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Judgment
Ramesh Ranganathan, J.—Heard Sri C.R. Sridharan, Learned Counsel for the petitioner. As none appeared for the second respondent on 30.07.2010, the matter was directed to be listed under the caption for judgment'' today. Today also, neither is the counsel for the second respondent present nor is there any representation on his behalf. As such the Writ Petition is adjudicated on its merits.
This Writ Petition is filed by the Computer Maintenance Corporation Limited (A Government of India, Public Sector Undertaking) seeking a Writ of Prohibition against the first respondent-Presiding Officer, Labour Court-I, Hyderabad in proceeding further in I.D. No. 234 of 1999.
The parameters of a writ of prohibition was considered by the Supreme Court in East India Commercial Co. Ltd.,Calcutta and Another Vs. The Collector of Customs, Calcutta, and a Division Bench bf this Court in D. Samba Murthy v. Collector of East Godavari 1979(2) An. WR 86. It was held therein that, when an inferior Court/Tribunal takes up for hearing a matter over which it has no jurisdiction, the remedy available is by way of a writ of prohibition seeking an order forbidding the inferior Court from continuing the said proceedings. A writ of prohibition is issued to restrain the Courts or inferior Tribunals from exercising jurisdiction which they do not possess, and to prevent them from exceeding their jurisdictional limits. The object is to confine the Courts/Tribunals of inferior or limited jurisdiction within their bounds.
The question whether the first respondent has jurisdiction to hear and decide I.D. No. 234 of 1999 must be examined on the basis of the averments in the application filed by the second respondent-workman who invoked the jurisdiction of the Tribunal.
The second respondent-workman filed a petition, u/s 2A(2) of the Industrial Disputes Act, 1947 (for short ''the Act''), before the Labour Court-I, Hyderabad, questioning the order of dismissal passed against him by the third respondent in his order dated 18.02.1999. In the said petition, the second respondent-workman stated that he was appointed in the year 1992-93 in the petitioner-Company; at the time of his appointment neither the petitioner-Company nor the third respondent were registered under the Contract Labour Act; the third respondent had issued a letter on 31.08.1999 informing the second respondent-workman that an enquiry officer was appointed to conduct an enquiry into certain charges levelled against him; the second respondent-workman filed a representation dated 04.09.1999 to the third respondent for which an evasive reply was given; and the enquiry proceedings were subjected to challenge on the ground that it was not conducted in a free and fair manner. The second respondent-workman further asserted that the petitioner-Company was not registered as a Principal Employer as per the provisions of the Contract Labour Act; the claim of petitioner-Company to be the principal employer under the Contract Labour (Regulation and Abolition) Act, 1970 (for short ''CLRA Act'') was false; their endeavour to bring in a contractor i.e. the third respondent between him and the petitioner was only to avoid the master and servant relationship between him and the petitioner-Company; the so-called Contract Labour system was a sham; and, in fact he was an employee of the petitioner-Company. He questioned the report of the enquiry officer, and the order of the third respondent dated 18.12.1999 dismissing him from service, as arbitrary, illegal and predetermined with mala fide intention. He sought a consequential direction that he was not a contract labourer, and there was a master and servant relationship between him and the petitioner-Company. He also sought a direction for reinstatement with continuity of service and for regularization of his services.
The question which necessitates examination is not whether the second respondent-workman can raise an industrial dispute u/s 10 of the Act contending that there was no contract labour system in existence, and that he was the workman directly engaged by the petitioner-Company, but whether the Tribunal could have examined these aspects in an application filed u/s 2A(2) of the Act.
The normal mode of invoking the jurisdiction of the Industrial Tribunal/Labour Courts under the Industrial Disputes Act is by raising a dispute and, thereafter, the dispute being referred by the appropriate Government, u/s 10 of the Act, for adjudication by the concerned Industrial Tribunal/Labour Court. Section 2A of the Act, however, enables a workman to individually invoke the jurisdiction of the Industrial Tribunal/Labour Court in certain limited cirumstances. For convenience sake, Sub-sections (1) and (2) of Section 2A read as under:
Dismissal, etc., of an individual workman to be deemed to be an Industrial Dispute.- Where any employer discharges, dismisses, retrenches, or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
(2) Notwithstanding anything in Section 10, any such workman as is specified in Sub-section (1) may make an application in the prescribed manner direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act; and accordingly all the provisions of this Act, shall apply in relation to such dispute as they apply in relation to any other industrial dispute.
It is only where an employer discharges, dismisses or otherwise terminates the services of an individual, can that workman file an application directly before the Labour Court, u/s 2A(2) of the Act, seeking adjudication of such a dispute. Section 2A(2) pre-supposes the existence of an employer and employee relationship. It is only when there is no dispute regarding such a relationship being in existence, is the Labour Court entitled to adjudicate on the question whether or not the discharge/dismissal/retrenchment/ termination of the services of the workman is in accordance with law. The question whether the contract labour system existing in the petitioner-Company is a sham; whether the second respondent-workman was, in fact, an employee of the petitioner-Company and not the third respondent; and whether the second respondent-workman is entitled to seek regularization of his services are all matters beyond the jurisdiction of the Labour Court in an application filed u/s 2A(2) of the Act.
In similar circumstances, this Court in Oil and Natural Gas Corporation Limited, K.G. Project Vs. N. Satyanarayana and Others, observed:
...Therefore, even where the dispute relates to only an individual workman, it is compatible under the Act to raise an industrial dispute and for adjudication of the same. The instances of such dispute relating to an individual workman that can be treated as industrial dispute are, however, limited to the instances of discharge, dismissal, retrenchment or termination. All these are the various descriptions of the same incident namely: the cessation of employment of the workmen with the industry. For any other matter concerning the industrial workman espousal by union is necessary to render it an individual dispute. Cessation, of whatever description, presupposes the existence of relationship of employer and employee or master and servant.
As observed earlier, the objection is as to the form in which the dispute is raised before the 4th respondent. It was observed that to invoke Section 2A there should not exist any dispute as to the person invoking it having been under the employment of the employer and the termination thereof. The adjudication will be only as to the mode of discharge, dismissal, retrenchment or termination and the consequences thereof. When it is categorically held by the Supreme Court that a contract labour can never be treated as an employee of the principal employer, it is too difficult to imagine that such a contract labour stands discharged, dismissed, retrenched or terminated, with the expiring of the labour contract. Even where a notification u/s 10(1) of the CLRA Act is issued, the Supreme Court categorically held that such a notification could only bring about an end to the contract between the principal employer and the labour contractor. It was further observed that the relationship of the master and servant between the labour contractor and contract labour would continue to exist even after such a notification. When this is the legal and factual aspect, it cannot be said that there existed any relationship of master and servant or employer and employee between the contract labour on the one hand and the petitioner herein on the other till 30.06.1997 and that the contract labour stood discharged, dismissed, retrenched or terminated with effect from 01.07.1997. Therefore, the applications filed by the contract labour before the 4th respondent u/s 2A of the Act were not maintainable.
It is true that the rights and status of the contract labour vis-a-vis the principal employer need to be adjudicated in the event of a notification being issued u/s 10(1) of the CLRA Act. Sub-paragraphs 5 and 6 of Para 125 of the judgment in Steel Authority of India Ltd. and Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., mandate that such an exercise should be undertaken. Whether there was any warrant for such adjudication in this case is a different question. Even where the facts warrant such an adjudication by the Labour Court or Industrial Tribunal, as the case may be, the subject matter of adjudication is totally different from the one contemplated u/s 2A of the Act. The adjudication in such proceedings would not be as to whether there was any illegal discharge, dismissal, retrenchment or termination of the contract labour, much less, an individual contract labour. The subject matter of the adjudication will be as to whether the labour contractor was a ruse or camouflage. Finding on this aspect will lead to certain consequences, as provided for under Sub-Paras 5 or 6, as the case may be. By no stretch of imagination, such an adjudication can fit into the kinds of disputes contemplated u/s 2A of the Act.
This, however, cannot be construed as saying that the contract labour are without any remedy. It is certainly open to them to raise a dispute as contemplated u/s 2(k) and the matter can be brought before the concerned Labour Court through a reference u/s 10(1) of the I.D. Act. What is found not permissible is treating the individual disputes u/s 2A as those u/s 2(k) of the Act....
(Emphasis supplied)
It is evident, therefore, that the first respondent does not have jurisdiction, to decide the contentions raised in the application filed by the second respondent-workman, as the questions raised therein are beyond the scope of enquiry in proceedings initiated u/s 2A(2) of the Act. As a result, a Writ of Prohibition shall issue restraining the first respondent from proceeding with the hearing and adjudication of I.D. No. 234 of 1999. It is made clear that the order passed by this Court shall not preclude the second respondent-workman from raising a dispute u/s 2(k) and seeking a reference u/s 10 of the Act.
The Writ Petition is, accordingly, allowed. However, in the circumstances, without costs.