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Masila Mani & Others v/s Hindustan Aeronautics Limited a Government of India Undertaking, Rep. by the Chairman & Managing Director & Others


Company & Directors' Information:- HINDUSTAN AERONAUTICS LIMITED [Active] CIN = U35301KA1963GOI001622

Company & Directors' Information:- A O G AERONAUTICS PRIVATE LIMITED [Strike Off] CIN = U35303PB1989PTC009681

Company & Directors' Information:- MANI AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066017

Company & Directors' Information:- A S MANI AND CO PVT LTD [Strike Off] CIN = U63090KL1980PTC003154

Company & Directors' Information:- V N MANI PRIVATE LIMITED [Active] CIN = U22300TG2021PTC148889

Company & Directors' Information:- N. K. MANI & CO PRIVATE LIMITED [Strike Off] CIN = U22121TN1960PTC004261

Company & Directors' Information:- HINDUSTAN CORPORATION PRIVATE LIMITED [Dissolved] CIN = U74900KL1901PTC000424

Company & Directors' Information:- HINDUSTAN LTD. [Active] CIN = U99999MH1917PTC000472

Company & Directors' Information:- HINDUSTAN CORPORATION LIMITED [Dissolved] CIN = U99999MH1949PLC007790

Company & Directors' Information:- AERONAUTICS INDIA LTD. [Strike Off] CIN = U99999DL2000PTC004006

    Writ Petition Nos. 6595, 8844 of 2020

    Decided On, 08 September 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE M.I. ARUN

    For the Petitioners: K. Subba Rao, Sr. Advocate, Maitreyi Krishnan, Advocate. For the Respondents: R1 to R4, Sundaraswamy Ramdas, Sr. Advocate, S.R. Kamalacharan, R6, K.R. Rajendra, Advocate.



Judgment Text

(Prayer: Writ Petition No.6595 of 2020 is filed Under Articles 226 and 227 of the Constitution of India praying to call for the entire records in regard to the conditions of service of the petitioners and to issue a writ of mandamus or any other appropriate writ or order or direction declaring that any change of conditions of service of the petitioners in regard to their Employment, Wages, Leave and Other benefits to their detriment is illegal and unconstitutional.Writ Petition No.8844 of 2020 is filed Under Articles 226 and 227 of the Constitution of India praying to call for the entire records in regard to the conditions of service of the Petitioners and to issue a writ of mandamus or any other appropriate writ or order or direction declaring that any change of conditions of service of the Petitioners in regard to their employment, Wages, Leave and Other benefits to their detriment is illegal and unconstitutional.)1. Heard.2. The petitioners have filed the above writ petitions with a prayer seeking a writ of mandamus declaring that any change of conditions of service of the petitioners in regard to their employment, wages, leave and other benefits to their detriment is illegal and unconstitutional.3. The case of the petitioners is that they have been employed in respondent no.1-Hindustan Aeronautics Limited through respondent no.6-contractor. They are all ex-servicemen who have served the country in border areas. Respondent no.5 is an inter service organisation functioning directly under the Department of Ex-servicemen Welfare (Ministry of Defence). Its objective is to assist ex-servicemen, to train and acquire additional skills with strong emphasis on evolving requirement of corporate and industry and facilitate their resettlement through a second career. All the petitioners are empanelled with respondent no.5. Respondent no.5 has its own minimum wages and when the petitioners are employed in any public sector undertaking, they have to be paid the said minimum wages irrespective of whether they are employed directly or through contractor.4. It is further contended that though the petitioners are employed continuously by respondent no.1 from several years, instead of employing them directly, respondent no.1 is availing their services through contractors and presently, their services have been availed through respondent no.6. The contractors who change from time to time, but the same works would continue to be employed in the perennial and permanent jobs under different complex of respondent no.1. The petitioners contend that this activity of respondent no.1 is a sham transaction. However, the petitioners in their pleadings have stated that the present writ petitions are confined only to challenge the validity and legality of the actions of management in threatening to reduce the wages or terminate their services and they reserve their right to take appropriate proceedings including approaching this Court by way of separate writ petition for absorption and regularisation of their services.5. The petitioners are employed in facility management division of respondent no.1. Irrespective of whether they are employed by respondent no.1 or through whom they are employed, respondent no.1 is liable to pay them the minimum wages and provide such other facilities as determined by respondent no.5 as they are empanelled with respondent no.5.6. However, in the beginning of March 2020, the facility management division of Bengaluru complex of respondent no.1 has sought to suddenly change the terms and conditions pertaining to employment of the petitioners and other security guards to their detriment and they have been informed that their wages will be reduced from 01.04.2020 and if they objected to such reduction, their services would be discontinued. The average daily wage of a worker is about Rs.1,057/- per day inclusive of basic, dearness allowance and other allowances. However, they have been now informed that if they wish to continue, they will be paid only Rs.730/- per day as wages which is illegal. Hence, the petitioners have approached this Court.7. Per contra, respondent nos.1 to 4 have contended that there is no employer and employee relationship between the petitioners and respondent nos.1 to 4. The petitioners have been engaged through a contract with respondent no.6. The said arrangement is in accordance with the Contract Labour (Regulation and Abolition) Act, 1970 and other provisions of law. That the petitioners have been paid as per the terms of the contract and in accordance with law as applicable to such transaction including the Minimum Wages Act. As there is no direct employer and employee relationship between the petitioners and respondent no.1, the writ petitions are not maintainable.8. It is further contended that contract security guards were earlier engaged through respondent no.5 from sponsored security agencies and wages were paid as per the wages fixed by the Directorate General of Resettlement, Ministry of Defence, Government of India i.e. respondent no.5. The employment of security personnel through respondent no.5 sponsored agency continued till middle of 2011. Thereafter, respondent no.5 was not in a position to sponsor agencies in time since many agencies did not have licence under the Private Security Agencies (Regulation) Act, 2005. Hence, respondent nos.1 to 4 decided to opt for open tendering. Ex-servicemen as security guards are employed through the Directorate General of Resettlement sponsored agencies only inside the factory premises. However, for the township areas, engagement of security guards is being done through open tendering. The petitioners are engaged through respondent no.6 by way of open tendering and it is only incidental that they are ex-servicemen and they are not engaged through a contractor who is sponsored by respondent no.5. As the petitioners are engaged through respondent no.6, he will have to pay the contract labourers wages as determined by the Government/Chief Labour Commissioner in accordance with the Minimum Wages Act and other allowances as applicable and the petitioners are presently paid through respondent no.6 much more than amount of wages than what is required to be paid in accordance with law. It is denied that the facility management division of Bengaluru complex of respondent no.1 is now seeking to suddenly change the terms and conditions pertaining to employment of the petitioners and other security guards to their detriment. The averment of the petitioners that they have been informed that their wages would be reduced from 01.04.2020 and if they objected to such reduction, their services will be discontinued is also denied as false. The averment that in the existing wage notification issued by respondent no.5, the average daily wages is about Rs.1,057/- and the petitioners have been informed that if they wish to continue they would be paid wages of Rs.730/- per day is also denied by respondent nos.1 to 4. Respondent nos.1 to 4 contend that the contract that they have entered into with respondent no.6 guarantees payment of minimum wages as determined by the Government/Chief Labour Commissioner. Respondent nos.1 to 4 further contend that the present lis involves dispute as to questions of fact and hence cannot be decided by this Court in exercise of its powers under Article 226 of the Constitution of India and have sought for dismissal of the writ petitions.9. Respondent no.6 has contended that services of the petitioners have been outsourced to respondent nos.1 to 4 through respondent no.6. It is denied that the petitioners are appointed through respondent no.5 to respondent nos.1 to 4. It is specifically averred that the petitioners are getting wages under the agreement of contract and central minimum wages. Respondent no.6 supports the contentions of respondent nos.1 to 4.10. For the aforementioned reasons, respondent nos.1 to 4 and 6 have sought for dismissal of the writ petitions.11. On 23.03.2020, an interim order was passed which reads as under:"Petitioners shall be continued in service till further orders from this Court".12. Thereafter, on the allegation that appropriate wages was not being paid to the petitioners, the petitioners in W.P.No.6595/2020 filed an interlocutory application No.1/2020 seeking a direction to the respondents to pay wages to the petitioners for the period from 01.03.2020 onwards at the rate paid till the month of February 2020 as fixed by respondent no.5 along with allowances thereon and as increased thereafter including the period from 22.05.2020 to 25.06.2020 when the petitioners were not permitted to work and to further restrain the respondents from changing the conditions of service to the detriment of the petitioners and further hold that Clauses (7) and (10) of the appointment letters issued by the respondents placed as Annexure-Q is not binding on the petitioners. Again on the allegation that some of the petitioners were not permitted to work, they have filed an interlocutory application No.2/2020 to direct the respondents to permit certain petitioners to resume work.13. Admittedly, the services of the petitioners are engaged by respondent nos.1 to 4 through respondent no.6-contractor. The petitioners in their pleadings have categorically stated that the writ petitions are only confined to a challenge to the validity and legality of the actions of the management in threatening to reduce their wages to terminate their services and the petitioners reserve their right to take appropriate proceedings including approaching this Court by way of separate writ petition for absorption and regularisation of their services. Thus, in the instant writ petitions, the fact of respondent nos.1 to 4 entering into a contract with respondent no.6 by which the services of the petitioners are borrowed by respondent nos.1 to 4 is not under challenge.14. The petitioners contend that they are empanelled with respondent no.5 and through respondent no.5 their services are engaged by respondent nos.1 to 4.15. Respondent nos.1 to 4 and respondent no.6 have specifically denied the said averment and have contended that their services are not borrowed from an agency sponsored by respondent no.5. It is specifically contended that respondent nos.1 to 4 by way of open tender through respondent no.6 have borrowed their services and thus the minimum wages as prescribed by respondent no.5 is not applicable to the petitioners.16. It is contended by the petitioners that they are not being paid in accordance with law whereas respondent nos.1 to 4 and 6 have contended that they are being paid in accordance with law.17. It is clear from perusal of the averments, as mentioned above, the lis between the parties has disputed questions of fact which cannot be adjudicated by this Court in exercise of its power under Article 226 of the Constitution of India. The Hon'ble Supreme Court in STEEL AUTHORITY OF INDIA LTD. v. NATIONAL UNION WATER FRONT WORKERS, (2001) AIR SC 3527 at paragraph 123 has held as under:"123. We have used the expression "industrial adjudicator" by design as determination of the questions aforementioned requires inquiry into disputed question of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be Industrial Tribunal/

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Court whose determination will be amenable to judicial review."Thus, the disputed questions of fact in the present case cannot be decided in writ proceedings.18. The prayer of the petitioners in the writ petitions is for a writ of mandamus declaring that any change of conditions of service of the petitioners in regard to their employment, wages, leave and other benefits to their detriment as illegal and unconstitutional. The Court is of the opinion that such a prayer cannot be granted. A writ of mandamus cannot be issued on an apprehension that an illegal activity will be committed by the respondents to the detriment of the petitioners. If the service conditions of the petitioners are altered in violation of any law or contract, it is always open for them to challenge before appropriate forum.19. For the aforementioned reasons, the following is passed:ORDERThe writ petitions are hereby dismissed.If respondent nos.1 to 4 or respondent no.6 alters the service conditions of the petitioners in violation of any law to the detriment of the petitioners, liberty is reserved to the petitioners to challenge the same before the appropriate authority.No order as to costs.In view of the above order, adjudicating the pending interlocutory applications does not arise.
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