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2019 DIGILAW 930 (ALL)

Ashok Kumar v. State of U. P.

2019-04-12

PANKAJ MITHAL, SAUMITRA DAYAL SINGH

body2019
JUDGMENT : 1. The present intra-court appeal arises from the judgment and order of the learned single Judge dated 26.07.2018 by which the appellants writ petition seeking quashing of the order dated 08.07.2013 and relief of regularization in service of the Greater Noida Industrial Development Authority (‘GNOIDA’ in short), has been rejected. 2. At the stage of admission of the present appeal, the following questions were formulated by order dated 28.08.2018: "(1) Whether appellant-petitioners are deemed to be contractual employees of the Greater Noida Industrial Development Authority in view of the fact that they are in employment of it from the period more than a decade irrespective of the fact that their Service Provider was changed? (2) Whether continuance of the appellants-workmen on daily rate basis/contractual basis through Service Providers, with their change time-to-time amount to an unfair labour practices as per Clause (x) of the Schedule V of the Industrial Disputes Act, 1947? (3) Whether under U.P. Industrial Development Authority Centralized Service Rules, 2018, the Chief Executive Officer of the respondent authority is empowered to make regularization of the services of the appellant-petitioners?" 3. Briefly, the petitioners-appellants (who are 27 in number), claim they had been engaged by GNOIDA through various placement agencies to work on different posts, inter-alia Draughtsman Grade-II, Architectural Assistant, Assistant Grade-II, Supervisor, Water Tester/Supervisor, Programmer Grade-II, Accountant Grade-II, Personal Assistant, Manager II/Management Training, Manager-I (Planning). The date of engagement of different petitioners ranges from November, 1993 to February, 2011. However, all petitioners-appellants claim to be continuously engaged from the date of their first joining though, the placement agency through whom they were engaged by GNOIDA have changed over the years. As to the nature of work performed by them, it was further claimed to be permanent in nature. In such facts, the present petitioners-appellants had earlier filed Writ Appeal No. 61127 of 2012, Ashok Kumar and Others vs. State of U.P. and Others. It was disposed of vide order dated 26.11.2012 directing the Chief Executive Officer of GNOIDA to take a proper decision on the representation made by the petitioners- appellants to claim regularization in service of GNOIDA. 4. By order dated 08.07.2013 passed by the Chief Executive Officer of GNOIDA, the aforesaid representation was rejected. It was reasoned, GNOIDA had not engaged any of the petitioners-appellants as contractual workmen but that the said authority had awarded works contract to different contractors against payment. 4. By order dated 08.07.2013 passed by the Chief Executive Officer of GNOIDA, the aforesaid representation was rejected. It was reasoned, GNOIDA had not engaged any of the petitioners-appellants as contractual workmen but that the said authority had awarded works contract to different contractors against payment. For execution of the work thus awarded, the contractors had engaged the petitioners-appellants and, therefore, there was no master-servant relationship between any of the petitioners-appellants and GNOIDA. Payment was also claimed to have been made by the GNOIDA to the individual contractors and by those contractors to the petitioners-appellants: In absence of letters of appointment, the designation given to the petitioners-appellants by the GNOIDA was explained on grounds of convenience. The case of the petitioners-appellants was also distinguished from 27 other persons to whom relief of regularization had been granted upon their dispute being finally decided by the Supreme Court. The same was described as one time measure adopted by GNOIDA. Further, it was reasoned that the petitioners- appellants could have gained employment only by applying against sanctioned posts as and when the same had been advertised, if they fulfilled the eligibility conditions for the same. 5. Being aggrieved by the aforesaid order, the petitioners filed Writ Appeal No. 67849 of 2013, Ashok Kumar and Others vs. State of U.P. and Others, which has been decided by the judgment and order impugned in the present appeal. 6. Heard Sri. Ashok Khare, learned Senior Advocate assisted by Sri. Siddharth Khare, learned counsel for the petitioners-appellants, Sri. Bhanu Bhushan Jauhari, learned counsel for the respondent-GNOIDA and learned Standing Counsel for the State-respondents. 7. At the outset, learned Senior Counsel appearing for the petitioners-appellants submits that the petitioners-appellants have been engaged for a long period of time by GNOIDA, which description was contained in Annex-ure-8 to the writ petition containing details of each of the petitioners-appellants along with designation/post; date of birth; date of first joining; address and qualification. While, the description given in the aforesaid chart was not disputed by GNOIDA, it has been submitted, the claim of the petitioners-appellants had been disbelieved on fallacious reasoning of the petitioners-appellants having been engaged by contractors to whom GNOIDA claimed to have awarded works contract. The said defence set up by GNOIDA is stated to be patently false and sham. While, the description given in the aforesaid chart was not disputed by GNOIDA, it has been submitted, the claim of the petitioners-appellants had been disbelieved on fallacious reasoning of the petitioners-appellants having been engaged by contractors to whom GNOIDA claimed to have awarded works contract. The said defence set up by GNOIDA is stated to be patently false and sham. In this regard, reliance was placed on the advertisements published by GNOIDA in pursuance to which, the petitioners-appellants were engaged. These had been annexed as Annexure No. 21 to the writ petition. Publication of such advertisement is not disputed by GNOIDA. A perusal of the same reveals that GNOIDA had invited tenders from placement agencies registered with Government of India and also having labour licence etc. to meet the manpower requirement of GNOIDA. The GNOIDA also did not dispute the fact that the petitioners-appellants were engaged in pursuance to those advertisements. 8. The further case of the GNOIDA that it had awarded contract to works contractors and that those contractors had engaged the petitioners-appellants for execution of such works, is stated to be wholly unfounded, inasmuch as at no stage of proceedings either in the writ petitions or in the order passed by the Chief Executive Officer or in the counter-affidavit filed in the present proceedings, GNOIDA produced either the full details of the works contract that it claims to have awarded to different contractors nor the details of such contracts were ever made known either to the petitioners-appellants or this Court. Therefore, it has been submitted, the defence being set up by GNOIDA is entirely false and unfounded, in fact an eyewash. 9. Learned Senior Counsel has thus submitted, both the order 08.07.2013 passed by the Chief Executive Officer of GNOIDA and the order of the learned single Judge dated 26.07.2018 suffer from the manifest error, inasmuch as it has been erroneously recorded (without any evidence) in those orders that it was evident that the petitioners-appellants were never engaged by GNOIDA either directly or on contract basis but that they had been engaged by independent contractors to whom work had been awarded by GNOIDA. 10. Reliance was also placed on office notings of GNOIDA to establish that the appointments had been made by it after detailed consideration of requirement of personnel on specific posts in specified numbers. 10. Reliance was also placed on office notings of GNOIDA to establish that the appointments had been made by it after detailed consideration of requirement of personnel on specific posts in specified numbers. Such notings are shown to have been specifically referred to in para 35 of the writ petition. To that no denial was made in para 26 of the counter-affidavit, wherein only this much had been stated that the contents of para 35 of the writ petition are matters of record. Then, reference has also been made to para 27 of the affidavit filed in support of the stay application (in the instant appeal), wherein it is specifically stated that some of the petitioners-appellants who, according to GNOIDA, had been engaged by the contractors, had been posted-out on deputation, by GNOIDA to Yamuna Expressway Industrial Development Authority and Taj Expressway Industrial Development Authority. In reply to the same, a counter-affidavit has been filed by GNOIDA. In para 28 of the counter-affidavit, again it has been submitted, the contents of para 27 of the affidavit (to the stay application) are matters of record. Further, it has been stated, merely because work may have been taken from such personnel by any other authority, it could not lead to regularization of services of the petitioners-appellants. 11. Last, reliance has been placed on the Government Order dated 24.02.2016 providing for regularization of daily wage/work charge and also contract workmen. In this regard, it has been submitted, the cut-off date for the purpose of enforcement of the aforesaid Government Order is 31 December, 2001 and since all the petitioner-workmen had been working from prior to that date with GNOIDA-which admittedly is a local body or a Development Authority to whom the Government Order applies, they are entitled to be regularized in service. 12. Responding to the above, Shri. Jauhari has, first submitted, the dispute being raised by the petitioners-appellants is primarily factual in nature which would require evidence to be led before any firm conclusion can be drawn in favour of the petitioners-appellants, that there existed a master-servant relationship between the GNOIDA and the petitioners. Such disputes may not be decided in writ jurisdiction as the petitioners-appellants have an efficacious alternative remedy, by seeking reference of a dispute before the Labour Court/Industrial Tribunal. Therefore, the learned Single has not erred in dismissing the writ petition. Such disputes may not be decided in writ jurisdiction as the petitioners-appellants have an efficacious alternative remedy, by seeking reference of a dispute before the Labour Court/Industrial Tribunal. Therefore, the learned Single has not erred in dismissing the writ petition. Second, it has been submitted, in any case, the GNOIDA had only awarded contracts of works to be executed by contractors. Those contractors may have engaged the petitioners-appellants for execution of works awarded to them. The fact that different contractors may have engaged the same workmen for execution of different works awarded by GNOIDA, cannot not give rise to a privity of contract between the petitioners- appellants and GNOIDA. Third, it has been submitted, none of the petitioners-appellants has produced his appointment letter, any other document to establish existence of master-servant relationship between them and GNOIDA. Therefore, no conclusion may be drawn in favour of any of the petitioners of being an employee of GNOIDA. Fourth, it has been submitted, in any case, the Government Order dated 24.02.2016 is not applicable to workmen engaged by contractors. Reliance has been placed on the decision of the Supreme Court in Balwant Rai Saluja and Another vs. Air India Ltd. and Others, (2014) 9 SCC 407 : AIR 2015 SC 375 . 13. Having considered the arguments so advanced by learned counsel for the parties and having gone through the record, in the first place, it is unambiguously clear that the petitioners-appellants never claimed issuance of any appointment letter by GNOIDA or of being direct employees of that Authority. Their specific and consistent case has been that they had been engaged as contract workmen by GNOIDA through placement agencies engaged by it. In this regard, GNOIDA has not disputed issuance of the advertisement (annexed to the writ petition) clearly inviting placement agencies to provide workmen. It has also not disputed the engagement of the petitioners-appellants against those advertisements. Also, the fact of the office notings preceding the issuance of such advertisement specifying the number and posts on which contract workmen may be engaged, has remained undisputed. Then, the GNOIDA has tried to gloss over the issue of having placed the petitioners workmen on deputation to other independent industrial development authorities. Also, the fact of the office notings preceding the issuance of such advertisement specifying the number and posts on which contract workmen may be engaged, has remained undisputed. Then, the GNOIDA has tried to gloss over the issue of having placed the petitioners workmen on deputation to other independent industrial development authorities. These facts being undisputed, it is most surprising that the GNOIDA has not produced either before the writ court or in these appeal proceedings even a single document to establish that it had awarded any works contract to any contractor pursuant to the advertisement in question, pursuant where to the petitioners-appellants may have been engaged by such contractor. 14. Though, in the counter-affidavit filed in this appeal, a list containing details of workmen and the name of current placement agencies under whom they are working has been provided, however, the same does not inspire any confidence. First, there is not a single piece of documentary evidence at any stage of proceedings produced by GNOIDA to establish the fact of it having awarded any work contract. Also, the aforesaid list in the fifth column clearly mentions "Name of Current Placement Agency." It is wholly consistent with the advertisement, office notings and deputation orders relied upon by the petitioners-appellants, which are not denied by GNOIDA. 15. The contracts, if any, whether executed by GNOIDA in favour of placement agencies or in favour of work contractors were facts in the special knowledge of GNOIDA alone. A defence having been set up by GNOIDA alleging that the petitioners had not been engaged by it or on its behalf but by work contractors, it was the solitary burden of GNOIDA to have produced documentary evidence in support of that plea. In absence of any documentary evidence having been produced at any stage of proceedings and in face of the admissions made by GNOIDA with respect to office notings, deputation orders and the advertisement occasioning the engagement of the petitioners-appellants and also in face of the list appended to the counter-affidavit filed in the present appeal, the defence set up by GNOIDA of the petitioners' appointments having been engaged by work contractors, is found to be a moonshine or an eyewash. The same is rejected. 16. The same is rejected. 16. The plea set up by GNOIDA that the petitioners-appellants had not produced any appointment letter or proof of payment of salary, does not make any material difference, inasmuch as GNOIDA has similarly not produced any evidence of payment made to the contractors who, it claims to have engaged for execution of certain works. In fact, while the petitioners-appellants had, from very beginning, claimed that they had been engaged by GNOIDA through placement agencies and they never claimed issuance of any appointment letter or payment of salary by GNOIDA but relied on the benefit of the Government Order dated 24.02.2016, with respect to the relief of regularization claimed by them (as contract workmen), it was GNOIDA who set up a special defence of engagement of works contractors which plea it has miserably failed to substantiate. In fact, the plea so set up is grossly inconsistent with the admissions made by GNOIDA to the un-rebutted pleadings and evidence brought on record by the petitioners-appellants. Thus, as noted above, the advertisement, office notings and deputation orders being admitted to GNOIDA, the absence of appointment letters and proof of payment of salary by GNOIDA is not relevant insofar as it has been established that the petitioners-appellants had worked for GNOIDA on specified posts. 17. Even, as to the claim of contract labourers, by not producing before this Court the contracts awarded to placement agencies and by not disclosing the details of those contract agencies including the essential details of licence obtained by such agencies as labour contractors, a clear adverse inference arises against GNOIDA of having used the plea of placement agencies as a device to escape legal liability. It would have been a completely different case if any specific fact pleading had been made disclosing details of placement agencies engaged by GNOIDA over the years. If such contract with essential details of the labour contractors had been disclosed at any stage of the proceedings, in that case, the issues that would necessarily arise, would have involved disputed questions of fact that may not have been gone into in writ jurisdiction. 18. However, the plea being set up by GNOIDA is not purely a technical plea but a plea governing the exercise of discretion by the writ Court. 18. However, the plea being set up by GNOIDA is not purely a technical plea but a plea governing the exercise of discretion by the writ Court. Unless facts are shown to be bona- fide disputed, the respondent State authority may not be permitted to resist issuance of the writ merely because an alternative remedy may be available under the common law. A writ may lie, amongst others, to cure patent injustice by the State authorities. In the present case, as has been noted above, the essential facts are undisputed. The defence set up by GNOIDA is found to be hollow and not bona-fide. In such facts, to allow GNOIDA to defeat issuance of the writ would be to allow injustice to be compounded. In view of the above, the preliminary objection raised by learned counsel for GNOIDA as to existence of alternative remedy, is rejected. 19. Last, as to the objection raised by learned counsel for GNOIDA as to any inapplicability of Government Order dated 24.02.2016, and reliance placed on the decision of the Supreme Court in Balwant Rai Saluja and Another vs. Air India Ltd. and Others, AIR 2015 SC 375 (supra), it is observed that insofar as the Government Order is concerned, it clearly applies, amongst other to contract workers/labours engaged by local bodies including the Development Authorities. Clearly, the Government Order applies with equal force to GNOIDA with respect to the claim made by the petitioners-appellants as undoubtedly, the petitioners-appellants were contract workers and GNOIDA is a local body as also the Development Authority. As to the argument that no regularization could be made unless sufficient vacant posts were found existing, the Government Order itself takes care of the situation providing for creation of posts in case of shortage of posts. 20. In view of the above conclusions, we are unable to approve the reasoning of the learned single Judge that the petitioners-appellants had been engaged by works contractors. That reasoning of the learned single Judge has arisen on no material. 21. As to the other qualifying conditions under the Government Order, cut-off date, qualifications etc., the same would remain a matter to be considered by the appropriate authority keeping in mind the facts of individual case of each petitioner-appellant. No further observation is required in that regard at this stage, as the individual cases have yet not been examined by the appropriate authority. 22. No further observation is required in that regard at this stage, as the individual cases have yet not been examined by the appropriate authority. 22. It may also be noted, during pendency of the present litigation, the various services of the Industrial Area Development Authorities have been centralized and the State Government has become the Appointing Authority with respect to such centralized services. 23. However, in view of the fact that the right of the petitioners-appellants to be considered for regularizing arose under the preexisting Government Order, the same cannot be defeated by virtue of enforcement of the Centralized Services Rules. At the same time, as on date, the decision as to regularization would have to be made by the State authorities. 24. The judgment and order of the learned single Judge dated 26.07.2018 and the order dated 08.07.2013 passed by the Chief Executive Officer of GNOIDA are set aside. The matter is remitted to respondent No. 1 to pass a fresh order in accordance with law keeping in mind the observations made above. Also, in view of the fact that the order of admission formulated three questions, it is considered appropriate to answer the same. Thus, Question No. 1 is answered partly in the affirmative, i.e. the petitioners-appellants are deemed contractual employees of GNOIDA. As to the length of their service, the matter is being remitted to respondent No. 1 for passing appropriate orders within a period of three months from today. Question No. 2 is answered thus the GNOIDA has apparently set up a false plea of having engaged the petitioners-appellants through works contractors. In view of the discussion made above, that arrangement is held to be a device to escape the liability of law. On Question No. 3, we are of the opinion that though the right of the petitioners-appellants to be regularized arose under the Government Order dated 24.02.2016, however, in view of the subsequent centralization of the services, the appropriate decision is to be made by respondent No. 1 on behalf of the State. 25. Accordingly, the present special appeal is allowed.