Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 490 (CAL)

Sanjoy Kundu v. State of West Bengal

2017-05-17

SUBRATA TALUKDAR

body2017
JUDGMENT : Subrata Talukdar, J. Both the writ petitions have come up for analogous consideration. 2. In WP 4117(W) of 2016 (for short WP-I) the petitioners, who are 34 in number, claim to be the beneficiaries of the Industrial Award (for short the Award) dated 30th May, 2014 passed by the Ld. 7th Industrial Tribunal (for short the Ld. Tribunal) in Reference No. 49/2A(2) of 2014 (for short the Reference) passed against the North Bengal State Transport Corporation (for short NBSTC), which is represented, among others, through its Chairman, as respondents to WP-I. 3. WP 33666(W) of 2014 is the writ petition filed by NBSTC challenging the Award dated 30th May, 2014 (for short WP-II). 4. Mr. Bikash Ranjan Bhattacharyya, Ld. Senior Counsel appearing for the petitioners in WP-I with Mrs. Santi Das, Ld. Counsel, submits that the Award has directed reinstatement in service of the 35 workmen/applicants to the Reference. The Ld. Tribunal directed that the workmen/applicants be treated as employees of the principal employer, viz. NBSTC, without any further delay. 5. Mr. Bhattacharyya submits that the Ld. Tribunal carried out the required factual examination of the Reference placed before it. In spite of summons NBSTC did not contest the case and the contractor in issue, viz. M/s. Delta Security Services (for short M/s. Delta) although appeared by filing a written statement, did not ultimately contest the proceeding. 6. Upon examination of the several documents as well as the evidence adduced on behalf of the workmen/applicants to the Reference, the Ld. Tribunal came to the finding that the alleged contract/agreement between NBSTC and the contractor, viz. M/s. Delta Security Services, was a sham. The Ld. Tribunal noticed that the workmen/applicants have been continuously employed under the NBSTC since 1989 as Supervisors, Security Guards, Majdoors etc. through several agencies/contractors. In November, 2006 NBSTC entered into a fresh contract with M/s. Delta and, such contract was only extended up to September, 2012. Thereafter, the applicants continued to serve under the NBSTC till their services were abruptly terminated w.e.f. 16th February, 2012. 7. In the light of the examination of evidence the Ld. Tribunal through its Award, inter alia, held that the workmen/applicants were entitled to be treated as employees of the principal employer, viz. NBSTC. Second, the Ld. Thereafter, the applicants continued to serve under the NBSTC till their services were abruptly terminated w.e.f. 16th February, 2012. 7. In the light of the examination of evidence the Ld. Tribunal through its Award, inter alia, held that the workmen/applicants were entitled to be treated as employees of the principal employer, viz. NBSTC. Second, the Ld. Tribunal found that the workmen/applicants were terminated without notice contrary to the provisions of the Industrial Disputes Act, 1947 (for short the ID Act). Therefore, such termination amounts to retrenchment vide Section 25F of the ID Act. Accordingly, the reliefs, as recorded above, were extended by the Ld. Tribunal. 8. Mr. Bhattacharyya further points out that the Award dated 30th May, 2014 has been published by the appropriate authority under Section 17 of the ID Act on 3rd July, 2014. Referring to Section 17 of the ID Act, Ld. Senior Counsel for the petitioner submits that every Award shall be published within a period of 30 days from the date of its receipt by the appropriate Government. 9. Further referring to Section 17A of the ID Act, Mr. Bhattacharyya submits that subject to the provisions of Section 17A, Section 17(2) provides that the Award published under Section 17(1) shall be final and, shall not be questioned before any Court. 10. Next, Section 17A provides, inter alia, for commencement of the Award. Mr. Bhattacharyya submits that an Award shall become enforceable on the expiry of 30 days from the date of its publication under Section 17 (supra). Also referring to the West Bengal State Amendment to Section 17A (supra) by inserting Section 17AA in the ID Act, Mr. Bhattacharyya argues that every Award under Section 17AA becomes enforceable on the expiry of 30 days from the date of its pronouncement. 11. In the light of the above noted provisions of the ID Act, Mr. Bhattacharyya submits that the Award in issue dated 30th May, 2014 became final and immune to any challenge on expiry of 90 days from the date of publication of the Award under Section 17AA (8), such date being the 4th of October, 2014. 11. In the light of the above noted provisions of the ID Act, Mr. Bhattacharyya submits that the Award in issue dated 30th May, 2014 became final and immune to any challenge on expiry of 90 days from the date of publication of the Award under Section 17AA (8), such date being the 4th of October, 2014. Furthermore, no steps having been taken in aid of non-enforceability of the Award within the period and, on the grounds specified under the Provisos of Sections 17A and 17AA (supra), there is no other course of action which can be employed by the appropriate authority under the State Government but, to enforce the Award. 12. In relation to his above noted submissions, Mr. Bhattacharyya emphasizes that WP-II was filed on 17th of December, 2014, i.e. after the period of 90 days prescribed under Section 17AA(8). Therefore, WP-II is not maintainable since, after 4th October, 2014, the Award is immune from challenge and, must be implemented. 13. Appearing on behalf of the respondents/NBSTC in WP-I and, for the petitioners in WP-II (supra), Mr. Abhratosh Majumdar, the then Ld. Government Pleader and presently the Ld. Additional Advocate General, relies upon several judicial authorities to make the point that the Ld. Tribunal essentially passed an ex parte Award which is merely in the nature of affirming the application in the Reference filed on behalf of the workmen/applicants. 14. Mr. Majumdar submits that the Ld. Tribunal came to an erroneous finding that the contract between NBSTC and M/s. Delta was a sham contract. Ld. Senior Counsel for the NBSTC points out that the workmen/applicants were throughout engaged by contractors and, only deployed by the NBSTC. It is also argued that the fact that M/s. Delta does not enjoy a valid trade licence for engaging contract labour does not, ipso facto, mean that the petitioners can be described to be in the direct employment of NBSTC. 15. Mr. Majumdar first relies upon the authority reported in 2007 (7) SCC 794 , In Re: Brijbhushan Yadav & Ors. v. Union of India & Anr.. Ld. Senior Counsel for NBSTC also relies upon the decision in 2009 (13) SCC 374 , In Re: International Airport Authority of India v. International Air Cargo Workers' Union & Anr. at Paragraphs 37, 38, 47 and 48 thereof which, read as follows:- "37. v. Union of India & Anr.. Ld. Senior Counsel for NBSTC also relies upon the decision in 2009 (13) SCC 374 , In Re: International Airport Authority of India v. International Air Cargo Workers' Union & Anr. at Paragraphs 37, 38, 47 and 48 thereof which, read as follows:- "37. The industrial adjudicator can grant the relief sought if it finds that contract between principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employer and that there is in fact a direct employment, by applying tests like: who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employee the way in which the work should be done, in short who has direction and control over the employee. But where there is no notification under section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the contract was sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise. 38. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor. 47. It is true that in exercising the writ jurisdiction, the High Court cannot sit in appeal over the findings and award of the Industrial Tribunal and therefore, cannot re-appreciate evidence. The findings of fact recorded by a fact finding authority should ordinarily be considered as final. The findings of the Tribunal should not be interfered in writ jurisdiction merely on the ground that the material on which the tribunal had acted was insufficient or not credible. The findings of fact recorded by a fact finding authority should ordinarily be considered as final. The findings of the Tribunal should not be interfered in writ jurisdiction merely on the ground that the material on which the tribunal had acted was insufficient or not credible. It is also true that as long as the findings of fact are based on some materials which are relevant, findings may not be interfered with merely because another view is also possible. But where the Tribunal records findings on no evidence or irrelevant evidence, it is certainly open to the High Court to interfere with the award of the Industrial Tribunal. 48. In this case, the grounds on which the union sought relief of absorption and the grounds on which the Tribunal ultimately granted relief are completely different. Having regard to the several decisions in the earlier rounds of litigation, which had attained finality, it is doubtful whether the Tribunal could have considered these issues at all. Even assuming that the tribunal could have considered the said grounds as having risen for decision, the question is whether there was any basis or material for its finding and assumptions. Let us examine the findings." 16. Further relying on the judgment reported in 2002 (4) SCC 609 , In Re: Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh & Ors., Mr. Majumdar argues that whether the contract in issue was a sham or camouflage is a disputed question of fact which the High Court must restrain itself from answering in writ jurisdiction. In the absence of acceptance of service of the workmen/applicants by the NBSTC, it would be erroneous to presume that they can be treated as employees of the principal employer. 17. Having heard the parties and considering the materials placed, this Court is first required to respectfully notice the judicial authorities relied upon by Mr. Majumdar. 18. In Re: 2007 (7) SCC 794 (supra) this Court finds that the Hon'ble Apex Court concluded that the stand of the workmen to be continued as security guards under the Telecom Department is to be accepted in the event there is no valid contract between the security agency and the department. Accordingly, the matter was remitted to the High Court for fresh disposal on the issue as raised above. Accordingly, the matter was remitted to the High Court for fresh disposal on the issue as raised above. The conclusion of the Hon'ble Apex Court was based on the premise that beyond the accepted date of continuance of the contract of the security agency by the Telecom Department, it has not been answered specifically whether the contract stood renewed or not. 19. Paragraphs 9 and 12 of In Re: 2007 (7) SCC 794 read as follows :- "9. The Tribunal-cum-Labour Court, after considering the materials, held that since after expiry of the agreement i.e. on 31.10.1997, all the workmen including Shri Brijbhushan Yadav were provided work by the Telecommunication Department till 31.05.1999, there was direct master and servant relationship between the Department and the Workman during the said period and observed that the workman rendered continuous service of security guard for 570 days directly under the Department which is more than 240 days and is covered by the definition of "continuous service" as defined under Section 25-B of the Industrial Disputes Act, 1947. The Tribunal-cum-Labour Court, by applying the benefits of provisions of Section 25-F of the Industrial Disputes Act, 1947 accepted the case of the workman and passed the award granting reinstatement with full back-wages. Similar awards have been passed in respect of others. 12. We have carefully considered the relevant materials and rival contentions. Though the High Court passed a lengthy order adverting to various factual aspects as well the decisions of this Court, as rightly pointed out, various orders said to have been executed extending the contract up to 31.05.1999 by the Department with the security agency have not been fully highlighted by the High Court. If it is established that after 30.10.1997, there was no valid contract between the security agency and the Department, the stand of the workmen that they were continued as security guards by the Telecom Department is to be accepted. As observed earlier, perusal of the order of the High Court does not show that any specific reference and discussion was made to the order/orders extending their contract with security agency up to 31.05.1999." 20. Dealing with 2007 (7) SCC 794 (supra) this Court finds that the facts of the present case are clearly distinguishable. In the present Reference the Ld. Dealing with 2007 (7) SCC 794 (supra) this Court finds that the facts of the present case are clearly distinguishable. In the present Reference the Ld. Tribunal came to a clear view on evidence that the contract of M/s. Delta stood terminated in 2012 and, the workmen/applicants were also terminated in the same year. It is noticed by this Court that M/s. Delta did file a written statement before the Ld. Tribunal wherein the above noted facts relating to the contract entered into in 2006 and, its expiry in 2012 have been dealt with, with the additional fact that the workmen/applicants were continuing in their employment with NBSTC even prior to the contract entered into with M/s. Delta in 2006. 21. Next, this Court is required to consider the decision relied upon by Mr. Majumdar In Re: 2009 (13) SCC 374 . This Court finds that the Hon'ble Apex Court relying upon the principles laid down in 1995 (5) SCC 27 , In Re: Gujarat Electricity Board v. Hind Majdoor Sabha, inter alia, directed that the remedy of the workmen for determining the issue whether the contract labour is working under a sham contract, purely falls within the realm of the industrial adjudicator under the ID Act. Such issue must be proved in the industrial adjudication and, not before the High Court exercising writ jurisdiction. 22. However, in the facts of the present case this Court finds that the present Reference before the Ld. Tribunal/industrial adjudicator has determined the question of a sham contract on pleadings and evidence. Therefore, the principle laid down In Re: 2009 (13) SCC 374 stands answered in favour of Mr. Bhattacharyya's clients. 23. The similar view has been taken in the other decision relied upon by Mr. Majumdar In Re: 2002 (4) SCC 609 at Paragraph 19 thereof to the effect that the existence of a sham contract requires to be decided on evidence by an industrial adjudicator, which reads as follows :- "19. Now, we proceed to consider the validity and correctness of the impugned judgment and order in the light of judgment of the Constitution Bench in SAIL case (supra). Now, we proceed to consider the validity and correctness of the impugned judgment and order in the light of judgment of the Constitution Bench in SAIL case (supra). The High Court held that the work entrusted to the members of the Union continued to be basically the work of the Corporation itself of perennial nature; the Corporation has chosen to carry out the work under so-called system of labour contract without complying with the provisions of the CLRA Act, and as such the labour contract was a camouflage. We must state here itself that the Union in the writ petition alleged that the labour contract was sham and the Corporation specifically denied it in its counter affidavit 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 sham or a camouflage considering the material on record; even otherwise this being a serious and disputed fact in terms of the Constitution Bench judgment aforementioned, the High court could not have appropriately adjudicated on the issue exercising jurisdiction under Article 226 of the Constitution. It appears to us that 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 did not comply with the provisions of the CLRA Act. Conclusion that the contract was sham or it was only camouflage cannot be arrived at as a matter of 'law for non-compliance of the provisions of the CLRA Act but a finding must be recorded based on evidence particularly when disputed by an industrial adjudicator as laid down in various decisions of this Court including the Constitution Bench judgment in SAIL. The cases on which the High Court placed reliance were the cases where finding of fact was recorded by the labour courts on evidence. In para 34 of the impugned judgment, it is stated:- "This court is hardly competent to record evidence or appreciate it in exercise of its powers under Article 226 of the Constitution. This Court as well as the Supreme Court have always taken the view that writ jurisdiction should not be permitted to be invoked if disputed questions of facts are involved, is the submission of the learned counsel. The submissions are wholly unexceptionable. This Court as well as the Supreme Court have always taken the view that writ jurisdiction should not be permitted to be invoked if disputed questions of facts are involved, is the submission of the learned counsel. The submissions are wholly unexceptionable. If the facts were not clear, we would have hardly allowed our writ jurisdiction to be invoked. The material which we have referred to at several places hereinbefore, is more than adequate, in our view, to come to the conclusion we have arrived at." 24. Next, this Court finds adequate substance in the argument advanced by Mr. Bhattacharyya that the Award as published on the 3rd of July, 2014 attained finality on the 4th of October, 2014. The provisions of Sections 17, 17A and the State Amendment to Section 17AA of the ID Act, as already recorded above, apply with full force to the Award in issue. 25. This Court cannot lose sight of the fact that when WP-II came up for consideration before an Hon'ble Single Bench on the 17th of December, 2014, the specific submission was made and, recorded, on behalf of the petitioners in WP-II/NBSTC, that no stay of operation of the Award dated 30th May, 2014 is prayed for. 26. This Court, before parting with this case, is required to notice the observations of the Hon'ble Apex Court In Re: All India Reserve Bank Employees Association v. Reserve Bank of India reported in 1965 (2) LLJ 175 which, inter alia, held as follows:- "Ordinarily an award comes into operation from the time stated in Sub-section (1) of Section 17A of the Industrial Disputes Act, i.e., on the expiry of thirty days from the date of the publication under Section 17 of the Act. The Tribunal, however, is given the power to order that its award shall be applicable from another date." 27. In the backdrop of the above discussion WP 4117(W) of 2016 stands allowed. 28. WP 33666(W) of 2014 stands dismissed. 29. Let a Writ issue in the nature of Mandamus granting prayers (a) and (e) of WP 4117(W) of 2016. 30. There shall be, however, no order as to costs. 31. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.