Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 168 (ALL)

PRINCIPAL/EXECUTIVE DIRECTOR CIVIL AVIATION TRAININGCOLLEGE, BAMRAULI, ALLAHABAD v. PRESIDING OFFICER, CENTRAL GOVERNMENT, INDUSTRIAL-CUM-LABOUR COURT, RAMESH SARVODAYA NAGAR, KANPUR U. P. TRIBUNAL

2013-01-15

S.U.KHAN

body2013
Sibghat Ullah Khan, J. Heard Sri V.K. Singh, learned senior counsel assisted by Sri S. Shekhar, learned counsel for the petitioner employer Principal/Executive Director, Civil Aviation Training College, Bamrauli, Allahabad and Sri R.C. Singh and Sri Ranjeet Asthana, learned counsel for respondent no.2, workman in each writ petition. In the first writ petition respondent no.2, workman is Ramesh Kumar Srivastava. In the second writ petition respondent no.2 workman is Pushpendra Kumar Srivastava. In the third writ petition, respondent no.2, workman is Anoop Kumar. In the 4th writ petition workman respondent no. 2 is Naresh Kumar Thakur. These writ petitions are directed against common award dated 27.12.2006 given by Presiding Officer C.G.I.T. Cum labour court, Kanpur in four Industrial Disputes being Industrial dispute no.19 of 2001,20 of 2001, 72 of 2002 and 73 of 2002. The matter which was referred to the labour court was as to whether a direct employer employee relationship was established between the petitioner employer and the four workmen and if so whether termination of their services w.e.f. 1.2.1999 and 4.10.1999 was legal and justified or not. The case of the employer was that the workmen had been engaged to work as computer operators through a contractor in the name and style of Chail Computer Academy Allahabad. The workmen had asserted that the authorities of the petitioner had taken written test and interviewed them before appointing. Each workman had worked for about 6 or 7 years, before termination of his service. The petitioners also contended that the workmen were engaged for a project. The labour court decided the reference in favour of the workmen holding that each workman was direct employee of the petitioner and termination order was illegal. Accordingly, order of reinstatement with full backwages and all consequential benefits was passed. In these writ petitions conditional stay orders were passed on 15.5.2007 and it was directed that in case each workman gave an affidavit that he was not gainfully employed anywhere else. The petitioner should either reinstate him on the last drawn wages or pay him last drawn wages every month. Learned counsel for the petitioner at the time of argument supplied a chart showing that Naresh Kumar Thakur and Naresh Kumar Srivastava had been paid an amount of Rs.1,98,000/- each under the interim order of this court till October 2012 for 66 month as their last drawn wages were Rs.3000/- per month. Learned counsel for the petitioner at the time of argument supplied a chart showing that Naresh Kumar Thakur and Naresh Kumar Srivastava had been paid an amount of Rs.1,98,000/- each under the interim order of this court till October 2012 for 66 month as their last drawn wages were Rs.3000/- per month. Sri Puspendra Kumar Srivastava had been paid Rs.1,45,000/- as his last drawn wages were 2,200/- per month and Sri Anoop Kumar had been paid Rs.1,84,000/- as his last drawn wages were Rs.2,800/- per month. It was also stated that 50% of the backwages had been deposited before the labour court. It was also stated that last drawn wages were being paid without taking any work from any workman. These facts were not denied by the learned counsel for the workmen. In para 12 of the impugned award it is categorically mentioned that the workmen admitted that no appointment letter was issued in favour of any of them and no written termination order was passed. Some certificates was also filed by the workmen issued by officers of the petitioners stating therein that their working was excellent. Labour court held that there existed a direct relationship of employer and employee and the alleged contractor M/s. Chile Computer was merely smoke screen and camouflage. The workmen had stated that when they demanded their regularisation their services were orally terminated and that they were working as computer cum Board Operator in D.T.P. Section with the National Air Board and authority ( now known as training college) Bamrauli, Allahabad ( para 6 of the impugned award). In the same para it is further mentioned that workmen further contended that in order to camouflage and to adopt unfair labour practice employer invited M/s Chile Computer Academy Preetamnagar Allahabd to provide computer operators. Learned counsel for the petitioner has argued that each workman was an employee of the contractor and the fact that written test was taken and oral interview was also held does not prove that workmen were employees of the petitioner as in order to judge the suitability of the workers provided by the contractor M/s Chile Computers the written test and the interview was held. However, the fact is that admittedly no written appointment letter was given to any workman. Petitioner is a government organisation/agency. It is also admitted that no advertisement was issued before appointing any of the workman. However, the fact is that admittedly no written appointment letter was given to any workman. Petitioner is a government organisation/agency. It is also admitted that no advertisement was issued before appointing any of the workman. Names were also not called for from the employment exchange. Each workman admits that initially he came in contact with the petitioner employer through Chile Computers. Petitioner being a Government enterprises/agency could not appoint anyone without providing opportunity to apply to each and every eligible person otherwise appointment would have been violative of Article 14 and 16 of the Constitution of India. In such a situation even if it is assumed that the workmen were direct employees of the petitioners, the employment was utterly illegal and unconstitutional. In such a situation reinstatement could not be directed. The only relief which could be granted in such a situation was of payment of consolidated damages/compensation vide Nagar Mahapalika Vs. State, AIR 2006 SC 2113 and Haryana SEDC Vs. Mamni AIR 2006 SC 2427 , Haryana Urban Development Authority v. Om Pal, AIR 2008 SC 475 and Senior Superintendent, Telegraph ( Traffic) Bhopal Vs. Santosh Kumar Seal and others AIR 2010 Supreme Court 2140. Learned counsel for the respondents cited authority of Steel Authority of India Ltd. Vs. National Union Water Front Workers AIR 2001 SC 3527 and Director, Fisheries Terminal Department Vs. Bhikubhai Meghajibhai Chavda 2010( 1) SCC 47, and some authorities regarding direct relationship of employer and employee, however, in view of the view taken by me it is not necessary to decide these points and controversy in detail. Accordingly, writ petitions are allowed the impugned awards are set aside and substituted by direction of payment of reasonable damages/compensation to each workman. The aforesaid amounts as paid under interim order passed in these writ petition to each workman till date without any work are treated to be reasonable damages/compensation. The amount which has been deposited by the petitioners as backwages before the labour court shall be returned to the petitioner.