IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.261 OF 2017 [L-TER] BETWEEN:
KARNATAKA STATE POLLUTION CONTROL BOARD, BY ITS CHIEF ADMINISTRATIVE OFFICER, “PARISARA BHAVAN”, CHURCH STREET, BENGALURU-560 001. ... APPELLANT [BY SRI.VIGHNESHWAR S. SHASTRI, ADVOCATE] AND THE GENERAL SECRETARY, KARNATAKA STATE POLLUTION CONTROL BOARD EMPLOYEES NOUKARARA SANGH, 1093, 4TH MAIN ROAD, M.C.R. LAYOUT, VIJAYANAGAR, BENGALURU-560 040. ... RESPONDENT [RESPONDENT- SERVED] THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.3623 OF 2009 [L-TER] DATED 02.12.2016.
***** THIS WRIT APPEAL COMING ON FOR ADMISSION, THIS DAY MOHAMMAD NAWAZ, J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order passed by the learned Single Judge in dismissing the writ petition, the petitioner therein has preferred this writ appeal to set aside the said order and to allow the writ petition.
2. The appellant/Karnataka State Pollution Control Board [‘Board’ for brevity] filed the writ petition to quash the Award dated 24.04.2008 passed by the Industrial Tribunal, Bengaluru in I.D. No.225/2002 by issuing a writ in the nature of certiorari in so far it relates to the declaration that the petitioner is an industry and direction to pay the amounts equal to minimum of the posts whose works are presently being done by the members of the respondent from the date of reference till the date of their engagement continues.
3. It is the case of the appellant that it is a statutory body constituted under the provisions of the Water [Prevention and Control of Pollution] Act 1974 [hereinafter referred to as “Act 1974” for brevity] and the Air [Prevention and Control of Pollution] Act 1981 [hereinafter referred to as “Act 1981” for brevity]. The respondent is an Association stated to have been formed and registered Trade Union consisting of 45 members who are working as contract employees under the appellant for a period ranging from 3 to 7 years and the appellant has adopted the Karnataka State Pollution Control Cadre and Recruitment and Conditions of Service Regulations, 1992 [hereinafter referred to as “Regulations 1992” for brevity].
4. The respondent approached the Deputy Labour Commissioner and Conciliation Officer to improve service and financial conditions seeking regularization of 45 contract workmen. The Conciliation Officer issued a notice to the appellant and meetings were held. Since no settlement was arrived at, the Conciliation Officer recorded a failure report and sent to the Government and in turn the Government of Karnataka vide its Order dated 17.10.2002 by exercising power under Section 10(1)(d) of the Industrial Disputes Act, 1947 [referred to as “I.D. Act” for brevity] referred the dispute to the Industrial Tribunal, Bengaluru and the same was registered as I.D. No.225/2002.
5. It is the case of the respondent before the Tribunal that it is a Trade Union formed in the year 2001. There are 45 contract workers working on contract basis for the period ranging from 3 to 7 years. They carry on the jobs done by the permanent workmen by virtue of their qualifications and experience. They are entitled for regularization. The Board is an instrumentality of the State. It is also an industry as defined under Section 2(j) of the I.D. Act. There are about 722 sanctioned posts in various grades and cadres as against which there are only 269 employees working on permanent basis. There are about 154 workmen who are employed on temporary basis, called as contract basis employees. The service contract is between the ‘Board’ and the ‘workmen’. There is no intermediary Labour Contract. Hence, the contract basis employees are the direct employees of the Board and they work under the supervision and control of the officers of the Board. There is no implementation of the rule “equal pay for equal work” and the said workmen are being paid meagre consolidated wages, whereas permanent employees are given regular scales of pay and other benefits on par with the State Government employees. Thus there is blatant discrimination and exploitation of workmen.
6. The appellant/Management by filing counter statement denied the entire case of the respondent contending that it is not engaged in any manufacturing activity, as such it is not an industry as per Section 2(j) of the I.D. Act. The dispute raised by the workmen for regularization of 45 contract workmen is therefore not maintainable since the said workmen have been engaged only on ad-hoc basis. The recruitment to various posts is regulated as per Cadre and Recruitment Rules of the Board. Under the said Rules, there is no provision for regularizing a contract employee. The conditions of the service of the workmen are regulated as per the terms of the contract. They are appointed temporarily for a period of three months, which would be extended for another period of three months in case the purpose for which they were appointed was not completed. The regular appointment will be made through the Employment Exchange. Their appointments are not against any permanent posts and the appointments are terminable automatically the moment their works come to an end. There is no proper espousal of the dispute raised by the above contract workers.
7. In addition to the dispute raised as to whether the ‘Board’ was justified in not regularizing the services of the 45 contract workers and if not, to what relief the said contract workers are entitled to, additional issues were framed as to;
(1) Whether the II party is not an ‘industry’ as contended in para 3 of the counter statement?
(2) Whether the dispute is properly espoused?
8. The Tribunal held that the ‘Board’ is an ‘industry’ as defined under Section 2(j) of the I.D. Act. There has been proper espousal of the cause of the contract workmen by the Union, however the contract workers are not entitled for regularization of their services.
The Board was directed to pay the amounts equal to minimum of the posts whose works are presently being done by the workmen from the date of reference till the date of engagement of the workmen continues.
9. The learned Single Judge after taking into consideration the entire pleadings and the evidence adduced, was of the view that there was no ground made out to interfere with the impugned Award passed by the Tribunal and the same is based on legal evidence on record and accordingly dismissed the writ petition filed by the Board.
10. It is the contention of the learned counsel for the appellant that it is not correct to hold that the appellant is an industry as defined under Section 2(j) of the I.D. Act. The appellant is a statutory body formed with an object to function in prevention and control of air and water pollution. To regulate industrial establishments covered by the Act, the appellant is enforcing the provisions of the Act and taking various steps to prevent air and water pollution and as such the appellant cannot be construed as ‘Industry’. The learned Single Judge is not right in affirming the findings of the Tribunal that contract workers are entitled for pay scales without examining the locus standi of the Union to espouse the cause of the members and jurisdiction of the Tribunal to entertain and give findings on the disputed questions. The members of the respondent Union are working on contract basis and when it has been held that the workmen are not entitled for regularization of their respective services, holding and directing the appellant to pay the amounts equal to minimum of the posts whose work are presently being done is erroneous. The very issue raised with regard to the industry in the case of Bangalore Water Supply and Sewerage Board Vs. B.Rajappa and others [(1978)2 SCC 213] has been referred to larger bench and therefore to hold that the appellant is an industry is not tenable in the eye of law.
11. The learned Single Judge has placed reliance on the case of State of Rajasthan Vs. Ramachandra and another [(2003) Lab.I.C 8]; wherein it was held that the Forest Department is also an industry within the meaning of 2(j) of the Act, quoting Judgment of the Hon’ble Apex Court in the case of Chief Conservator of Forest Vs. Jagannath Maruthi Kondhare [(1996) Lab.I.C 967].
12. The object of the Act 1974 is to provide for prevention and control of the water pollution and maintaining or restoring wholesomeness of the water and to establish the Central and State Boards with a view to carry out prevention and control of the water pollution. The word ‘industry’ is defined in Section 2(j) of the I.D. Act. Evidence adduced before the Tribunal goes to show that the Board has been constituted to take effective measures to control air and water pollution and for improvement of the Board. It charges prescribed fee for the tests whenever industries are started. These are collected by the Board for issuing the clearances. The Board is stated to be an instrumentality of the State under Article 12 of the Constitution of India. The learned Single Judge was thus of the view that the Board is an industry as defined under Section 2(j) of the I.D. Act, as amended in the year 1992. Reliance has also been placed on the decision of the Hon’ble Apex Court in the case of BWSSB Vs. A.Rajappa and others [supra] wherein it is held that the Boards are not working as sovereign function and they are industries as contemplated under Section 2(j) of the I.D. Act.
13. It is noticed that the Union has passed a resolution for taking steps for regularization of the contract workmen. The persons concerned in the dispute are all workmen on contract basis. They have raised the dispute collectively before the Conciliation Officer and upon failure of conciliation attempt, dispute was raised. Hence, the Tribunal was right in opining that there is proper espousal of the dispute. It is also to be noted that the amounts which are being paid to the workmen in question are not equal to the pay which will be payable to the regular employees. Hence, it was rightly held that the workmen are to be paid equal pay when their performance is found satisfactory.
14. The contention that the issue raised with regard to ‘industry’ as held in Rajappa’s case [supra] has been referred to a larger bench and therefore, to hold that the appellant is an industry is not tenable in the eye of law, cannot be accepted as it is a settled law that mere pendency of a reference to a larger bench does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in a reference.
For the foregoing reasons we find no merit in the writ appeal and accordingly the same is dismissed.
Sd/- Sd/-
JUDGE JUDGE Ksm*