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Gujarat High Court · body

2010 DIGILAW 369 (GUJ)

Leelaben Parmar v. Physical Research Laboratory

2010-08-13

K.S.Jhaveri

body2010
JUDGMENT 1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs; A. Declaring that the petitioner nos. 1 to 12 are the direct employees of the respondent no.1 Laboratory and are entitled to be permanently employed by the respondent no.1. B. Directing the respondent no.1 to pay and continue to pay wages and all other benefits to the concerned petitioners at par with the permanent made sweepers employed by PRL at a rate proportionate to the period of work taken from the petitioners. C. During the admission and final disposal of the petition, the Hon'ble Court be pleased to grant ad-interim/interim relief directing the respondent no.1 to maintain status quo in respect of the employment of the concerned petitioners of this petition and to pay to them at least the minimum wages paid to permanent sweeper employed by PRL. D. ...... 2. The petitioners herein are lady safai workers employed by respondent no.1-Physical Research Laboratory (for short, the PRL) for the work of sweeping and cleaning its premises, offices, etc. since April 1984, initially, through the agency of Self Employed Woman's Association (SEWA), which is a registered Trade Union but, from 1988 onwards, through respondent no.2-Mandli, which is a registered Co-operative Society. The SEWA and subsequently, respondent no.2-Mandli had entered into contracts with other Organizations for supplying lady safai workers for doing the work of sweeping / cleaning of the premises, offices, etc. of different Organizations. Some where during 1980 1981, SEWA and subsequently, respondent no.2-Mandli had entered into an arrangement of providing 31 lady safai workers to the National Institute of Design, Ahmedabad. A reference being Reference (IT) No.8/1983 was made to the Industrial Tribunal, Ahmedabad for adjudication of the issue regarding regularization of the services of lady safai workers in N.I.D. The Industrial Tribunal, Ahmedabad passed an Award inter alia regularizing the services of the 31 lady safai workers as part time permanent employees of N.I.D. The said Award came to be challenged by N.I.D. before this Court by way of filing S.C.A. No.8549/1988. The said petition came to be dismissed by this Court vide judgment and order dated 28.09.1992, whereby, the Award of the Industrial Tribunal was confirmed. 3. The said petition came to be dismissed by this Court vide judgment and order dated 28.09.1992, whereby, the Award of the Industrial Tribunal was confirmed. 3. In the meantime, in view of the Award passed in N.I.D.'s case, the petitioners herein had preferred S.C.A. No.4928/1990 before this Court praying for a declaration that they are the direct employees of respondent-PRL and for the payment of regular wages, etc. However, the said petition came to disposed of as withdrawn, vide order dated 27.02.1991, with a liberty to seek a reference of the said dispute. 4. Pursuant to the withdrawal of S.C.A. No.4928/1990, as stated herein above, petitioner no.13-Union placed a demand before respondent no.1-PRL to the effect that they should be made permanent employees of PRL and that they should be paid wages and other benefits at par with the permanent Class-IV employees. The matter, thereafter, went for conciliation and after the failure thereof, the appropriate Government made a reference to the Industrial Tribunal and it was registered as Reference (IT) No.329/1991. The respondent no.1-PRL challenged the order of reference made by the Dy. Labour Commissioner before this Court by way of filing S.C.A. No.4650/1991. The said petition came to be partly allowed by this Court and the matter was remanded to the Government for fresh consideration, vide judgment and order dated 17.07.1992. 5. After re-consideration, the appropriate Government refused to make the reference of the dispute by its order dated 15.05.1993. The said order came to be challenged by petitioner no.13-Union before this Court by way of filing S.C.A. No.5333/1993. The said petition came to be disposed of as withdrawn vide order dated 05.05.1997 in view of the decision of the Apex Court in the case of PRL v. K.G. Sharma (JT 1997 (4) S.C. 527), whereby, it was held that the Physical Research Laboratory, Ahmedabad, is not an 'Industry' and therefore, the petition filed for issuance of a Mandamus to respondent No.1-PRL to make reference of industrial dispute is not maintainable. Therefore, the petitioners have preferred the present petition under Article 226 of the Constitution of India. 6. Mr. Mukul Sinha, learned counsel for the petitioners, submitted that respondent no.1-PRL is a 'State' within the meaning of Article 12 of the Constitution of India and is expected to be model employer. Therefore, the petitioners have preferred the present petition under Article 226 of the Constitution of India. 6. Mr. Mukul Sinha, learned counsel for the petitioners, submitted that respondent no.1-PRL is a 'State' within the meaning of Article 12 of the Constitution of India and is expected to be model employer. It is bound by the mandate of Articles 14 and 16 of the Constitution of India and therefore, its action of employing poor ladies at such low wages and of refusing them the status of permanency is unjust, improper and in violation of Articles 14 and 16 of the Constitution of India. Learned counsel submitted that grievance raised by the petitioner nos. 1 to 12 herein are directly covered by the judgment of the Division Bench of this Court in S.C.A. No.8549/1988 dated 28.09.1992, wherein, it has been held that the 31 lady employees employed through the agency of SEWA and subsequently, by respondent no.2-Mandli, were the direct employees of N.I.D. and are entitled to be treated as part time permanent employees. He submitted that the facts of the said case are exactly similar as that of the present case since it is the same SEWA which had sent another group of employees to respondent no.1-PRL for the same work and entered into a same kind of arrangement / contract. 7. Learned counsel further submitted that there are eight other permanent male sweepers employed by respondent no.1-PRL on full time basis and all of them are placed in regular Grades. The lady employees, though employed for half a day, are entitled for proportional wages to what is being paid to the permanent sweepers under the principle of Equal Pay for Equal Work as well as under the Equal Remuneration Act, 1976. 8. Alternatively, it has been submitted by learned counsel for the petitioners that under the provisions of Section-28 of The Administrative Tribunals Act, 1985 and in view of the decision of the Apex Court in the case of Telecom District Manager and Ors. v. Keshab Deb, (2008) 8 S.C.C. 402 , the Central Administrative Tribunal (C.A.T.) has jurisdiction to look into the reliefs claimed by the petitioners and therefore, the matter may be referred to C.A.T. Mr. v. Keshab Deb, (2008) 8 S.C.C. 402 , the Central Administrative Tribunal (C.A.T.) has jurisdiction to look into the reliefs claimed by the petitioners and therefore, the matter may be referred to C.A.T. Mr. R.S. Sanjanwala, learned counsel for respondent no.1-PRL, raised a preliminary objection that the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 do not apply to the facts of the present case. He submitted that the petitioner nos.1 to 12 herein are the members of the Co-operative Society and they are self-occupied. They are directly under the control of respondent no.2-Mandli and the Mandli may require them to execute job work at one place or the other. The contract with SEWA and subsequently, with respondent no.2-Mandli and the correspondence clearly reveal that respondent no.1-PRL has only to see that the work of sweeping is done by SEWA or respondent no.2-Mandli, as the case may be. It is not mentioned in the contract that only 12 particular ladies have to work. The work has to be down by SEWA or respondent no.1-Mandli by their members in the manner they think fit. He has, therefore, submitted that the provisions of the said Act does not apply since, at no point of time, in the establishment of respondent no.1-PRL, the petitioner nos.1 to 12 were employed as contract labour. 9. Against the contention raised by learned counsel Mr. Sinha that the C.A.T. has jurisdiction to entertain the dispute involved in this petition, Mr. Sanjanwala, learned counsel for respondent no.1-PRL, has relied upon a decision of the Apex Court in the case of Phool Badan Tiwari and Ors. v. Union of India and Ors, (2003) 9 S.C.C. 304 . In that case, the appellants therein were working as supervisors in handicraft centres under a beneficial scheme of Railway Department intended to help wives and daughters of railway servants. They were not appointed pursuant to any rules of recruitment or orders issued by Railways. Their appointment orders indicating that they were on part-time basis and were not full-time or regular employees of Railways, as no pay scales were given. A meagre amount fixed as monthly remuneration and commission was paid on the basis of work done. On the facts of that case, it was held that the appellants were not regular employees and hence, C.A.T. had no jurisdiction to entertain their applications for regularization of their services. A meagre amount fixed as monthly remuneration and commission was paid on the basis of work done. On the facts of that case, it was held that the appellants were not regular employees and hence, C.A.T. had no jurisdiction to entertain their applications for regularization of their services. Learned counsel has, therefore, submitted that the present petition deserves to be heard by this Court and not the C.A.T. 10. Learned counsel further submitted that the decision rendered by the Division Bench of this Court in N.I.D.'s case shall not apply to the present case inasmuch as 'PRL' is now held not to be an 'industry' within the meaning of the Industrial Disputes Act, 1947, by the Hon'ble Apex Court in PRL v. K.G. Sharma's case (supra). Learned counsel for respondent no.1-PRL further submitted that, earlier, the petitioners had preferred writ petition before this Court, claiming similar reliefs. However, the same was withdrawn. Thus, the present petition is second in the series of litigation. He further submitted that petitioner nos.1 to 12 were continued in employment in view of the interim orders passed by this Hon'ble Court. He has, however, submitted that respondent no.1-PRL had incurred a substantial amount up till now for making payment towards wages. Looking to the overall facts of the case and since there does not exist any masterservant relationship between respondent no.1-PRL and petitioner nos.1 to 12, the present petition is devoid of any merits and deserves to be rejected. 11. Learned counsel for respondent no.1-PRL has relied upon a decision of the Apex Court in the case of Avinash Nagra v. Navodaya Vidyalaya Samiti and Ors., (1997) 2 S.C.C. 534 , more particularly, on the observations made in Para-13 therein, which reads as under; 12. The High Court also was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ petition in first instance but withdrew the same without permission of the Court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High Court in applying the correct principle of law. Thus considered we find no merit in the appeal for interference. Learned counsel has relied upon another decision of the Apex Court in the case of Dena Nath and Ors. Therefore, the second writ petition is not maintainable as held by the High Court in applying the correct principle of law. Thus considered we find no merit in the appeal for interference. Learned counsel has relied upon another decision of the Apex Court in the case of Dena Nath and Ors. v. National Fertilizers Ltd. and Ors., (1992) 1 S.C.C. 695 , more particularly, on the following observations made in Para-22, which reads as under; 13. It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not. It is a matter for the decision of the government after considering the matter, as required to be considered under Section 10 of the Act. The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Sections 9 (sic 7) 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...... 14. Learned counsel has also relied upon another decision of the Apex Court in the case of Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors., (2001) 7 S.C.C. 1 , wherein, it has been held that where a workman is hired through a contractor, master and servant relationship exists but where a workman is hired in or in connection with the work of a establishment to produce a given result or the contractor supplies workmen for any work of the establishment, unless the contractor is a mere camouflage, the workman cannot be treated as an employee of the principal employer. Learned counsel for respondent no.1-PRL has next relied upon another decision of the Apex Court in the case of Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh and Ors., (2002) 4 S.C.C. 609 , more particularly, on the observations made in Para-19, which reads as under; 15. Learned counsel for respondent no.1-PRL has next relied upon another decision of the Apex Court in the case of Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh and Ors., (2002) 4 S.C.C. 609 , more particularly, on the observations made in Para-19, which reads as under; 15. The Union in the writ petition alleged that the labour contract was a sham and the Corporation specifically denied it but the High Court did not go into this question and did not record a finding that the labour contract in the present case was a sham or a camouflage considering the material on record; even otherwise, this being a serious and disputed fact the High Court could not have appropriately adjudicated on the issue exercising jurisdiction under Article 226. The High Court proceeded to conclude that the labour contract was not genuine and the workers of the Union were employees of the Corporation because the Corporation and the contractors had not complied with the provisions of the CLRA Act. A conclusion that the contract was a sham or it was only a camouflage cannot be arrived at as a matter of law for non-compliance with the provisions of the CLRA Act but a finding must be recorded based on evidence, particularly, when disputed, by an industrial adjudicator. 16. Learned counsel has lastly relied upon another decision of the Apex Court in the case of Ramsingh and Ors. v. Union Territory, Chandigarh, (2004) 1 S.C.C. 126 , wherein, it has been held that no relief as claimed can be granted to the contract employees without ascertaining through the industrial forum, factual aspects of inter se relationship between the Administration, the contractor and the contract employees. Learned counsel has, therefore, submitted that the petitioner nos. 1 to 12 are not the employees of respondent no.1-PRL and they are not entitled to any of the reliefs, which have been claimed in the present petition. 17. Mr. D.S. Vasavada, learned counsel for respondent no.2-Mandli, submitted that respondent no.2 is an independent and registered co-operative society registered under the Co-operative Societies Act. Petitioner nos.1 to 12 are the members of the co-operative society and in fact, they are the share-holders of the co-operative society. The provisions of the Contract Labour (Regulation and Abolition) Act are not applicable to respondent no.2-Mandli. He has, therefore, submitted that the present petition deserves to be rejected. 18. Petitioner nos.1 to 12 are the members of the co-operative society and in fact, they are the share-holders of the co-operative society. The provisions of the Contract Labour (Regulation and Abolition) Act are not applicable to respondent no.2-Mandli. He has, therefore, submitted that the present petition deserves to be rejected. 18. Heard learned counsel for the respective parties and perused the documents on record. It is true that petitioner nos.1 to 12 herein had earlier filed a writ petition being S.C.A. No. 4928/1990 before this Court inter alia claiming similar reliefs. The said petition was opposed by respondent no.1-PRL. However, on the statement made by the learned counsel for the petitioners that the petitioners would make a prayer before the appropriate authority to make a reference of the dispute sought to be raised in the said petition and therefore, they do not press the said petition and intend to withdraw the same, this Court had disposed of the said petition vide order dated 27.02.1991 granting liberty as aforesaid to the petitioners. Subsequently, a demand was raised and ultimately, the appropriate Government made a reference to the Industrial Tribunal concerned. However, the said order of reference was challenged by respondent no.1-PRL before this Court by way of filing S.C.A. No.4650/1991, which came to be partly allowed, whereby, the order of reference was quashed and the matter was remanded to the appropriate Government for fresh consideration while directing respondent no.1-PRL to maintain status quo with regard to the employment of the concerned persons. After re-consideration, the appropriate Government refused to make reference of the dispute to the Industrial Tribunal concerned. Being aggrieved by the said decision of the appropriate Government, the petitioners challenged the said decision before this Court. The same came to be disposed of as withdrawn on the basis of the decision of the Apex Court whereby it was held that respondent no.1-PRL is not an 'industry' within the definition of the Industrial Disputes Act, 1947. From the above round of litigation, it is evident that though the petitioners had filed writ petition before this Court being S.C.A. No. 4928/1990, the same was not disposed of on merits. The said petition was permitted to be withdrawn for the purpose of making a request before the appropriate authority to make a reference of the dispute sought to be raised in the said petition. The said petition was permitted to be withdrawn for the purpose of making a request before the appropriate authority to make a reference of the dispute sought to be raised in the said petition. Thus, in my opinion, it cannot be said that the present petition would be barred by the principles of res judicata and constructive res judicata. 19. There is no dispute that respondent no.1 Physical Research Laboratory is not an 'industry' within the meaning of the Industrial Disputes Act, 1947. Once respondent no.1 Physical Research Laboratory is held not to be an 'industry', within the meaning of the Industrial Disputes Act, 1947, I am afraid that the decision rendered by the Division Bench of this Court in N.I.D.'s case [S.C.A. No. 8549/1988 dated 28.09.1992], as referred to herein above, shall not come to the rescue of the petitioners since the decision in N.I.D.'s case, was, essentially, rendered with reference to the provisions of the Industrial Disputes Act, 1947. Hence, the decision rendered in N.I.D.'s case will not apply to the case on hand. 28. In this petition, this Court is not required to go into the question whether the labour contract was a sham. THERE is no dispute amongst the parties that neither respondent no.1-PRL nor respondent no.2-Mandli hold any valid licence under the Contract Labour (Regulation and Abolition) Act, 1970. The say of the petitioners is that in the absence of licence under the provisions of the said Act, the relation between the employees and the principal employer is direct. In other words, it is their say that their exists the relationship of master and servant between petitioner nos. 1 to 12 and respondent no.1-PRL in view of the absence of any licence under the provisions of the said Act. 20. It transpires from the record that earlier petitioner nos. 1 to 12 were employed by respondent no.1-PRL, through the contract entered into with SEWA, which was, subsequently, taken over by respondent no.2-Mandli. Respondent no.2-Mandli is a registered Co-operative Society and petitioner nos.1 to 12 are its members. The members of the Co-operative Society are not contract employees. In fact, they are the share-holders of the Co-operative Society. When the Co-operative Society was formed, each of the petitioner was issued a Certificate indicating that they are the share-holders. Respondent no.2-Mandli is a registered Co-operative Society and petitioner nos.1 to 12 are its members. The members of the Co-operative Society are not contract employees. In fact, they are the share-holders of the Co-operative Society. When the Co-operative Society was formed, each of the petitioner was issued a Certificate indicating that they are the share-holders. The petitioners had also paid an amount of Rs.50/- each towards the value of the shares purchased by them. Thus, the picture which appears is that respondent no.2-Mandli undertakes the job work and the said job work is executed by its 'members'. Therefore, in my view, the case of the petitioners will not be covered under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970. There does not exist any master servant relationship between petitioner nos.1 to 12 and respondent no.1-PRL. I also do not find that the labour contract in this case is a sham or a camouflage. Hence, the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 will not apply to the case on hand since petitioner nos.1 to 12 are the members of the Co-operative Society, who are self-employed. Consequently, the petitioner nos.1 to 12 cannot claim that they are the direct employees of respondent no.1-PRL. 29. During the course of hearing, attention of Mr. R.S. Sanjanwala, learned counsel for respondent no.2-PRL was drawn to the contention raised by the petitioners in Ground-(d) of the petition, whereby, it has been stated that there are eight other permanent 'male' sweepers employed by PRL on whole time basis and that all of them have been placed in the regular grades. It has been further stated therein that the lady employees, though employed for half a day, are entitled for proportional wages of what is being paid to the permanent sweepers, both under the principle of Equal Pay for Equal Wages as well as under the Equal Remuneration Act, 1976, which has been made applicable to Research Institutions w.e.f. 05.04.1976. However, learned counsel Mr. Sanjanwala was not in a position to show from the record as to why discrimination, on the basis of sex, has taken place. Learned counsel Mr. Sanjanwala was not able to give any satisfactory reply on the said aspect of the case. In above view of the matter, this Court is of the opinion that petitioner nos. Sanjanwala was not in a position to show from the record as to why discrimination, on the basis of sex, has taken place. Learned counsel Mr. Sanjanwala was not able to give any satisfactory reply on the said aspect of the case. In above view of the matter, this Court is of the opinion that petitioner nos. 1 to 12 shall be entitled for proportional wages of what is being paid to the permanent sweepers under the provisions of the Equal Remuneration Act, 1976, since the petitioner nos.1 to 12 have been discriminated on the ground of sex, which is violative of their Fundamental Rights, as enshrined and guaranteed in the Constitution of India. 21. So far as the question regarding jurisdiction of this Court is concerned, it has been held by the Hon'ble Apex Court in Phool Badan Tiwari's case (supra) that in matters pertaining to regularization of services, the Central Administrative Tribunal (C.A.T.) has no jurisdiction. In the present case, the reliefs claimed by petitioner nos.1 to 13 pertain to regularization of their services. Hence, in view of the principle laid down by the Apex Court in the said decision, the C.A.T. has no jurisdiction to entertain any application claiming such reliefs. Consequently, the prayer to transfer the case to C.A.T. stands rejected. 22. The upshot of the above discussions is outlined thus; (i) Respondent no.1-PRL is declared to be not an 'industry' within the meaning of the Industrial Disputes Act, 1947 and therefore, the decision rendered in N.I.D.'s case shall not apply to the present case. (ii) The provisions of the Contract Labour (Regulation and Abolition) Act, 1970 will not apply to the present case. There also does not exist any master servant relationship between petitioner nos.1 to 12 and respondent no.1-PRL and therefore, petitioner nos.1 to 12 cannot claim that they are the direct employees of respondent no.1-PRL. (iii) The petitioner nos.1 to 12 shall be entitled for proportional wages of what is being paid to other permanent male sweepers under the provisions of the Equal Remuneration Act, 1976 so as to avoid any discrimination on the ground of sex. For the foregoing reasons, the petition is partly allowed. The relief claimed in Para-(A) that petitioner nos.1 to 12 be declared as direct employees of respondent no.1-PRL and that they are entitled to be permanently employed by respondent no.1-PRL is rejected. For the foregoing reasons, the petition is partly allowed. The relief claimed in Para-(A) that petitioner nos.1 to 12 be declared as direct employees of respondent no.1-PRL and that they are entitled to be permanently employed by respondent no.1-PRL is rejected. However, on the ground of discrimination of sex, which is violative of the Fundamental Rights enshrined under the Constitution of India, the petitioner nos.1 to 12 shall be entitled to receive proportional wages of what is being paid to other permanent 'male' sweepers employed by respondent no.1-PRL, on monthly basis, by dividing it into 26 days, under the provisions of the Equal Remuneration Act, 1976. The petition stands disposed of accordingly. Rule is made absolute to the above extent with no order as to costs.