The petitioner union has come forward with this petition seeking for the relief of direction to the second and third respondents to not to alter to the prejudice of the workmen concerned, as their service applicable to them, immediately during the pendency of the conciliation proceedings, before the first respondent.
2.The factual matrix in this matter is as follows;
(a) The petitioner union has come forward with this petition for the cause of 45 workers employed by the second respondent through the third respondent to work as Security Guards. The first respondent is a project of Department of Atomic Energy of the Union Government. The said project was proposed to be established in Tuticorin District in the year 1990. Even before establishing the factory, during the course of construction of buildings, the second respondent engaged five workmen on 01.04.1990 as Security Guards and the said five workmen were chosen directly by the officer of the second respondent. The second respondent needed more workmen to guard the entire area and therefore, recruited more people as Security Guards in the year 1991. Though the workers were engaged by the officers of the second respondent, the wages were paid through Topaz Security Services. From 1997 to 2000 the contract was given to the third respondent and from 2000 to 2003 the contract was given to the Federal Security Bureau, Madras and from 2003 to 2008 the contract was given to Topaz Security Services, Madurai and from January 2009 the contract was given to Alagu Security Services, viz., the third respondent herein. Though the contractors were changing, the workers remained unchanged and continued to do the same job, but under different contractors on paper. The said workers have joined the petitioner union in the year 2007.
(b) Thereafter, on 20.07.2009 around 50 persons belonging to Central Industrial Security Force (CISF) arrived at the second respondent project site. On enquiry, the workers were informed that the second respondent proposed to end the contract period of the third respondent. As the workers had apprehended that the security of the project site is going to be taken over by the Central Industrial Security Force personnel, the petitioner union issued a notice of strike under
Section 22(1) of the Industrial Disputes Act, 1947 to the second and third respondents to implement certain demands. On receipt of the said notice, the first respondent has taken it on file as an industrial dispute and initiated conciliation proceeding under
Section 12 of the Industrial Disputes Act, 1947. Thereafter, the workmen are facing the threat of termination of their service by the second and third respondents. Therefore, the petitioner union preferred this petition seeking for the relief as stated above.
3. The learned counsel for the petitioner submitted that the work performed by the petitioner union is of perennial nature as they have been engaged by the contractors continuously right from the year 1990 and lastly they have been engaged by the third respondent herein. It is contended that the very fact of Central Industrial Security Force (CISF) personnel were brought to the project plant, where these workmen are working, would establish that the job of the security service is an inevitable job in the second respondent establishment. The learned counsel contended that the workmen reliably understands that the second and third respondents have ended the contract between them and thereby there is a serious threat of termination of the services of the workmen and as such, the petitioner union was constrained to issue strike notice to the second and third respondents and conciliation proceeding is pending as on date on the file of the first respondent. The learned counsel would further contend that the very contract entered between the second and third respondents is a sham and fraud committed on the workmen and the beneficial legislation protecting the rights of the workman. The learned counsel for the petitioner contended that the CISF is proposed to be engaged only at the plant site and the second respondent is proposing to call for new tender to contract out the security services of township area.
4.The learned counsel for the petitioner would submit that as per the provision of
Section 33 of the Industrial Disputes Act, 1947, the employer shall not alter to the prejudice of the workmen concerned in the industrial dispute, during the pendency of the conciliation proceedings. It is contended that till date the workers of the petitioner union are attending the second respondent project as Security Guards and even as on date, the construction of buildings work is going on. Therefore, it is contended that a direction may be given to the second and third respondents to maintain status quo in respect of the services of the members of the petitioner union as Security Guards, during the pendency of the conciliation proceeding, pending on the file of the first respondent herein.
5.Per contra, the learned counsel appearing for the second respondent contended that there is no employer-employee relationship between the second respondent and the workers of the petitioner union, as they have been engaged only by the third respondent. It is contended that
Section 33 of the Industrial Disputes Act, 1947 is applicable only in the event of the employer- employee relationship is established and as such the petitioner cannot seek the relief of invoking the provision of
Section 33 of the Industrial Disputes Act, 1947. It is further contended by the learned counsel for the second respondent that as per the letter given by the third respondent herein, the contract was terminated on 25.07.2009 and such being the position, the workers of the petitioner union cannot invoke the provision of
Section 33(1)(a) of the Industrial Disputes Act, 1947. The learned counsel for the second respondent submitted that the second respondent would give its co-operation for speedy disposal of the conciliation proceedings.
6.The learned counsel for the third respondent contended that there was a contract between the second and third respondents in respect of engaging the workmen as Security Guards. The learned counsel for the third respondent submitted that the third respondent served a conditional notice dated 30.04.2009 to the second respondent, either to increase contractual amount to a sum of Rs.40,000/- per month or to terminate the agreement, and requested to be relieved from 1st August 2009. It is submitted that as the second respondent had not accepted to increase the contractual amount, issued the termination notice dated 25.07.2009 to the third respondent. The learned counsel for the third respondent further submitted that as per the agreement, he engaged 63 personnel to provide security coverage to the second respondent and the said 63 persons are the employees of the third respondent and the third respondent has agreed to give employment to 63 persons wherever the work is available to them. Therefore, it is submitted that the petitioner union cannot seek the relief by invoking the provision under
Section 33(1)(a) of the Industrial Disputes Act, 1947.
7.I have carefully considered the rival contentions raised on either side and perused the materials available on record.
8.The crux of the question involved in this matter is to the effect whether the workers of the petitioner union, who are working as Security Guards in the second respondent project plant, are entitled to seek the relief under
Section 33(1)(a) of the Industrial Disputes Act, 1947.
9.The fact remains that the petitioner union raised an industrial dispute by serving a strike notice to the second and third respondents, which resulted in conciliation proceedings pending on the file of the first respondent herein. The petitioner, the second and third respondents have come forward with certain rival claims in respect of employer-employee relationship. This Court cannot go into all these aspects at this stage as all the disputes are pending in the conciliation proceedings before the first respondent herein. It is for the petitioner as well as for the second and third respondents to establish their respective claim before the Conciliation Officer. However, it is seen that the workmen, who are the members of the petitioner union, are working as Security Guards in the project plant of the second respondent and they have been engaged through the third respondent herein. The said fact is not disputed either by the third respondent or the second respondent. Now the apprehension of the petitioner is that they reliably understand that the second respondent terminated the contract entered into between them and the third respondent and as a result, the workmen are having reasonable apprehension that their service may be terminated by the second and third respondents.
10. It is claimed by the petitioner union that the workmen are working as Security Guards right from the year 1990 and they have been continuously engaged by different contractors and lastly by the third respondent herein and as such, their work is perennial in nature and they are entitled for regularization. It is contended that the very contract between the second and third respondents is a sham and fraud committed on the workmen in contravention of beneficial legislations protecting the rights of the workmen. This Court is of the considered view that it is for them to substantiate their claim before the appropriate authority.
11. It is seen that admittedly there was a contract entered into between the second and third respondents and the workers of the petitioner union were engaged lastly through the third respondent to work as Security Guards in the project plant site of the second respondent. It is further revealed on the basis of the submission made by the learned counsel for the second and third respondents that the said contract was terminated in view of the fact that the claim of the third respondent to increase the contractual amount to a sum of Rs.40,000/- p.m. was not accepted by the second respondent. It is claimed by the second and third respondents that the termination came into force with effect from 01.08.2009.
12. The undisputed fact remains that all the above said transactions took place between the second and third respondents were not known to the petitioner and they have been completely kept in dark. The petitioner entertained a doubt and apprehension only after the arrival of the group of CISF personnel. It is the definite case of the petitioner union that the workmen are continued to work as Security Guards till date.
13. In view of the above said circumstances, this Court is constrained to hold that the petitioner is entitled to seek the relief by invoking the provision under
Section 33(1)(a) of the Industrial Disputes Act, 1947.
Section 33(1)(a) of the Industrial Disputes Act, 1947 reads hereunder :
33. Conditions of Service, etc., to remain unchanged under certain circumstances during pendency of proceedings - (1) During the pendency of any conciliation proceedings before a Conciliation Officer or a Board or of any proceedings before (an arbitrator or) a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall -
a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding ; save with the express permission in writing of the authority before which the proceeding is pending."
14. In view of the above said provision, this Court is constrained to direct the second and third respondents not to alter, to the prejudice of the workmen concerned in the industrial disputes in respect of their conditions of service as Security Guards in the second respondent project plant which were applicable to them immediately before the commencement of the conciliation proceedings which is pending on the file of the first respondent herein. The first respondent is hereby directed to expedite the conciliation proceedings as expeditiously as possible and to complete the same within a period of two months from the date of receipt of a copy of this order. It is open to the petitioner union to take appropriate action for the payment of the wages to the workmen, who are working as Security Guards for the relevant period against the second and third respondents in the manner known to law.
15.With the above directions, the writ petition is disposed of. Consequently connected miscellaneous petitions are closed. No costs.
gcg/gg To
1.The Assistant Labour Commissioner Government of India, (C), No.5, Lady Doak College Road, Chinna Chokkikulam, Madurai-2.
2.The Project Director, Zirconium Project, Zirconium Complex, Department of Atomic Energy, Palayakkal-628 152, Tuticorin District.