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2001 DIGILAW 74 (PAT)

Akhouri Sanjay Nath v. Union Of India

2001-01-31

R.M.PRASAD

body2001
Judgment R.M.Prasad, J. 1. In this writ petition, prayer on behalf of the petitioner is to issue an appropriate writ, order or direction commanding the respondents to regularise/absorb him in service of the respondent-National Fertilizers Limited, a Government of India Undertaking, on the post of Peon-cum-Messenger in which his services are being so used for the last six years since 1994 purporting to be through a Contractor. 2. In short, the case of the petitioner is that he was initially engaged on daily wage basis through a Contractor on the post of Peon-cum-Messenger on a consolidated pay of Rs. 1,500.00 at the Patna Regional Office of the respondent-Company. According to the petitioner, the said post and the job is perennial in natuse and not seasonal. The petitioner has been discharging his duties to the satisfaction of the authorities for more than six years without any break in service as is done by a regular employee, ( but has been denied of the benefit as a regular employee, including the provident fund, E.S.I., medical reimbursement, etc. On several occasions the petitioner filed a representation before the respondent-Company to regularise/absorb him service, but no action has been taken by them. 3. On 30th December, 1998, vide Annexure 1, the petitioner again represented to the Managing Director of the respondent-Company for making him permanent and in pursuance of the same, the Deputy Manager, vide letter dated 8/17 January, 1999, contained in Annexure 2, asked the Regional Manager. Patna to send a detailed report on his engagement, salary date of engagement, etc. and requested for sending a copy of approval of his engagement also. The Additional Manager, vide letter dated 31.8.1999, contained in Annexure 4, sent desired information about the employment status of the petitioner in which he admitted about the payment of salary being made to the petitioner at the rate of Rs. 1,551.75. Again further information were sought for the Regional Manager, Patna, vide letter dated 31.12.99 contained in Annexure 5, with respect to the employment particulars of the petitioner, but thereafter, it appears that no further action has been taken and the petitioner thus has filed the present writ petition. The petitioner has also brought on record some of the photo copies of the bills containing the salary being paid to him which also bear the mode of payment and the receipts of the same by him. 4. The petitioner has also brought on record some of the photo copies of the bills containing the salary being paid to him which also bear the mode of payment and the receipts of the same by him. 4. A counter-affidavit has been filed on behalf of the respondent-Company and its officials including the Chief Managing Director (respondent Nos. 2, 3 and 4) in which the respondents have taken objection as regards maintainability on the ground that the writ petition suffers from the vice of suppressio veri suggestio falsi and also on the ground that the petitioner has not exhausted alternative remedy before the appropriate forum for seeking relief under the Contract Labour (Regulation & Abolition) Act, 1970 (in short the Act). An objection has also been taken about the Contractor being not impleaded as party. In paragraph 5 of the counter-affidavit, it is contended that several disputed question of facts are involved which cannot be adjudicated in the writ jurisdiction and can only be decided by the appropriate forum e.g. Labour Court in this case. 5. In the counter-affidavit, in substance, the case of the respondent-Company is that the work done by them in the State of Bihar is seasonal in nature and not perennial during Kharif and Rabi season only. The existence of the office of the Company in the State of Bihar is temporary in nature and that the Central Government may withdraw allocation of quota for marketing fertilizer through the respondent-Company in the State of Bihar considering the cost and market competition. According to the respondent-Company, the petitioner was the employee of the Contractor engaged in the work of the respondent-Company through the Contractor and not regular employee of the Company. As per the bona fide contract between the respondent Company and the Contractor, namely, Modem Industrial Services Pvt. Ltd. supply of contract labour for seasonal, work was on certain terms and conditions that the petitioner shall not be taken into the employment of the respondent-Company and the respondent-Company shall not interfere with the administration of the Contractor vis-a-vis the petitioner. According to them, the administrative, economic and overall control over the petitioner is that of the Contractor and not of the Company. According to them, the administrative, economic and overall control over the petitioner is that of the Contractor and not of the Company. The records of duties of the petitioner are also maintained by the Contractor and the payment for the work done by him is also made by the Contractor, for which bill for payment was raised by the Contractor upon the respondent-Company. Their further case is that the petitioner has not worked for 240 days in the respondent-Company in any period of 12 months and that he used to work for two or three days in a month when the work arose. However, it is admitted that the respondent-Company was requited to pay a consolidated amount to the Contractor even though the petitioner had worked for two or three days in a month. 6. Earned Counsel for the petitioner has submitted that the stand of the respondent-Company that the petitioner worked only for two or three days in a month is falsified from the bills dated 1.4.1999 up to 1.5.2000, which have been produced as Annexure 8 series to the reply affidavit by way of example show that full amount for the entire month has been paid by the respondent Company for the work taken from the petitioner as Peon-cum-Messenger. It is not the case of the respondents that during the said period for which the said bills paid by the respondent Company to the Contractor, work has been taken from anybody else. Thus, according to the earned Counsel for the petitioner, the said plea has been taken to defeat the claim of the petitioner who has been discharging his duties to the satisfaction of the authorities continuously for more than six years without any break in service as is done by a regular employee. With respect to the preliminary objection, earned Counsel for the petitioner has submitted that the respondent-Company is a State within the meaning of Article 12 of the Constitution of India and is under obligation to abide by the Directive Principles as enshrined in Part IV of the Constitution. He submitted that this Court shall also consider the pitiable condition of the petitioner, who with his small earning may not be able to avail the lengthy procedure for invoking his claim for his regularisation in service. He submitted that this Court shall also consider the pitiable condition of the petitioner, who with his small earning may not be able to avail the lengthy procedure for invoking his claim for his regularisation in service. It is submitting that the apex Court has also lifted the vail in cases where the claims are disputed and held that the Writ Court has jurisdiction to entertain directly instead of relegating it to any other appropriate forum. In support of this, he has referred to a decision of the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. V/s. Dolly Das (1994) 4 SCC 450 (Paragraph 9). According to the earned Counsel for the petitioner, the respondent-Company has used the service of the petitioner since 1994 and when now he has become overage for employment elsewhere arbitrarily declined to consider his case for regular employment though the records would show that the work taken from the petitioner is perennial in nature, besides that the respondent-Company has regularly paid the wages for the said work through the Contractor now for more than six years. It is submitted that the family of the petitioner will now be forced to starve and Kheirsusviral will now be at stake if the petitioner is deprived of the benefit of regular employment, though the respondent Company is taking work from him as such till date. 7. Dr. Jha, learned Senior Counsel appearing for the respondent-Company, on the other hand, has submitted that there is no direct relationship between the petitioner and the respondent-Company which can at all justify his claim for regularisation/regular employment in the respondent Company. According to him, the question of regularisation of a person engaged through a Contractor is not permissible and lifting of veil is only permissible by taking recourse to a proceeding under the provisions of the Industrial Disputes Act, Moreover, the petitioner by way of this writ petition has invoked the provisions of Section 10(2)(b) of the Act which can only be gone into agitated by the competent authority Labour Court. It is submitted by him that the fact regarding the job being perennial in nature and also about the claim of the petitioner for his working in the service of the respondent-Company for more than six years without any break being disputed by the disputed respondent-Company, the writ Court cannot go into said question and decide the claim for his regularisation in the service of the respondent-Company as regular employee. He relied on the decisions of the apex Court in the case of Dina Nath V/s. National Fertilisers Ltd. -- , in the case of R.K. Panda V/s. Steel Authority of India -- and in the case of Jagdish Prasad V/s. Union of India reported in 2000 Lab. IC 3297 (an order of the learned Single Judge of Rajasthan High Court). 8. It is true that in, case of Dina Nath V/s. National Fertilisers Ltd. (supra), a Bench comprising two Hon ble Judges of the apex Court has held that the High Court in exercise of power under Article 226 cannot issue directions for deeming the contract labour as direct employees and that the question as to necessity or bona fides of employment of contract labour can be referred to as an industrial dispute and Labour or Industnal Tribunal can give appropriate directions in the matter to principal employer but in the case of R.K. Panda V/s. Authority of India (supra), a Bench comprising three Hon ble Judges has held that such claim involves question of fact and can normally be determined by the Labour Court and the Industrial Tribunal on evidence and not by High Court or Supreme Court under writ jurisdiction or under Article 136 but granted relief for absorption o/such contract labour as regular employees subject to they being found medically fit and they being below the age of superannuation. 9. The apex Court in the case of Union of India V/s. Subir Mukharji 1998 LAB. IC 2129, approved the direction issued by the CAT to Railways to absorb labourers working continuously and uninterruptedly for past ten years on their supply by the Railway Contractor for doing work of Railway and left the question whether the labourers are employees of Society or Railways open. IC 2129, approved the direction issued by the CAT to Railways to absorb labourers working continuously and uninterruptedly for past ten years on their supply by the Railway Contractor for doing work of Railway and left the question whether the labourers are employees of Society or Railways open. In its recent decision in the case of Secretary, H.S.E.B. V/s. Suresh -- , the apex Court approved the decision of the High Court lifting the veil on the facts that the Contractor found only to be the name lender and that there was no genuine contract with him and held that the Safai Karamcharis to be employees of the Board and, therefore, entitled to reinstatement without resort to Section of the Act. While considering the expression regulation in the Act, the apex Court held that it means regulation in public interest and contra public interest. 10. in the case of Air India Statutory Corporation V/s. United Labour Union -- , the apex Court while considering the definition of Appropriate Government in relation to an establishment pertaining to an industry "carried on by or under authority of Central Government" under Section 2(1)(a) of the Act held that interpretation should be based on public law principles and not an common law principles. Statutory corporation involving public element, even though carrying on commercial activities which held to be an industry carried on by or under the authority of the Central Government. It was also held that the element of deep and pervasive Government control is not the sole criterion. Activities of such Corporation are held to be amenable to Parts III and IV of the Constitution and must be just, fair and reasonable and must be guided by public interest in exercise of public power. As regards the Act, it was held that it being a social welfare measure, its provisions should be interpreted in the light of public law principles and it being social welfare legislation providing socio-economic empowerment to workers and poor class, its provisions should be construed in the light of public law principles instead of private or common law principles. 11. This Court thus is unable accept the submission of Dr. Jha, learned Senior Counsel appearing for the respondent-Company that this Court in exercise of the power under Article 226 of the Constitution is precluded from lifting the veil in such matters. 11. This Court thus is unable accept the submission of Dr. Jha, learned Senior Counsel appearing for the respondent-Company that this Court in exercise of the power under Article 226 of the Constitution is precluded from lifting the veil in such matters. The respondent-Company has not disputed the bills, contained in Annexure 8 series, which show that the same was raised by the Contractor to the Regional Manager of the Company for service as Peon-cum-Messenger undergraduate from April 1999 to May 2000 and the same was paid to the petitioner. The agreement, photo copy whereof has been annexed as Annexure 2 to the counter-affidavit filed on behalf of respondent No. 2, 3 and 4, would show that the charge for one month service for under-gradate was Rs. 1,500.00 per month and the bills (Annexure 8 series) show that the amounts have been charged accordingly, besides tour duty, local travelling expenses, etc. The respondent-Corporation has vaguely disputed the case of the petitioner that he worked for more than six years without any break in service by saying that he used to work for two or three days in a month and that he had not worked for 240 days and that the working performed by the petitioner is not perennial in nature. In fact, it is on a mere apprehension that a plea has been taken that the existence of the office of the Company in the State of Bihar is temporary in nature and the Central Government may withdraw allocation of quota for marketing fertilizer through the respondent-Company in the State of Bihar considering the cost and market competition, but till date nothing has been brought on record to show that there is even any such proposal of the Central Government. 12. It may be true that there is no existence of direct relationship of workman and employer between the petitioner and the respondent-Company but the very fact that the respondent-Company has taken service from the petitioner through the Contractor now for almost six years goes to show that the work performed by the petitioner is perennial in nature and that the Company cannot deny the benefit of regularisation of the service of the petitioner after taking work from him for now six years though through Contractor and which has made him overage now for employment elsewhere. In fact, continuance of the petitioner as contract labour or his disengagement, which may lead to starvation of his entire family, in my opinion, would be against all canons of justice and equity. This cannot be permitted to be done by an employer like the respondent-Company and allowing such engagement through the Contractor, in my opinion, will be a camouflage, besides being against the public interest. 13. In the result, the writ application is allowed. The respondents are directed to consider the case of the petitioner for absorption/regularisation in service and take appropriate decision in regard to it within four weeks of the receipt/production of a copy of this judgment/order. In the facts and circumstances, there shall, however, be no order as to costs.