K K THILAKAN Vs. FACT LTD

JUDGEMENT

(1.) PETITIONERS, 26 in number, were workers employed by contractor, Pigee Agencies. They were engaged, according to them, as workmen in connection with the manufacturing process of super phosphate in the Udyogamandal Division of the first respondent concern. They are, it is alleged, having continuous and uninterrupted service for more than ten years. On March 24, 1984, they were denied employment at the instance of Pigee Agencies. Thereupon an industrial dispute was raised regarding their absorption in the establishment of the first respondent. Government referred the issue for adjudication to the Labour Court, Brnakulam. After a detailed enquiry, Labour Court passed Exihibit P-1 award dated March 24, 1984. As per that award, the first respondent was directed to reinstate 32 workmen with continuity of service and benefit of arrears in back wages. That award was challenged by the first respondent before this Court in Original Petition No. 9986 of 1984. Learned Single Judge took the view that the award passed by the Labour Court is one without jurisdiction and consequently quashed the same. The union took up the matter before a Division Bench in Writ Appeal No. 400 of 1980. While agreeing with the view taken by the learned single Judge that the Labour Court was not entitled to examine and to take the view that the employees in question were really the employees of the first respondent, remitted the case to the labour Court for disposal afresh after deciding the actual dispute referred to it. Thereupon the Labour Court passed Exhibit P-4 award holding that the petitioners are not having any legal right to be absorbed in the service of the first respondent. This award is under challenge.

(2.) THE issue referred to the Labour Court for adjudication is "absorption of the contract workers engaged in the bagging of superphosphate in the FACT Ltd. , Udyogamandal Division, by the said management who were rendered unemployed with effect from March 23, 1980, on expiry of the contract entered into between the management and Pigee Agencies, Cochin". From this issue it is evident that the petitioners were the employees under the contractor, Pigee Agencies. Employees under the Pigee Agencies lost their employment on account of the termination of their contract. Consequently the workers seek absorption in the service of the first respondent. Absorption can only be of persons who are outside the establishment. A person who was outside the establishment when he seeks absorption as an employee he is in fact seeking employment in the establishment. If there arises a dispute regarding his absorption, can it give rise to an industrial dispute as defined under the Industrial Disputes Act? A workman should be employed by an employer. Only on an employment being given to him, can he be considered as a workman. Petitioners have no case that they were employed by the first respondent. They were employed by Pigee Agencies, a contractor under first respondent. When the contract came to an end they became unemployed. They seek absorption in service under the first respondent. They want to be taken into the service of the first respondent. In other words they are seeking employment under the first respondent. Petitioners who were never employed or engaged by the factory want themselves to be taken into its service. Unless they are so absorbed they cannot consider the first respondent as their employer. Nor can they be treated as workmen of the first respondent either. Their claim to the employment of the first respondent can never be considered as an industrial dispute. Their claim is not an industrial dispute as defined in Section 2 (k) of the Industrial Disputes Act.

(3.) AS stated earlier, petitioners have admitted that they were employed by the contractor, Pigee Agencies. Can an employee engaged by the contractor claim to be the employee of FACT Ltd. , Udyogamandal Division ? Identical question was considered by me in Cominco Binani Zinc Ltd. v. T. P. Pappachan (1989-I-LLJ-452) (Ker ). It was observed therein (at pages 454-455):