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Rajasthan High Court · body

2005 DIGILAW 2392 (RAJ)

Leeladhar v. State of Rajasthan

2005-09-08

R.S.CHAUHAN

body2005
Judgment Rajesh Balia, J.-In these cases, the petitioners were employed as Class IV servants in the Sales Tax Department. The duty of peon to be discharged in the office of Sales Tax Department was given through the respondent No. 3, M/s Goliath Detective (P) Ltd. and their appointments to discharge the duties in the sales tax office as peon were through the said agency and the petitioners while working in the department have discharged their duties as Class IV servants until the year 2000-2001 and thereafter, their services were discontinued. 2. At the relevant time, the Rajasthan (Regulation of Appointments to Public Service and Rationalisation of Staff) Act, 1999 had come into effect which inter alia provided for termination of temporary and ad hoc employees working in various Government Departments without affording any protection against hire and fire and remedy to raise grievance against the illegal termination. The provisions of the Act of 1999 were challenged and the matters were pending at the time the termination of petitioners services in 2001. The Division Bench of this Court in Bhawani Singh and Anr. vs. State and Anr., 2002 (3) WLC page 728 held the provisions of Sections 9 & 11 read with Section 19 of the Act to be ultra vires. Thereafter, this petition was filed challenging the termination order. 3. It was stated in the petition that the petitioners case is otherwise governed by the ratio of the decision in the D.B. Civil Writ Petition No. 2111/2001, Amrit Lal vs. State of Raj. and Ors. wherein the question of employees engaged as security guards through the agency of respondent No. 3 where inter se relation between the department and the personnel and the validity of their termination in the like circumstances was considered and according to the said Judgment , the termination of the petitioner also cannot be sustained. 4. The copy of the Division Bench Judgment in Amrit Lal was annexed with the writ petition as Annexure 1. 5. The respondent No. 2 did not accept its responsibility as employer of the petitioner on the ground that they were not appointed by the department as its Class IV employee but they were servants of the respondent No. 3, the Contractor. But it was admitted that petitioners were discharging the duties at the office. The preliminary objections were also raised that the appointment was made under an agreement Annex. But it was admitted that petitioners were discharging the duties at the office. The preliminary objections were also raised that the appointment was made under an agreement Annex. 4/1 between the Commercial Taxes Department and the Contractor, respondent No. 3, the term of which expired in 2001. Since, there was no renewal of agreement, the services of persons employed through the contractor came to an end automatically. 6. Another contention raised by the learned Counsel for the respondents at the time of hearing was that since the matter of vires has already been decided against State, the petition ought to be decided by another learned Single Judge on merits of other issues. 7. Ordinarily, we would have opted that course but since we find that the issue stands squarely governed by the Division Bench of this Court in D.B. Civil Writ Petition No. 2111/2001, Amrit Lal vs. State of Rajasthan and Others and two connected writ petitions decided on 03.07.2003 as well as the earlier decision of this Court in Suresh Chandras case, D.B. Civil Special Appeal (Writs) No.448/1997 and D. B. Civil Special Appeal (Writ) No. 406/2000 decided on 25.04.2003, State of Rajasthan and Others vs. Rashid Mohammed holding such termination to be invalid, no purpose would be served by sending the petitioners from one Court to another as the Division Bench decision binds the learned Single Judge as well as us. 8. In Amrit Lal’s case (Supra), the position of the employees engaged in the Government department which are to be set up as a part of statutory scheme was considered and it was held that where there is a statutory liability on the part of the employee to discharge the statutory obligations and the services availed through the contractor, the persons appointed through agency like respondent No. 3 by the Revenue Department cannot be considered an employee other than employee of the department in the matter of receiving the protection of beneficial provisions against the illegal terminations. Consequently, the termination of the employees engaged as Naka Guard in three writ petitions decided alongwith the Amrit Lal’s case on 03.07.2003 were held to be invalid by applying the principle enunciated in another case namely State of Rajasthan vs. Suresh Chandra’s case and State of Rajasthan and Others vs. Rashid Mohammed. Invoking the principle enunciated by Supreme Court in Saraspur Mills Co. Invoking the principle enunciated by Supreme Court in Saraspur Mills Co. Ltd. and Steel India Authorities`s case, it was stated by this Court :- “The two exceptions to the general rule that a contract labour does not result in a master and servant relationship between the owner of the establishment where a contract labour discharge his functions briefly stated can be said to be one where the contract was found to be non genuine in which case the contract labour working in the establishment of the principal employer were held in fact and in reality the employees of the principal employer himself . The principle is to be culled out from the decision in Hussain Bhai’s case Supra (1978 SCC (4) page 257). “The true test may, with brevity be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers subsistence, skill, and continued employment. If he, for any reason, chokes off , the worker is, virtually laid off . The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractual is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the management, no the immediate contractor. Myriad devices, half hidden in fold after fold of legal from depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42 and 43-A of the Constitution. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearance. To this the Court accepted if there is total dissociation in fact between the disowing Management and the aggrieved workmen, the employment is, in substance and in real-life terms, by another. The Managements adventitious connections cannot ripen into real employment.” The aforesaid principles were referred to by the Supreme Court in the case of Steel Authority of India Ltd. and Others (Supra), with approval. The Managements adventitious connections cannot ripen into real employment.” The aforesaid principles were referred to by the Supreme Court in the case of Steel Authority of India Ltd. and Others (Supra), with approval. The second exception which was approved by the Supreme Court was principle emanating from Saraspura Mills Co. Ltd. case (Supra) in which the task of running the canteen by the establishment was entrusted to a Co-operative Society, and it employed the workman in the canteen. The question arise whether the workmen employed in the canteen were employees of the company for whose purposes the canteen was run. The Court approving the decision of the Industrial Court said that there was statutory obligation on the part of the mills to provide a canteen and this obligation had been discharged by the mills by entrusting that task to the Co-operative Society, even if there was no positive evidence of such entrustment of work, it was pointed out that the activities of running the canteen could hardly have been undertaken by the Co-operative Society unless it was entrusted to it by the mills. Thus, where there is a statutory liability on the part of establishment in discharging the statutory obligation and the services are availed from the contractor, the contract labour would indeed be the employee of the principal employer. In the present case it cannot be doubted that the check posts were created under the statute by the competent authority to implement the provisions of Sales Tax Act and it was statutory obligation of the Commercial Taxes Department to create the check post to implement the statutory provisions to check the evasion and avoidance of tax in respect of goods passing through such check posts. To man such posts is also, therefore, statutory obligation of the Department. If the Department has availed the service of the contractor for procuring services of persons, such contract labour would indeed have to be treated as employee of the department as a principal employer and not as employer of agency on aforesaid principle. This conclusion in our opinion provides a complete answer to the contention raised by the learned Counsel for the respondents that there is no relationship of master and servant established between the department and security guards. This conclusion in our opinion provides a complete answer to the contention raised by the learned Counsel for the respondents that there is no relationship of master and servant established between the department and security guards. This principle was applied in Suresh Chandras case (Supra) in addition to finding that there was no evidence of existence of real contract between the department and the agency for employment of LDCs.” 9. Applying the aforesaid principles, the Court disposed of the writ petition with the following directions :-“In view thereof the principle enunciated in Saraspur Mills Co. Ltd. case (Supra) as approved by Supreme Court in Steel Authority of India Ltd. case (Supra) and applied to by this Court in Suresh Chandras case fully applicable in the facts of the present case. If that be so, then the termination order must be held to be invalid in view of the conclusions reached by the Court in Suresh Chandras case and also in the case of State of Rajasthan and others vs. Rashid Mohammed in D.B. Civil Special Appeal No. 406/2000 decided on 25.04.2003. In view thereof the termination orders in respect of the petitioners deserves to be quashed and is accordingly quashed. Coming to the question of regularisation of their services, it is not in dispute that in each case the petitioner has rendered services uninterruptedly for almost twelve years against available vacant post. That being so, prima facie their employment as security guards on duly created check posts by the competent authority must also be held as per the procedure provided for engagement of security guards as there is no prohibition of engaging the workmen through contract labour in the Commercial Taxes Department. Still the question of regularisation of services must be examined by the employer keeping in view the well known principles enunciated by the Supreme Court as discussed by this Court in Bhawani Singhs case Supra. As the impugned provisions of the Act of 1999 have already been declared to be ultra vires that is no impediment in considering the case of petitioners on such principles. We, therefore, direct the respondents to consider the case of each of the petitioner for regularisation of his service in terms of the principle enunciated in the case of Bhawani Singh (Supra).” 10. We, therefore, direct the respondents to consider the case of each of the petitioner for regularisation of his service in terms of the principle enunciated in the case of Bhawani Singh (Supra).” 10. Inview of that, since the position is not different in the present cases, the present writ petitions are also disposed of in term stated above. 11. No order as to costs.