JUDGMENT Rakesh Tiwari, J.
1. Heard Shri Ashok Khare, Senior Advocate assisted by Shri K.C. Shukla for the petitioners and Shri G.D. Misra for the contesting respondents.
2. This petition has been filed challenging the validity and correctness of the oral termination order dated 10.2.2004 passed by the General Manager, Dugdh Utpadak Sahkari Sangh Ltd., Begrajpur, District Muzaffarnagar (respondent No. 4). By the impugned order the respondent No. 4 has stopped the petitioners to work on the post of Computer Operator.
3. The petitioners have further sought a writ of mandamus directing the respondents to absorb them in service and not to disturb their peaceful working on the post of Computer Operator. The third relief sought by the petitioners is that the respondents be commanded to appoint them on the post of Computer Operator or on any other suitable post in the Dugdh Utpadak Sahkari Sangh Ltd. and treat them as regular/permanent employees and pay them regular salary with all other benefits as are admissible to the regular employees.
4. The case of the petitioners is that the General Manager, Dugdh Utpadak Sahkari Sangh Ltd., Begrajpur, District Muzaffarnagar appointed them in March 1999 and April 1999 respectively in his office as the Computer Operators. It is claimed by them that the salary of Computer Operator in minimum pay scale is not given to them. It is further claimed by them that they were appointed against permanent vacancy and that they have discharged their duties satisfactorily but their emoluments are paid to them as if they are appointed contract basis. The grievance of the petitioners is that instead of absorbing them in service, the respondent No. 4 has stopped and restrained them from working as Computer Operators which amounts to termination of their services by oral order.
5. The learned Counsel for the petitioners has contended that the contract under which the petitioners have been working under respondent No. 4 is a sham contract and that the order of termination is oral which shows mala fide and arbitrariness in dispensing with the services of the petitioners.
6. The learned Counsel for the respondents in rebuttal has submitted that whether the contract is bona fide or sham has to be adjudicated upon. It is further submitted that admittedly the answering respondents had issued no appointment letter to the petitioners and they have been receiving their salary through contractor. He has placed reliance on paragraph 9 of the counter affidavit in which it has been categorically stated that the petitioners are not employees in Dugdh Utpadak Sahkari Sangh Ltd., Muzaffarnagar; they were neither appointed nor paid salary by the Dugdh Utpadak Sahkari Sangh Ltd., Muzaffarnagar; and no relationship of master and servant ever existed between the petitioners and the Dugdh Utpadak Sahkari Sangh Ltd., Muzaffarnagar. It has categorically been stated in the counter affidavit that there is factual dispute in the matter. Reliance has been placed upon the decision rendered by a Constitution Bench of Hon'ble Supreme Court in Steel Authority of India Ltd. and Ors. v. National Union Water Front Workers and Ors. 2001 (91) F.L.R. 182 and another decision of the Hon'ble Supreme Court passed on 24.9.2001 in Lucknow Producers Co-operative Milk Union Ltd. and Anr. v. Chandra Bhushan Singh and Ors. Civil Appeal Nos. 6752-6754 of 2001 @ S.L.P. (c) Nos. 8907-8909 of 2001, wherein it has been held that: -
Leave granted.
We have heard learned Counsel for the parties. It is agreed by them that in view of the recent Constitution Bench Judgment in the case of Steel Authority of India Ltd. and Ors. etc. etc. v. National Union Water Front Workers and Ors. etc. etc. , the judgments passed by the High Court (by learned Single Judge and Division Bench) are to be set aside and the writ petitions filed by the respondents are to be dismissed. It is ordered accordingly.
We make it clear that this order will not prevent the respondents from seeking such relief relating to their service as may be available to them under law.
The appeals are allowed. No costs.
SLP (C) Nos. 15072-15074 of 2001 We have heard Mr. R.B. Mehrotra, learned senior Counsel for the petitioners.
In view of the order passed by us in Civil Appeal Nos. 6752-6754/2001(@ S.L.P. (C) Nos. 8907-8909 of 2001, we do not feel any necessity to entertain these special leave petitions. The same are accordingly dismissed.
7. A similar matter has also been decided by a Division Bench of this Court in Kehar Pal Singh v. Pradeshik Co-Operative Dairy Federation-29, Lucknow and Anr. 2004 (101) F.L.R. 1066, wherein it has been held that: -
In law there is a difference between a servant and an independent contractor. The prima facie distinction is that in the case of an employee the master has the right to control his working, whereas in the case of an independent contractor his principal cannot supervise and control the working of the contractor vide Chairman Rao V State of M.P. In the case of an employee the master not only to tells the servant what he has to do but he also tells him how to do it. On the other hand, in the case of independent contractor his principal only tells him what to do but does not tell him how to do it.
No doubt the supervision and control test sometime breaks down e.g. in the case of a captain of a ship who though an employee is not told by his employer how to run his ship vide Hedlay v. Pinkray Steamship Co. In such a case the test applied is the part-and-parcel of the organization test vide Bank Voor Handel v. Stateford. There are several other tests also which can be adopted to determine whether there is a master and servant relationship or not, but the prima facie test is that of supervision and control.
In paragraphs 5 and 6 of the counter affidavit it has been stated: -
5. That Dugdh Utpadak Sahkari Sangh Ltd., Muzaffarnagar is Central Milk Co-operative Society, as defined Under Section 2(d-1) of the U.P. Co-operative Societies Act, 1965, it has its own separate registered bye-laws. Dugdh Utpadak Sahkari Sangh Ltd., Muzaffarnagar is governed by the provisions of U.P. Co-operative Societies Act, 1965, U.P. Co-operative Societies Rules, 1968 and by its registered bye-laws.
6. That Dugdh Utpadak Sahkari Sangh Ltd., Muzaffarnagar is Member of Apex Milk Co-operative Society known as Pradeshik Co-operative Dairy Federation Ltd., 29, Park Road, Lucknow and the Apex Milk Cooperative Society acts as advisory co-operative society.
8. Reference has also been made in this regard of the decision rendered by the Hon'ble Supreme Court in Mishra Dhatu Nigam Ltd. and Ors. v. M. Venkataiah and Ors .
9. It is apparent from the aforesaid judgment that the matter, which requires adjudication of the factual controversy, cannot be decided by the High Court under Article 226 of the Constitution and the petitioner has a remedy under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 and the petitioners also have a remedy under the provisions of Industrial Disputes Act, 1947.
10. The facts of this case are squarely covered by the Constitution Bench decision of the Hon'ble Supreme Court in Steel Authority of India Ltd. (Supra).
11. In so far as regularization is concerned, this Court cannot direct for regularization of services in view of the Hon'ble Supreme Court decision in State of Punjab v. Sardara Singh (1998) 9 S.C.C. 709, wherein it has been held that High Court cannot issue direction for regularisation of a person who was not appointed against a post.
12. For the aforesaid reasons, the writ petition is dismissed. No order as to costs.