Institute of Rural Management vs N.D.D.B. Employees'' Union and Others

K.A. Puj, J.—The petitioner has filed this petition under Arts. 226 and 227 of the Constitution of India praying for quashing and setting aside the impugned award dated 9-3-2010 passed by the Industrial Tribunal, Nadiad (hereinafter referred to as ''the Tribunal'') in Reference (I.T.N.) No. 752 of 1998 (corresponding to Old No. 239 of 1993).

Learned Advocate Mr. D.C. Dave appeared on behalf of the petitioner. Mr. U.T. Mishra, learned Advocate has filed caveat on behalf of respondent No. 2. The matter was heard to some extent on 8-12-2010 and there was consensus amongst the parties that the matter should be finally disposed of at an admission stage. The Industrial Tribunal while passing the impugned award has referred to certain documents from which certain inferences were drawn and conclusions were arrived at. Since, the matter was kept for final hearing, the Court has directed the Registry to call for the records and proceedings of Reference (I.T.N.) No. 752 of 1998 (Old No. 239 of 1993) from the Industrial Tribunal, Nadiad which has come and the matter was heard at length subsequently. Since, the real contesting party is respondent No. 2, no notice was issued to the other respondents.

It is the case of the petitioner that petitioner is an Educational Institution of repute and imparting education and encouraging research in the discipline of rural management at the level of post-graduation. The petitioner registered as a Society and a Public Trust respectively under the provisions of the Societies Registration Act, 1860 and the Bombay Public Trusts Act, 1950. The respondent Nos. 1 and 2 are the Trade Unions stated to be espousing the cause of the workmen working in the set-up of the petitioner. As such, initially, the respondent No. 1 was stated to be the representative Union of the workmen in the set-up of the petitioner. Accordingly, in the concerned proceedings before the Tribunal, inter alia, forming the subject-matter of the present petition, respondent No. 1 was impleaded as party thereto representing the concerned workmen. However, thereafter, at a later stage of the said proceedings, the respondent No. 2 came forward seeking impleadment as a party thereto on the premise that it was the representative Union of the concerned workmen in the set-up of the petitioner. Accordingly, respondent No. 2 was employed as party thereto. Respondent No. 3 is a contractor engaged in doing gardening and sanitation work in the set-up of the petitioner through the modes of contract labor within the meaning thereof under the provisions of Contract Labor (Regulation and Abolition) Act, 1970.

It is also the case of the petitioner that at the instance of the workmen discharging their duties as contract labor in the set-up of the petitioner, a reference was made to the Tribunal under Sec. 10(1)(d) of the Industrial Disputes Act, 1947, by virtue of which, an issue as to whether workmen working in the gardens of the petitioner as gardeners were entitled to the wages, grade for the wages, leave, medical allowance, bonus, L.T.C. and other benefits as applicable to the permanent employees of the petitioner with retrospective effect from 1-1-1988 or not, came to be referred to the Industrial Tribunal, Ahmedabad. This Reference No. 293 of 1993 was later on transferred to the Industrial Tribunal, Nadiad and was registered as Reference (I.T.N.) No. 752 of 1998. In the said reference, it was, inter alia, contended by the petitioner that the concerned workmen forming the subject-matter thereof were not the employees of the petitioner as they were employed as contract labor by the concerned contractor under the provisions of Contract Labor (Regulation & Abolition) Act, 1970, and hence, the question of treating them at par by the petitioner with the permanent employees of the petitioner in the matter of wages and other benefits would not arise. It was also contended by the petitioner that all the workmen referred to in the Appendix to the terms of the reference were not the gardeners, and therefore, when the reference was only in respect of the workmen discharging duties as gardeners in the set-up of the petitioner qua their agitated right to claim parity with the permanent employees of the petitioner in the matter of wages and other benefits, the question considering the case of all the workmen mentioned in the said Appendix would not arise.

The Tribunal after appreciating the evidence on record and after considering the submissions of the parties delivered the award dated 9-3-2010. It was allowed in favour of the concerned workmen by holding that the contract labor system prevalent in the set-up of the petitioner was sham and bogus, and as a result thereof, the concerned workmen discharging their duties in the set-up of the petitioner as contract labor would ipso-facto become the employees of the petitioner, and thereupon, they would be entitled to the wages w.e.f. 1-1-1988 at par with the permanent employees of the petitioner, along with other incidental benefits.

Being aggrieved and dissatisfied by the said award of the Tribunal dated 9-3-2010, the petitioner has filed the present petition invoking the writ jurisdiction of this Court under Arts. 226 and 227 of the Constitution of India.

Mr. D.C. Dave, learned Advocate appearing for the petitioner has submitted that there existed an error apparent on the face of the award in this wise that the Tribunal has travelled beyond the scope of the reference. The Tribunal has no jurisdiction to adjudicate upon the matter which is not referred to it. If the Tribunal travels beyond the terms of the reference, and thereupon, adjudicates the matter not referred to it under the concerned reference, it would amount to passing an award without jurisdiction. He further submitted that the issue referred to the Tribunal for adjudication was in a very narrow compass and the same was referable to the aspect as to whether the workmen discharging their duties in the gardens of the petitioner as gardeners were entitled to parity or not in the matter of wages and other benefits with the permanent employees of the petitioner with retrospective effect from 1-1-1988. However, despite this, in the impugned award, the Tribunal has proceeded on the premise as if the issue is as to whether the contract labor system prevalent in the set-up of the petitioner was sham and bogus or not and further as to whether if the contract labor system prevalent in the set-up of the petitioner was sham and bogus, the concerned workmen, who were engaged by the concerned contractor, were liable to be treated as the employees of the petitioner or not. He has, therefore, submitted that the Tribunal does not have the jurisdiction in law to embark upon an inquiry concerning the issue as to whether the contract labor system is sham and bogus.

Mr. Dave further submitted that specific and categorical objection was raised for and on behalf of the petitioner before the Tribunal stating that the Tribunal has no jurisdiction to deal with the said issue and yet the Tribunal discarded the same and proceeded to deal with the same by holding that the said issue would fall within the terms of the reference made to it. He further submitted that since it was not possible for the concerned workmen to succeed in the said reference for claiming parity in the matter of wages and other benefits on account of the fact that, evidently and admittedly, the said workmen were not the direct employees of the petitioner, respondent Nos. 1 and 2 as Trade Unions purporting to espouse the cause of the said workmen raised a plea, without any base that the contract labor system prevalent in the set-up of the petitioner was sham and bogus.

Mr. Dave further submitted that the concerned workmen should have made a request for such a reference, and thereupon only, the Tribunal could go into the said issue. In the statement of claim before the Tribunal, appreciating the terms of reference, the concerned workman never claimed that the contract labor system prevalent in the set-up of the petitioner was sham and bogus, and therefore, the same was required to be declared accordingly.

Mr. Dave further submitted that even otherwise, the Tribunal should have rejected the claim of the concerned workmen for parity in the wages and other benefits with the permanent employees of the petitioner on the premise that even if such parity was permissible in law, no evidence worth its name was adduced by the workmen showing as to how the work performed by them was same as that of the permanent employees of the petitioner. Mr. Dave also submitted that even if it is assumed on hypothesis that the issue as to whether the contract labor system prevalent in the set-up of the petitioner was genuine or not, was falling within the scope and purview of the said reference, the fact remains that the Tribunal has come to a conclusion against the petitioner in this regard without any cogent and justifiable reasons and evidence on record of the case. He further submitted that when the concerned labor contractor is having an independent existence and identity from the principal employer and further, when such labor contractor is having similar assignment as labor contractor with other principal employer, and further, when the concerned area of operation of such labor contractor is not prohibited by the competent authority under the provisions of Contract Labor (Regulation & Abolition) Act, 1970 and further, when such labor contractor possesses requisite license as labor contractor under the said statute, the presumption is that the contract for labor is genuine and heavy burden would lie on the workmen to prove to the contrary.

Mr. Dave further submitted that the Tribunal while passing the award relied upon certain certificates stated to have been issued by the concerned faculty members and the administrative staff of the petitioner. The said certificates, if viewed in their true perspective, would simply suggest that the concerned faculty members and administrative staff of the petitioner had given, at their personal level, certificates of moral character about the concerned workmen as a good gesture to help them out. He has, therefore, submitted that merely because the concerned faculty members and the administrative staff of the petitioner had given certain certificates about the moral character of the concerned workmen, the same should not be considered as a piece of evidence to come to a conclusion that the concerned workmen were the employees of the petitioner and the contract labor system through which they were employed was sham and bogus. As a matter of fact, in some of the certificates issued by the concerned faculty members, there is a specific mention about the concerned workmen being engaged in the set-up of the petitioner as a contract labor.

Mr. Dave has further submitted that the Tribunal has absolutely erred in holding against the petitioner by referring to the point that even the contribution towards the provident fund from the wages of the concerned workmen was deposited in the concerned account of the petitioner, and therefore, the said workmen would emerge as the workmen of the petitioner. He has further submitted that this could not have been a ground for holding the contract labor system prevalent in the set-up of the petitioner as sham and bogus for the simple reason that there existed a valid explanation for the same. At the relevant time, the concerned workmen employed by the petitioner was not having a separate Provident Fund account number, and as a result thereof, for the purpose of convenience and also for the purpose of ensuring that the contribution in respect of the Provident Fund of the workmen was deposited in time and there was no default in respect of the same, the petitioner permitted the deposit thereof in its concerned account. Even otherwise, as a principal employer, it was the duty of the petitioner to see that there was no default on the part of the contractor in making payment to the Provident Fund. He has, therefore, submitted that the usage of the Provident Fund account of the petitioner has no bearing in deciding the issue as to whether the contract labor system as sham and bogus or not. He further submitted that on the relevant date, the concerned contractor was having a separate Provident Fund account, and thereafter, at no point of time, Provident Fund was deposited in the concerned account of the petitioner. He has, therefore, submitted that there is no substance in the said ground relied upon by the Tribunal while passing the impugned award.

Mr. Dave further submitted that the Tribunal should have appreciated that when the existence of the contract is not in dispute and when the contractor is admitting the concerned workmen as his employees and further that there is no link between the petitioner and the concerned contractor, the question of holding the contract labor system prevalent in the set-up of the petitioner as sham and bogus would not arise. He further submitted that there is no notification by the appropriate Government prohibiting deployment of contract labor system in respect of the concerned work, namely, gardens in the set-up of the petitioner. In view of this, the Tribunal should not have held the contract labor system prevalent in the set-up of the petitioner as sham and bogus. He further submitted that the basic function with regard to the abolition of the contract labor system vests with the Advisory Board, and on the recommendation of the Advisory Board, the appropriate Government has to take a suitable decision. Therefore, the Tribunal could not have usurped the jurisdiction which is vested absolutely in the Advisory Board, by passing the impugned award which is virtually having the effect of abolishing the contract labor system under the guise of declaring the same as sham and bogus.

Mr. Dave further submitted that the Tribunal has nowhere held in the impugned award that the workmen engaged by the contractor through the contract labor system in the set-up of the petitioner were doing the work similar to that of the regular and permanent employees of the petitioner. Therefore, without addressing itself on this aspect of the matter, the Tribunal has come to the conclusion that the contract labor system prevalent in the set-up of the petitioner was sham and bogus. Even if the work performed by the contract labor is found to be same as that of the permanent employees of the petitioner, the same cannot be a ground to declare the contract labor system as sham and bogus.

Mr. Dave further submitted that the Tribunal has absolutely misread the deposition of three workmen, out of whom one was not serving in the set-up of the petitioner at the relevant time of giving of evidence. The said deposition, if viewed in their true perspective, clearly lead to the conclusion that even as per the say of the said workman, there is a genuine system of contract labor in the set-up of the petitioner. The same is the case with the deposition of Estate Manager of the petitioner. The said deposition also points out the existence of genuine contract labor system in the set-up of the petitioner. He further submitted that the Tribunal has also misread the documentary evidence, such as pay slips of the workmen, gate passes issued to the workmen to mean that the workmen are the direct employees of the petitioner. The said documents would simply disclose that the concerned workmen work in the set-up of the petitioner and not that the said workmen are the direct employees of the petitioner. A contract labor undoubtedly works in the set-up of the principal employer. However, this does not mean that such contract labor is the direct employee of the principal employer. He further submitted that though there does not exist any evidence proving the control of the petitioner over the concerned workmen working in the set-up of the petitioner as contract labor, the Tribunal proceeded on the premise as if the petitioner is having a total administrative control over the said workmen.

Mr. Dave further submitted that though respondent No. 3 as also the labor contractors previous to respondent No. 3 were possessing the requisite license as labor contractor under the provisions of Contract Labor (Regulation & Abolition) Act, 1970, the Tribunal has held to the contrary, and thereby, committed patent error. So far as the respondent No. 3 was concerned, the requisite certificates in this regard were placed on record of the said reference vide Exhs. 186, 187 and 188. When various workmen entered into the settlement with respondent No. 3 pending reference, it is indeed not possible to appreciate the stand of the Tribunal that respondent No. 3 is not the contractor. He has, therefore, submitted that the impugned award passed by the Tribunal is based upon conjectures and surmises, and hence, it is violative of Art. 14 of the Constitution of India and it deserves to be quashed and set aside.

With regard to scope of reference and the jurisdiction of the Industrial Tribunal, Mr. Dave has relied on the following decisions of the Apex Court :

(i) In Ram Singh v. Union Territory, Chandigarh, AIR 2004 SC 969. the Apex Court held that where a particular relationship between the employer and employee is genuine or a camouflage through the mode of contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator.

(ii) In Mukand Ltd. Vs. Mukand Staff and Officers'' Association, the Apex Court held that the order of reference passed in the present case, states that dispute between M.S. Mukund Limited and the workmen employed under them has been referred to the Tribunal. It is, therefore, clear that the Tribunal being a creature of the reference cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference. In the facts and circumstances of the present case, the Tribunal could not have adjudicated the issues of the salaries of the employees who are not workmen under the Act nor could it have covered such employees by its award. Even assuming that the Reference covered the non-workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the non-workmen.

(iii) In Mahendra L. Jain v. Indore Development Authority, AIR 2005 SC 1252, the Apex Court held that the Labor Court having derived its jurisdiction from the reference made by the State Government, it was bound to act within the four corners thereof. It could not enlarge the scope of the Reference nor could devoid there from. A demand which was not raised at the time of raising the dispute could not have been gone into by the Labor Court being not the subject-matter thereof.

(iv) In Bhogpur Co-op. Sugar Mills Ltd. v. Harmesh Kumar, AIR 2007 SC 288, the Apex Court held that the Labor Court derived its jurisdiction from the terms in reference. It ought to have exercised its jurisdiction within the four corners thereof. The principal question which was referred by the State Government was as to whether the termination of services of the respondent was justified. The Labor Court, was therefore, not required to go into the question as to whether the appellant was bound to take the services of the respondent in all subsequent seasons or not.

(v) In International Airport Authority of India Vs. International Air Cargo Workers'' Union and Another, the Apex Court held that where there is no abolition of contract labor under Sec. 10 of the Contract Labor (Regulation & Abolition) Act, but the contract labor contends that the contract between principal employer and contractor is sham and nominal, the remedy is purely under the I.D. Act. The industrial adjudicator can grant the relief sought if it finds that contract between principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employees and that there is in fact a direct employment, by applying tests like : who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employees the way in which the work should be done, in short who has direction and control over the employees.

(vi) In State of Haryana and Others Vs. Charanjit Singh and Others, etc. etc., the Apex Court held that the doctrine of ''equal pay for equal work'' is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of ''equal pay for equal work'' has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay-scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though, persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay-scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay-scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of ''equal pay for equal work'' requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus, normally the applicability of this principle must be left to be evaluated and determined by an expert body.

Mr. T.R. Mishra, learned Advocate appearing for the respondent has submitted that the award passed by the Tribunal is well-reasoned and has been passed on the basis of appreciation of evidence placed on the record of the Tribunal and this Court should not re-appreciate the evidence to come to a different conclusion. He further submitted that the workman was examined vide Exh. 167 wherein he has stated that he has been performing the duties in the garden department in regular manner for 8 hours and was under the direct control and supervision of Shri B.C. Patel, Estate Officer of the petitioner-Company. He has also deposed that Shri B.C. Patel was overall in-charge and he used to supervise the work of the workmen and if any workman is required to take any leave or to go out, he has to seek permission of Shri B.C. Patel. He further stated that apart from maintaining the garden of the Company, he was required to clean table, chair and other office equipments under the direct control and supervision of the Estate Officer. The Provident Fund prior to coming into force of the contract, was being deducted by the Management. He further stated that he knew Shri Ravjibhai Bhikhabhai and he has confirmed the pay-slip of Ravjibhai Bhikhabhai. He has further stated that the said pay-slip was given in the year 1988. The entry pass issued by the Management has been placed on the record showing that they were working since 1988 in the Company. The said workman has been subjected to cross-examination and in the said cross-examination, nothing adverse has come on the record.

Mr. Mishra further submitted that the petitioner has examined one Shri Bhupendra Chimabhai and in the cross-examination, the said deponent has stated that the contract of the garden was given in the year 1987. The said deponent further stated that the work of garden was continued and the workmen were working in the said garden department. He further confirmed that he used to remain present while making payment to the workmen upto 1997. The Provident Fund was deducted and was deposited under the Code allotted for the Company. He further stated that the duties of the said workmen were usual along with other workmen for 8 hours from 8-00 a.m. in the morning to 5-00 p.m. in the evening with lunch-break. He further confirmed that for the purpose of sweeping, dusting and cleaning, nobody was appointed. He further confirmed that while doing the work in the garden department, container and other materials were supplied by the Company. With regard to settlement, he pleaded his ignorance. The Tribunal after perusing the evidence on record observed that before issuance of license, there was a contract named under Adarsh Farm and Jalaram Farm. The witness of the petitioner in his written statement stated that the contract was awarded to Adarsh Farm and Gayatri Labor Services whereas on record, there is a mention about Jalaram Farm, and hence, the Tribunal concluded that the petitioner is trying to suppress the material facts and bring new facts about Jalaram Farm which does not figure in the documentary evidence. In the cross-examination, he stated that the contract of the garden was given in 1987 whereas these workmen have been appointed between the period from 1985 to 1988.

Mr. Mishra further submitted that all payments have been made to the contract labors by the Management of the petitioner-Company. Over and above this, a pursuit was filed by the Management before the Tribunal for recording settlement wherein there is no mention about the so-called contractors. The statement signed by the Management confirmed the stand of the respondent.

Mr. Mishra further submitted that initially, when the reference was made, the contractor, namely, Gujarat Environmental Service Society, the respondent No. 3 herein, has filed Special Civil Application No. 7707 of 2002 before this Court challenging the order of Tribunal impleading the Society in the pending proceeding. In the said petition, on behalf of the respondent No. 3, the Advocate appearing in the said proceeding had challenged the order before this Court in Special Civil Application No. 7707 of 2002 on the ground that the Tribunal has wrongly impleaded respondent No. 3 as party in the proceeding as respondent No. 3 has nothing to do with the said matter. On the one hand, on behalf of respondent No. 3, the petition is filed which has been disposed of on 23-9-2002, and on the other hand, when the award is passed against the petitioner, the petitioner came with the petition challenging the same on the ground that there was no employee-employer relationship between the Management of the petitioner and the workmen.

In addition to the above submissions, Mr. Mishra has submitted that at the time of raising the industrial dispute by the Union, 366 workmen were involved in the original dispute. During the pendency of the aforesaid dispute before the Industrial Tribunal, the petitioner-employer directly settled with the workmen individually by signing 2-P settlement under the I.D. Act, 1947 and all settlements were placed on record in the original reference by the petitioner-Management and the Tribunal has passed part award recording the said 2-P settlement. Though, the settlement on paper was signed by the workmen and the so-called contractor, it is an undisputed fact that as per the terms and conditions of the settlement, the amount was paid by the principal employer and thus, after appreciating these facts, the Tribunal held that if the amount is paid by the Principal employer, the question of contract does not come into picture.

Mr. Mishra further submitted that on behalf of the petitioner, a further issue was raised with regard to jurisdiction of the Tribunal. The stand of the petitioner is that the Tribunal has exceeded its jurisdiction. In this connection, Mr. Mishra relied on the decision of the Apex Court in the case of Indian Farmers Fertilizers Co-operative Society v. Industrial Tribunal, 2002 (2) LLM 368.

Mr. Mishra further submitted that the petitioner agreed before the Tribunal to produce the record but has never produced at any stage of the proceedings. Failure to produce the record on the ground that they were not available gives rise to an adverse inference. For this purpose, he relied on the decision of the Hon''ble Supreme Court in the case of Bharat Heavy Electrical Limited Vs. State of U.P. and Others, For the purpose of parity in employment and equal pay for equal work, Mr. Mishra relied on the decision of the Apex Court in the case of U.P. Land Development Corporation and Another Vs. Mohd. Khursheed Anwar and Another, wherein the Court observed that no material was produced either before the High Court or before this Court to show any difference in the nature of duties being performed by the respondents and those which were required to be performed by Assistant Engineer. The Court, therefore, took the view that the respondents had been arbitrarily deprived of their legitimate right to get minimum of the pay-scale prescribed for the post of Assistant Engineer.

Mr. Mishra further relied on the decision of the Apex Court in the case of Food Corporation of India Vs. Shyamal K. Chatterjee and Others, wherein the Apex Court has confirmed the order of the High Court recording the finding that since some casual workers appointed directly by the appellant and some employed by the contractors are working in the same godown and on the same work, there could not be any scope for making any difference and to deny equal pay for equal work.

Mr. Mishra further relied on the decision of the Apex Court in the case of J.K. Cotton Spinning and Weaving Mills Co., Ltd. Vs. Badri Mali and Others, wherein after observing that where certain cotton spinning and weaving mills provided of its Officers and Directors, under the terms of their contracts, bungalows with attached gardens in the colony of the Mills and some malis (gardeners) were employed by the Mills to look after these gardens, their conditions of service were determined by the Mills, their work was supervised and controlled by the Mills and the payment was made by the Mills, it was held that the Mills must be held to be engaged in operations which are incidentally connected with the main industry carried on by the Mills, and were therefore, workmen within Sec. 2(s) and also Sec. 2 of the U.P. Industrial Disputes Act, 1947.

In G.M., O.N.G.C., Shilchar v. O.N.G.C. Contractual Workers Union, 2008 LLR 801, the Apex Court held that it is true that the underlined portion of the reference prima facie does give impression that it pre-supposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it.

In Gujarat Mazdoor Panchayat Vs. State of Gujarat and Others, the Division Bench of this Court has held that even if contract labor is in vogue in a concern, employees employed by the contractor can validly raise certain contentions which may buttress their grievances that even though they are the direct employees of the principal employer, they have been wrongly treated as employees of the contractor who is not a real intermediary. Such types of disputes which would be covered by the principal dispute under the Industrial Disputes Act, 1947 can be legitimately raised. The Court further observed that the conditions laid down in the provisions of Contract Labor Act have nothing to do with the question whether the so-called contract labor system employed in any establishment is a genuine contract labor system or a mere camouflage or paper arrangement and the contractor''s workmen in essence are the workmen of the principal employer. Such types of disputes are clearly foreign to the scope and ambit of Sec. 10 of the Contract Labor Act and they squarely fall within the four corners of the industrial dispute resolution machinery as contemplated by the Industrial Disputes Act.

In Steel Authority of India Ltd. Vs. Gujarat Mazdoor Panchayat and Another, the dispute referred to the Industrial Tribunal, Ahmedabad under Sec. 10 of the Industrial Disputes Act for adjudication is as under :

Whether the workmen shown below should be treated as permanent workmen from the date they are working in Steel Authority of India Limited, Kaligam Yard and whether they should be paid wages, dearness allowance and other allowances as per the rules of the Company from that date?

The Industrial Tribunal held that the workmen were permanent employees of the petitioner and directed it to pay them regular scale with allowances etc., and that they were not the workmen of alleged contractor. While dismissing the petition filed by the employer challenging the award, the Division Bench observed that correct approach has been adopted by the Tribunal while adjudicating the dispute referred to it and as it has acted within its domain, the same cannot be interfered with in instant petition. The Court further observed that mere filing of the writ petitions by Union praying for abolition of contract labor system would not debar the Union from praying that the workers be declared direct employees of S.A.I.L. or from claiming that the contract system if at all exists is merely sham. The scope of the dispute which was referred to the Tribunal and the two petitions filed by the Union are different and distinct. Further, settlement between the Gujarat Mazdoor Panchayat and Bardhan and Company would not preclude the Union from contending that the workers are really employees of the Company and not of the contractor. There is no manner of doubt that once the so-called contractor, Bardhan & Company, was sought to be brought on paper, the workers might have been introduced by way of safety and precautions to secure better terms and conditions of service, to enter into (2-P) settlement with Bardhan and Company, but that by itself will not exclude their right to contend that they are really workers of the S.A.I.L. and not of the contractor.

Considering all these facts and submissions and certain undisputed facts and evidence on record, Mr. Mishra strongly urged that the award passed by the Tribunal is absolutely in accordance with the settled legal provisions and the same does not call for any interference by this Court while exercising its extraordinary powers under Arts. 226 and 227 of the Constitution of India. He has, therefore, submitted that the petition deserves to be dismissed with cost.

Having heard learned Counsel appearing for the parties and having considered their rival submissions in light of the facts and circumstances of the case and also having regard to the provisions contained in the Industrial Disputes Act, 1947 as well as Contract Labor (Regulation & Abolition) Act, 1970 and decided case-law on the subject, the Court is of the view that the Industrial Tribunal has exceeded its jurisdiction and decided the reference made to it under Sec. 10(1)(d) of the Industrial Disputes Act, 1947, beyond its scope. The reference made to the Industrial Tribunal is as under :

Whether workmen working in the gardens of the petitioner as gardeners were entitled to the wages, grade for the wages, leave, medical allowance, bonus, L.T.C. and other benefits as applicable to the permanent employees of the petitioner with retrospective effect from 1-1-1988?

It is nowhere referred to in the term of reference as to whether the said workers are the employees of the petitioner nor it is referred to as to whether the contract labor system employed in the petitioner establishment is sham and bogus. The jurisdiction of the Tribunal is confining to decide the reference made to it. It has no power or jurisdiction to go beyond the scope of reference. If the issue is not referred to the Tribunal as to whether the contract labor system is sham or bogus, it is not open for the Tribunal to embark upon the said issue and give its decision on such issue. Despite this settled legal position, the Tribunal has observed in its award that the workmen working in the garden department of the petitioner are the workmen of the petitioner and the contract labor system employed in the petitioner establishment is sham and bogus. After recording this finding, the Tribunal held that all these workmen are entitled to the service benefits which are given to the permanent employees of the petitioner. This finding given by the Tribunal is contrary to the evidence on record and despite the fact that the concerned contractor is having separate and independent identity. He is having similar assignments in other establishments. The area of operation undertaken by the said contractor is not prohibited under any law and he is possessing the requisite license of carrying out such contract work in the petitioner establishment. Having ignored this cogent, clear and unequivocal evidence on record, what is weighed with the Tribunal is some certificates of moral character issued by the persons in-charge of the concerned department of the petitioner and the contribution to Provident Fund deposited in the account of the petitioner. The perusal of this evidence makes it clear that certificates nowhere referred to that they are workers of the petitioner. Contribution to Provident Fund was deposited in the account of the petitioner only because no Code number was allotted to the contract labor. It is also established on record that during the relevant period, the contribution to Provident Fund was deposited in the account of the contract labor.

Apart from the facts on record, which do not support the finding arrived at by the Tribunal, the law is also very clear on this subject. In Ram Singh v. Union Territory, Chandigarh (supra), the Apex Court has clearly held that where a particular relationship between the employer and employee is genuine or a camouflage through the mode of contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment and the actual nature of the employment. This question has to be raised and proved before an industrial adjudicator. In Mukund Ltd. v. Mukund Staff & Officers'' Association (supra), the Apex Court held that the Tribunal being a creature of the reference cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference. In Mahendra L. Jain v. Indore Development Authority (supra), the Apex Court took the view that a demand which was not raised at the time of raising the dispute could not have been gone into by the Labor Court being not the subject-matter thereof. In Bhogpur Co-op. Sugar Mills Ltd. v. Harmesh Kumar (supra), the Apex Court in no uncertain terms laid down the principle that the Labor Court derived its jurisdiction from the terms in reference. It ought to have exercised its jurisdiction within the four corners thereof.

The judgments relied upon by Mr. Mishra in support of his submissions are not applicable to the facts of the present case. In M/s. J.K. Cotton Spinning & Mills Ltd. v. Labor Appellate Tribunal of India (supra), the question before the Labor Court was as to whether some mails (gardeners) employed by the Mills to look after the gardens are considered to be workmen within Sec. 2(s) of the Industrial Disputes Act. In G.M., O.N.G.C, Shilchar v. O.N.G.C. Contractual Workers Union (supra), the Apex Court, taking note of the finding of fact recorded by the Industrial Tribunal as well as the Division Bench that both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings, confirmed the judgment of the High Court that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it. The decision of this Court in the case of Gujarat Mazdoor Panchayat v. State of Gujarat (supra), is not applicable to the facts of the present case as in that case, the Court was concerned with the powers of the State Government to make reference under Sec. 10(1)(d) of the Act. What was challenged before the Court was the State Government''s refusal to make the reference and in that case, the Division Bench took the view that even if contract labor is in vogue in a concern, employees employed by the contractor can validly raise certain contentions which may buttress their grievances, that even though, they are the direct employees of the principal employer, they have been wrongly treated as employees of the contractor who is not a real intermediary. The Court, therefore, took the view that such types of disputes which would be covered by the principal dispute under the Industrial Disputes Act, 1947 can be legitimately raised. The decision of this Court in the case of Steel Authority of India Ltd. v. Gujarat Mazdoor Panchayat (supra), is also distinguishable on facts as in that case, the real question before the Industrial Tribunal was as to whether the workmen shown in the list should be treated as permanent workmen and whether they should be paid wages, dearness allowance and other allowances etc. as per the rules of the Company from that date. The Court was concerned with the issue as to whether they are the workmen of the Company or the contractor and in that context, the Court took the view that the correct approach has been adopted by the Tribunal while adjudicating the dispute referred to it and as it has acted within its domain, the same cannot be interfered with in the writ petition filed before the Court.

In view of the above discussion, the Court is of the view that the Tribunal has exceeded its jurisdiction and award passed by it is beyond the scope of the reference made to it.

Apart from this finding, the impugned award granting all service benefits of the permanent employees to the workmen is also unsustainable. The Apex Court in the case of State of Haryana v. Charanjit Singh (supra), clearly held that the doctrine of ''equal pay for equal work'' is not an abstract doctrine and is capable of being enforced in a Court of law. However, at the same time, it was made clear that equal pay must be for equal work of equal value and it has no mechanical application in every case. Several factors were enumerated and the said doctrine requires consideration of various dimensions of a given job. In Official Liquidator Vs. Dayanand and Others, the Apex Court has clearly held that in exercise of power vested in it under Art. 226 of the Constitution of India, the High Court cannot issue a mandamus and compel the State and its instrumentalities/agencies to regularize the services of temporary/ad hoc/daily-wager/casual/contract employees and directions cannot be issued to the public employer to prescribe or give similar pay-scales to employees appointed through different modes, with different conditions of service and different sources of payment.

In view of the above, the Court is of the view that the impugned award passed by the Industrial Tribunal is liable to be quashed and set aside, and it is accordingly, quashed and set aside. This petition is accordingly allowed. Rule is made absolute without any order as to costs.