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K. Kumar & Others v/s The General Manager, Bharat Heavy Electricals Limited, Chennai & Another

    W.P. No. 28251 of 2014 M.P. Nos. 1 & 2 of 2014

    Decided On, 18 July 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM

    For the Petitioners: V. Prakash, Senior Advocate, K. Sudalaikannu, Advocate. For the Respondents: R1, Karthik Ram Mohan, M/s. Ramasubramaniam & Associates, R2, Anand Gopalan, M/s. T.S. Gopalan & Co., Advocates.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, forebearing the respondents from terminating the service of the petitioners and further direct the respondents to consider the petitioners representation of 01.09.2014.)

1. The writ on hand is filed to forebear the respondents from terminating the services of the petitioners and further direct the respondents to consider the petitioners representation dated 01.09.2014.

2. The petitioners state that the 1st respondent is a Company owned by the Government of India and is a “State” within the meaning of Article 12 of the Constitution of India. The 1st respondent is an integrated power plant equipment manufacturer and one of the largest engineering and manufacturing company. The petitioners were employed in the North Chennai Thermal Power Station at Athipet Pudhu Nagar Stage II, Chennai. The 1st respondent awarded the contract for erection of the plant, including turbines, boilers etc. Phase II installation project commenced in the year 2008. The petitioners had been recruited and employed by the 1st respondent Company. The petitioners were working continuously without any break.

3. The petitioners state that the 1st respondent-Company utilised the services of the petitioners and further, utilised by the private contractors for the purpose of payment of wages to the petitioners. However, the petitioners were supervised by the officials of the 1st respondent / Management and contractors were engaged only for the purpose of payment of wages. The 1st respondent entered into a contract with the 2nd respondent for the purpose of erection of North Chennai Thermal Power Station Stage-II, Athipet, Chennai and executed the work through its own Engineers and supervised the aforesaid workers.

4. The petitioners submitted a representation on 01.09.2014, seeking for permanent absorption in North Chennai Thermal Power Station Stage-II. The said representation was not considered and the respondents have initiated action to stop the services of the writ petitioners. Thus, they were constrained to move the present writ petition.

5. The learned Senior counsel appearing on behalf of the petitioners mainly contended that the petitioners though made to work under certain private contractors, they were effectively supervised by the officials of the 1st respondent / Company. They were engaged continuously without any break in service and therefore, they are entitled to be absorbed in the permanent vacancies. The 2nd respondent entered into a contract with the 1st respondent for completion of Thermal Power Station project works and the petitioners have served in the said project for a considerable length of time and therefore, they are to be absorbed in the permanent vacancy.

6. The learned Senior counsel drew the attention of this Court with reference to the judgment of the Constitution Bench of the Hon'ble Supreme Court of India in the case of Steel Authority of India Limited and Others Vs. National Union Waterfront Workers reported in [(2001) 7 SCC 1], in paragraph 125 (6) of the judgment made an observation that:

“125......

(5) .................

(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibition employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.”

Relying on the above judgment, the learned Senior Counsel is of an opinion that the petitioners were served with the 1st respondent / Company for a considerable length of time and in the event of sending them out, their livelihood will be affected an humane approach is required in such nature of cases. No citizen should be left in lurch and an opportunity of employment is an important factor, which is to be considered by the State at all circumstances and therefore, the services rendered by the petitioners in the project is to be taken into consideration for providing the benefits of permanent absorption.

7. The learned counsel appearing on behalf of the 1st respondent objected the said contention by stating that the 1st respondent entered into a contract with the 2nd respondent for execution of the project namely Thermal Power Station. They have engaged the contractors for execution of different nature of works in the Thermal Power Station. Several contractors were engaged and sub-contractors were executed. For instance, for electrical works, a contractor is engaged and for civil works another contractor is engaged, likewise sub-contractors were engaged based on the requirements. The writ petitioners were engaged by one such private contractors and they were working under the control of their contractors. At no point of time, the respondents have directly engaged the services of the writ petitioners nor they paid any wages to the writ petitioners. All along, the petitioners were engaged by the private contractors, who in turn, was their employers. Therefore, question of granting permanent absorption in the respondent / Company does not arise at all. On completion of the project, the services of the writ petitioners came to an end and the petitioners are not at all working with the 1st respondent as of now. On completion of the Thermal Power Station project, they were not serving in the project. Thus, the claim for permanent absorption cannot considered in accordance with the Recruitment Rules applicable to the 1st respondent. In order to substantiate the said contention, the 1st respondent filed a copy of the license issued under the Contract Labour (Regulation and Abolition) Act, 1970. Under the license, the works were executed by the private contractors by engaging the labourers. Thus, the writ petition is liable to be rejected.

8. The learned Standing Counsel appearing on behalf of the 2nd respondent / TANGEDCO made a submission that they have not engaged the writ petitioners for execution of works. The TANGEDCO and M/s.Bharat Heavy Electrical Limited have entered into a contract for setting up of a coal based 1x600 MV North Chennai Thermal Power Station Stage-II with the existing North Chennai Thermal Power Plant Station complex. M/s.Bharat Heavy Electrical Limited (herein after referred as BHEL) was handed over the works under letter of Intent dated 18.03.2010. The BHEL has carried out the said work and handed over the said projects to TANGEDCO after completion. The said project of Thermal Power Station thereafter was run by the TANGEDCO by engaging its employees and no further execution of works in the said project was done by BHEL or its employees thereafter.

9. The TANGEDCO has handed over the said project to BHEL on agreement and in letter of intent, it was clearly specified at S.No.7 Regulation of Local Authorities and Statutory Obligations at Subsection 7.4 and 7.5 as follows:

“7.4 The Statutory obligations arising from CEIG, Factory Inspectorate, Labour Inspectorate, Pollution Control Board (PCB), local bodies & other Govt. agencies shall be scrupulously complied with.

7.5 The Contractor shall comply with all the rules and regulations of local authorities during the performance of his field activities. He shall also comply with the Minimum wages Act. 1948, Payment of Wages Act and Contractor Labour (Regulation and Abolition Act) or any other law and the rules made there under in respect of any employee or workmen employed or engaged by hi or his sub-Contractor”.

10. As the conditions for employees engaged by the contractor or by a sub-contractor was instructed to be complied by the contractor including Minimum Wages Act, 1948, Payment of Wages Act, Contract Labour (Regulation and Abolition Act) or any other law and rules made thereunder, it is the obligatory of the contractor BHEL to comply with the above rules framed by the Act, in respect of the workman engaged by him of by his sub-contractor.

11. It is stated that the TANGEDCO has its own Service Regulations, Rules and methods of recruit personnel to various positions. Therefore, the TANGEDCO cannot grant the benefit of permanent absorption for these writ petitioners, who were engaged by the contractors of BHEL. It is further contented that on completion of the project, all the petitioners were relieved by their own contractors and thus, now they cannot seek permanent absorption in the establishment of the respondents.

12. Considering the arguments as advanced by the learned Senior Counsel appearing on behalf of the writ petitioners and the respective learned counsel appearing on behalf of the respondents, this Court is of the considered opinion that the nature of an employment of the writ petitioners unambiguously portrays that they were not directly engaged either by the BHEL or by the TANGEDCO. The 2nd respondent / TANGEDCO entered into an agreement with the 1st respondent / BHEL for execution of project namely Thermal Power Station and in the said project, the BHEL engaged the subcontractors for execution of the works in the project. The Private sub-contractors had engaged their own labourers / employees, for the purpose of execution of the works. On completion of the project, it was handed over to the TANGEDCO by the BHEL and thereafter, the TANGEDCO appointed personnel as per their Recruitment Rules and commenced the operations in the Thermal Power Plant.

13. Therefore, the writ petitioners were engaged in the project work and the contractors were engaged by the BHEL for execution of the work. Therefore, the various Statutes under the Labour Laws and the Rules alone would be applicable in respect of the employment of the writ petitioners. Licenses were issued under the Contract Labourer (Regulation and Abolition) Act, 1970. If at all any grievance exists in respect of the employment or violations of the Statutes, the petitioners have to approach the competent authorities under the Statutes or under the Forum. Contrarily, they cannot seek permanent absorption either in the TANGEDCO or in the BHEL by filing a writ petition under Article 226 of the Constitution of India. The High Court cannot issue any direction to regularise the services of the writ petitioners or to grant permanent absorption.

14. All appointments in Government sectors, Government Company undertakings etc. are to be made strictly in accordance with the Recruitment Rules in force. Equal opportunity in public employment is a Constitutional mandate. Back door appointments can never be confirmed. Persons engaged through private contractors in a project cannot seek regularisation or permanent absorption by filing a writ petition merely based on their services in the project. In the event of grant of permanent absorption to such labourers, the principles of equal opportunity enunciated in the Constitution would be violated. Public appointments are to be made only through the recruitment process under Constitutional schemes. All eligible citizen of our great nation, who all are aspiring to secure public employment through open competitive process are to be provided with an opportunity and also by applying the Rules of Reservation. Therefore, engagement by a private contractor can never be allowed as a source for permanent absorption in a Government sectors. In such an event, the very Constitutional scheme of recruitments are violated and Fundamental Rights of other citizen, who all are aspiring to secure public employment through open competitive process are also infringed. Thus, the petitioners, if at all want to secure public employment, they must participate in the process of selection for recruitment in the manner contemplated. Contrarily, by taking advantage of their services in a project through a private contractor, they cannot seek permanent absorption in Government sector, which would result in unconstitutionality.

15. The learned Senior Counsel appearing on behalf of the petitioners referred a judgment of the Constitution Bench of the Hon'ble Supreme Court of India. The said judgment relate to labour legislations and even the absorption referred by the learned Senior Counsel for the petitioners reveal that a preference is to be given to the erstwhile contract labours, if they are otherwise found suitable by the principal employer. However, this Court is bound by the subsequent Constitution Bench judgment of the Hon'ble Supreme Court of India in the case of The Secretary, State of Karnataka Vs. Umadevi and Others reported in [2006 (4) SCC 1]. The subsequent Constitution Bench of the Hon'ble Supreme Court of India in unambiguous terms reiterated the principles that equal opportunity in public employment is a Constitutional mandate. All appointments are to be made only under the Constitutional schemes and back door appointments can never be regularised or the benefit of permanent absorption to be granted. Even in subsequent cases, the Hon'ble Supreme Court of India held that the High Cou

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rt in exercise of the powers under Article 226 of the Constitution of India cannot issue direction to regularise the services of the employees, whose appointments were made otherwise not in accordance with the Recruitment Rules applicable to the State or Government organisation concerned. Thus, the benefit of regularisation and permanent absorption are to be granted only if the initial appointments are made in accordance with the Recruitment Rules in force, but not otherwise. Illegal or irregular appointments can never be regularised. 17. In the present case, it is not even an appointment by the respondents. The respondents in the present case, at no circumstances, appointed the writ petitioners in their organisation. They were engaged by the private contractors for execution of the project by the 1st respondent / BHEL. The 2nd respondent / TANGEDCO entered into an agreement with the 1st respondent for execution of project namely Thermal Power Plant. Thus, the petitioners, who were not engaged by the 1st respondent or by the 2nd respondent cannot be construed as the employees engaged/appointed by either of the respondents. Thus, if at all any grievance exists for the petitioners, they have to pursue their remedy under the relevant Labour Laws. Contrarily, they cannot seek regularisation or permanent absorption in the Government sectors. 18. Accordingly, the Writ Petition is devoid of merits and stands dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
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