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2014 DIGILAW 697 (KAR)

Kirujala Vidyut Yojana v. Karnataka Power Corporation Limited

2014-07-31

B.S.PATIL

body2014
ORDER B.S. Patil, J. 1. Twenty seven workmen who are represented by the petitioner/Union raised an industrial dispute which was referred under Section 10(1)(c) of Industrial Disputes Act, 1947 (for short, 'the Act') to the Labour Court, Gulbarga. The dispute referred was: "Whether 27 contract workers of the contractors engaged by the Karnataka Power Corporation Limited and the Executive Engineer of Mini Hydel Power Project, KPCL, Virupapura, Gangavati, Koppal District were entitled for regularization of their service from the date of their entry into service under the Contractor and if not, what was the relief to which the workmen were entitled?" 2. It was contended by the First Party - Workmen's Union through its President that all the 27 workmen were working under the direct control and supervision of the Management of the respondent - Karnataka Power Corporation Limited (for short, 'KPCL') from the date they joined their service and were discharging their duties as such; the work carried out by them was permanent in nature and it was the respondent - KPCL which had sole control over the Mini Power Stations. Though they were supposed to engage permanent staff, the Management resorted to the practice of employing staff by paying less wages through false and fictitious contractors. They urged that in fact there were no such contractors at all. 3. The 2nd respondent - Executive Engineer, Mini Hydel Power Project, KPCL, Virupapura, Gangavati, Koppal District filed counter to the claim petition contending inter alia that the 1st respondent - KPCL was a Government of Karnataka undertaking. Mini Power Stations situated at Sirwar, Ganekal and Kalmala were undertaking work of power generation in the State. They came under the jurisdiction of Raichur Thermal Power Station. The work of the Power Houses such as operation and maintenance of the generating units was entrusted to contractors on tender basis and the said Power Houses were functioning only when water was released from the canals. 4. In the statement of objections, respondent gave details regarding the contractors who were entrusted with the work as per the terms of the contract where under they were required to engage qualified workmen and supervisory staff for the purpose of carrying on the operation. 4. In the statement of objections, respondent gave details regarding the contractors who were entrusted with the work as per the terms of the contract where under they were required to engage qualified workmen and supervisory staff for the purpose of carrying on the operation. It was urged that wages of the employees employed by the contractors was paid by the contractors and not by respondents 1 & 2 and that there was no relationship of workman and employer between the employees and the respondent - Management. 5. Based on the pleadings, the Labour Court framed relevant issues with regard to the status of the First Party-Workmen as employees working under the respondent - Management and their entitlement for the relief of regularization of their services as prayed for by them. 6. The Labour Court has considered the evidence led in by the parties. Only witness examined by the First Party was the Secretary of the Union. He asserted that the workmen were appointed by the respondents, but their wages were being paid in the names of false and fictitious contractors. In his evidence, he has stated that he along with claimants 2 to 9 were working in Sirwar Power Station, whereas claimants 10 to 18 and claimants 19 to 27 were working in Ganekal and Kalmala Power Stations, respectively. He has further stated that permanent workers working as Operators and Helpers used to get monthly salary of Rs.8,000/- and Rs.7,000/-, respectively, as against Rs. 3,000/- and Rs.2,000/- paid to the claimant-Workmen treating them as contract employees, though they used to do the same kind of work. He has also stated that because the workmen were under the fear of termination of their service, they could not raise any objection regarding disparity in wages. 7. The Labour Court has considered the evidence of the aforesaid witness particularly the cross-examination, wherein he has admitted that there were no appointment orders issued and that he was not aware if the works of the hydel projects were being entrusted to contractors by inviting tenders. Suggestion made to this witness regarding entrustment of works periodically to contractors by name M/s. Sanman Electricals, Raichur, and M/s. Venkateshwar Electricals, Rampur, is neither denied nor admitted, but he has pleaded his ignorance about the same. 8. Suggestion made to this witness regarding entrustment of works periodically to contractors by name M/s. Sanman Electricals, Raichur, and M/s. Venkateshwar Electricals, Rampur, is neither denied nor admitted, but he has pleaded his ignorance about the same. 8. The Labour Court has also considered the evidence of MW-1 - Assistant Executive Engineer working in the respondent/Corporation who has asserted that the works of maintenance and generation of power in the three power projects were entrusted to the two contractors and the workmen were being engaged by the said contractors. He has also asserted that the workmen were working under the supervision and control of the contractors and their wages were being paid by the contractors. Agreements entered into with the contractors from time to time, work orders issued and documents pertaining to extension of the period of contract were produced and marked as Exs. M-1 to M-24. Though in the cross-examination it is suggested to him that all the documentary evidence produced by the respondent were created to deprive the claimants of their rights, the said suggestion has been denied by the management witness. 9. The Labour Court has discussed in detail the documentary evidence produced by the management witness in paragraph 13 of the order. It has come to the conclusion that in the light of the evidence on record, which disclosed that the work was entrusted to the workmen by the contractors and that there was no material to show that workmen were engaged by the Corporation, and/or supervision and control over their work was done by the Officers of the Corporation, there was absolutely no material to establish that the claimant-Workmen were engaged by the officers of the Corporation and/or were working under the supervision and control of the Corporation. The Labour Court has further found that it was highly improbable that officers working in the Corporation would create false and fabricated tender documents, agreements and correspondence regarding assignment of contracts pertaining to generation and maintenance work of power stations to the contractors. 10. These findings arrived at by the Labour Court are based on evidence on record. The Labour Court has taken note of the oral and documentary evidence and has discussed the same in their proper perspective. There is no perversity or illegality in the findings recorded by the Labour Court. 10. These findings arrived at by the Labour Court are based on evidence on record. The Labour Court has taken note of the oral and documentary evidence and has discussed the same in their proper perspective. There is no perversity or illegality in the findings recorded by the Labour Court. Mere fact that the contractor was not examined by the management would not falsify their defence. 11. It is the contention of Mr. Vilas Kumar, Counsel for the petitioner that as the management has not produced documentary evidence such as wage register and attendance register of its employees for the relevant period which would have thrown light on the controversy raised, an adverse inference ought to have been drawn against the party who has withheld such evidence. This principle cannot be made applicable to the facts of the present case. It is not the case of the claimants that they used to sign the muster rolls or the attendance register and that they were paid wages by the authorities of the respondent-Corporation. On the other hand, it is their case that wages were paid in the name of fictitious contractors and thus, false documents had been created to show that they were not engaged by the Corporation but were engaged by the contractors. Hence, reliance placed on the judgment in the case of MANAGEMENT OF STATE BANK OF INDIA vs. V.M. MAHAPURUSH ILR 1994 KAR 2728, is not appropriate. Similarly, the observations made by the Apex Court in the case of CENTRAL INLAND WATER TRANSPORT CORPORATION LTD. vs. BROJO NATH GANGULY AND TARUN KANTI SENGUPTA AIR 1986 SC 1527 , in paragraphs 90 & 91 to which the attention of the Court is drawn by the Counsel for the petitioner, have no application to the facts of the present case. 12. The judgment of the Apex Court in the case of HUSSAINBHAI, CALICUT vs. THE ALATH FACTORY, THEZHILALI UNION, KOZHIKODE AND OTHERS AIR 1978 SC 1410 , will have no application to the facts of the present case because in the said case it was found on facts that relationship of employer and employee had been established between the workmen who had been hired by the contractors for work and the management of the factory, as the circumstances there disclosed exercised control over the workmen. By analyzing the evidence and lifting the veil, the Court found that it was established, in the facts of the said case that real employer was the management and not the contractor. The facts of the present case are totally different. There is no such concealment or mischief resorted to by the respondent-Corporation in this case. Absolutely no evidence is adduced in this regard by the claimants. 13. The other judgments in the case of HINDALCO INDUSTRIES LTD. vs. ASSOCIATION OF ENGINEERING WORKERS 2008 LLR 449 (SC), RAMSINGH AND OTHERS vs. UNION TERRITORY, CHANDIGARH AND OTHERS 2003 (99) FLR 1064, and M/S. BHARAT HEAVY ELECTRICALS LTD. vs. STATE OF U.P. & OTHERS 2003 (98) FLR 826, involved different set of facts and circumstances and therefore, the principles laid down there will be of no help to the petitioners in this case. 14. In the case of G.M. ONGC, SHILCHAR vs. ONGC CONTRACTUAL WORKERS UNION, the Apex Court has held that High Court would be folly justified in interfering with the award of an Industrial Court if any patent illegality is committed by it. It has further stated that if no perversity or patent illegality is noticed in the award of the Tribunal, it would be inappropriate to interfere with the same by re-appreciating the evidence to come to a different conclusion. Therefore, in the instant case, as the Labour Court has properly dealt with the evidence on record, both oral and documentary, and has come to the conclusion that there was no relationship of employer and employee between the claimant workmen and the respondent/Corporation, this Court cannot interfere with the award passed by the Labour Court. 15. The facts and circumstances involved and the evidence on record do not show that the employer has resorted to unfair and unjust practice to conceal the relationship of employer and workmen between the claimants and the Corporation by creating false documents and by withholding real facts from the Labour Court. 16. Hence, the award passed by the Labour Court does not warrant interference by this Court. The writ petition is, therefore, dismissed.