RAMESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) By this writ petition, the petitioner has assailed the validity of order dated 18th July, 2006 passed by the appropriate Government. The order reads as under: <FRM>JUDGEMENT_1428_ILRDLH15_2006Html1.htm</FRM>

(2.) The factual matrix in which the petitioner has sought a reference of dispute by the government is as under: The respondent Indian Oil Corporation (IOC) had engaged the services of the haulage contractors on the basis of a public tender. The haulage contract was awarded to M/s Bharat Fabricators at Madanpur Khaden Plant in order to handle the miscellaneous works at the plant. The petitioners were employed by the contractor to do the work under the contractor. They were issued entry passes by the respondent IOC for entering into the bottling plant at Madanpur Khaden Plant as contract labour. The petitioners filed a statement of claim before the Conciliation Officer alleging that the petitioners were engaged for the various jobs by the management of IOC through its different agencies and the petitioners have been working without any break for the last many years for IOC. There was a substantial number of workmen of the class of the petitioners. The job being performed by the petitioners was of a permanent and perennial in nature however, the respondent in order to deprive the petitioners of equal wages employed the petitioners ostensibly through different agents. The said agents were and had always been only the name-lenders with no control of any kind over the workers. The petitioners have been working under direct control and supervision of the management. They were in continuous service of IOC for various period as stated in annexure giving the names of the petitioners, nature of work and the period for which the petitioners had worked. They were in fact the workers of IOC only because as per knowledge of the petitioners neither the management i.e IOC was registered under Contract Labour (Regulation and Abolition) Act nor the contractors were having license under the Act. The petitioners were performing jobs in the LPG plant, depot and terminal of IOC established at Delhi. Vide a notification dated 21.10.97, the contract labour had been banned for performing such jobs as were being performed by the petitioners. Their engagement through contractor was therefore, contrary to the notification and they under all circumstances be considered employees of IOC. The management of IOC should have absorbed the petitioners and regularised their services but it continued engaging them through different agencies basically for monetary and other gains since the petitioners were being paid less wages than the regular employees. Petitioners claimed that since they were discharging duties of perennial nature they have a claim over regularisation and therefore, they should be regualrised in the service of IOC.

(3.) To this claim the respondent IOC, took a stand that the petitioners were governed by Contract Labour (Regulation and Abolition) Act, which was a self-sufficient code. The petitioners admitted that they were the employees of contractors. They had no right to approach the authorities under Industrial Disputes Act without exhausting all remedies available under Contract Labour (Regulation and Abolition) Act, 1970. The respondent had engaged services contractors only for handling miscellaneous works at its establishments. The miscellaneous works were neither regular nor perennial in nature. Some of the claimants have been working only since 2003-04. The claimants took contradictory stand. On one hand they took the stand that they were the direct employees of the respondent and on the other hand they stated that in view of the notification dated 21.10.97, which prohibits contract labour, they being the contractor's employees became employees of the respondent. The respondent also claimed that no job prohibited by notification dated 21.10.97 was being performed by any of the petitioners. The notification dated 21.10.97 prohibited only jobs of Safai Karamchari, TLF Helper, Fieldwork Helper, Mali, MandI Helper, TT Tyre Mechanic, Workshop Mechanic, TT Electrical, Workshop Welder, Fitness Fitter etc. The respondent submitted that no valid industrial dispute was raised by the petitioners which could be referred. Mere allegation that the petitioners formed a substantial class and claimed to be the employees of IOC was not sufficient for reference of the dispute. It was the petitioners' own contention that they were employed through contractors. They could claim relief only against the contractor and not against the IOC. The respondent further submitted that no control was being exercised by the IOC or its officials on contract employees. The contract between the IOC and contractor was a bonafide contract for providing services. It was in accordance with the law and provisions of Contract Labour (Regulation and Abolition) Act, 1970. There was no employer- employee relationship between the petitioners and the respondent/IOC. If, there was any relationship of employer and employee it was between the contractor and the respondent. The respondent/IOC was registered under provisions of Central Contract (Labour) Regulation Act 1970 and the contractors engaged were also having requisite license under the Act. None of the petitioners had filed any documents with the Conciliation Officer or with the Government showing that they were the employees of the respondent. Since the petitioners failed to show that they were employees of the respondent, the appropriate Government rightly refused to refer the dispute.