AI Structured Summary
Not yet generated for this judgment
Judgment
Heard learned counsel for the parties.
Rule. Rule taken up for hearing forthwith by consent of learned counsel for the parties.
This petition challenges an order passed by the Central Government Industrial Tribunal at Mumbai on an application made under section 33 of the
Industrial Disputes Act,1947 (the 'Act'). It is the case of the petitioner that it had outsourced certain nonÂcore activities such as houseÂkeeping of
various branches and offices in Mumbai and Thane region to outside agencies. For such outsourcing, the petitioner had engaged two contractors, who
are respondent nos.2 and 3 to the petition. Through these contractors, about 268 workers were engaged for houseÂkeeping work in the
offices/branches in Mumbai and Thane. It is the petitioner bank's case that these workers were allotted work, and they were supervised and paid
wages by the contractors. It is the contractors who had the right to terminate services of the workers and accordingly, for all intents and purposes,
these workers were employees of the contractors.
The services of three of these workers were terminated by the contractors sometime in 2005. An industrial dispute was raised in that behalf before
the conciliation officer. A reference from out of those proceedings was sought for adjudication, but the Central government refused to make any
reference. The matter was thereupon carried before this Court in a writ petition. That writ petition, being writ petition no.429 of 2006, was dismissed
by a Division Bench of this Court on the ground inter alia that the workers concerned were engaged by independent contractors and no employerÂ‐
employee relationship could be established between them and the petitionerÂbank.
Sometime in March 2012, respondent no.1Âunion raised a demand for regularization and permanency of these workers. This dispute, upon failure
of conciliation, was referred by the Central Government to the Industrial Tribunal at Mumbai. An application was made by the 2nd partyÂworkmen
for interim relief in the reference. The prayers sought in that application included directions to the management of the petitioner to comply with the
mandatory provisions of section 33 of the Act in respect of employment, wages, and conditions of service of all 268 workmen concerned in the
present reference. It was also prayed that both the bank and the contractors be directed to maintain status quo with respect to the employment of
these workmen and refrain from terminating their engagement. The Tribunal, by its order dated 28.6.2017, rejected this interim application holding inter
alia that the second party union had not made out any prima facie case. The Tribunal inter alia observed that prima facie it appeared from the
pleadings of the contractor (First Party no.3) that 189 workers amongst the concerned workmen engaged by it were employed for providing
specialized services to the petitionerÂbank at its various establishments; it had the requisite licence under the Contract Labour Act; the contractor had
maintained attendance registers of 189 workers employed by it and paid salary, bonus etc to the workmen; the contractor used to supervise the
workmen and sanction leave. In other words, by far the Tribunal considered these workmen to be employees of the contractor. The Tribunal further
held that whether the work carried on by these workmen was perennial in nature and whether they were engaged to discharge the same duties as
other regular employees of the petitionerÂbank and thus, were entitled to be treated on par with the regular workmen of the petitioner, would have to
be considered at the final hearing of the reference and no interim relief could be granted to the workmen.
This order was not challenged by the workmen or their union.
It appears that on another application made by thesecond partyÂworkmen subsequently, i.e. 27.12.2017, praying for disbursement of monthly
salary, provident fund, ESI contributions etc. by the petitionerÂbank and directions to it to maintain status quo and not to terminate the contract with
the two contractors named therein, the impugned order came to be passed. The impugned order surprisingly holds that though interim relief concerning
the petitioner's right to terminate its contract with the contractors could not be granted to the workmen, yet, at the same time, the petitioner could not
be permitted to alter the service conditions of the concerned workmen and thus, even if the contractors were changed, the service conditions of the
concerned workmen should remain unchanged and they should be paid monthly salary, provident fund, ESI contributions, etc. as before. The Tribunal,
accordingly, granted interim relief to the workmen to the extent that there should not be any change in their service conditions even if there was any
change of contractors.
In the face of the issue concerning existence of employeremployee relationship between the petitioner and the workmen engaged through the two
contractors being decided earlier against the workmen and the rejection of the Central Government to make a reference on the ground of want of
such relationship being affirmed by this Court in writ petition No.429 of 2006 and the Industrial Tribunal having earlier held that there was no prima
facie case for interim relief of status quo with respect to their employment, the Industrial Court could not have granted the same relief under section
33 of the Act. It is pertinent to note that whilst granting this interim relief, the Industrial Court has not even considered whether there was any prima
facie case made out by the workmen or their union that they were direct employees of the petitionerÂbank. In other words, without considering
whether the workmen could even be prima facie considered to be employees of the petitionerÂbank and having already come to the conclusion in an
interim application earlier that there was no prima facie case in this behalf, the Industrial Tribunal could not have given relief of status quo in respect
of their conditions of services. When their very service could not be protected by any interim order earlier on the ground that they were not shown to
be employees of the petitioner bank, there is no question of directing the petitionerÂbank to protect the conditions of their service.
Learned counsel for the respondent relies on theprovisions of section 33 of the Act and contends that during the pendency of the proceedings
before the Tribunal, the employer could not change or alter the conditions of service applicable to the workmen concerned immediately before the
commencement of the proceedings. Before any industrial adjudicator makes an order under section 33 for maintainance of service conditions, it must
be found that at least prima facie the person alleged to be an employer and against whom an order under section 33 is sought, is really the employer of
the applicantÂworkmen. The Industrial Court has not only failed to arrive at any such prima facie conclusion but in fact has, in an interim application
made earlier by the same workmen, come to a diametrically opposite conclusion, holding them prima facie to be employees of the contractors and
refusing to pass any order for protection of their service with the petitionerÂbank. The respondentÂunion had in fact, in the second interim application,
in which the impugned order came to be passed, not even asked for any relief of maintainance of service conditions by the petitionerbank. The
application was for directions to the petitioner bank not to terminate the contract with the two contractors. This relief, as rightly held by the Tribunal,
was not a matter connected with the dispute and thus, could not have been granted by the Industrial Court. After having found so, the Industrial
Tribunal strangely proceeded to grant an entirely different relief forbidding change of service conditions of the concerned workmen by the petitionerÂ‐
bank even after change of contractors till final disposal of the reference. That is, to say the least, preposterous.
Learned counsel for the respondentÂunion relies on thecases of Oil and Natural Gas Commission Ltd vs Transport and Dock Workers Union2 007
(2) LLJ 1085 and Reliance Energy Limited vs Rashtrawadi Kamgar Sangh( 2009) ITLLJ 708 Bom decided by our Court, and the case of Gujarat Energy
Transmission Corporation Ltd vs Labour Court Anand 2014 (14) SCT 748 decided by the Gujrat High Court in support of his submissions that such
status quo order could have been passed in an appropriate case against the petitionerÂbank. In Oil and Natural Gas Commission Ltd (supra), our
Court considered admissibility of interim relief as a “matter incidental to the main question referred to the tribunal without being itself referred in
express terms.†There is no quarrel with this proposition. The fact of the matter, however, is that the proposition has no relevance in the facts of the
present case. The impugned order of the Industrial Court is questioned in the present case not because it grants interim relief in a matter incidental to
the main question but because it does not find any case for interim relief and yet grants it. In the case of Gujarat Energy Transmission Corporation Ltd
(supra), the Court found that the workers concerned were in the employment of the petitionercompany for 15 to 18 years; over all these years, only
contractors were changed but the association of the workmen with the petitionerÂcompany continued to subsist; and that thus, prima facie, there was
substantial force in the argument of the learned advocate for the respondent workmen that the contract was merely a paper arrangement and in the
premises, it was inclined to grant protection under Section 33 A of the Act. In other words, the Court in that case found a strong prima facie case that
the workmen before it were direct employees of the establishment and the contract through which they were employed was a paper arrangement.
There is no such finding, as noted above, in the present case. If anything, the finding is against the respondent union. Even in the case of Reliance
Energy Limited (supra), the facts were wholly different and the conclusion that the status quo order could be passed against both the principal
employer and the contractor has no bearing on the facts of our case.
In the premises, the impugned order of the Industrial Tribunal suffers from a jurisdictional error and cannot be sustained. Accordingly, Rule is made
absolute by quashing and setting aside the impugned order. The Industrial Court shall now decide the reference as expeditiously as possible, and in any
event, preferably within one year from today. Both parties shall coÂoperate in the matter of expeditious trial of the reference.