IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY WRIT PETITION No.41072 OF 2012 (L-TER) BETWEEN:
M/S BOSCH LIMITED NAGANATHAPURA PLANT POST BOX NO.6887, ELECTRONICS CITY P.O., BANGALORE - 560 100 REPRESENTED BY MR. P.L.MATHEW SENIOR GENERAL MANAGER(HUMAN RESOURCES) ... PETITIONER (BY SRI.KASTURI, SENIOR COUNSEL FOR SRI.K SHUBHA ANANTHI, ADV. ) AND:
LABOUR THROUGH KARNATAKA RAKSHAK AND GENERAL WORKERS UNION REPRESENTED BY ITS PRESIDENT NO.43, M.I.G. 2ND FLOOR 2ND STAGE, K.H.B. COLONY BASAVESHWARANAGAR BANGALORE - 560 079 ... RESPONDENT (BY SRI.SUBBA RAO, SENIOR COUNSEL FOR SRI.SATHEESHA K N, ADV. FOR C/R ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 4.4.2009 AT ANNEXURE-R AND THE AWARD DATED 23.8.2012 VIDE ANNEXURE-S AND ETC.,.
THIS PETITION COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY AFTER HAVING HEARD AND RESERVED FOR ORDER ON 23.04.2018, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has filed the above writ petition seeking to challenge the order dated 4.4.2009 and judgment and award dated 23.8.2012 in Reference No.32/1998 passed by the II Additional Labour Court, at Bengaluru produced at Annexures-R & S to the writ petition. By the order dated 4.4.2009 the Labour Court held that dispute was maintainable as there was community of interest and there was employer employee relationship between the petitioner and security guards, who raised the dispute I D No.32/98. By the award dated 23.8.2012 the Labour Court held that contract is sham and granted benefit of regularization and directed to pay arrears of wages.
2. The facts leading to this writ petition are that the respondent union raised a dispute on behalf of Security Guards employed through contractor in the petitioner establishment at Naganathapura Plant and sought for absorption. The points of reference are as under:
(i) Can the Karnataka Rakshaka And General Workers Union 48, MIG 2nd Floor, 2nd Stage, KHB Colony, Basaveswaranagara, Bangalore 560 079 prove that the Contract of Security by the Administrators of M/s.Motor Industries Company Ltd., Naganathapura, is non-existent (shyam)?
(ii) In that case for what relief are the security staff eligible?
The petitioner Management filed application for framing issues regarding maintainability of the dispute and accordingly by the order dated 5.10.2000 three preliminary issues were framed, which are as follows:
(1) Whether the Karnataka Rakshak & General Workmen Union has locus standi to represent the first party workmen?
(2) Whether the workmen whose names have been mentioned in the list along with the point of reference referred by the Government are the Contract Labourers and if so, without abolition of the Contract Labour the dispute raised by the first party is maintainable?
(3) Whether there is relationship of employer and employee between the first party workmen with the second party whose names have been mentioned in the list enclosed along with the point of reference as per the provisions of the I.D.Act?
3. By the order dated 4.4.2009 the Labour Court held on preliminary issues that the dispute was maintainable and that there is relationship of employer and employee between the petitioner company and the Security guards engaged by the contractor who raised the dispute. It was also held that in view of holding existence of relationship, Issue No.2 as to contract labourers and abolition of the contract labour as per the Contract Labour (Regulation & Abolition), Act does not assume much importance and does not survive for consideration. This order was challenged by the petitioner in W P No.27075/2009 (L-Ter). This Court by the order dated 14.09.2009 disposed of the writ petition on the basis of the memo filed by the petitioner reserving liberty to challenge the order along with the final award.
4. On behalf of the petitioner Management, MWs-1 to MW- 5, were examined and got marked Ex.M1 to M101. On behalf of the respondent, WWs-1 to WW-5, were examined and got marked Exs.W1 to W151.
5. The Labour Court by the award dated 23.8.2012 held that contract is sham and granted benefit of regularization and payment of arrears of wages.
6. Being aggrieved, the petitioner Management has filed the present writ petition assailing both orders dated 4.4.2009 and judgment and award dated 23.8.2012 as aforesaid.
7. The learned Senior Counsel appearing for the petitioner submitted that engagement of persons as contract labourers does not create a relationship of master and servant. In this regard, the learned relied upon 1985(II) L LJ SC Page 4 (The Workmen of the Food Corporation of India vs., Management of Food Corporation of India), 1992(1) L L J SC Page 289 (Deenanath & Ors. vs., National Fertilizers Ltd., & others) and 2001 II L.L.J SC Page 1087 (Steel Authority of India Ltd., & others vs., National Union Water Front Workers & others). The dispute could be raised only by the regular workmen through their union in order to establish community of interest and lend the character of an industrial dispute as per Section 2(k) of the I.D. Act. The question of contract labour raising a dispute against the principal employer does not arise. Without abolition of contract labour, there is no locus standi to the contract labour to raise a dispute. The prayer made in the claim petition claiming benefits such as, same wages, scale of pay, etc., on par with Watch & Ward staff of MICO, Adugodi show that the respondents were not employees of the petitioner but of the contractors. The observation of the Labour Court that on the basis of Ex.M13 it cannot be concluded that they are contract labourers, is contrary to the document and prayer of the respondent in the claim petition. The Labour Court erred in ignoring Exs.M14 & 15 letters and Ex.M18 record of Unique Detective and Security Services Pvt. Ltd., deducting ESI and PF from salaries of the respondents for the year 2007. WW-1 admitted that no appointment letters were issued by the petitioner company, that salary for the month of July 2007 was received from the contractor, that the salary of regular workmen are credited to the Bank account whereas in respect of WW-1 and others, it is paid by cash, that there is a separate canteen for contract labours, that contractor used to give shoes, uniforms, washing allowance, HRC and Cycle maintenance allowance, etc., The finding of the Labour Court on issue No.3 is totally perverse, opposed to record and suffers from non-application of mind. The Labour Court could not have brushed aside documentary evidence Ex.M-22 to M-24 relating to suit O S No.242/1997 filed by respondent’s Union in which status quo order was issued. Merely because qualification for selection and appointment of Contractor’s Security Personnel were prescribed by the management, no inference can be drawn that the respondents are the direct employees of the petitioner. No witness has stated that the signature in Ex.W3 Attendance is that of Mr.P L Mathew. Therefore, the question of Labour Court accepting the contention urged during arguments by the respondents counsel that it is the signature of Mr.P L Mathew cannot be accepted. Mr.P L Mathew did not work at MICO’s Naganathapura Plant during the period between 7.2.1993 and 1.4.2004. The observation in Para-41 goes contrary to record and therefore the finding of the Labour Court on issue No.3 is without any basis and opposed to record. The civil suit filed by the respondent’s Union is ignored stating that it does not belong to relevant period, which is erroneous. The Labour Court having noticed in Para 39 that WW1 admitted the statement of PF submitted by M/s.Unique Detective & Security Services Pvt. Ltd., wrongly mentioned as M/s.Guardwell Detective Services Pvt. Ltd., could not have observed that there is an employer-employee relationship. Ex.W-70 Duty Rosters are signed by shift- incharges of the contractor and Mr.L P Rao had only countersigned the same. Merely because cap and emblem of MICO are given to Contract Security Personnel for the purpose of identification for security reasons, that does not establish relationship of master and servant without documentary evidence such as, Appointment Orders, Salary Slips, Annual Increments Letters, Promotion Letters, etc., issued by the petitioner. The specific contention of the management is that the Contractors engaged the Respondents and only thereafter they started working in the premises of the petitioner to carry out the contractual obligations. In fact the management contended that from the inception of Naganathapura Plant, the security activities were carried out by specialized contractors engaged for this purpose. The Labour Court failed to appreciate that it was for the respondents to have produced the appointment orders given by the contractors or by anybody else and it was not for the petitioner Management to produce the same. The Labour Court also ignored the order of the court dated 11.3.2005 wherein the court has noticed the acceptance by the respondent workmen the employment offered by M/s.Unique Detective & Security Services Pvt. Ltd., on humanitarian grounds. The Labour Court failed to appreciate that the issue with regard to abolition of contract labour in any particular area was required to be decided because only after abolition, a dispute with regard to sham contract can be raised. Failure to decide the said issue on the premise that it is not required to be considered, has caused great prejudice to the petitioner. Mr.P L Mathew has not worked in the Naganathapura Plant from 7.2.1993 to 1.4.2004 and therefore question of Mr.Mathew, signing the attendance registers does not arise at all. The observation in Para 14 of the order that the respondent workmen have been working in the Security & Vigilance Department since production started in the Plant in 1989 is totally opposed to the evidence on record. The finding of the Labour Court that the workmen continued in spite of change of contractors and therefore they have to be held as workmen of the petitioner is also not correct having regard to the fact that the workmen agreed to accept the employment offered by M/s.Unique Detective and Security Services Pvt. Ltd., and Ex.M- 18 clearly goes to show that ESI and PF contributions are being deducted by the said contractor. Ex.M-22, 23 and 24 clearly go to show that the respondents had filed a civil suit against the Terrier Security Systems, Guardwell Detective Services Pvt. Ltd., and the petitioner in the year 1997 which itself goes to show the presence of contractors by their own admissions. The Labour Court clearly ignored the statements of the respondents themselves in Ex.M-23 that they were working continuously under Contractors from 1992. WW-3 Mr.Mehaboob Pasha clearly admitted that respondents are not members of Mico Karmikara Sangha vide Para 8 of his evidence dated 10.6.2008. He also admitted that at present a Contractor is carrying out Security Services in the Company’s Adugodi Plant and petitioner’s workers of Adugodi plant are not parties to this dispute. Thus all the evidences which are in favour of the Management are systematically ignored by the Labour Court. In Para – 21 it is held that the dispute is not maintainable but the Labour Court had made an attempt to justify raising of the dispute on the basis of community of interest vide Para 27. The Labour Court has taken into consideration the self-serving evidence of WW-1 and WW3 and ignored the evidence of MW1 without giving valid reasons. WW1 admitted vide Para 51 that contractor was giving Uniforms, Washing allowance, House Rent Allowance etc., and there was a separate canteen for contract labourers, which is erroneously ignored. The Labour Court misread Ex.W-8 to W-15 certificates of completion of course by the respondents. The Labour Court could not have ignored order dated 11.03.2005 and stated that relationship cannot be decided on such conditional order when the respondents agreed to work with M/s.Unique Detective & Security Services Pvt. Ltd., The contention of the petitioner that the duty rosters were maintained by supervisors and shift-in-charges of the contractors is not at all looked into even though the said contention is supported by the evidence of MW-2, MW-3, MW-4 & MW-5. The observation in Para 6 that the contract labour/respondents were in service from 1989 is repeatedly noticed in the order, which is opposed to record in the face of Ex.M-23 and the order of reference. The conclusion of the Labour Court that Registers reveal that they were not maintained by any Contractor is contrary to the admissions made by WW2. When the respondents had not produced any evidence to show that they were appointed on the rolls of the petitioner, the burden could not have been shifted on the petitioner to show that the respondents had surrendered their rights and joined as contract labour. In para 36 of the order dated 4.4.2009, the Labour Court presumed that Ex.W1 to W7 contain the signature of Mr.Mathew MW-1, whereas it has come in evidence of MW-1 that witness was not working in petitioner’s plant from 7.2.1993 to 1.4.2004.
8. As regards the award dated 23.08.2012 the learned senior counsel submitted that Labour Court ignored several vital documents such as registration certificate and the contractors’ licence as also documents pertaining to ESI & PF deductions, Bio-Data submitted by the respondent workmen to the contractor. The learned Judge did not independently decide the sham issue based on the elaborate evidence produced by the management. Vide order recorded on 05.01.2012 MW1 was produced for further cross-examination on merits and thereafter lot of evidence was let in by the management. The Labour Court ought to have examined the said evidence on sham issue and given a considered finding. The Labour Court has not decided the issue of sham contract in the light of criteria laid down by the Supreme Court in Steel Authority of India’s case. The contention of the petitioner before the Labour Court was that the respondents were contract labourers, the contractors had valid licence, the petitioner had valid registration under the C L R A Act and the contracts with the contractors were valid and the respondents are not entitled to any relief. WW-1 admitted that MICO was not paying the contributions towards PF & ESI of the workmen. Due weightage to this admission was not given by the Labour Court while deciding the issue relating to sham contract.
After the contract with M/s.Terrier Security Systems was terminated by letter dated 30.9.1997 Ex.M33, the workmen were employed by M/s.Guard Well Detective Services Ltd.,. Subsequent to interim order dated 11.3.2005 workmen were employed by M/s.Uniq Detective Services Pvt. Ltd., Such being the case, the Labour Court was obviously confused in saying that Uniq Detective Services did not have a licence and therefore the contract is sham. The Labour Court wrongly placed reliance upon Rule 32 of Contract Labour (R&A) (Karnataka) Rules, 1974. The various service contracts at Ex.M7, M8, M10, M25, M26, M51, Ex.M67, Ex.M68 clearly go to show that the petitioner had valid contracts with various contractors and hence it cannot be said that contracts are sham. The Labour Court in Para 25 of the award refers to Ex.M-51 to 79 produced by Uniq Detective & Security Services Pvt. Ltd., However, these documents are not looked into by the Labour Court. MW-3 has spoken about the contract with Uniq Detective & Security Services Pvt. Ltd., from the year 2005 and in Para 24 of his cross-examination he has stated that when he joined, Uniq Detective & Security Agencies were already providing security services in MICO. This aspect was overlooked by the Labour Court while holding that the witness did not know what happened earlier to 2005. The issue regarding whether the contract labour was abolished in security services was held to be not relevant in order dated 4.4.2009,it was very valid criterion for deciding the maintainability of the dispute, which is ignored in order dated 4.4.2009 as well as award dated 23.8.2012. The observation that the principal employer had employed contract labour without registration is another glaring error apparent on the face of the record. The observation regarding Ex.M13 is a clear misreading of evidence. Ex.M13 clearly goes to show that dispute is being raised by the contract labour. When there was no abolition of contract labour the petitioner was entitled to engage contract labour for security services. Merely because dispute is raised, it cannot conclude that Management is prevented from engaging contract labour for security. No relief could have been granted much less the relief of regularization, that too with retrospective effect granting back wages. The award is based on the order dated 4.4.2009 which itself is bad in law. The Private Security Agencies (Regulation) Act 2005 and the Contract Labour Regulation & Abolition Act permit the security agencies to provide contract security services. When the law permits engagement of contract labour in security services, the Labour Court could not have held that the contract is sham and the contract labour engaged by the contract labour should be regularized by the principal employer. There is no exploitation of contract labour. Thus it is submitted to set aside both the order dated 4.4.2009 and the judgment and award dated 23.08.2012.
9. On the other hand, the learned senior counsel for the respondent submitted that the workmen claim direct relationship with the management as direct employees. The workmen were employed to discharge and to look after the duties of Security, Vigilance, Safety, Protection and Watch and Ward of the entire Naganathapura Plant of Bosch Limited. The workmen worked within the premises of Naganathapura. The nature of work, they were doing was a part and parcel of manufacturing process, perennial and permanent in nature. The wages were paid to them by the management of Bosch in pursuance of the order passed by this Court by issuing cheques directly to the workmen. Attendance is marked in the attendance register of Naganathapura Plant and it is being verified every day by the head of Security/Watch and Ward Department of Bosch Ltd., through its officers, Ex.W1 to W7 and wages was calculated on that basis. The workmen were selected and employed by the Management of Bosch Limited prescribing qualification. The Management preferred people who worked in the Army and other Defense Forces and persons selected should satisfy the physical and other standards prescribed by the Management. The work of the workmen was being supervised by the Management of Bosch Limited and Management had powers to initiate disciplinary action having disciplinary control over the workmen. The quantum of wages which were being paid, were also fixed by the Management. The learned senior counsel referred these instances so as to prove that the workmen were direct employees of petitioner Management.
10. It is further submitted that the Labour Court by the order dated 4.4.2009 held that the dispute raised by the first party is maintainable, there is a relationship of master and servant and hence the matter is posted for further evidence of the first party in respect of points referred by the government.
Thus the only evidence that was permitted was on merits of the claims. This Court permitted the Management to withdraw the writ petition No.27075/2009 (L), which was as against the order dated 4.4.2009 with liberty to challenge, if final award goes against the Management. It is submitted, once the workmen were held to be workmen of Bosch Limited, the next question is to grant relief. The order dated 04.04.2009 conclusively establishes that the workmen are the direct employees of the petitioner and that there is a relationship of master and servant. Therefore, the evidence led by the Management after the order passed on the preliminary issues dated 4.4.2009 cannot be sustained. It is clearly got up and a sham contract and those documents were a clear case of paper arrangement and thus the Labour Court is justified in rejecting the said evidence. The issue relating to relationship of employer and employee having been answered in favour of the workmen, the evidence of MW-2, Lt. Col. Kolatkar, M/s. Terror Security Services; (2) Sri Prakash Bayar (MW-3) in respect of Unique Detective & Security Services; and (3) Sri Chandrashekar (MW-04) of M/s.Guardwell Detective & Security Services is of no consequence and it is an after thought and the documents produced are got up documents. Much of the evidence led by the Management MW-
2 to MW-5 after the finding recorded on the main preliminary issue clearly establishes that the entire evidence is an afterthought and cooked up for the purpose of the case. After the issue relating to relationship is answered in favour of the workmen, the Management became desperate, led evidence of obliging contractors. MW-2 to MW-5 admitted that they collected wages payable to the workmen and other dues payable to them from the petitioner and passed on the same to the workmen. The Management having invited finding on relationship, it is not open for them to contend that the relationship between the petitioner and contractors is not sham.
11. WW-1 Sri M Budihal has spoken to the factual position of how the persons working in Watch and Ward & Security Departments, were recruited. He has spoken, most of the 72 Security Personnel were appointed in the year 1989 in Naganathapura Plant. Even according to the Management there were no outsourcing agencies, who are being sought after 1989. Sri P L Mathew has spoken that Management of MICO got registration certificate under Contract Labour (Regulation & Abolition) Act, on 25.4.1994. His evidence does not throw light as to relationship. He has stated first party workmen were appointed in Naganathapura Plant since it started functioning and then voluntarily stated they were appointed through a contractor. In 1989 there were no contractors even according to Mr.Mathew, as deposed by him, because it was only on 26.5.1994 that they got a registration/license under Contract Labour (Regulation & Abolition) Act to engage contract labour. Therefore, evidence of Mr.P L Mathew that from the beginning the workmen were engaged on contract labour is a total falsehood.
12. The learned Senior counsel relying upon decision of the Supreme Court in Workmen of Food Corporation of India vs., Management of Food Corporation of India, reported in AIR 1985 SC 6701 contended that once it is established that workmen have been directly employed under the Management, the subsequent introduction of contract system will not change or alter the position.
13. After hearing the learned senior counsel for the parties, the point that arises for consideration in this writ petition is, whether the Labour Court has acted illegally and with material irregularity in passing the impugned award, calling for interference at the hands of this Court? My answer would be in the negative for the following reasons:
14. On the preliminary issues, which were framed at the instance of the petitioner, petitioner examined MW-1 Mathew P.L. and Exs.M1 to M60 were marked. On behalf of the respondent WW1 to WW3 were examined and Exs.W1 to Ex.W148 were marked.
15. The Labour Court while passing the order dated 4.4.2009 on the preliminary issues referred evidence of WW-1 to WW-3, which disclosed that there is a separate union called MICO Karmikara Rakshaka Sangha, Naganathapura and that the present workmen are not the members of that Union. WW-1 admitted in his cross-examination as to separate Union called MICO Karmikara Sangha. It is his say that they tried to join as members of that union but the Management opposed. He has also stated, filing of suit O S No.242/1997 praying for orders against MICO regarding non-extending agency to Guardwell Detective Services. It is elicited from him that 45 workmen have signed in Ex.W124 and Ex.W125. Similarly 47 workmen have signed in Ex.W126 and Ex.W127. WW-1 has also admitted that till today they are not the members of MICO Employees Credit Cooperative Society.
16. WW-2 G R Shivashankar, who is the President of the respondent union has deposed that all the 72 workers are members of the Union. He has deposed that Naganathapura Plant was established in the year 1989. The 72 workmen started to work in the Watch & Ward Department when Naganathapura plant of MICO was started. However, Watch & Ward workmen of Naganathapura plant were not extended the service conditions as they were extended to same workmen of Adugodi plant. As far as the respondent workmen are concerned, they themselves constitute a separate category of workmen, who are exclusively employed in the Watch & Ward Department. WW-2 has also admitted as to the existence of Union called MICO Karmikara Sangha at Naganathapura. He has admitted that permanent employees of Naganathapura plant of MICO are not members of the respondent Union. Likewise the members of respondent union, who are working at Naganathapura plant are not members of MICO Karmikara Sangha, Naganathapura.
17. WW-3 Mehaboob Pasha also deposed on similar line as that of WW-1.
18. MW-1 is P L Mathew, Divisional Manager of the petitioner has deposed that Karnataka Rakshaka & General Workers Union does not represent the workmen at MICO, hence they cannot raise any dispute on behalf of the contract labourers nor they are competent to do so. The said Union is not recognized by the petitioner and petitioner never negotiated with the said Union and thus it has no locus standi to espouse the cause of the respondent labourers.
19. It is to be mentioned here that Union of the Principal Employer has to espouse the cause of the workmen for maintaining the dispute under the Industrial Disputes Act. But on the basis that there are 72 workmen in the respondent, it is held that their interest amounts to community of interest and they themselves can raise an industrial dispute. There is no dispute that these 72 workmen have been working in the petitioner since its inception. MW-1 has clearly admitted that the respondent workmen joined the petitioner in the year 1989 at the time of establishment of Naganathapura Plant.
20. The Labour Court placed reliance on a decision reported in 1965(I) LLJ SC Page 668 (Workmen of M S Dharmapal Premchand vs., M/s.Dharmapal Premchand) to the effect that `All those workmen who were members of the union dismissed from service, the dispute in regard to their claim for reinstatement espoused by such union of which none of the other workmen in service was member, the reference of such dispute for adjudication, in the circumstances, held valid’.
21. The reliance was also placed on a decision reported in 1978(II) LLJ Page 22 (Tata Chemicals Ltd., Vs., The Workmen, Represented by Chemicals Kamdar Sangh), wherein the Hon’ble Supreme Court held “a minority union can validly raise an industrial dispute as S.2(k) does not restrict the ambit of the definition of the “industrial dispute” to a dispute between an employer and a recognized majority union but takes within its wide sweep any dispute or difference between employer and workmen including a minority union”.
22. Therefore, the Labour Court was justified in holding that the workmen are having community of interest as Watch and Ward employees working under the petitioner since its inception right from the year 1989. Though the Karnataka Rakshaka and General Workers Union had no locus standi to represent the workmen, these 72 workmen having community of interest have right to espouse their cause as per the definition of Industrial Dispute under the I.D Act.
23. So far as relationship of employer and employee between the petitioner and the respondent workmen, the Labour Court placed reliance on deposition of MW-1. MW-1 has deposed to the fact of valid registration of labour contract certificate dated 21.4.1994 and entering into valid contracts with M/s.Terrier Security Systems and M/s.Guardwell Detective Services from time to time. On 25.4.1994 the Assistant Labour Commissioner approved the list of contractors submitted by the petitioner. The petitioner also produced agreement dated 25.8.1995 and its extension on 3.1.1997. On 23.10.1997 the security service contract was entrusted to M/s.Guardwell Detective Services and its approval by the Assistant Labour Commissioner on 5.11.2004. The Company addressed letter to the Assistant Labour Commissioner on 4.9.1997 that there was no abolition of contract labourers in the area of security by the Government. MW-1 deposed regarding the licence was not renewed but claimed deemed renewal. According to MW-1 there are 65 security guards and head guards in the company employed through the contractors. It is admitted that the security personnel are only involved in the present case. Only one security agency was engaged at Naganathapura plant at any given point of time. It is admitted that security personnel working at Naganathapura plant have community of interest. In the cross-examination dated 24.8.2005, MW-1 has admitted that on 1.4.1989, Naganathapura Plant was started. The respondent workmen were the ones who were appointed in the Naganathapura plant since it started functioning. However, he volunteered that respondent workmen were appointed through a contractor. No contract agreement is produced by MW-1 of the year 1989 to substantiate the contention of the petitioner that the respondent workmen were appointed through contractors themselves then.
24. MW-1 has admitted that security department is permanent department in the establishment and it works round the clock in shifts. The shift schedule is prepared by the Assistant Security Officer of the security agency under the overall guidance of the security officer employed by the company. However, the petitioner did not produce any record regarding the supervision by the security officer of the security agency in the year 1989 till the year 1994. It is elicited that regarding day to day problems, the Assistant Security Officer informs the security officer of the company. MW-1 has admitted that Adugodi plant had its own permanent security guards in the year 1989 and the respondent workmen carried out the functions similar to the functions of the security guard of Adugodi plant. It is admitted, the respondent workmen were permitted to avail canteen facility in the factory premises where they get food at subsidized rates.
25. The petitioner recalled MW-1 later who deposed in chief that in the year 1989 Sainik Welfare & Tree Forming Society was providing security services and it continued till 7.7.1992. From 8.7.1992 the Terrier Security Services is providing the security services. It is elicited that Ex.M16, settlement is not applicable to Naganathapupra unit. From the evidence of MW-1 it is seen the respondent workmen joined petitioner in the year 1989.
26. Ex.M1 is copy of certificate of registration dated 21.4.1994. Ex.M2 is telefax message from Guardwell & Detective Services dated 14.6.1999. Ex.M3 contained name of the contract labourers approved by the Labour Commissioner. Ex.M4 is list of contractors. However, these documents did not establish the fact of contract labour as in the year 1989 till 1992. Ex.M5 is also amended certificate of registration of the year 1994. Ex.M7 service contract dated 25.8.1995 with Peoples’ Choice. Ex.M8 dated 3.1.1997. Ex.M9 dated 14.6.1999. Ex.M10 dated October, 1997. Therefore, these documents do not pertain to the year when the dispute is raised by the workmen. So also Ex.M13 is subsequent to the period of raising the dispute being regularization of contract labourers. Therefore, the Labour Court concluded that on the basis of these materials, it is not possible to conclude that the workmen were the contract labourers as on the data of raising the dispute.
27. WW-1 has deposed in his evidence that various mechanisms were adopted by the petitioner to make it appear that they were not the workmen of the MICO. It is only a paper work done by the management. All the entries in the attendance register are made by the officers and supervisors of the management of MICO at Naganathapura Plant. The wages were calculated on the basis of the certificates issued by the officers of the MICO at Naganathapura plant. The names of all the workmen are mentioned in the duty roster. The management was also maintaining MICO Security Personnel Muster Roll pertaining to Naganathapura Plant. They are doing the work on par with the permanent employees of Watch & Ward Department at Adugodi plant of MICO. The so called contractors are only name lenders. It is his evidence that Terrier Security Systems or M/s.Guardwell or M/s.Unique had no licence and only subsequently licnences were taken with a view to make it appear that MICO had outsourced the work in the Watch and Ward Department. The petitioner did not dispute the original registers maintained by them at Ex.W1 to W7 where name of the workmen appeared there. Ex.W1 bears the name of the petitioner with its emblem. Ex.W2 also contained the names of workmen for the month of November 1993 to December, 1993. Ex.W3 for the months of January 1994 to March, 1994 wherein also names of the respondent workmen appeared with signature of persons who prepared it. So also Ex.W4, W5, W.6 and W7, attendance registers for different periods containing the names of respondent workmen with initials of MW-1 P L Mathew. WW-1 deposed to the production of certificates at Ex.W8 to W15. It is evident that by virtue of fire services training undergone by the respondent workmen, the address of the respondent workmen mentioned as MICO, Naganathapura, Bangalore.
28. The duty rosters Ex.W20 to W24 dated 25.3.1996, 17.4.1996, 20.4.1996, 15.4.1996 and 6.7.1996 indicated name of respondent workmen and bearing the signature of MW-1 P L Mathew. Ex.W30 is the instructions by the petitioner in respect of left out barrels for melting. Ex.W31 is copy of cash voucher for payment to D Venkatesh. Ex.W32 to W48 movement records of the security guards and loading slips at Ex.W49 to Ex.W68 bearing the emblem of the petitioner. WW-1 has denied that there were only contract security guards in their establishment right from the year 1989. It is also denied that M/s.Terrier Security Services took out the agency in deployment of security guards. It is elicited that his name finds place in the statement of Provident Fund submitted by the Guardwell Detectives. It is elicited that they have submitted before the court through their advocate that they are willing to serve with Unique Detective Security Services Pvt. Ltd., but according to them, they agreed so, keeping open all the issues referred. It is stated that order dated 11.3.2005 was passed for the purpose of convenience of both the parties and therefore it is not possible to hold that the respondent workmen were the contract workers and that there is no relationship in between the parties. As to deduction of PF and ESI contributions, WW1 explained that deduction by the security agency was not shown to them. It is elicited that there are no documentary evidence to show that it is the MICO which prepared the list of security personnel.
29. The Labour Court declined to refer Ex.M22 a Xerox copy of the affidavit said to have been filed in O S No.242/1997 before Anekal Court on the ground that it did not indicate the original number of the civil suit, did not indicate signature of defendant and signature of the advocate and did not bear date also. Ex.M23, a copy of the order sheet in O S No.242/97 on the file of Prl. Civil Judge (Jr.Dn.) Anekal wherein Karnataka Rakshaka & General Workers Union filed suit against Terrier Security System Agency, Guardwell Detective Services and Motor Industries Co. Ltd., Naganathapura Plant. The petitioner contended that the workmen contended there as contract workers and therefore their grievance cannot be entertained. The Labour Court held that on the basis of Ex.M23 the contentions raised in the dispute cannot be brushed aside since it related to the year 1997 and the dispute related to the relationship existed from 1989 to 1996.
30. It is elicited through WW-1 that WW1 does not know as to how PF amount were deducted by MICO from their salary. Ex.M13 was written by the authorities as contract labourers. It is explained by him that management used to impose light punishment whenever there was some mistake. He does not know whether there are many contract agencies in Bangalore which are looking after the security business. It is also elicited that there is a signature of P L Mathew in Ex.W3. It is admitted that they have received monthly salary for the month of July, 1997 from the contractor. It is elicited that Ex.M18 register maintained by Unique Detective indicates his name and signature at Ex.M18(a).
31. It is elicited from WW-1 that there is a separate canteen holding for contract labourers. It is admitted that they are receiving breakfast everyday. But he has not admitted that these items were supplied in the canteen at free of cost. It is elicited that they had raised a dispute before the conciliation officer that they are contract workers. WW1 has given an explanation that such words were written by them. The Labour Court concluded that on the basis of this piece of evidence, it cannot be said that the dispute now raised by the respondent workmen is not maintainable and as such there is no relationship. This aspect has to be decided on going through the entire evidence on record, oral or documentary. It is elicited, MICO had not given the orders of punishment to the workmen. It is explained that duty rosters contained 29 sheets at Ex.W70. The duty roster maintained by the MICO showed name of the workmen worked under their hands whose positive photos of Biju K.S. are at Ex.W71 and Ex.W72. He deposed that prescribed uniform could be found in those photos along with cap emblem and belt emblem which showed the emblem of MICO. The petitioner did not explain as to how duty rosters came into existence in favour of the respondent workmen. If the respondent workmen were working under contract agency, there was no need for the petitioner to maintain such duty rosters at a particular point of time.
32. Ex.W71 photo refers to one Biju K.S. This is not discredited in the cross-examination of WW-1. Those photos did bear the emblem of the petitioner in the cap and belt. This is also not discredited by the petitioner in the cross of WW-1. The oral evidence of WW-1 coupled with these duty rosters and photos made the evidence of WW-1 more probable than the evidence of MW-1.
33. Thus the oral evidence of WW-1, WW-3 coupled with admission of MW-1 in his cross-examination made it manifest that respondent workmen joined the petitioner for service in the year 1989. No doubt the petitioner placed some records to contend that the contractors had employed these respondent workmen and as such there is no any such relation.
34. The registration certificate of the petitioner was of the year 1995. The fact is that the respondent workmen have been working from 1989 to 1995, which is not in dispute. There is no acceptable answer from the petitioner that under whom the respondent workmen worked as Watch and Ward from the year 1989 to 1994. The workmen have placed attendance registers maintained by the management which are not disputed. Hence there was no impediment to place reliance on those attendance registers, duty rosters. There was no occasion for the petitioner to maintain attendance registers in the year 1993. Those registers were not maintained by any labour contractors. The contractors claimed by the petitioner related to the year 1994 and onwards.
35. No doubt it is established that no appointment orders were issued to the respondent workmen by the petitioner. But it is not disputed that these workmen joined the service in the year 1989 itself. The petitioner has also not produced any appointment orders given by the contractors to the respondent workmen of the year 1989 to 1994. There is no explanation by the petitioner whether their licence was renewed. There is also no material that the respondent workmen surrendered their rights and thereafter they joined as a workmen under contractors. The petitioner has not pleaded and proved as to how the workmen became the contract labourers under the subsequent contractors.
36. Thus looking to the entire facts and circumstances of the case, the Labour Court opined that there is relationship of master and servant in between the petitioner and respondent workmen. Further in view of this finding as to relationship, it is opined by the Labour Court that the issue relating to contract labour and abolition of contract labour assumed no importance and it did not survive for consideration.
37. No doubt this order dated 4.4.2009 passed by the Labour Court was assailed by the petitioner in W P No.27075/2009 (L). This court permitted the petitioner to withdraw the writ petition by the order dated 14.9.2009 with liberty to challenge the order if the final award goes against the management. The order of reference was as to whether the contention of the Management that the workmen were workmen of the contractor and whether such a contention was a sham or whether the workmen are the employees of the petitioner Management. The order dated 4.4.2009 conclusively established that the workmen are the direct employees of BOSCH management and that there is relationship of master and servant. The evidence led by the Management after the findings recorded on the preliminary issues dated 4.4.2009 cannot be of any help to the petitioner. The order dated 4.4.2009 passed by the Labour Court was not either set aside or the Labour Court could have gone beyond the findings recorded in the said order by considering the further evidence adduced by the petitioner. The same 72 workmen alone worked as Security Guards, Assistant Security Guards and Head Guards, probablised that the petitioner’s plea that it outsourced the functioning of the Watch & Ward by actually entrusting the same to the licensed contractors is difficult to accept. The petitioner having invited a finding regarding the relationship, it was not open for them to contend that their contention that their relationship with the contractors was not sham. The petitioner was satisfied by tendering evidence of MW-1 alone. The further evidence which was adduced of the contractors and so many documents to establish that the respondent workmen were the employees of the contractors was an afterthought attempt by the petitioner, which could have been as well produced at the time of trial on the preliminary issues. In 1989, there was no contractor as is deposed by MW-1 and it was only on 26.5.1994 they got a registration under the Contract Labour (Regulation & Abolition) Act.
38. Therefore, the Labour Court was justified in observing that in view of non existence of any labour contract itself in favour of anyone of their labour contractors, the respondent workmen having continued to render the services as watch and ward of the petitioner become the workmen under the second party and the petitioner in turn will be the principal employer of the respondent workmen. The findings on the preliminary issues vide order dated 4.4.2009 became final so far as the Labour Court was concerned. The Labour Court could not again adjudicate and give finding on those issues.
39. Once the petitioner failed to establish that appointment of the workmen in 1989 was through the contractors only, that status cannot be changed even if it is subsequently established that the workmen continued with the contractors unless it is further established that the workmen surrendered their rights. In that view of the matter, the respondent workmen were entitled for the relief of regularization and payment of arrears. Therefore, I am of the view that the award passed by the Labour Court does not suffer from any irregularity or illegality calling for interference by this Court.
40. The learned senior counsel for the petitioner placed reliance on a decision in Gujarat Electricity Board Vs., Hind Mazdoor Sabha (1995(II) LLJ 790 and contended that community of interest means the workmen of principal employer who are interested in absorption of contract labour should espouse their case and that if a contractor for any particular period of time did not have a licence that does not confer a permanent employee status to contract labour with the principal employer . On the face of the view taken as above that there existed relationship of employer and employee between the petitioner and respondent workmen for more than one reason, this decision is of no help to the petitioner.
41. Further the learned senior counsel placed reliance on a decision in Steel Authority of India Ltd., vs., Union of India & others, reported in 2006(4) L.L.N.651 and contended that entire salary/wages social benefits like P.F. ESI, bonus etc., as protected were paid by the contractor and therefore the respondent workmen cannot be deemed to be the employees of the principal employer. But the evidence in the case is otherwise and on the basis of the material, it is observed as above that such social benefits are deducted by the petitioner from out of the salary of the respondent workmen and therefore this decision is also of no help to the petitioner.
42. The decision in Food Corporation of India & others vs., Presiding Officer, CGIT, Chandigarh & others, reported in 2008 LLR 391 (Punjab & Haryana HC) as to the judicial review of the award of the Tribunal is open if it is shown that the finding recorded is wholly unwarranted by the evidence and no reasonable man would have arrived at the said conclusion and when a finding is based on no evidence or contrary to evidence, it can be corrected by a certiorari, cannot be pressed into service as this Court found that the Labour Court was justified in passing the impugned award.
43. In The Management of National Aerospace Laboratories vs., Engineering an General Workers Union, reported in AIR 2015(1) Law Karnataka 2017, Para-29 of the judgment reads thus:
“In the above facts, after confirming the factual finding that the arrangement contract labour by the petitioner was a sham, the next logical conclusion would be the workmen concerned were in fact employed for nearly decade or, by now, longer for and by the petitioner, and the object of not making regular appointments in a legal manner was to continue such workmen without conferring upon them any status and privileges of regular workmen and without undertaking the process of regular recruitment. That would obviously amount to an unfair labour practice which may not strictly be punishable but which would as well not be countenanced in adjudication of an industrial dispute. As observed earlier, the adjudicator of industrial disputes is also guided by the spirit of constitutional edicts and cannot allow an employer to take benefit of the own wrong in employing for a fairly long period, a set of its workforce as contract labourers, bypassing its own recruitment rules and procedure for selection, resulting into obvious discrimination and an unjust inequality.
44. Therefore, it is clear, the Management has resorted to various strategies of making direct employees as contract employees, which is unacceptable in law.
45. In L.I.C. of India v. Consumer Education & Research Centre & others (1995) 5 SCC 482, it is observed that social justice is a device to ensure life to be meaningful and liveable with human dignity. The State is obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilized living. The principle laid down by this law requires courts to ensure that a workman who has not been found guilty cannot be deprived of what he is entitled to get. Obviously when a workman has been illegally deprived of his device then that is misconduct on the part of the employer and employer cannot be possibly be permitted to deprive a person of what is due to him. In the case on hand, the petitioner is sought to deprive what the respondent workmen are legally entitled to, which cannot be accepted.
46. The petitioner suffered a major decision on the preliminary issues having invited findings on the same and thereafter tried to get over from that situation before the Labour Court itself for which the Labour Court was not competent to travel beyond the findings already recorded by it and proceed to record its findings only on merits of the matter and accordingly it has passed the judgment and award based on the materials on merits of the matter. The judgment and award passed by the Labour Court does not suffer from any infirmity so as to call for interference.
47. The learned Senior Counsel for the petitioner has relied upon number of decisions, some of which are referred as herein below:
(a) 2008 LLR 344 Bombay HC (Bhartiya Kamgar kSena vs., Udhe India Ltd., & another), to contend that merely because contract existed for a long time, that cannot be taken as a clue to decide that the contract was not genuine.
(b) 2008 LLR 357 SC (Himmat Singh & others vs., ICI India Ltd., & others) to contend that only registered union canespouse the cause of the workmen as held in para-10 following Steel Authority of India Ltd., case.
(c) 1973 II LLJ Page 341 (The Management of Madura Mills Co. Ltd., vs., The Presiding Officer,IT, Madras & others) relating to who can raise industrial dispute under Section 2(k) of the Industrial Disputes Act.
(d) 2010-II-LLJ-548 (Punjab & Haryana HC) (Cement Corporation of India Ltd., vs., Presiding Officer, Labour Court- cum-IT, Hissar & others) to contend that “The Labour Court should examine whether management had an oblique motive or deliberate intent to create a fraud on the statute or the obligations created under the I.D.Act. It is submitted that if the management provided shoes or uniform or medical facilities itshould be seen as appropriate acts of management. So long as there is no prohibition under Section 10 of C L R A Act, for engaging contract labour, there is no question on regularizing the services of labour directly under the management.
(e) (2008) 9 SCC 377 (National Thermal Power Corporation & others vs., Badri Singh Thakur & others) to contend in the absence of notification prohibiting contract labour issued under Section 10 of the Act, prayer made by the contract labour for absorption to be negatived.
In view of the finding recorded by the Labour Court that respondent workmen are the employees of the petitioner and there existed employer and employee relationship, which finding is accepted by this Court, the ratio laid down in the above decisions cannot be pressed into service to the facts of the present case.
For the above reasons, the writ petition fails and it is accordingly dismissed.
After the above writ petition was reserved for orders, two of the employees namely, Sri Thulasi Naik R S/o late Ramacjhandra Naik (E No.6504) and Sri Dinakaran M S/o Monnu A. (E No.6472) have filed compromise petitions and seeking to accept the same. They are at liberty to go ahead with the compromise and it is clarified that this order would not come in their way to compromise.
akd Sd/-
JUDGE