STOCK EXCHANGE Vs. ASHOK LAXMAN POLEKAR AND ORS.

JUDGEMENT

(1.) THE petitioner is Bombay Stock Exchange duly recognised under the provisions of Securities Contracts (Regulation) Act, 1956 to safeguard the interest of the investing public having dealings in exchange and the members, to provide a platform for buying and selling of the securities etc. It had been for the convenience of investors providing additional service of franking of the share transfer forms as required under section 108(1 -A)(b) of the Companies Act on behalf of the Registrar of Companies. At the instance of respondent No. 1, a dispute was raised and referred to by the State Government to the Labour Court vide Reference (IDA) No. 681 of 1998, in which he claimed to be in the employment of the petitioner. He contended that he was employed to work as Franking Machine Operator (FMO) in the Franking Department of the petitioner since 25th June, 1992 on the daily wages of Rs. 55/ -. The petitioner allegedly, terminated his services suddenly w.e.f. 21st December, 1996 without notice or notice pay, as also retrenchment compensation. He therefore demanded reinstatement in service with full backwages, continuity in service and consequential benefits.

(2.) THE petitioner contested the claim denying the relationship of employer and employee between it and respondent No. 1. The facts alleged in the written statement of the petitioner in support of its contention are that, the work of franking under section 108(1 -A) of the Companies Act, is with the Registrar of Companies and other notified authorities. It is nowhere related to the core activities of the petitioner. The faculty of franking provided by the petitioner in its premises was by way of an additional facility made available on behalf of the Registrar of Companies purely for the convenience of investors. Since the work of franking was not part of the activities of the petitioner, it had contracted the work out to one, Shri. Ganpat Surve who in addition to carrying out the work of franking was required to do the work of collating the Stock Exchange Official Directory, another additional service provided by the petitioner to its members and investors. Shri. Surve used to depute about 27 workmen (depending upon the exigencies of the work) for doing the work of both, franking and collating the Stock Exchange Official Directory. Respondent No. 1 was one of such workmen engaged by Shri. Surve. The wages of respondent No. 1 alongwith other benefits were decided and paid by Shri. Surve. The petitioner had no role to play in the same. The work of franking was also controlled and supervised by Shri. Surve. For that purpose, Shri. Surve was maintaining the requisite documents, like the wage register, attendance register etc. Any disciplinary action in respect of the workmen engaged by him, was exclusively taken by Shri. Surve. He used to raise bills on the petitioner depending upon the contractual work carried out by him which were duly paid. Respondent No. 1, thus was an employee of Shri. Surve and not the petitioner.

(3.) THE petitioner has employed around 300 persons on it's establishment. They all are members of a Union by name "The Stock Exchange Employees Union" registered under the Trade Unions Act. The petitioner has entered into several settlements with the Union for betterment of service conditions of its employees. On/or about 30th April, 1992 the Union had submitted a Charter of Demands, which included a demand for abolition of contract labour and absorption of contract labourers on regular basis. A Committee had been formed consisting of 5 representatives each from the management and from the Union. This Committee examined feasibility of the demand of absorption of contract workers as regular employees on the background of, "The Depositories Ordinance, 1996" promulgated by the Central Government. The ordinance required all the companies whose shares were listed with the petitioner, to adopt in a phased manner, the system of electronic transfer of shares or Scriptless trading by de -materializing their shares. The electronic system of trading does not involve filling up of transfer forms. Consequently, the work of franking of transfer forms is not needed in this system. Since the work of franking was to get drastically reduced in the near future and end after few years, it was agreed and accepted by the Union and the Committee that it was not feasible for the petitioner to absorb all the employees of contractor, Shri. Surve. Therefore, in the settlement dated 5th November, 1996 it was agreed that the employees of Shri. Surve mentioned in the list at Annexure C -1 to the settlement, would be absorbed as regular employees of the petitioner and those mentioned in Annexure C -2 were not to be absorbed and were to be discharged by the Contractor. The criteria applied for determining who should be absorbed in service, was the length of service of the contract worker. Annexure C -1 included names of 15 senior most employees of Shri. Surve, who were absorbed as regular employees. The settlement expressly agreed that the workers of Shri. Surve, who had worked for less than 4 years as on 1st January, 1996, shall be discharged from service. Respondent No. 1 had put in less than 4 years of service as an employee of Shri. Surve and hence was discharged by him alongwith 11 other workers, who also had less then 4 years of service. As per the settlement, one Sachin Waghmare, who was the senior most amongst the employees discharged from service, was subsequently employed by the petitioner as "Peon" on/or about 1st May, 1997 when vacancy arose for the subordinate staff. Mr. Waghmare, was considered as a fresh candidate in Open Category who had competed alongwith other outside persons and was selected on merit. In the circumstances, the complaint of discharge from service of respondent No. 1 could only be against his employer, Shri. Surve.