(Prayer: These Writ Petitions are filed under Article 226 and 227 of the Constitution of India praying to call for the records in I.D.No.16/2008, I.D.No.17/2008, I.D.No.18/2008, I.D.No.19/2008, I.D.No.20/2008, I.D.No.21/2008, I.D.No.23/2008, I.D.No.24/2008, I.D.No.26/2008, I.D.No.27/2008, I.D.No.28/2008, I.D.No.29/2008, I.D.No.30/2008, I.D.No.33/2008, I.D.No.34/2008, I.D.No.35/2008, I.D.No.36/2008, I.D.No.40/2008, I.D.No.41/2008, on the file of the presiding officer, principal of the award made in I.D.No.16/2008, I.D.No.17/2008, I.D.No.18/2008, I.D.No.19/2008, I.D.No.20/2008, I.D.No.21/2008, I.D.No.23/2008, I.D.No.24/2008, I.D.No.26/2008, I.D.No.27/2008, I.D.No.28/2008, I.D.No.29/2008, I.D.No.30/2008, I.D.No.33/2008, I.D.No.34/2008, I.D.No.35/2008, I.D.No.36/2008, I.D.No.40/2008, I.D.No.41/2008 on the file of the principal labour court, Bangalore vide Annexure-C by which the back wages, continuity of service and consequential benefits are denied to the petitioners as that direction is illegal, unjust and violative of chapter V A and Chapter V B of the industrial disputes, Act, 1947 and etc.)
1. Both the batches of writ petitions arise from the common order, dated 16.4.2013 passed by the Presiding Officer, Principal Labour Court, Bangalore in I.D.No.21/2008 c/w I.D.Nos.16/08 to 30/08, 33/0 to 36/08, 40 and 41/2008 allowing the petitions filed by the workmen invoking section 10 (4A) of the Industrial Disputes Act, 1947 by directing their reinstatement but by denying the backwages, continuity of service and other consequential benefits.
2. W.P.Nos.33086-33106/2013 are filed by the Management of Bangalore Water Supply and Sewerage Board (‘BWSSB’ for short) questioning that part of the impugned award which directs the reinstatement of the workmen. W.P.No.7396/2015 and W.P.Nos.22790-22807/2015 are filed by the workmen agitating their entitlement to backwages, continuity of service and consequential benefits.
3. Sri S.N. Murthy, the learned Senior Counsel appearing for Sri B.L. Sanjeev for the petitioning Management submits that not a single appointment order is produced by the workmen. He takes serious exception to the Labour Court not putting M/s. Creative Assets Protection Group [hereinafter ‘M/s. Creative’ for short] on notice despite taking a definitive stand by the Management in its counter that the workmen in question have come through a security agency, ‘M/s. Creative’.
4. The learned Senior Counsel submits that the Labour Officer and the Authority under the Minimum Wages Act, 1948 by his order, dated 30.7.2007 in No:LOM-1/MWA/CR-24/2007 directed M/s. Creative and BWSSB to pay the difference of minimum wages. The said order was challenged by the functionaries of BWSSB by filing W.P.No.15293/2007. The direction issued by the said Authority to BWSSB and M/s. Creative to pay the difference of minimum wages in upheld. He also brings to my notice what the BWSSB Employees’ Union ('Kannadam')has to say in paragraph No.4 of the caveat petition (Annexure-M):-
'4. The First respondent failed to pay minimum wages to the workmen working in the Pumping Station. Hence, the Authority under the Minimum Wages, 1948, initiated proceedings in LOM-1/MWA/CR-24/2007. Thereafter, it passed an order on 30-07-2007 and held that 43 security employees employed through the 2nd Respondent are entitled to receive the difference of minimum wages and certain compensation and directed them to deposit the same failing which it was held that the Respondents are liable for prosecution under Section 22(B) of the Minimum Wages Act, 1948. The Respondents being aggrieved by the order bearing Ref.No.LOM-1/MWA/CR-24/2007 dated 30-7-2007 passed by the Authority under the Minimum Wages Act, 1948, may prefer a Writ Petition before this Hon’ble Court.'
5. He relies on the Apex Court’s judgment in the case of INTERNATIONAL AIRPORT AUTHORITY OF INDIA v. INTERNATIONAL AIR CARGO WORKERS’ UNION AND ANR. reported in 2009 LLR 923 to advance the submission that the industrial adjudicator can grant the sought relief, if it finds that the contract between the principal employer and the contractor is sham, nominal or merely a camouflage to deny the employment benefits to the employees. The tests for ascertaining as to whether the workmen are directly employed by an organization or they have come through the contractor, are – (a) who has the power to remove or dismiss them from service or initiate disciplinary action (b) who can tell the employee the way in which the work should be done and (c) who has been paying the salary to the workmen.
6. Nextly, he relies on the Apex Court’s judgment in the case of GENERAL MANAGER (OSD), BENGAL NAGPUR COTTON MILLS, RAJNANDGAON v. BHARAT LAL AND ANR. reported in 2010 AIR SCW 7312. Paragraph No.9 of the said decision read out by him is extracted hereinbelow:-
'9. On a careful consideration, we are of the view that the Industrial Court committed a serious error in arriving at those findings. In regard to the first test as to who pays the salary, it placed the onus wrongly upon the appellant. It is for the employee to aver and prove that he was paid salary directly by the principal employer and not the contractor. The first respondent did not discharge this onus. Even in regard to second test, the employee did not establish that he was working under the direct control and supervision of the principal employer. The Industrial Court misconstrued the meaning of the terms ‘control and supervision’ and held that as the officers of appellant were giving some instructions to the first respondent working as a guard, he was deemed to be working under the control and supervision of the appellant. The expression ‘control and supervision’ in the context of contract labour was explained by this court in International Airport Authority of India v. International Air Cargo Workers Union [2009 (13) SCC 374]: (AIR 2009 SC 3063) thus.
'If the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor.
The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.'
Therefore we are of the view that the Industrial Court ought to have held that first respondent was not a direct employee of the appellant, and rejected the application of the first respondent.
7. He also read paragraph No.25 of the Hon’ble Supreme Court’s decision in the case of DENA NATH AND OTHERS v. NATIONAL FERTILIZERS LTD. AND OTHERS reported in AIR 1992 SC 457. It is extracted hereinbelow:
25. ………………The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Sections 9 and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25 of the Act. We are thus of the firm view that in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the rules, the Court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer………….'
8. Per contra Sri Subbarao, the learned Senior Counsel appearing for Sri Sateesha K.N. for the workmen submits that they have been working in BWSSB from 2002. That the workmen are sent by M/s. Creative is a camouflage. The agreement between BWSSB and M/s. Creative is a paper arrangement. He submits that, as the workers have no bargaining power, they are being exploited by creating a sham arrangement. He asserts that the wages were being paid to the workmen by the Management and BWSSB and the same is clear from the oral evidence of WW1. He submits that the officials of the Labour Department have inspected the premises of BWSSB and found that the workmen have been working as helpers, fitters, computer operators, etc.
9. He brings to my notice Exhibits W2 to W4 to show that the workmen were allotted the quarters by BWSSB and that they have also been paying the electricity charges directly. He submits that Exhibits W5 and W6 are the postal inland letters which show that the workmen have been residing in the quarters belonging to and allotted by BWSSB.
10. The learned Senior Counsel submits that BWSSB ought to have examined the contractor. He submits that the finding of fact delivered by the Labour Court need not be disturbed. He submits that the writ of certiorari can be issued only for correcting the jurisdictional errors and that too, if the errors are leading to grave injustice. Merely because it is possible to take a different view, the conclusions reached by the Tribunal cannot be altered. He submits that if an opportunity is given to BWSSB by remanding the matter to the Labour Court, it would only enable the Management to remove the lacuna, which will have the effect of putting the workmen to prejudice.
11. He submits that the conjoint reading of both oral and documentary evidence reveals that the workmen are the direct employees of BWSSB.
12. Relying on the Apex Court’s judgment in the case of BHILWARA DUGDH UTPADAK SAHAKARI S. LTD. v. VINOD KUMAR SHARMA DEAD BY L.Rs AND Ors. reported in AIR 2011 SC 3546, the learned Senior Counsel submits that the Apex Court has come down very heavily on the Management for their adopting the new technique of subterfuge in order to deny the rights of the workmen by showing that they are the workmen of the contractor.
13. He relies on the Apex Court’s judgment in the case of THE WORKMEN OF THE FOOD CORPORATION OF INDIA v. M/S. FOOD CORPORATION OF INDIA, reported in AIR 1985 SC 670 wherein it is held that if the termination of service by the first employer is contrary to the well established legal position, the effect of employment by the second employer is wholly irrelevant. The termination of service of the workmen of an organization cannot be justified by the subtle device of introducing a contractor so as to bring out a cessation of contract of employment between the workmen and the organization.
14. Citing the decision of the Apex Court in the case of HUSSAINBHAI v. THE ALATH FACTORY TEZHILALI UNION AND OTHERS reported in AIR 1978 SC 1410, the learned Senior Counsel submits that if the veil, which is draped in perfect paper arrangement, is lifted, it becomes clear that the real employer is BWSSB and not M/s. Creative.
15. Drawing support from the Apex Court’s judgment in the case of SANKAR MUKHERJEE AND OTHERS v. UNION OF INDIA AND OTHERS, reported in AIR 1990 SC 532, the learned Senior Counsel would submit that the system of contract labour is an improved version of bonded labour. He submits that the Supreme Court has disapproved of the system of contract labour holding it to be ‘archaic’, primitive’ and ‘baneful nature’.
16. Relying on the latest judgment of the Hon’ble Supreme Court in the case of JASMER SINGH v. STATE OF HARYANA AND ANOTHER reported in (2015) 4 SCC 458, he contends that, as the workmen have worked for 240 days in any given year from 2002 till they were retrenched, they are entitled to full backwages, because the order of termination is void ab initio for non-compliance with the requirements of Section 25F of the Industrial Disputes Act, 1947.
17. The submissions of the learned counsel have received my thoughtful consideration.
18. I have browsed through the L.C.Rs. The claim of the workmen is that they are the direct employees of BWSSB. The stand of the BWSSB is that they have come through the contractor, namely, M/s. Creative. The matter directly and substantially in issue would be whether the workmen are the direct employees of BWSSB. On the other hand, the first issue framed by the Labour Court is as follows: 'Whether the first party applicant proves that he is workmen as defined under Section 2(s) of the Industrial Disputes Act, 1947.'
19. It is not even the resistance of the BWSSB Management that the respondents are not the workmen at all. As it is not in dispute that the respondents are the workmen, the framing of the issue extracted hereinabove was wholly uncalled for. Framing of an uncalled for issue would only drift the adjudicating body into the side stream.
20. Based on the averments in the claim statement and the counter statement, the first issue ought to have been framed as follows: Whether the first party applicants prove that they are the direct employees of the second party BWSSB? Neither the Management nor the workmen have filed any draft issues; none of them have made any application for the amendment of the issues framed by the Labour Court.
21. The second question that arises is who has to discharge the burden of proving that they are the direct employees of BWSSB. As held by the Apex Court in the case of Bengal Nagpur Cotton Mills (supra) the onus is on the workmen to aver and prove that the salary was being paid directly by the principal employer and not by the contractor.
22. The documentary evidence produced by the workmen showing that they had been residing in the quarters, that they had been paying the electricity bills to the electricity board, that they had been receiving the letters to their quarters address can also be considered when the parties adduce proper evidence on the properly framed issues.
23. I also notice that there is no serious cross-examination on the agreement between BWSSB and M/s. Creative (Ex.M3).
24. All these things do not mean that there is nothing wanting on the part of the Management of BWSSB. For the reasons best known to itself, the Management has not produced the order, dated 30.7.2007 passed by the Labour Officer and the Authority under the Minimum Wages Act, this Court’s order, dated 12.9.2011 and the caveat petition. My attention is drawn to the said documents only in the course of argumentation here. If they were only to be brought to the notice of the Labour Court, it may arrived at different conclusions.
25. The workmen have not conclusively proved as to who was paying the salary to them and who had the power to dismiss them from service. These two tests, applied by the Apex Court in the case of International Airport Authority of India (supra), are to be passed by the workmen before the industrial adjudicator grants the relief to the workmen.
26. The Labour Court is also not justified in holding that the workmen are the employees of BWSSB merely because BWSSB has not obtained the registration and the contractor has not obtained the license under the Contract Labour (Regulation and Abolition) Act, 1970. In saying so, I am fortified by the Apex Court’s judgment in the case of Dena Nath (supra).
27. Further, in the earlier proceedings arising under the Minimum Wages Act, both the Management of BWSSB and the contractor, namely, M/s. Creative are jointly directed to pay the differential amounts. This aspect of the matter also cannot be over-looked.
28. Thus, viewed from any angle, I find that the impugned order is not sustainable. I therefore quash the same. The matter is required to be remanded to the Labour Court for framing the proper issues and to enable the parties to lead the evidence in support of their cases. The parties and or/their respective learned advocates are directed to be present before the Labour Court on 13.8.2015 without waiting for any notice from the Labour Court. Needless to observe that all the contentions are left open to be urged before the Labour Court. The Labour Court shall adjudicate the remanded matter in accordance with law and independently of and uninfluenced by the reasons given herein for the disposal of these petitions.
29. Further, I notice with concern that the Management of BWSSB is atleast partly responsible for inviting the impugned orders. It has not brought to the notice of the Labour Court the order passed under
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the Minimum Wages Act and in the writ petition arising therefrom and the order passed by this Court thereon. The decisions of the Hon’ble Supreme Court in the cases of International Airport Authority of India, Bengal Nagpur Cotton Mills and Dena Nath (supra) prescribing the tests to be applied for determining as to whether the workmen are the direct employees of the principal employer, stating that the burden of proving it is on the workmen and holding that the non-obtaining of the registration by the principal employer and the license by the contractor under the Contract Labour (Regulation and Abolition) Act, 1970 does not ipso facto entitle the workmen to claim the status of the direct employees of the principal employer, have not been brought to the notice of the Labour Court by the Management. 30. Considering these aspects of the matter, I deem it necessary and just to impose the cost on the petitioning Management, though its petition is being allowed in part. Yet another reason for imposing the cost is that the workmen in question are out of employment. They may not be having the means to fight the remanded litigation. I award the cost of Rs.63,000/- on the petitioning Management – at the rate of Rs.3,000/- for each of the 21 respondents. The cost shall be paid by the petitioner to the respondents on 13.8.2015 before the Labour Court. 31. W.P.Nos.33086-33106/2013 are allowed but to the extent indicated hereinabove. 32. W.P.No.7396/2015 and W.P.Nos.22790-22807/2015, filed by the workmen, do not survive for any consideration in view of the quashing of the impugned order and remanding the matter to the Labour Court. Their entitlement to back wages, continuity of service, consequential benefits would obviously depend on the outcome of the remanded matter. W.P.No.7396/2015 and W.P.Nos.22790-22807/2015 are dismissed as having become unnecessary.