MAMTA Vs. GOVT OF NCT

JUDGEMENT

(1.) MA 888/2014 and MA 1571/2014 Misc. Applications filed under Section 4(5) of the Central Administrative Tribunal (Procedure) Rules, 1987 for joining together in single original application are not opposed, thus the same are allowed. MA 1045/2014 Applicants have filed MA seeking permission to file documents with affidavit. For the reasons stated therein, MA is allowed. The present Original Applications raise same issues of law, thus are taken up together for disposal by a common order. The applicants herein were engaged for housekeeping service by different contractors. Their services were utilized in Acharyashree Bhikshu Govt., Hospital, Moti Nagar, New Delhi -110015. In the present Original Applications filed by them under Section 19 of the Administrative Tribunals Act, 1985, they have sought issuance of direction to respondent No. 2 not to dispense with their services till the Committee constituted under the Chairmanship of Chief Secretary redresses their grievance. The respondents No. 1 and 2 raised a preliminary objection that the applicants are not their employees and the present Original Applications filed by them under Section 19 of the Administrative Tribunals Act, 1985 are not maintainable. Mr. Amit Anand, learned counsel for respondents No. 1 and 2 also submitted that the applicants have already approached the Industrial Tribunal, Karkardooma Court, Shahdara, Delhi raising the plea under Contract Labour (Regulation and Abolition) Act, 1970 (for short CLRA). To meet the preliminary objections put forth on behalf of Respondents, Mr. Mahesh Srivastava, learned counsel for applicants made reference to judgments of Hon'ble Calcutta High Court (Special Bench) in Awadhesh Singh v. Union of India and Others, Ramjee Shaw @ Gopal Shaw and Another v. Union of India and Others, Ashok Kumar and Others v. Union of India and Others and Joy Hind Prasad and Others v. Union of India and Others W.P No. 21119 (W) with W.P. No. 623 (W) of 2011, W.P. No. 7268 (W) of 2011 and W.P. No. 10319 (W) of 2011, 2013 (5) SLR 734 (Cal) and the judgment of Hon'ble Supreme Court in Union of India and Others v. Subir Mukharji and Others, : AIR 1998 SC 2247 : (1998) 5 SCC 301 : LNIND 1998 SC 502 : 1998 -II -LLJ -238. With reference to the said judgments, he emphasized that the grievance raised by the applicants is amenable to jurisdiction of this Tribunal. He also submitted that the grievance raised by the applicants before the Industrial Tribunal pertains to regularization and abolition of the contract, while in the present case, the prayer made by them is to issue direction to respondent No. 2 to continue their services.

(2.) WE heard learned counsel for parties and perused the record. It is not in dispute that the Govt. of NCT of Delhi has outsourced the work performed by applicants to the contractors and the applicants were engaged through the contractors to provide contractual service to respondent No. 2. In other words, these are the contractors who have been assigned the contract from time to time to discharge the contractual work as per the terms and conditions of the contract and the services of the applicants herein are utilized by them to perform their contract. The applicants are not the employees of respondents No. 1 and 2. These are the contractors only who can be said to be providing the services to respondents No. 1 and 2 and the applicants cannot be said to be either holding any post or rendering any service in connection with the affairs of respondents No. 1 and 2. As has been ruled by Hon'ble Supreme Court in R.K. Panda v. Steel Authority of India, : (1994) 5 SCC 304 : LNIND 1994 SC 516, whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, is a question of fact and has to be established by the contract labourers on the basis of requisite material and it is not possible for Hon'ble High Court or the Supreme Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions only on the basis of the affidavits. In terms of the view taken by Hon'ble Supreme Court in said case, at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contract from the scene, is a matter which has to be established on material produced before the Court and normally the Labour Court and the Industrial Tribunal under the Industrial Disputes Act are the competent fora to adjudicate such disputes on the basis of the oral and documentary evidence produced before them. Para 6 and 7 of the judgment read as under: "6. In the case of B.H.E.L. Workers' Assn. v. Union of India, it was pointed out that Parliament has not abolished the contract labour as such but has provided for its abolition by the Central Government in appropriate cases under Section 10 of the Act. It is not for the Court to enquire into the question and to decide whether the employment of contract labour in any process, operation or other work in any establishment should be abolished or not. That has to be decided by the Government after considering the relevant aspects as required by Section 10 of the Act. Again in the case of Mathura Refinery Mazdoor Singh v. Indian Oil Corpn. Ltd.', this Court refused to direct the Indian Oil Corporation Ltd., to absorb the contract labourers in its employment, saying that, the contract labourers have not been found to have direct connection with the refinery. In other words, there was no relationship of employer and employee between the Indian Oil Corporation Ltd., and the contract labourers concerned. Again in Dena Nath v. National Fertilisers Ltd., this Court pointed out that the aforesaid Act has two purposes to serve - (i) to regulate the conditions of service of the workers employed by the contractor who is engaged by a principal employer and (ii) to provide for the abolition of contract labour altogether, in certain notified processes, operation or other works in any establishment by the appropriate Government, under Section 10 of the Act. It was further stated that neither the Act nor the Rules framed by the Central Government or by any appropriate Government provide that upon abolition of the contract labour, the labourers would be directly absorbed by the principal employer. 7. It is true that with the passage of time and purely with a view to safeguard the interests of workers, many principal employers while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact such a condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself give rise to a right to regularisation in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contractor from the scene, is a matter which has to be established on material produced before the court. Normally, the Labour Court and the Industrial Tribunal, under the Industrial Disputes Act are the competent fora to adjudicate such disputes on the basis of the oral and documentary evidence produced before them. The jurisdiction of this Tribunal in the matters covered by Section 14 of the Administrative Tribunals Act, 1985 is ancillary to that of Hon'ble High Court under Article 226 of the Constitution of India. Also in CIPLA Ltd. v. Maharashtra General Kamgar Union and Others, : AIR 2001 SC 1165, it could be viewed that the matter of abolition of contract labour in the process of housekeeping and maintenance of the premises of the factory can be agitated only under the provisions of Contract Labour (Regulation and Abolition) Act, 1970. In the said case, even the Labour Court dismissed the complaint filed by the Maharashtra General Kamgar Union and Others taking the view that there was remedy to move an application under Section 10 of CLRA. Further view taken by Hon'ble Supreme Court in said case is that the Central Government or the industrial tribunal, as the case may be, can only direct the abolition of the contract labour system as per the provisions of Act but it does not permit either of them to declare the erstwhile workmen of the contract to be the employees of the principal employer and as to what could happen to an employee engaged by the contractor if contract employment is abolished is another moot question. Para 7 to 11 of the judgment of Hon'ble Supreme Court read as under: 7. In this Court it was submitted that the High Court had proceeded entirely on wrong lines. In Gujarat Electricity Board, Thermal Power Station, Gujarat v. Hind Mazdoor Sabha (supra) the question raised was whether the workers whose services were engaged by the contractors but who were working in the thermal power station of the Gujarat Electricity Board at Ukai can legally claim to be the employees of the Gujarat Electricity Board. The industrial tribunal had adjudicated the matter and held that the workmen concerned in the reference could not be the workmen of the contractors and, therefore, all the workmen employed by the contractor should be deemed to be the workmen of the Board. The industrial tribunal also gave consequential directions to the Board for payment of wages, etc. The award of the industrial tribunal was upheld by the High Court in appeal. The contention put forth before this Court was that after coming into force of the Act it is only the appropriate Government, which can abolish the contact labour system after consulting the Central Board or the State Board, as the case may be, and no other authority including the industrial tribunal has jurisdiction either to entertain such dispute or to direct abolition of the contract labour system and neither the appropriate Government nor the industrial tribunal has the power to direct that the workmen of the erstwhile contractor should be deemed to be the workmen of the Board. The Central Government or the industrial tribunal, as the case may be, can only direct the abolition of the contract labour system as per the provisions of the Act but it does not permit either of them to declare the erstwhile workmen of the contract to be the employees of the principal employer. As to what would happen to an employee engaged by the contractor if contract employment is abolished is another moot question yet to be decided by this Court. But that is not a point on which we are called upon to decide in this matter. 8. But one thing is clear - if the employees are working under a the Contract Labour (Regulation and Abolition) Act then it is clear that the labour court or the industrial adjudicating authorities cannot have any jurisdiction to deal with the matter as it falls within the province of an appropriate Government to abolish the same. If the case put forth by the workmen is that they have been directly employed by the appellant - company but the contract itself is a camouflage and, therefore, needs to be adjudicated is a matter which can be gone into by appropriate industrial tribunal or labour court. Such question cannot be examined by the labour court or the industrial court constituted under the Act. The object of the enactment is, amongst other aspects, enforcing provisions relating to unfair labour practices. If that is so, unless it is undisputed or indisputable that there is employer -employee relationship between the parties, the question of unfair practice cannot be inquired into at all. The respondent union came to the Labour Court with a complaint that the workmen are engaged by the appellant through the contractor and though that is ostensible relationship the true relationship is one of master and servant between the appellant and the workmen in question. By this process, workmen repudiate their relationship with the contractor under whom they are employed but claim relationship of an employee under the appellant. That exercise of repudiation of the contract with one and establishment of a legal relationship with another can be done only in a regular industrial tribunal/court under the I.D. Act. 9. Shri K.K. Singhvi, the learned senior Advocate appearing for the respondent, submitted that under Section 32 of the Act the labour court has the power to decide all matters arising out of any application or complaint referred to it for the decision under any of the provisions of the Act. Section 32 would not enlarge the jurisdiction of the court beyond what is conferred upon it by other provisions of the Act. If under other provisions of the Act the industrial tribunal or the labour court has no jurisdiction to deal with a particular aspect of the matter, Section 32 does not give such power to it. In the cases at hand before us, whether a workmen can be stated to be the workman of the appellant establishment or not, it must be held that the contract between the appellant and the second respondent is a camouflage or bogus and upon such a decision it can be held that the workman in question is an employee of the appellant establishment. That exercise, we are afraid, would not fall within the scope of either Section 28 or Section 7 of the Act. In cases of this nature where the provisions of the Act are summary in nature and give drastic remedies to the parties concerned elaborate consideration of the question as to relationship of employer -employee cannot be gone into. If at any time the employee concerned was indisputably an employee of the establishment and subsequently it is so disputed, such a question is an incidental question arising under Section 32 of the Act. Even the case pleaded by the respondent -Union itself is that the appellant establishment had never recognised the workmen mentioned in Exhibit A as its employees and throughout treated these persons as the employees of the second respondent. If that dispute existed throughout, we think, the labour court or the industrial court under the Act is not the appropriate court to decide such question, as held by this Court in General Labour Union (Red Flag), Bombay v. Ahmedabad Mfg. and Calico Printing Co. Ltd. and Others (supra), which view was reiterated by us in Vividh Kamgar Sabha v. Kalyani Steels Ltd. and Another, : (2001) 1 SCALE 82. 10. However, Shri Singhvi very strenuously contended, by adverting to the scope of the Payment of Wages Act, 1936 and the scope of Section 32C(2) of the Industrial Disputes Act, that these questions can be gone into by the courts and, in this context, he relied upon the decision of the High Court of Bombay in Vishwanath Tukaram v. The General Manager, Central Railway. V.T., Bombay, 59 BLR 892. In determining whether the wages had been appropriately paid or not, the authority under the Payment of Wages Act was held to have jurisdiction to decide the incidental question of whether the applicant was in the employment of the railway administration during the relevant period. It means that at one time or the other the concerned employee was indisputably in employment and later on he was found to be not so employed and in those circumstances, the court stated that it was an incidental question to be considered. 11. Next decision relied upon by Shri Singhvi is the Central Bank of P.S. Rajagopalan etc., : (1964) 3 SCR 140, to contend that even in cases arising under Section 33 -C(2) of the Industrial Disputes Act the scope, though very limited, certain incidental questions can be gone into like a claim for special allowance for operating adding machine which may not be based on the Sastry Award made under the provisions of Chapter V -A. The learned counsel pointed out that in the event we were to hold that it is only in clear cases or undisputed cases the labour court or the industrial tribunal under the Act can examine the complaints made thereunder, the whole provision would be rendered otiose and in each of those cases provisions of the Bombay Industrial Relations Act, 1946 or the Industrial Disputes Act will have to be invoked. We are afraid that this argument cannot be sustained for the fact that even in respect of claims arising under Section 33 -C(2) appropriate dispute can be raised in terms of Section 10 of the Industrial Disputes Act and that has not been the position in the present case. Nor can we say that even in cases where employer -employee relationship is undisputed or indisputably referring to the history of relationship between the parties, dispute can be settled and not in a case of the present nature where it is clear that the workmen are working under a contract. But it is only a veil and that will have to be lifted to establish the relationship between the parties. That exercise, we are afraid, can also be done by the industrial tribunal under the Bombay Industrial Relations Act, 1946 or under the Industrial Disputes Act. Therefore, we are afraid that the contention advanced very ably by Shri Singhvi on behalf of the respondents cannot be accepted. Therefore, we hold that the High Court went far beyond the scope of the provisions of the Act and did not correctly understand the decisions of this Court in Gujarat Electricity Board, Thermal Power Station, Gujarat v. Hind Mazdoor Sabha (supra) and General Labour Union (Red Flag), Bombay v. Ahmedabad Mfg. and Calico Printing Co. Ltd. and Others (supra). The correct interpretation of these decisions will lead to the result, which we have stated in the course of this order."

(3.) IN Union of India and Another v. Chotelal and Others, : AIR 1999 SC 376 : (1999) 1 SCC 554 : LNIND 1998 SC 1234, the Hon'ble Supreme Court viewed that since the appointment of Dhobis who approached the Tribunal was not against the civil posts, the Administrative Tribunals Act, 1985 was not applicable to them. In the said case, it was also held that merely because the Commanding Officer exercised some control over such dhobi or dhobis, it could not be concluded that the posts held by them were civil posts. Para 3 to 7 of the judgment read as under: "3. In view of the rival contentions raised, the most crucial question that arises for consideration is what is the nature of the post against which the Dhobis get their appointment for discharging the duties of washing clothes of the cadets? From the terms and conditions of the letter of appointment issued to such Dhobis it is crystal clear that the appointments cannot be held to be one against any civil post. On the other hand it clearly indicates that the appointment is purely private payable out of Regimental Fund. Initially these Dhobis were being paid at a particular rate per cadet on the basis of actual number of cadets a Dhobi is required to serve, but later on a monthly salary, no doubt, has been fixed for being paid to such Dhobis. The terms of appointment, no doubt, vest certain control over such Dhobis on the Commandant of the Academy but nonetheless such control cannot impress the post of Dhobis with the character of a Civil post. It is also borne out from the record that each cadet is granted a monthly Dhobi allowance and the said allowance is put into a fund called 'Regimental Fund' under the management of Commanding Officer of the institution. At this stage it would be appropriate to notice some provisions of the Defence Services Regulation which would give an idea as to the characteristic of the Regimental Fund. Under Para 801 of the Regulation Public Funds have been defined as such: 801 (a) Public Funds - Include all funds which are financed entirely from public money, the unexpended balances of which are refundable to Government in the event of not being devoted to the objects for which granted, and also "(i) unissued pay and allowances; (ii) Office allowance fund; and (iii) the estates of deceased men and deserters."