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Judgment
Anand Byrareddy, J—Heard the learned counsel for the petitioner and the learned counsel for the respondent.
The petitioner is said to be a registered Trade Union and seeks to espouse the cause of its members, who were claimed to be workmen under the respondent - industry. The respondent is said to be a government company with its factory at Kanagale, Chikodi Taluk, Belgaum district. It is engaged in the manufacture of condoms and contraceptive tablets. It has on its rolls 250 workmen. The respondent - industry is a manufacturing industry and carries on regular industrial production. It is the claim of the petitioner - union that it has engaged workmen whose nature of duties are permanent and that they are required to work on shifts depending on the demand. The nature of labour is intensive and it is governed by various labour laws including the Factories Act, 1948, Employees Provident Fund(Miscellaneous Provision) Act, 1952 and Employees State Insurance Corporation Act, 1948 and that the work carried on was of a permanent nature requiring employment of manual, semi skilled and skilled workers apart from other categories of workmen.
It is contended that in respect of 19 workers who were employed by the respondent, since the year 1990 and who were employed on a permanent basis, the respondent had, in order to deny them permanency in their employment and security of employment, by subterfuge camouflaged the relationship by purportedly engaging their services through contractors. Though the nature of work performed by the workmen was permanent and was under direct supervision and control of the respondent employer, and they were extended all the service benefits that were available to other permanent employees, when it came to disbursement of salaries, the respondent chose to disburse salaries through contractors, thereby creating an impression that there was no employer and employee relationship as between those 19 employees and the respondent. It is in this background that the petitioner - union had taken up the cause of those workmen and had raised an industrial dispute by submitting a Charter of Demands to the respondent on 15.10.1999, inter alia, claiming conferment of permanent status to the said workmen though they were employed under the guise of the contract labour system. It was no doubt true that the nature of work carried out by its employees was categorised as house keeping in the factory on the technical side and also as workmen employed in the guest house to the respondent company.
Immediately on the Charter of demand having been raised, the respondent chose to terminate the services of 19 employees out of sheer spite when these employees had been continuously employed over the years for more than 240 days in each year. It was further contended that the termination was illegal and amounted to illegal retrenchment as the procedure prescribed in law was not followed in doing so. Therefore, an industrial dispute was raised before the conciliation officer and the respondent had appeared in the said conciliation proceedings and on a failure report having been submitted by the conciliation officer, the industrial dispute was referred to the Labour Court, which was numbered as Reference 15/2003 and it was duly adjudicated. But however, the claim was restricted to 14 employees out of 19, since 3 employees had resigned and 1 did not choose to pursue.
The respondent had contested the proceedings and it is on hearing both the parties that the Labour court has negated the claim of the petitioner - Union in concluding that though the claimants had produced evidence to show that they were working in the industry and their nature of work as perennial, they had failed to establish that they were engaged in manufacture of products and that they had failed to implead the contractor as a party in the case and that the said contractor was not examined and they had not therefore established that they were working under the direct control of the company and not the contractor. And further that the claimants were not directly appointed by the respondent - company against a sanctioned or a vacant post and therefore to issue directions to the management of the respondent to make their services permanent would not be permissible in law and the claimants having not sought for absorption, but having sought for permanency, the court below has held that such a relief cannot be granted when there is no master and servant relationship established and the question of making their services permanent or regularization of their services did not arise.
In this regard, the learned counsel for the petitioner would vehemently urge several grounds raised in the present writ petition, particularly the circumstance that the purported relationship of the workmen in question, having been employed through a contractor was clearly subterfuge and camouflage to deny the benefits due to the workmen. The primary material evidence, namely, Exhibit M.2 has been overlooked. In fact, Exhibit M.2 is a Certificate of Registration issued by the Assistant Labour Commissioner, Hubli, issued in Form No. II under Rule 18(1) of the Contract Labour (Regulation and Abolition) Act, 1970 and Contract Labour (Regulation and Abolition) Karnataka Rules, 1974, wherein the nature of work, in respect of which contract labour could be employed is indicated as packing, stacking of scrap material, segregation of waste material, salvaging raw material supply and site development and since the nature of work carried on by the employees is not listed in the Certificate of Registration, it was apparent that the respondent - employer could not have engaged contract labour in respect of nature of duties, in which the workmen were employed and since they had carried on their functions over the years, there is clearly a permanent relationship, which even the labour court has found namely, that the job of the present employees was of a perennial nature and they had established that they had worked with the respondent over the years. Therefore, this important aspect of there being no possibility of engagement of the present employees through a labour contractor has not been addressed by the court below, which seriously prejudices the claim of the workmen.
It is further contended that the court below was also not justified in applying legal principles insofar as the claim of the workmen seeking regularization. The learned counsel seeks to place reliance on a decision in Maharashtra State Road Transport Corporation and Another Vs. Casteribe Rajya P. Karmchari Sanghatana, (2009) 123 FLR 136 : (2009) 11 JT 609 : (2009) 4 LLJ 286 : (2009) 12 SCALE 25 : (2009) 8 SCC 556 : (2009) 13 SCR 937 : (2010) 3 SLR 588 : (2009) 9 UJ 4242 , and would submit that the law laid down therein would squarely apply to the present case on hand and that the labour court was in error in negating the claim of the workmen while overlooking material evidence that was on record in arriving at a finding of fact and hence the order of the labour court was bad in law and requires to be set aside and the relief as prayed for by the workmen be granted by this court. As the case of the workmen is plainly made out by reference to Exhibit M.2, there is no warrant for this court to remand the matter even that would result in further procrastination and denial of just relief to the workmen.
While on the other hand, the learned Counsel for the respondent would point out that the challenge is to an order whereby there are findings of fact. This court, in its writ jurisdiction, is not sitting in appeal in proceeding to sift material and arrive at its conclusions as the petitioner seeks to claim. Mere reliance placed on Exhibit M.2 is with reference to the areas of work in respect of which the respondent was permitted to engage contract labour and reference to the column providing for several areas of work is sought to be construed as being exhaustive and inclusive. However, the expression "etc.," in the said column is sought to be glossed over and therefore, the license granted to engage contract labour is not exhaustive and is merely inclusive. The nature of work admittedly was house keeping, stacking of waste material and engagement in the guest house, which is totally incidental and it cannot be said that such work carried out by the workmen was not included in Exhibit M.2. Therefore, it could not be a correct interpretation to hold that Exhibit M.2 would demonstrate that there has been an attempt at camouflage by the respondent - employer in seeking to engage the services of the workmen concerned, through the employment of contract labour.
Secondly, it is pointed out that the contention now raised is urged for the first time in these proceedings and was never raised before the labour court in which event, it would have been possible for the employer to produce further material as regards the contention and even refute the case now set forth. Therefore, this proceeding being ill-suited for a fact finding exercise the contentions raised for the first time cannot be countenanced and it can be dangerous to proceed on the basis of an argument now put forth in relation to seriously disputed questions of fact and therefore the labour court having arrived at its decision as to the absence of an employer employee relationship would clearly provide no basis for the employees to claim permanency or absorption. For it is laid down in the decision in Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 : (2006) 6 CompLJ 1 : (2006) 4 JT 420 : (2006) 2 LLJ 722 : (2006) 4 SCALE 197 : (2006) 4 SCC 1 : (2006) 3 SLJ 1 : (2006) AIRSCW 1991 : (2006) 3 Supreme 415 and subsequent judgments that unless primary relationship of employer and employee is established and appointments being made against a sanctioned post, the question of claiming regularization does not arise and notwithstanding the long engagement of workmen, the right to claim permanency in public employment is not available and the present respondent being a government owned company, the employment of its workmen is against sanctioned posts and it is only such duties which are outsourced through contract labours and the fact that there is admittedly no established relationship of employer and employee and salaries were being disbursed by contractors was a primary finding by the labour court, on which the relief has been denied. Further, the contractors were not parties to the proceedings. This is a finding of the labour court which added to the denial of the relief in favour of the employees. The contention that there was an application made by the petitioner seeking employment of such contractors is an incorrect assertion. An application had been made as early as in the year 2004 seeking production of certain additional documents and nothing more. There was no question of the petitioner having sought to implead the contractors, which allegedly was negated by the labour court. The learned Counsel, therefore, would contend that on all counts, the petition ought to fail and should be rejected.
On a plain examination of the record, and on the basis of the rival contentions, if the argument of the counsel of the petitioner is to be accepted, this court would be required to interpret the scope and effect of the certificate of registration at Exhibit M.2, to even accept the contention that the respondent was not licensed to engage contract labourers in respect of the nature of work carried on by the employees. However, it is noticed that the nature of work which could be carried on by the employees engaged through a contractor are not exhaustively spelt out in the certificate, which is an inclusive indication and is left open. Therefore, proceeding on the basis that the respondent was empowered to engage contract labourers ejusdem generis, it can be said that the nature of work, for which the employees were engaged, was well within the scope of the certificate of registration.
Incidentally, it is not as if the certificate of registration does not include some of the nature of work which can be carried out by the employees engaged through labour contractors.
As rightly pointed out by the learned counsel for the respondent, the nature of work does include the stacking of waste material and house keeping and it is not in dispute that some of its employees were indeed engaged in such kind of work. Secondly, it is not also evident that any attempt was made to implead the contractors in question, which was essential to establish that there was a master -servant relationship between the respondent and the employees and that the engagement of a contractor was a mere subterfuge or camouflage to conceal the relationship of employer and employees. The claim that there was an application made to implead contractors is not found to be a correct assertion. From a verification of the order sheet, it is seen that there was only an application made seeking filing of additional documents and not really to implead the contractors. The contention that if this had been produced, it would have been then possible for the petitioner to ascertain as to the name of the contractors who were claimed to have been engaged, through whom the petitioner claimed that the employees were engaged, is not a contention that could be accepted. Every workmen who was supposedly engaged through a contractor would know his identity and since they were all represented by a union and through counsel, cannot claim illiteracy or ignorance in not having taken this necessary step in impleading the contractors.
Further, the legal contention that the judgment in Maharashtra Road Transport Corporation case, supra, would apply, is also without reference to the facts and circumstances therein, wherein the apex court has ultimately opined that since the applications filed by individual workmen, who were similarly placed, having been allowed, the employees who had approached through the Union should also be given the same benefit is sought to be overlooked. The judgment does not overrule the law laid down in Uma devi and subsequent judgments, which primarily require the existence of an employer and employee relationship and the workman claiming regularization being appointed to a sanctioned post and having worked over the years without the benefit of the court order. These essential requirements being absent, it cannot be said that the Maharashtra Road Transport Corporation case would apply to the facts and circumstances of the present case. Therefore, viewed from any angle, the petition lacks merit and is dismissed.