KPTCL VIDYUT VITARANA GUTTIGE KARMIKAR SANGHA v. KARNATAKA POWER TRANSMISSION CORPORATION LTD.
2016-10-06
B.S.PATIL
body2016
DigiLaw.ai
ORDER : B.S. PATIL, J. 1. This writ petition is filed by the KPTCL Vidyut Vitarana Guttige Karmikar Sangha, through its President seeking the following reliefs; (i) Issue a writ of mandamus directing the respondents to regularize the service of the petitioner's employees (Members) referred in Annexure-A in their respective posts from the date of their respective entry into service as per their respective dates. (ii) In the alternative, till the conciliation proceedings are completed by respondent No.5 or till the dispute is adjudicated in accordance with law by the Labour Court or Industrial Tribunal as the case may be, a Writ of Mandamus be issued to the respondents not to appoint the persons to the posts which have been referred in Annexure-A. (iii) Issue any order or writ or issue any other order as deemed fit by the Hon'ble Court. 2. The contention urged by the petitioner is that since 1999 first respondent used to utilize the services of Operators, Helpers/Junior Linemen etc., without making any permanent appointment by adopting the modus operandi to appoint them as contract employees without there being any contract or in the name of fictitious contractor. In this regard it is alleged that, first respondent-Karnataka Power Transmission Corporation Limited resorted to create documents by inviting tenders for supply of work force for the posts of Helpers/Junior Linemen, Operators etc., and the said tenders used to be for a period of one year. According to the assertion made by the petitioner, members of the petitioner-union have been orally appointed by the respective Executive Engineers on different dates as per Annexure-A list produced along with the writ petition. It is urged that since the date of their respective appointments, they have been working sincerely under the direct control and supervision of officers of the second respondent. It is further urged that though they were directly under the control and supervision of the officers of the respondent company, they were characterized as contract employees and monthly wages were paid by the respondents in the name of alleged contractor. Petitioner claimed to have made several representations addressed to the respondent-company seeking regularisation of their service. When the request was not acceded to, they claim to have raised an industrial dispute before the Assistant Labour Commissioner and Conciliation Officer.
Petitioner claimed to have made several representations addressed to the respondent-company seeking regularisation of their service. When the request was not acceded to, they claim to have raised an industrial dispute before the Assistant Labour Commissioner and Conciliation Officer. Kalaburagi on 11.02.2016 vide Annexure-A and during the pendency of said conciliation proceedings, the respondents have issued notification as per Annexure-C dated 29.03.2016 calling for applications to fill up several posts including posts of Operator and Helpers/Junior Linemen thereby defeating the rights of the employees/members of the petitioner union and rendering the proceeding pending before the Conciliator virtually nugatory. In this background, petitioner-union has approached this Court seeking aforementioned reliefs for regularisation of the services of the employees from the date of their respective entry into service. They have also sought for an alternative relief of writ of mandamus directing respondents not to appoint any other persons to the posts in which the members of the petitioner-union have been working under the respondent-Company until the dispute raised was adjudicated by the Labour Court or Industrial Tribunal as the case may be. 3. Learned counsel appearing for respondents-2 and 3 at the outset submitted that in respect of similarly placed persons who were discharging similar duties attached to the post of Shift Junior Engineers, Assistant Engineers, Shift Operators and Shift Helpers whose services were availed through contractors by calling for tenders, relief of regularisation sought by them by approaching the High Court of Karnataka, Dharwad Bench in WP Nos. 101732-938 of 2015 was examined and by a detailed order passed on 15th March 2016, the High Court has rejected the prayer made for regularisation of the petitioners therein. A direction has been issued to the respondent-KPTCL to formulate a scheme providing relaxation in age to the petitioners therein and provide them an opportunity in terms of the said Scheme and the Rules regulating recruitment participate in the process of selection and recruitment. A further direction has been issued to the respondent-Corporation that the Scheme to be framed regarding age relaxation shall take info account length of service rendered by them in different posts for which they might be eligible to apply.
A further direction has been issued to the respondent-Corporation that the Scheme to be framed regarding age relaxation shall take info account length of service rendered by them in different posts for which they might be eligible to apply. In addition, another direction has been issued to the State Government to consider the representations of Helpers for abolition of contract labour as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of the order. 4. The contention of the learned counsel for the petitioner is that this judgment has no application to the facts of the present case, because petitioner-Union does not admit that its members were the employees appointed through independent contractor and that they have asserted that they were directly appointed by different officers/Executive Engineers of the respondent company. 5. There is no order of appointment produced to show that members of the petitioner-Union were appointed by the respondent-Corporation or the company. In any event, if it is the case of the petitioner that there was oral appointment, then it would be a matter to be decided in accordance with law in a properly instituted dispute. The fact remains that employees, who had approached the High Court of Karnataka, Dharwad Bench in WP Nos. 101732-938/2015 and the present employees, on whose behalf the present writ petition is filed by its union, were discharging similar functions and were appointed in the same manner. But, the difference being that this writ petition is filed through union before the High Court of Karnataka, Kalaburagi Bench, whereas, Writ Petition Nos.101732-938/2015 were filed directly by the employees before the High Court of Karnataka, Dharwad Bench. In this writ petition, petitioner-Union has raised a contention that, though the members of the petitioner-Union were shown as employees appointed by contractors and though their wages were paid by the contractors, such documents were created by the management to deprive their legitimate rights. 6. It is to be noticed here that these writ petitions are filed on 27.04.2016. Whereas, the writ petitions before the High Court of Karnataka, Dharwad Bench were filed in the year 2015 and were disposed of on 15th March 2016.
6. It is to be noticed here that these writ petitions are filed on 27.04.2016. Whereas, the writ petitions before the High Court of Karnataka, Dharwad Bench were filed in the year 2015 and were disposed of on 15th March 2016. Even assuming that the employees herein, through their Union have moved the Conciliation Officer/Assistant Labour Commissioner on 11.02.2016 requesting their regularisation that does not in any manner clothe them with any different right to seek the relief of regularisation contrary to the order passed and directions already issued by this Court in the connected cases. This Court has examined all the relevant aspects including the legal questions raised by the workmen who claimed that they were indeed continuously working since several years and also the contentions raised by the respondent KPTCL. Once a judgment has been rendered in case of group of employees who had raised similar questions of law and facts, the other group of employees cannot be permitted to circumvent the said order and seek direction by filing subsequent writ petition, thereby pleading that in the interregnum, they had raised a dispute before the Conciliation Officer and if the writ petition was dismissed, the conciliation proceedings and the dispute to be raised before the adjudicatory authorities would be rendered nugatory. Indeed, in the connected batch of writ petitions disposed of by the Dharwad Bench, direction has been issued to frame a scheme by which, age relaxation could be given to the employees who were engaged for several years through contractors to enable them to appear in regular appointments. 7. Their claim and assertion for regularisation in the services of Corporation contrary to the Rules of recruitment of the Corporation and contrary to the decision rendered by the Apex Court in various judgments has been repelled. Therefore, members of the petitioner-union who do not stand on any different footing cannot be given a different treatment in this writ petition, only because, they have filed this writ petition before the High Court of Karnataka, Kalaburagi Bench after the disposal of earlier batch of writ petitions and by raising a dispute before the Conciliation Officer. 8. Though it is contended by the learned counsel for the petitioner Sri. P. Vilaskumar that in terms of the judgment of the Apex Court in the case of Bharat Petroleum Corpn.
8. Though it is contended by the learned counsel for the petitioner Sri. P. Vilaskumar that in terms of the judgment of the Apex Court in the case of Bharat Petroleum Corpn. Ltd. and another v. N.R. Vairamani and another reported in (2004) 8 Supreme Court Cases 579 the factual situation in different cases have to be taken note of and the decision rendered in an earlier cases cannot be followed as Euclid's theorems nor as provisions of a statute, I am afraid such a contention has no application to the facts of the present case inasmuch as nature of work discharged by the employees in the present case, nature of their engagement and the relief sought for regularisation being the same as that of persons whose writ petitions have been disposed of by Dharwad Bench, there cannot be a different approach. 9. The KPTCL is an organization which is the predecessor of respondents-2 to 5. It has availed the services of the employees through contractors. Irrespective of whether the petitioners deny the nature of employment or admit the fact that they were appointed through contractors as an after thought after the disposal of batch of cases filed by their colleagues before the Dharwad Bench, it will not make any difference. Indeed, in the first batch of writ petitions, petitioners therein who were employees of the very Corporation did not deny the fact that they were appointed through contractors. Indeed, they sought for abolition of contract labour apart from seeking regularisation of their services contending inter alia that they were directly under the supervision and control of the KPTCL and its authorities. Petitioner - Union is seeking the relief of regularisation in the writ jurisdiction contrary to the judgment rendered by the Apex Court in Umadevi's case. There cannot be two sets of orders in respect of same category of employees under the same employer only because the present writ petitions are filed subsequently with different versions and assertions. 10. In the light of the above, I am of the view that, following the order passed by me in the connected writ petitions decided at Dharwad Bench in WP Nos. 101732-933/2015 and for the reasons stated therein, these writ petitions have to be disposed of in similar terms.
10. In the light of the above, I am of the view that, following the order passed by me in the connected writ petitions decided at Dharwad Bench in WP Nos. 101732-933/2015 and for the reasons stated therein, these writ petitions have to be disposed of in similar terms. Accordingly, these writ petitions are disposed of in the following terms: (i) The prayer for absorption or regularisation of the members of the petitioner-Union in the service of the Corporation is rejected; (ii) The respondent-Corporation is directed to formulate a scheme providing relaxation in age with regard to petitioners and provide them an opportunity in terms of the said Scheme and the Rules regulating recruitment to the posts in question to apply and participate in the process of selection and recruitment; (iii)The Scheme to be framed regarding age relaxation shall take into account the length of service rendered by the members of the petitioner-Union in different posts for which they may be eligible to apply; (iv) A direction is issued to the State Government to consider the representations of Helpers for abolition of contract labour as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this order. 11. This order will not come in the way of members of petitioner-union pursuing remedies before the Conciliator in accordance with law.