nature. There is no justification to treat them as contract labourers because their work is being supervised by the Second party and the Second party allot the work to the First party workmen. The so-called Contractors are only name lenders. There are instances where most of the contractors have no license and therefore, they are entitled to be absorbed.
12. xxxxx
13. a) xxxx
b) xxxx
c) xxxx
d) It is respectfully submitted that Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 provides for prohibition of employment of contract labour. Section 10 (2) (a) stipulates the relevant factor to the considered at the time of prohibiting the system, section 12 states licencing of contractors. Section 7 prescribes Registration of certain establishments and in the instant case, many of the contractors did not have any licence and the establishments 18 were also not registered, thereby the very contract labour system is sham on the other hand, the Sub-Committee has considered all the aspects under Section 10 of the Act and then it has given its report and based on the report, appropriate Government has prohibited the Contract Labour System prevailing in the Second party Management.
(emphasis supplied)
12. The relevant portions will disclose that a contention with regard to contacts being sham has been raised. This will have to be further magnified in the claim statement to be filed before the Labour Court and will have to be established in accordance with law. Hence, though opinion on that aspect cannot be expressed at this stage, the fact that a dispute arises in that regard cannot be ignored. If that be so, it will require adjudication in order to reach a conclusion in accordance with law.
13. The learned Counsel for the petitioner would no doubt contend that the petitioner at the first 19 instance had sought the abolition of contract and as such now cannot dispute the contract. However, I am not in a position to accede to that contention for more than one reason. Firstly, the very fact at the first instance the issue was raised more than two decades prior will disclose that there are several developments subsequently and much water has flown under the bridge. Secondly, in that regard an order was passed by the Government abolishing the contract labour. Though in respect of four areas of operation it is set aside, it is required to be reconsidered. Thirdly, in respect of three areas of operation the abolition is upheld.
14. Above all, even if they were all engaged for working under the Contractor at the first instance, nearly two decades has elapsed when the present dispute is raised. In that context when a contention is raised that the contracts are a sham and that the so called contractors are name lenders, these are all aspects which will require consideration by the Labour Court before a decision is taken. Further, whether the 20 workmen who were working in the areas of operation regarding which contract labour is abolished are still working etc., are all issues which are to be determined.
15. Though the learned counsel for the petitioners relies on the decision of the Hon'ble Supreme Court in the case of Steel Authority Of India Ltd. and others -vs- National Union Waterfront Workers and others (2001(7)SCC 1) to contend that even if there is abolition, the effect is that they remain to be the employees of the contractor to be engaged elsewhere, these are aspects which can only be determined based on the factual position as to whether such discontinuance has taken place or not. Considering all the above noticed aspects, as already indicated above they will require judicial adjudication and not by a summary decision by the Government while performing its administrative function. The decision of the Hon'ble Supreme Court in the case of Ram Avtar Sharma and others -vs- State of Haryana and another [AIR 1985 SC 915(1)] relied on by the 21 learned Counsel for the respondents will be relevant in this regard.
For all the aforestated reasons, I see no merit in these petitions. They are accordingly dismissed with no order as to costs.
Sd/-
JUDGE akc/bms