IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT APPEAL No. 276 of 2015
(Taken up through video conferencing)
The Kurnool Municipal Corporation,
Kurnool, rep. by its Commissioner. .... Appellant/
Writ petitioner
Versus
M. Gangadhar, S/o M. Lakshmaiah,
Ex-waterman, I.D.No.6/03,
D.No.11-1-190-1, Aravinda Nagar,
Anantapur and others .... Respondents
Counsel for the appellant : Mr. Kasa Jagan Mohan Reddy,
learned counsel representing
Mr. Suresh Kumar Reddy Kalava
Counsel for respondents : Mr. P. Raghavendra Reddy
Date of hearing : 15.07.2021
Date of pronouncement : 31.08.2021
JUDGMENT
(Per Ninala Jayasurya, J) The instant appeal is filed by the unsuccessful writ petitioner i.e., the Municipal Corporation of Kurnool (hereinafter referred to as "the Corporation") against the order of the learned Single Judge in W.P.No.6473 of 2009 dated 09.12.2014 confirming the common award passed by the Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court, Anantapur, in a batch of I.Ds filed by the respondents vide I.D.Nos.6 of 2003 to 8 of 2003, 77 of 2003 to 116 of 2003, 2 HCJ & NJS,J WA.No.276 of 2015 119 of 2003 to 123 of 2003, 62 of 2004 to 73 of 2004 and 79 of 2004 to 88 of 2004.
2. The respondents herein claiming that they were employed in the erstwhile Kalluru Grampanchayat, Kurnool District, in the Water Works Department about nine years prior to filing of the said I.Ds for maintenance of water supply/sanitation to the residents of the said Grampanchayat, worked continuously and completed more than five years of continuous service, approached the Industrial Tribunal inter alia on the ground that their services were terminated in contravention of the provisions of the Industrial Disputes Act, 1947 (for short "the Act"). Before the Industrial Tribunal, they contended that the said Grampanchayat was merged in the Corporation with effect from 08.02.2002 and consequently, the services of all the respondents including other staff were taken over along with the assets and liabilities of the Grampanchayat by the Corporation and they continued to work in the Corporation even after 09.02.2002. They further contended that though they were entitled for regularization of their services, they were not regularized and on the other hand, the Corporation has not allowed them to attend to their duties with effect from 01.03.2003 and orally terminated their services in violation of mandatory provisions of Sections 25-F, 25-G and 25-H of the Act and prayed for a direction to reinstate them into service with continuity of service, attendant benefits and back wages.
3. The Corporation filed its counter and contested the matters stating inter alia that in relation to Water Supply/Maintenance scheme under Kalluru Grampanchayat, tenders were called for and the respondents offered to undertake 3 HCJ & NJS,J WA.No.276 of 2015 the work on contract basis and the works were awarded to them as their offer was the lowest. The District Panchayhat Officer awarded contracts to them vide proceedings dated 01.01.2002 for a period of one year from 01.01.2002 and by efflux of time, the contract period awarded to the respondents expired on 31.12.2002. It was further contended that since Kalluru Grampanchayat merged in the Corporation in terms of G.O.Ms.No.58 dated 08.02.2002, the respondents, who were awarded work on contract basis in Water Supply/Maintenance scheme for a period of one year, cannot be treated as workmen of the Corporation, that there was no master and servant relationship between the parties and therefore, the question of violation of the provisions of the Act does not arise.
4. The Industrial Tribunal, after due consideration of both oral and documentary evidence adduced on behalf of the respondents as well as the Corporation, recorded its findings inter alia that sanitation work, electrical work and water works in the Corporation, which the respondents were attending as per the entrustment of work to them, are perennial in nature. Taking into account the evidence of the Executive Officer of the Grampanchayat (W.W.3) to the effect that the respondents continued to work for the period from 06.11.1995 to March, 1999 during his tenure and thereafter till the time of their disengagement on 01.03.2003 while working in the Corporation., the Industrial Tribunal held that the version of the respondents that they worked continuously for a period of 240 days in the preceding 12 calendar months, has been corroborated by the evidence of W.W.3- the Executive Officer and partly allowed the I.Ds filed by the respondents. The operative portion of the common award passed by the Industrial Tribunal reads as follows:
4
HCJ & NJS,J WA.No.276 of 2015 "The oral termination/disengagement of the petitioners herein issued by the respondent herein with effect from 1.3.2003 is hereby set aside and the petitioners are ordered to be reinstated into service by the respondent within one month from the date of publication of the award. They shall be entitled for continuity of service but without attendant benefits and back wages for the break period. They shall also be entitled for equal wages on par with similar category of workmen. Accordingly, a common award is passed."
5. The Corporation, feeling aggrieved by the said common award, filed the above said writ petition. The learned single Judge, while considering the contentions advanced by the respective parties, set out the findings of the Industrial Tribunal at paragraph 9 in the following terms:
"1) The evidence of WW3/Executive Officer, erstwhile Kalluru Grampanchayat would show that he worked as Executive Officer from 06.11.1995 to March, 1999 and the respondents worked in Grampanchayat even prior to his joining and his staff were supervising their work and that they were working in sanitation, electricity and water supply departments and they were paid charges on the basis of number of days worked by maintaining attendance registers and muster rolls. Thus, from his evidence, it is clear that they worked continuously for a period of 240 days in the preceding 12 calendar months and in fact, they were worked for about 7 years in the erstwhile Kalluru Grampanchayat.
2) Attending sanitation work, electricity work and water works in the Corporation is perennial in nature and it is not after completion of that work there will be no other work and the workmen would ceased to be the workmen and disengaged automatically. Hence, the evidence of MW1 that the sanitation work is not perennial in nature 5 HCJ & NJS,J WA.No.276 of 2015 and it needs only 2 to 3 hours work in a day, but not 8 hours cannot be accepted."
6. Further, the learned Single Judge, while referring to a common order dated 02.07.2010 passed by a learned single Judge of the erstwhile High Court of Andhra Pradesh at Hyderabad in W.P.No.5511 of 2006 and batch wherein similar issues in respect of Dharmavaram Municipality were considered and directions issued to reinstate the workmen therein with continuity of service, but without back wages, dismissed the writ petition by an order dated 09.12.2014. The learned single Judge upheld the award of the Industrial Tribunal holding inter alia that the Tribunal, basing on the evidence of W.W.3-the Executive Officer of erstwhile Kalluru Grampanchayat, has come to the conclusion that the respondents worked for about seven (7) years continuously and more than 240 days in the preceding calendar year and on the basis of such finding, the Industrial Tribunal ordered for reinstatement of the respondents.
7. Aggrieved by the orders of the learned Single Judge, the Corporation preferred the present appeal.
8. Heard Mr. Kasa Jagan Mohan Reddy, learned counsel representing Mr. Suresh Kumar Reddy Kalava, learned Standing Counsel for the appellant- Corporation, and Mr. P. Raghavendra Reddy, learned counsel for the respondents- workmen.
9. Mr. Kasa Jagan Mohan Reddy, assailing the order under appeal, submits that the respondents are not workmen within the meaning of Section 2(s) of the Act but contract employees, as they worked for a fixed period on contract basis, and further 6 HCJ & NJS,J WA.No.276 of 2015 that termination of persons appointed for a fixed period on contract basis is not retrenchment as per Section 23 (oo) (bb) of the Act and therefore, Section 25-F or Section 25-G of the Act have no application to the facts of the present case. He also submits that there is no jural relationship of master and servant between the Corporation and the respondents and that the Industrial Tribunal as well as the learned single Judge failed to appreciate these aspects and the order under appeal is therefore liable to be set aside. He further submits that even if there is any contravention of the provisions of the Act or the Contract Labour (Regulation and Abolition) Act, 1970, the relief of reinstatement granted by the Industrial Tribunal as affirmed by the learned single Judge is not sustainable. He places reliance on the judgments of the Hon'ble Supreme Court in Hari Nandan Prasad Vs. Employer I/R to Management of Food Corporation of India, reported in (2014) 7 SCC 190 and Dena Nath Vs. National Fertilisers Limited, reported in (1992) 1 SCC 695.
10. Opposing the said arguments advanced on behalf of the Corporation, Mr. P. Raghavendra Reddy, learned counsel for the respondents submits that the award passed by the Industrial Tribunal is based on oral and documentary evidence available on record and while appreciating the same, the learned Single Judge affirmed the award by giving cogent reasons. He submits that in such circumstances, interference by this Court in the present appeal is not warranted. He further submits that similar issues fell for consideration before a Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad in W.A.No.1236 of 2011 and batch and the Hon'ble Division Bench vide orders dated 01.03.2012 was not inclined to interfere with the orders of the learned single Judge 7 HCJ & NJS,J WA.No.276 of 2015 affirming the award of the Labour Court directing reinstatement of the workmen therein with continuity of service without back wages and attendant benefits. By drawing attention of this Court to the proceedings of the Corporation in Roc.No.2448/2002-E1 dated 17.06.2009, the learned counsel submits that the respondents are working since then in the Corporation and they are not being paid minimum time scale in terms of the judgment of the Hon'ble Supreme Court in State of Punjab Vs. Jagjit Singh, reported in AIR 2016 SC 5176, despite the interim orders granted in I.A.No.1 of 2017 in W.A.No.276 of 2015 dated 14.09.2018 and Contempt Case No.611 of 2019 is filed in this regard. He also submits that the Corporation withdrew the S.L.P. (Civil) Dairy No.9611 of 2019 filed against the orders in the said I.A.No.1 of 2017 and the same was accordingly dismissed by the Hon'ble Supreme Court by orders dated 04.07.2019. At any rate, the learned counsel adds that there are no merits in the present writ appeal warranting interference in exercise of its appellate jurisdiction by this Court and accordingly, prays for dismissal of the same.
11. In the judgment in Hari Nandan Prasad's case, relied on by the learned counsel for the appellant, the Hon'ble Supreme Court while dealing with the attending facts and circumstances, inter alia, held that an order of retrenchment passed in violation of Section 25-F although may be set aside, but an award of reinstatement should not be automatically passed, that too after a long gap. The said judgment is not applicable to the facts of the present case, since the respondents immediately on termination of their services approached the Industrial Tribunal. Further, the appellant-Corporation issued proceedings dated 17.06.2009 8 HCJ & NJS,J WA.No.276 of 2015 re-engaging the respondents as contract workers which itself substantiates their case that the works being attended by them are perennial in nature.
12. In Dena Nath's case referred to supra, the question that fell for consideration before the Hon'ble Supreme Court was that if the principal employer does not get a licence under Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970 and/or contractor does not get a licence under Section 12 of the Act, whether the persons so appointed by the principal employer through the contractor would be deemed to be direct employees of the principal employer or not. After considering the matter, the Hon'ble Supreme Court inter alia opined that in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provisions of the said Act or Rules, the Court could not issue any mandamus for declaring the contract labour as having become the employees of the principal employer. The said question does not arise in the factual background of the present case inasmuch as the Industrial Tribunal recorded a finding that the version of the petitioners/respondents that they worked continuously for a period of 240 days in the preceding 12 calendar months has been corroborated by the evidence of W.W.3-the Executive Officer and that while disengaging/terminating their services, the Corporation had not complied with the mandatory provisions of Section 25-F of the Act. The award of the Industrial Tribunal on the basis of the above said findings was affirmed by the learned Single Judge. Such concurrent findings of fact, it is settled law, cannot be interfered with by the High court in exercise of powers under Article 226 of the Constitution of India, much less in a Intra Court appeal under Letter Patent Rules; unless the order sought to be quashed is perverse or without jurisdiction or suffers from any 9 HCJ & NJS,J WA.No.276 of 2015 illegality. (See: R.M.Yellatti Vs. the Assistant Executive Engineer, reported in 2006 (1) SCC 106 and N. Seshaiah Vs. South Central Railway, reported in 2019 (6) ALT 84 DB). This Court, on a careful consideration of the matter, is of the considered view that no such circumstances warranting interference exist in the present case.
13. Further, as pointed out by the learned counsel for the respondents, similar contentions as advanced in the present case were negatived by a Division Bench in W.A.No.1236 of 2011 and batch (The Patancheru Municipality, now Greater Hyderabad Municipal Corporation, Hyderabad Vs. K. Srinivas Chary and others) vide order dated 01.03.2012. The appeals were filed by the said Municipality aggrieved by the order of a learned Single Judge confirming the award of the Industrial Tribunal wherein the workmen whose services were terminated in violation of Section 25-F of the Act were directed to be reinstated into service without back wages. Looking to the facts and circumstances of the said case, the Hon'ble Division Bench while observing that sanitation work is perennial and continuous in nature, rejected the contentions advanced with reference to Section 2(oo) (bb) of the Act. This Court is of the opinion that the reasoning of the Division Bench applies to the case on hand.
14. In view of the afore going conclusions, this Court finds no good reason to interfere with the order under appeal. Accordingly, the writ appeal is dismissed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
CBS
10
HCJ & NJS,J
WA.No.276 of 2015
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON'BLE MR. JUSTICE NINALA JAYASURYA WRIT APPEAL No.276 of 2015 (Delivered by Hon'ble NJS, J) 31st day of August, 2021 CBS