JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. By means of this writ petition the petitioners have challenged the award of the Central Government Industrial Tribunal-cum-Labour Court, Lucknow in l.D.No. 39/2003.
3. Under the award the Central Government Industrial Tribunal-cum-Labour Court, Lucknow (hereinafter referred to as the Tribunal-cum-Labour Court) has held the termination of services of the respondent-workman to be illegal and directed the petitioners to reinstate him with all consequential benefits.
4. Since the dispute involved in all the petitions is the same, these bunches of the petitions is being decided by a common judgment in Writ Petition No. 22316 Of 2003 (Union of India and Anr. v. Brijbhushan Yadav and Anr. The judgment rendered in this Writ Petition will be treated to have been passed in other connected writ petitions as well.
5. It appears that the respondent-workman was temporarily deputed to work as Security Guard in the Office of the General Manager, Telecom Department, Varahasi (East), Varanasi through a security agency M/s Security and Protection Services, Varanasi (hereinafter called as the 'Security Agency'). On the contract with the Security Agency coming to an end the services of the workman came to an end on 1.6.l999, He raised an industrial dispute before the Assistant Labour Commissioner (Central), Allahabad regarding the alleged illegal termination of his services.
6. On receipt of summons the employers took a stand in the conciliation proceedings that there was no sanctioned post of Security Guard in the Telecom Department at Varanasi and the workman was not its employee; that in pursuance of an agreement dated 10.9.1996 with M/s Security and Protection Services, Varanasi the respondent-workman was provided by it as Security Guard during the period of expansion work of project of the Telephone Exchange. It was further their stand that the workman wan in fact an employee of the contractor and as soon as the project work of expansion of Telephone Exchange was over, the contract with M/s Security and Protection Services, Varanasi came to an end. It was pleaded that there was no relation of employer and employee between the petitioners and the workman and there was also no privity of contract between them.
7. On conciliation proceedings having failed, the matter was referred to the Industrial Tribunal-cum-Labour Court by the Government of India, Ministry of Labour by order dated 1.2.2001. The terms of reference were: -
"Whether the action of the Management of Telecom Department in terminating the services of Sri Brijbhushan Yadav w.e.f. 1.6.1999 is justified ? If not, to what relief the workman is entitled ?"
8. After the dispute was registered before the Labour Court as I.D. No. 39/2000 the workman filed his statement of demand, inter alia, stating that he was initially engaged as Security Guard in the Telecom Department, Varanasi (East), Varanasi on 25.8.1997 and since then he has been performing his duties. It is averred in the statement of demand that M/s Security and Protection Services, Varanasi was merely a name lender and almost a broker or agent for procuring security personnel for the Telecom Department as there was no genuine contract labour system prevailing therein and termination of the petitioner from service was not valid. It was further averred in the statement of demand that he was a regular employee and had worked for more than 240 days in ft calendar year continuously and as such termination of his services without compliance of the provisions of law was illegal and he is entitled to the relief of continuity of service with back wages for violation of the provisions of Section 25F/Section 6N of the Industrial Disputes Act, 1947. It was also stated that the contract with M/s Security and Protection Services, Varanasi was a sham contract as the contractor was not a registered licensee contractor under the Contract Labour (Abolition And Regulation Act, 1976.
9. It was also the case of the workman before the Tribunal-cum-Labour Court in the written statement/statement of demand that the work performed by him was perennial in nature and though he was working in the petitioners establishment but his attendance sheet was marked by M/s Security and Protection Services, Varanasi which was verified by the concerned S.D.O. of the Telecom Department. Payment also was made to him through bill and vouchers by the Telecom Department showing him to be an employee of the contractor and thus the petitioners had resorted to unfair labour practice in the name of contract labour.
10. The case of the petitioner-Telecom Department before the Tribunal-eum-Labour Court was that the petitioner is a department of the Ministry of Telecommunication (now Bharat Sanchar Nigam Ltd.), which provides telecommunication facilities to the citizens of the country Tor expansion of telecommunication facilities to the rural, urban and remote areas of the country the Telecommunication Department had to construct big telephone exchanges in connection with which certain goods/articles and equipments were to be used.
11. Consequent upon up-gradation of the office of the Telephone District Manager, Azamgarh as of General Manager, Telecommunication Department, Azamgarh Security Guards were required during the expansion project. The aforesaid articles and equipments etc. were to be kept at the site of construction and other nearby places of the proposed telephone exchanges, for the protection/security of which the petitioner-department needed Security Guards on temporary basis as per requirement. In this regard they entered into an agreement with the Security Agency. M/s Security and Protection Services, Varanasi which is duly registered with the Labour Commissioner under the U.P. Shops and Commercial Establishment Act, 1963 having registration No. 21/378/94-95 which was renewed from time to time remained in force throughout the contract period. The agreement was signed between M/s Security and Protection Services, Varanasi and the General Manager, Telecommunication Department (East), Varanasi for this purpose on 10.9.1996. Under the contract the security agency had agreed to provide Security Guards for protecting the site/goods/equipments as per the terms and conditions of the agreement aforesaid.
12. It was also stated that the petitioners had neither appointed the workman nor had terminated his services and working of 240 days or more by him in the facts and circumstances has no meaning in so far as the petitioner-department is concerned.
13. The Labour Court by the impugned award held that though the services of the workman were initiated through the contractor under the agreement dated 10.9.1996 it expired after the extension period on 31.10.1997 and the workman continued to work thereafter till 31.5.1999 which is not covered under the agreement. Thus, a direct relationship of master and servant between the department and the workman came into existence as working period 1.11.1997 to 31.5.1999 is not covered under the agreement. It held that since the workman has worked continuously for more than 240 days directly under the Department, hence there is violation of Section 25F of the Industrial Disputes Act, 1947. After discussing the evidence the Labour Court answered the reference in favour of the workman. The operative portion of the award is as under:-
7. The services of the workman was initiated through the contractor by agreement dated 10.9.96 which expired on 31.10.97 on expiry of extension period. The working period from 1.11.97 till 31.5.99 is not covered under the agreement nor the management explained that the workman was provided by some other contractor. Thus, there was direct master and servant relationship between the department and the workman during above said period. The workman rendered continuous services of security guard for 570 days directly under the department. This period being more than 240 days and is covered by the definition of "continuous service" defined Under Section 25B of the Industrial Disputes Act, 1947 and the beneficial provisions of Section 25F applied.
8. The verification of attendance sheets by officers of the department further proves master and servant relationship. Even during the period covered by the agreement, it was the department which allocated duties to the workman supervised their working. A glance over the agreement shows that role of the contractor was to provide security guards and not, to supervise duties. The contractor was not a licensee under the Contract Labor (Abolition and Regulation) Act, 1976 or registered under the said Act. Obviously, the contract is camouflage and the contractor a name lender. The contractor was not examined to prove that it supervised the workman. As such, the department was direct employer and not principal employer. The workman, was thus, an employee of the department. The law laid down by the Apex Court in W.P. (Civil) No. 617 of 1986 decided on May 12, 1994 between R.K. Panda and Ors. v. Steel Authority of India and Ors. reported at 1994 (69) FLR 256 and 1999 (81) FLR 1016 Secretary, Haryana State Electricity Board v. Suresh and Ors. are fully applied in the facts and circumstances of the case.
9. It is admitted that the workman was not given notice or paid notice pay and retrenchment compensation at the time of termination of his services, as such, the termination w.e.f 1.6.1999 is void ab-initio and the workman is entitled to reinstatement with full back wages. The reference is adjudicated in favour of the workman.
10. Award as above.
14. The counsel for the petitioners has assailed the award on the ground that an application was moved by the department before the Tribunal-cum-Labour Court for impleadment of M/s Security and Protection Services, Varanasi (Annexure 10 to the writ petition) who was the employer of the workman concerned. The workman filed objection to the impleadment application and the said application for impleadment of M/s Security and Protection Services. Varanasi was rejected by the Tribunai-cum-Labour Court.
15. It is submitted that Sri Jawahar Lal, Assistant General Manager appeared before the Tribunal-cum-Labour Court and gave a statement on oath that for making appointments on sanctioned posts of Class III And Class IV employees recruitment rules have been framed and appointments on these posts are made after inviting applications through advertisement and after completing selection process. It is farther submitted that the workman was the employee of M/s Security and Protection Services, Varanasi and was never appointed by the petitioner-department and his services came to an end as soon as the period of contract between the petitioner-department and M/s Security and Protection Services, Varanasi as extended from time to time was over. It is urged that the workman has raised the dispute only against the petitioners who are the principal employer without impleading his real employer, the contractor who had appointed him in his establishment as he wanted a back-door entry in the service of Central Government department and that there was no privity of contract between him and the department.
16. The counsel for the petitioners has placed the contract and the orders of extension from time to time as well as the receipts of payments etc. made to the contractor by the department filed before the Tribunal-cum-Labour Court and submits that payment of wages was never made to respondent No. 1 directly, as there was no relationship of employer and employee between them. It is submitted that the workman was neither sponsored through the employment exchange or through any other departmental procedure and the officers of the department checked attendance sheets only for the purposes of verifying the bills of the contractor as to how many Security Guards were supplied by the security agency. Utter of authority was given to Sri Jagdish Singh by the contractor/security agency for collecting payment from the department and for disbursement of salary to all the Security Guards, The bills and receipts show that no payment has been made to respondent towards wages in his individual capacity for working as Security Guard rather by and through the contractor who was his employer. The petitioners had no direct control over the work of the Security Guards as they worked under the security agency M/s Security and Protection Services, Varanasi. He has vehemently urged that the Tribunal-cum-Labour Court has committed an error of law in relying upon the decision rendered in R.K. Panda and Ors. v. Steel Authority of India and Ors. 1994 (69) F.L.R. 256 and Secretary, Haryana State Electricity Board v. Suresh and Ors. J. T. 1999 (81) F.L.R. 1016.
17. He then submits that in paragraph 6 of the award the evidence of Sri Jawahar Lal, Assistant General Manager has been discussed in which his evidence has been distorted by the Tribunal-cum-Labour Court. It is submitted that the management witnesses never admitted or stated that the duties of the workman were perennial in nature and had not ended with termination of services of the workman. He had also not admitted the period of work of respondent No. 1 either in the affidavit or in the cross-examination, as such the award is based on no evidence or against the legal evidence on record and the finding recorded by the Tribunal-cum-Labour Court is perverse against the facts stated in the affidavits of management witnesses dated 15.1.2002 and 10.9.1992 (Annexures 14 and 15 to the writ petition) and is not sustainable in law.
18. The counsel for the petitioners next urges that the finding of the Tribunal-cum-Labour Court given in paragraph 7 of the award that the period from 1.11.1997 to 31.5.1999 was not covered by the agreement is also perverse and against the material on record as the Tribunal-cum-Labour Court had not considered the orders of extension of the contract issued by competent authority from time to time till 31.5.1999. He states that all the aforesaid orders extending the contract upto 31.5.1999 had been filed before the Tribunal-cum-Labour Court.
19. He submits that similarly the finding recorded by the Labor Court-cum-Tribunal in paragraph 8 of the award is also based on no evidence as the Tribunal-cum-Labour Court has not discussed any evidence on the basis of which the finding has been recorded. He states that the basis of granting the relief to the workman is the observation made in paragraph 8 of the award that " the contractor was not examined to prove that it supervised the workman, as such the department was direct employer and not the principal employer. The workman was thus an employee of the department. "
20. In this regard it is stated that in making the above observation in the award the Tribunal-cum-Labour Court failed to consider the application for impleadment of the contractor M/s Security and Protection Services, Varanasi filed by the petitioners which was opposed by the respondent-workman by filing objection appended as Annexure 11 to the writ petition and in fact the Tribunal-cum-Labour Court had itself rejected the impleadment application filed by the department vide order dated 7.9.2001. The order is as under:-
" 7.9.2001 Parties present. On behalf of the G.M. Telecom, Distt, Azamgarh an application was filed seeking impleadment of M/s Security & Protection Services, Gayatri Nagar, Pandeypur, Varanasi as party No. 2. The workman has filed objections. Heard the parties. No relief against the workman desired in terms of the reference order and thus, impleladment of M/s Security & Protection Sendees, Gayatri Nagar, Pandeypurj Varanasi as O.P. No. 2 is not necessary and legally justified. Application [rejected. Fix 29.10.2001 for cross of WW.
Sd/- P.O."
21. He then submits that the Tribunal-cum-Labour Court on the application of the petitioners to summon the Contractor/Director, Security and Protection Services, Varanasi vide order dated 17.1.2002 directed the petitioners to deposit T.A. and D.A. of the witness as well as to take steps for service by Registered Post A.D. in the office of the Labour Court for summoning the witness. Relevant portion of the order dated 17.1.2002 is as under: -
"Prabhandan dwara ek anya sakshi ko nyayadhikaran ke madhyam se summon karane hetu prarthana kee gayee, jis par adesh parit huwa. Dinank 11.2.2002 ko prabandhan apne sakshi ko nyayadhikaran mein prastut karane hetu ane jane ka kharch jama Karen tatha summon bhejane hetu nyayadhikaran mein ticket yukt liphapha bhee dakhil karein.
22. It is stated that the order was complied with and expenses etc. were deposited by the petitioners as is apparent from the order-sheet of I.D. No. 39 of 2001 dated 11.2.2002. The order dated 11.2.2002 is as under: -
" 11.2.2002 Present:
23. It appears that even after the steps were taken the contractor was never issued summons by the Labour Court for giving statement as witness in the case, hence the Tribunal-cum-Labour Court has committed an error in law on the face of the record for deciding the case in favour of the workman. It is stated that in these circumstances the Labour Court was not justified in granting relief to the workman.
24. It is also urged that the Tribunal-cum-Labour Court failed to consider that the respondent-workman himself had not impleaded the contractor who was his immediate and real employer and in the absence of his real employer M/s Security and Protection Services, Varanasi as a party in the adjudication case, as such his case should fail for non-joinder of proper and necessary parties. There has been miscarriage of justice against the petitioners as all records pertaining to payment, attendance and letter of appointment of respondent No. 1 was with M/s Security and Protection Services, Varanasi and due to non-impleadment of M/s Security and Protection Services, Varanasi the Tribunal-cum-Labour Court erred in giving benefit of the same to the respondent-workman.
25. The counsel for the respondents has placed reliance upon the decision in (I) R.K. Panda and Ors. v. Steel Authority of India and Ors. 1994 (69) F.L.R. 256; (2) Secretary, Haryana State Electricity Board v. Suresh and Ors. ; (3) Bharat Heavy Electricals Ltd. v. State of U.P. and Ors. ; and (4) General Manager, Panki Thermal Power Station and Anr. v. Labour Commissioner and Anr., 2003 (6) A.W.C. 5344, and submits that the case of the workman is fully covered by the aforesaid decision. It is further stated that he is entitled to the relief of reinstatemnent in service because of admitted facts in the statement and cross-examination of A.G.M.T.D., Azamgarh Sri Jawahar Lal (Annexure S.A. 4) that the workman had worked in the department but through contractor and that now the work is being taken by another contractor's workmen for security purposes. On this basis he submits that there is no doubt that the workman had not worked for T.D., Azamgarh from 10.9.1996 to 31.5.1999 and concludes by saying that finding of fact recorded by the Tribunal-cum-Labour Court is based upon material which cannot be frustrated by the petitioners on the basis of false argument and that the High Court should not interfere with the finding of fact. In this regard he has placed reliance upon the decision rendered in General Manager, Panki Thermal Power Station and Anr. v. Labour Commissioner and Anr., 2003 (6) A. W.G 5344 (supra).
26. He then submits that the Labour Court has given a finding of fact that the agreement was extended only upto 31.10.1997 and it was a sham contract. He submits that the security agency only played its role of intermediary and that in fact the workman always worked under the effective and direct control of the department. He has placed letter dated 28,8.2000 (Annexure S.A. 1 to Supplementary Affidavit filed by the petitioners) written by the General Manager Telecom (East), Varanasi to the Deputy General Manager Telecom, Azamgarh enquiring about the agreement with M/s Security and Protection Services, Varanasi with the petitioner-department in connection with posting of Security Guards by security agency and submits that it is itself a proof of frustrating the genuine claim of the workman by the department and the Tribunal-cum-Labour Court has rightly drawn a conclusion against the employers after appreciating the documentary and oral evidence brought on record by the workman.
27. The counsel for the respondents has also relied upon paragraph nos. 5, 8, 10, 11, 13 and 14 of the counter affidavit and has urged that Sri Jawahar Lal had in his evidence admitted that the work of Security Guard is now being done by another contractor, hence it is undisputed that the work for the respondent-workman is available. He submits that as order of dismissal of impleadment application was never challenged by the petitioners their effects to implead the Security Agency was merely a camouflage in order to harass him as the petitioners did not make a single effort to follow the direction of the Labour Court for examination and cross-examination of Sri S.N.Singh, the contractor. He submits that the petitioners completely failed to prove that he was an employee of the Security Agency, as such the contract was only a camouflage.
28. It is urged that relationship of master and servant is fully proved as Union of India was making direct payment to respondent-workman and there was complete control of the Government over him, therefore no other thing is required for proving the relationship of employee and employer between them.
29. It is lastly submitted that as the nature of work performed by him was permanent then the post was also apparently a permanent post, as such it is incorrect for the petitioners to say that no posts are available. Further the terms of the contract are contrary to the stand taken by the petitioners and extension letter dated 30.12.1997 is forged and fictitious paper as the petitioners did not produce the same in spite of directions of the Labor Court.
Conclusions:
The Tribunal-cum-Labour Court had rejected the application of the petitioners for impleadment of M/s Security and Protection Services, Varanasi dated 6.8.2001 vide order dated 7.9.2001 on an objection made by the workman himself, hence the Tribunal-cum-Labour Court could not give the award on the basis that the employers had not impleaded M/s Security and Protection Services, Varanasi as a party to the adjudication case. This finding is clearly erroneous and illegal and without application of mind.
It is evident that the employers had deposited the amount of T.A./DA, expenses and registry envelop etc. for summoning the contractor M/s Security and Protection Services, Varanasi for evidence in pursuance of the order of the Tribunal-cum-Labour Court but summons were not sent by the Labour Court even though the employers had complied with the order dated 17.1.2002 as is apparent from order dated 11.2.2002. Thus adverse view taken by the Tribunal-cum-Labour Court against the petitioners for not producing the contractor for evidence before the Tribunal-cum-Labour Court is perverse, against the record and cannot be sustained.
30. The contention of the counsel that no effort was made by the petitioners for compliance of the orders of the Tribunal-cum-Labour Court dated 17.1.2002 is incorrect and against the record.
31. The workman had not impleaded the contractor, his real employer, as a party to the adjudication case and as such the case of the workman must fail for non-joinder of necessary and proper parties.
32. The only ground for saying that the contract with M/s Security Agency was a sham contract is that it is not registered under the Contract Labour Regulation and Abolition Act.
33. It is not in dispute that the Security Agency is registered under the Shops and Commercial Establishment Act, 1963. Whether in the facts and circumstances of the case the contractor was required to be registered under the Contract Act and what would be the effect of non-registration ?
34. The parties have placed heavy reliance on the statement of Sri Jawahar Lal, G.M. (Telecom) each interpreting his statement in his favour. Therefore, the case of the respondent vis-a-vis the statement of Sri Jawahar Lal may be examined.
35. Sri Jawahar Lal, Assistant General Manager Telecom, in his evidence on affidavit has stated that there was temporary need of Security Guards as such a tender was published on 19.04.1996. In pursuance thereof an agreement was signed on 10.9.1996 with with M/s Security and Protection Services, Varanasi. The contractor was a registered contractor under the Shops and Commercial Establishment Act and the workman was appointed and posted by him in the department. It was stated that, Jagdish Singh was authorized by the contractor to receive payment and all payments were made through him. There was no privity of contract or relation of master and servant between the workman and the department, as such after expiry of work/project, which was of temporary nature no question of permanent appointment or reinstatement in the department arises. The department never appointed the workman. He was trying to get employment in a Central Government establishment by back door entry which is neither possible nor permissible as appointment in the department is made in accordance with the procedure provided in the recruitment rules. Referring to the question of attendance and supervision he stated that the attendance sheet filed by the plaintiff and verified by a subordinate officer of the department is only for the sake of payment of workman concerned and nothing else.
36. In the cross-examination he stated that the contractor had provided the services of the workman concerned. He allotted them duties and their attendance was verified to prevent any difficulty arising in payment of the bills. Work of Security Guard is still given on contract basis when requried and the contractors therefore keep changing. He denied that he appointed the employee and work of security services was given on contract to protect the department
37. It is evident from the evidence and the perusal of the statement of Jawahar lal that he has nowhere admitted in his evidence that he had appointed the workman concerned or had admitted that they had worked under his supervision and control. There is not even an iota of evidence that the department ever supervised the working of the workman or it could take any disciplinary proceedings against the security guards.
38. The workman also has admitted in his evidence that he had not been given any appointment letter and had not appeared in any written examination and interview for appointment in the department but further stated that he does not know any contractor or Jagdish Singh and that he was not employee of the contractor. The latter part of his statement appears to be incorrect as had he been the employee of a Central Government department his name must be on the rolls of establishment. He admittedly could not prove before the Labour Court that there are any sanctioned posts of security guards and the Government had accorded financial approval for such posts. If he was a Government employee he could have produced his pay slips, provident fund account number and E.S.I. records etc. in support of his case that he was an employee of the Telecom Department. On the contrary from the various clauses of the contract it is apparent that he was an employee of the contractor and worked under him and was paid by the contractor. The relevant clauses of the contract are as under:-
l Je foHkkx }kjk eWgxkbZ] HkRrksa esa o`f) gksus ij mldh izfrfuf/k miyC/krk ij le;≤ tks Hkh c<+ksrrjh gksxh mld fu;ekuqlkj Hkqxrku lqj{kk ,tsalh dks dj fn;k tk;sxk A n- osru esa flD;ksfjVh ,aM izksVsD'ku ds uke o muds }kjk izkf/kd`r O;fDr dks ps @ ;k vko';drkuqlkj dS'k }kjk izR;sd ekg ds izfke lIrkg esa fcy izLrqr djus ij Hkqxrku dj fn;k tk;sxk A lqj{kk xkMksZ ds Hkqxrku dh ftEesnkjh lqj{kk ,tsalh dh gksxh A 2 O;oLFkk %& v- lqj{kk ekxZ canwd /kkjh fm;wVh ds le; LoPN onhZ esa viuh ifjp; i= ,oa ykblsal ,oa canwd ds lkFk mifLFkfr~ jgsxsa vko';drkuqlkj vkns'k feyus ij M.Mkk/kfj;ksa ds lkFk canwd/kkfj;ksa dh Hkh O;oLFkk djuh gksxh A gM+rky @ rksMQksM vkfn ds le; vfrfjDr lqj{kkxkMZ vksn'kkuqlkj miyC/k djkus gksxsa A ftldk ,djkjukesa dh nj ls Hkqxrku fd;k tk;sxk A c- lqj{kk xkMZ fo'ks"k ifjfLFkfr;ksa esa tSls dh Hkkjh HkhM+ twywl iFkjko @ vkxtuh @ minzo vkfn ds le; rqjUr iz'kklu dks lwpfr djsxs vkSj LFkfr dh xEHkhjrk ds vuqlkj lqj{kk dh n`f"V ls eq[; }kj dks can djxsa vkSj lkFk esa enn ds fy; 'kh/kz gh iqfyl dh O;oLFkk djk;h tk;sxh rkfd vjktd rRoksa }kjk foHkkxh; lekuksa dk rksM+ QksM+ foHkkxh; u gks ldk A ;fn fdlh izdkj dh xM+cM+h gks gh tkrh gS rks ljq{kk vf/kdkjh ekeys dh tkap djds nks"kh O;fDr ds fo:) ,Q-vkbZ-vkj- ntZ djk;saxs lkFk gh dk;ksZ esa ;fn dksbZ foHkkxh; O;fDr 'kkfey gksrk gS rks mldh fjiksVZ rqjUr iz'kklu dks nsxsa A l- dSls @ dk;kZy; @ nwjHkk"k dsUnz dh lqj{kk %& laLFkk izgjh tks dS'k dh lqj{kk gsrq rSukr jgs A mudh iwjh ftEesnkjh gksxh fd 24 ?kaVs dS'k dkmUVj dS'k psLV dh fof/k;d fuxjkuh j[ksxs dk;kZy; vof/k ds ckn rFkk vodk'k ds fnu Hkh dS'k @ dk;kZy; @ nwjHkk"k dsUnz dh lqj{kk gM+rky esa djuk izgjh dh ftEesnkjh gksxh A n- ,d lqj{kkdehZ fdlh jkT; ;k dsUnz ljdkj ds deZpkjh ugha ekus tk;sxsa vkdfLed nq?kZVuk o e`R;q vkfn dh iwjh ftEesnkjh lqj{kk ,tsalh dh gksxh A dS'k ys tkrs le; rFkk dSf'k;j dsl lkFk de ls de nks canwd /kkfj;ksa ,d lkFk vlygs rks rksM+ djds tk;saxs vkSj dSf'k;j dS'k ds lkFk chp esa jgsxsa lqj{kk xkMZ vkius vlygksa dk bLrseky lqj{kk dh n`f"V ls dj ldsaxs A 'kke dks dS'k psLV ;dhu fd;k tk;sxk dh dS'k psLV Bhd <ax ls can gS vkSj mldh pkfFk;ka lacaf/kr deZpkjh @ vf/kdkjh ds gh ikl gS] vU; ds ikl ugha fM;wVh ds le;
lk/kkj.kr;k lqcg 6 cts ls 2 cts rd] 2 cts ls 10 cts rd ,oa 10 cts jkf= ls vxys fnu lqcg 6 cts rd gksxh A fo'ks"kk ifjfLFkfr;ksa esa lqj{kk izgjh ;fn vodk'k ij pyk tkrk gS ;k vLoLFk vFkok vuqifLFkfr gks tkrk gS rks mlds LFkku ij nwljk lqj{kk xkMZ tks fM;wVh ij rSukr jgsxk foHkkx vuqcaf/kr ns; nj dks izfr ?kaVs dh nj ls Hkkx djus ij fM;wVh dk osru Hkqxrku fd;k tk;sxk ;fn vko';drkuqlkj fo/kkfjr le; ls T;knk fM;wVh le; vko';drkuqlkj cnyh dh tk ldrh gS A n- lqj{kk xkMZ eq[; /kkjk ij rSukr jgsxsa ,oa ogka j[ks jftLVj esa foHkkxh; lkekuk ij ckgj tkus ,oa vkus dk fjdkMZ j[ksxsa A lkFk gh lkekuksa dks ckgj tkus gsrq lacaf/kr vf/kdkjh }kjj fn;s x;s funsZ'k ;k xsVikl ds vuqlkj gh lkeku ckgj tkus nsxsa fdlh izkdj dk lansg gksus ij laacaf/kr vf/kdkjh dks lwfpr djsxsa A c- lqj{kkxkMksZ dh fu;qfDr o mudh inP;qr djus dk vf/kdkj lqj{kk ,tsUlh }kjk fu;qDr flD;ksfjVh ds ikl ekStwn jgsxk A ,oa ;fn dksbZ lqj{kkdehZ vuq'kklughu ik;k tkrk gS mldh cnyh djuk lqj{kk ,tsalhdh ftEesnkjh gksxh A j- daVksfyx vkQhlj Mh-vks-Vh- ds izfr tokc nsgh %& lqj{kk izgjh vkfQl o nwjHkk"k dsUnz pktZ ds daVksfyax vFkkVhZ ds lkFk lEidz esa jgsaxs A rFkk le;≤ ij ifjfLFkfr;ksa ds vuqlkj vuds }kjk fn;s x;s funsZ'kksa dk ikyu djsxsa A daVksfyax vFkkVhdk dk ;g nkf;Ro gksxk fd lqj{kk xkMksZ dh mifLFkfr dks le;≤ ij psd djrs jgs ,oa fdlh izkdj dh f'kfFkyrk ik;s tkus ij rqjur l[ke vf/kdkjh dks fjiksVZ djsa A lqj{kk izgjh dh mifLFkfr dks lR;kfir dj okafnr lkfVZfQdsV ds lkFk fcy Hkqxrku gsrq lacaf/kr nwj lapkj ftyk izca/kd dk;kZy; @ eaMy vfHk;ark dks Hkqxrku gsrq vxzlkfjr djsxsa A y- /kjksgj jkf'k %& lqj{kk ,tsUlh }kjk tekur ds :i esa nks 2 yk[k :i;s dh cSad xkj.kVh tek dj nh x;h gS A tks fd ofj"B ys[kkf/kdkjh dS'k egkizca/kd nwj lapkj iwoZ okjk.klh ds ikl tekur ds :i esa tek jgsxh A c- xu @ dkjrql @ VkpZ vkfn dh O;oLFkk %& lqj{kk ,stsUlh lqj{kk xkMksZ dks xu o dkjrql igpku i= o onh vkfn dh O;oLFkk djsxh mifLFkr jftLVj o VkpZ lsy vkfn dh tks vko';drk gksxh foHkkx dh vksj ls daVksfyax vkQhlj }kjk miyC/k djk;k tk;sxk A g0 viBuh;
,l-,u- flag ds- jke fnukad 10-09-1996 funs'kd lgk;d egkizca/kd iz'kklu flD;ksfjVh ,aM izksVsD'ku dk;kZy; egkizca/kd nwj lapkj lfoZlst okjk.klh miz iwoZ okjk.klh miz izfrfyfi %& i=kad %& th,lVh iwoZ lqj{kk xkMZ @ Vs.Mj @ 96 &97 okjk.klh fnukad 10-09-96 laiw.kZ ftyk izca/kd @ eaMy vfHk;ark nwj lapkj iwoZ dks bl vk'k; ls izsf"kr gS fd vki lc fnukad 10-04-1996 ls bl lqj{kk ,tsUlh ls layXu gS mfYyf[kr nwj Hkk"k dsUnzksa dh lqj{kk xkMZ dh lsok;sa rRdky izHkko ls ysus dk d"V djsa A lkFk gh ;fn blls igys fdlh vU; lkslsZt }kjk lqj{kk lsok;sa yh tk jgh Fkh mls vfoyEc fujLr le>k tk; A g0 vLi"V 10-09-1996 lgk;d egkizca/kd iz'kklu dk;kZy; egkizca/kd nwjlapkj iwoZ okjk.kklh A
39. The judgment in Air India Statutory Corporation v. United Labour Union and Ors. 1996 (11) S.C. 170 by the Hon'ble Supreme Court has been overruled by it in Steel Authority of India Ltd. v. N.E.W.F Workers, 2001 (91) F.L.R. 182, as such the Tribunal-cum- LabuuV Court committed an illegality in relying upon the ratio laid down by the Hon'ble Supreme Court in the case of Air India Statutory Corporation (supra).
40. The cases cited by the workman, i.e., (1) R.K. Panda (2) Secretary, Haryana State Electricity Board and (3) Bharat Heavy Electricals Ltd. (supra) are clearly distinguishable, as they do not apply to the facts and circumstances of this case. The case of General Manager, Panki Thermal Power Station and Anr. v. Labour Commissioner and Anr. (supra), relied upon by the respondent is also not applicable as it does not lay down that under Article 226 of the Constitution High Court cannot interfere in the matter where the court below has taken an illegal view or has given finding of fact which is perverse and against the law.
41. The contract with M/s Security and Protection Services subsisted upto 30.5.1999 and was not a sham contract. The findings of the Tribunal-cum-Labour Court having been arrived at overlooking the material on record are perverse and liable to be quashed.
42. After noticing the scheme of the Contract Labour (Regulation and Abolition) Act, 1970 and the judicial approach after enactment of the aforesaid Act, the Hon'ble Supreme Court found no substance in the arguments that a combined reading of the definition of the terms 'contract labour', 'establishment' and 'workman' would show that a legal relationship between a person employed in an industry and the owner of the industry is created irrespective of the fact as to who has brought about such relationship. After considering the decision in Dena Nath & Others v. National Fertilizers Ltd. and Ors., 1992 (64) F.L.R. 39, wherein a two-judge bench of the Hon'ble Supreme Court considered the question, whether as a consequence of non-compliance of Sections 7 and 12 of the CLRA Act by the principal employer and the licensee respectively, the contract labourers employed by the principal employer would become the employees of the principal employer, it was held that neither the Act nor the rules framed by the Central Government or by any appropriate Government provided that upon abolition of the contract labour, the labourers would be directly absorbed by the principal employer. The Court also noted the case of R.K.Panda (supra) and observed that contract labourer was employed at Rourkela Plant of the Steel Authority of India through contractors and continued in employment for long periods - between 10 and 20 years - as contract labourers. It was found that though the respondents were changing the contractors, yet under the terms of the agreement the incoming contractors were obliged to retain the contract labourers engaged by the outgoing contractors. That apart, for about eight years the contract labourer was continued to be employed by virtue of the interim order of this Court. It was noticed that in B.H.E.L. Workers' Association, Hardwar and Ors. etc. v. Union of India and Ors. etc., Mathura Refinery Mazdoor Sangh through its Secretary v. India Oil Corporation Ltd., Mathura Refinery Project, Mathura and Anr., and the Dena Nath's case (supra), on the question - whether the contract labourers had become the employees of the principal employer in course of time or whether the engagement and employment of labourers through a contractor was a mere camouflage and a smoke- screen - this Court took the view that it was as question of fact and had to ' be established by the contract labourers on the basis of the requisite material in the industrial court or industrial tribunal. However, having regard to the various interim orders passed by this Court and the time taken in deciding the case, this Court considered the matter on merits and on the basis of the offer made by the respondents, which was recorded, issued certain directions which need not be quoted here. However, no order was made directing absorption of contract labourers on abolition of contract labour system.
43. After noticing the judgments in National Federation of Railway Porters, Vendors & Bearers, 1995 (71) F.L.R. 75; Mathura Refinery Mazdoor Sangh; 1991 (62) F.L.R. 425; and Association of Chemical Workers, Bombay, 1995 (71) F.L.R. 79, the Court considered the ratio of Air India Statutory Corporation, (supra). The apex court in the Steel Authority of India, 2001 (91) F.L.R. 182, held that with due respect they are unable to agree with their reasoning or conclusions given in Air India Statutory Corporation (supra). The Court proceeded to determine whether on a contractor engaging contract labourer in connection with the work entrusted to him by a principal employer, the jelationship of master and servant between him (the principal employer) and the contract labour emerges. After considering the cases in The Maharashtra Sugar Mills, Shivnandan Sharma, The Saraspur Mills, Basti Sugar Mills and Hussainbhai, Calicut, the Court held in paragraph 109 as under: -
"We find no substance in the next submission of Mr. Shanti Bhushan that a combined reading of the definition of the terms 'contract labour' 'establishment' and 'workman' would show that a legal relationship between a person employed in an industry and the owner of the industry is created irrespective of the fact as to who has brought about such relationship."
44. In paragraph 112 the Court further held as under: -
"We have also perused all the rules and forms prescribed thereunder. It is clear that at various stages there is involvement of the principal employer. On exhaustive consideration of the provisions of the CLRA Act we have held above that neither they contemplate creation of direct relationship of master and servant between the principal employer and the contract labourer nor can such relationship be implied from the provisions of the Act on issuing notification Under Section 10(1) of the CLRA Act, a fortiorari mush less can such a relationship be found to exist from the rules and the forms made thereunder."
45. In its conclusion and up-shot of the discussion the Court in paragraph 117 (3) and (4) held that: -
"117. The up-shot of the above discussion is outlined thus:
(1) (a) Before January 28, 1986, the determination of the question whether Central Government or the State Government, is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression "appropriate Government" as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry; or the establishment of any railway, cantonment board, major port, mine or oil-field or the establishment of banking or insurance company? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government,
(b)...
(2) (a) ...
(1)...
(2) having regard to-
(i)
(ii)
(b)...
(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labourer on issuing a notification by appropriate Government under Sub-section (1) of Section 10, prohibiting employment of contract labourer, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labourer working in the concerned establishment.
(4) We overrule the judgment of this Court in Air India's case (supra) prospectively and declare that any direction issued by any industrial adjudicator/any court including High Court, for absorption of contract labourer following the judgment in Air India's case (supra) shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5)...
(6)... "
46. In the instant case, it is evident from record that the only ground for holding that the contract was a sham contract, the reason given by the Tribunal-cum-Labour Court that the contract did not subsist for the period in question as it was not extended, as such the contract labour of the Security Agency became the employees of the principal employer as during the aforesaid period they were working under the direct control and supervision of the principal employer.
47. This finding of the Tribnnal-cum-Labour Court is wholly erroneous and against the material on record as it is apparent that the documents relating to extension of the contract were filed before the Tribunal-cum-Labour Court as well as this Court. The Tribunal-cum- Labour Court has overlooked the documents regarding extension of the contract period. Even if it is assumed that the principal employer and the contractor, i.e., Security Agency has not taken licence under the Contract Labour (Regulation And Abolition) Act, 1970 for employment of contract labour at the most they can be prosecuted under the provisions of the Contract Labour (Regulation And Abolition) Act, 1970 but in view of Dena Nath's case there cannot be automatic conversion/absorption of the contract labour as employee of the principal employer. Regard be also given to the fact that a Government establishment has its own recruitment rules. Admittedly there is no sanctioned post of Security Guards and it has been found by the Tribunal-cum-Labour Court that the workers were initially employed from the very beginning through the contractor as its employees,
48. In Allahabad Jal Sansthan v. Daya Shankar Rai, , the Hon'ble Supreme Court in paragraph 16 held as under: -
"Earlier, in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now, with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively; while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered, but the golden mean may be arrived at."
49. Similarly in the case of State of V.P. v. Jai Bir Singh, , it has been held: -
"Exploitation of workers and the employers has to be equally checked. Law and particularly industrial law needs to be so interpreted as to ensure that neither the employers nor the employees are in a position to dominate the other. Both should be able to cooperate for their mutual benefit in the growth of industry and there by serve public good...An overexpansive interpretation of the definition of 'industry' might be a deterrent to private enterprise in India where public employment opportunities are scarce. The people should, therefore, be encouraged towards self-employment."
50. Same thoughts are echoed in the judgment of the Hon'ble Supreme Court rendered in Manager, RBI, Bangalore v. S. Mani, , wherein it has been held:-
"Grant of relief must depend on the fact situation obtaining in a particular case. The industrial adjudicator cannot be held to be bound to grant some relief only because it will be lawful to do so...A direction for reinstatement for non-compliance with the provisions of Section 25F of the Industrial Disputes Act would restore to the workman the same status which he held when terminated."
51. Regard may also be had to Haryana State Coop. Land Development Bank v. Neelam, , wherein in paragraph 18 the apex court said as under: - ! "The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a" workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio."
52. Thus, the aforesaid decisions show that a pragmatic approach has been taken by the apex court that it has to be seen that neither the employer nor the employee be exploited. It is evident from the record that the respondent-workman was an employee of the contractor, i.e., M/s Security and Protection Services, Varanasi and not of the principal employer and his contract was subsisting. The contract labour has not been abolished in the department by any notification and even if there had been any notification abolishing the contract labour, the workman would not have acquired the status of a permanent workman of the department and deemed to have been absorbed.
53. It is also apparent that he wants service in a Government establishment by back door entry through industrial dispute. Such tendency which has recently been developed has been deprecated by the Hon'ble Supreme Court in the case of Surendra Kumar Sharma v. Vikas Adhikari and Anr. , wherein it has been held that by virtue of appointment of the petitioners in such scheme/project/programme the employee has no legal right and on the abolition of the scheme/project/programme the post automatically abolishes particularly when there is specific terms that the services of the petitioners were temporary in nature and co-terminus with the scheme itself. The apex court has held:
"The court can take judicial notice of the fact that such employment" is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules and is continued for 240 or more days with a view to give the benefit of regularization knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularized. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the employment exchanges for years. Not all those who gain such back door entry in the employment are In need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospectus. That is why most of the cases which come to the courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of surplus labour. The other equally injurious effect of indiscriminate regularization has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 of more days have to be absorbed as regular employees although the works are time bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardized on both counts." (SCC pp 111-12, para 23)
54. Every principal employer has a right to supervise the work of a contract labour supplied by him for payment of wages as he is paid through the contractor for work done through him. Supervision and -control by principal employer will not turn a labour/workman supplied by the contractor a regular and permanent employee of the Government Corporation which has its own rules for recruitment, The supervision and control by a principal employer are must, but cannot be stretched to the extent of converting a contractor workman into an employee of the department under the provisions of Contract Labour (Regulation and Abolition) Act, 1970. As stated in the case of Hindustan Steel Works Construction Ltd. (Supra) the liability of the principal employer is limited to payment of wages to contract labour if there is default in payment of his wages and no more.
55. From a perusal of the terms of contract it is evident that the liability for payment to the Security Guards was of the security agency. The Security Guards are not to be treated as the employees of State Government or of Central Government and the entire responsibility was of the security agency, i.e., M/s Security and Protection Service, Varanasi. It further provides that in special circumstances if a security guard proceeds on leave or falls ill or remains absent in his place another security guard will be deployed by the security agency which establishes that the security guards are the employees of M/s Security and Protection Service, Varanasi and are under the complete control and supervision of the security agency and there is no privity of contract of the security guards including the respondent-workman with the petitioners and there is no relationship of master and servant between them.
56. It will be the responsibility of the controlling authority to check the attendance of the security guards from time to time and on finding any laxity of any kind whatsoever to repport immediately to the competent authority and after certifying the attendance of the security guards the bill accompanied by the required certificate will be forwarded to the office of the concerned District Manager Telecom/Divisional Engineer for payment to security guards.
57. Even if the security agency was not registered under the Contract Labour (Regulation and Abolition) Act, 1970 the registering authority could have proceeded against him under the provisions of the aforesaid Act. It has to be seen as to who had appointed them as per law laid down by the apex court in Dena Nath's case (supra). The respondent-workmen had not impleaded the security agency which was their real employer by raising the industrial dispute and they cannot be treated as the employees of the principal employer merely because according to the perverse finding of the Tribunal-cum-Labour Court the Department had not been able to produce the proprietor of the agency. As stated earlier the findings of the Tribunal-cum-Labour Court are against the record as the impleadment application filed by the petitioners was firstly rejected by the Tribunal-cum-Labour Court and thereafter it did not issue summons in spite of the fact that it had taken steps in pursuance of the order of the Tribunal-cum-Labour Court dated 17.1.2002.
58. The decision of the Hon'ble Supreme Court in Hindustan steel Works Construction Ltd. v. The Commissioner of Labour and Ors. 1996 (74) F.L.R. 2151, may be referred to wherein it has been held that Under Sections 21(4), 18, 19 and 20 read with Rules 21 and 25(v) (a) the responsibility of payment of wages to the employees engaged by a contractor is on him. The principal employer is liable to make payment only on default of payment by the contractor. The "principal employer" will not become the "immediate employer" of the workman as "Section 21(4) will not apply to such obligations of the contractor which may be subject matter of dispute between the contractor and his workers.
59. After" going through the various judgments of the Hon'ble Supreme Court a Full Bench of this Court in Lal Mohammad v. Indian Railway Construction Co. Ltd. and Ors., 2004 (1102) F.L.R. 124, held that the employees who are employed in a project against a short term appointment are not entitled to be absorbed in any other project of company. It is further held therein that taking into consideration the amendments incorporated in the Industrial Disputes Act it is obvious that closure of a project or scheme by the State Government would be covered by closing down of undertaking within the meaning of Section 25FFF. The workman would therefore be entitled to notice and compensation in accordance with the provisions of Section 25F though the right of employer to close the undertaking for any reason whatsoever cannot be questioned and compliance of Section 25F shall be subject to such relaxations as are provided by Section 25FFF.
60. Since the respondents are workers of the security agency they cannot be regularized in service of the petitioners which is a Government Corporation. The petitioners had not terminated their services and the principal employer cannot be fastened with the liability to appoint the respondents as security guards in their department particularly in view of the fact that the respondents had failed to prove before the Tribunal- cum-Labour Court that there was sanctioned posts of security guards against which they were working in the petitioner establishment. They were appointed only for a temporary need of security till the project of the Telecom Department for up-gradation of the office of General Manager was over. Their services had come to an end on expiry of the period of contract entered into by their immediate employer with the petitioners and does not vest in them any legal right for absorption in Government department which has its own rules and regulations.
61. The findings of the Tribunal-cum-Labour Court are illegal, perverse and without application of mind. They cannot be sustained for the reasons given above and the award is liable to be quashed.
62. For these reasons, this writ petition is allowed. The impugned award in I.D. No. 39/2001 is quashed. No. order as to costs.