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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO .2659 OF 2016
Shri Premlal s/o Narayan Durve,
Aged 40 years, Occ. - Nil,
R/o Post Kailari, Thana Katangi,
Balaghat, District Balaghat. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Road,
Borivali (E), Mumbai -400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO . 2660 OF 2016
Shri Anil s/o Shriram Bhande,
Aged 48 years, Occ. - Nil,
R/o Sultanpura, Chalpur, Taluka
Achalpur, District Amravati. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), Mistri Bhawan,
Dinisha Wachha Road, Mumbai-400 020.
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2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2661 OF 2016
Shri Vilas s/o Tryambak Tale,
Aged 48 years, Occ. : Labourer,
R/o Micro Tower, Akot File,
Durganagar, Akola. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Road,
Borivali (E), Mumbai -400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2662 OF 2016
Shri Kishor s/o Ganpat Neware,
Aged 40 years, Occ. - Labourer,
R/o Borgoan Meghe, Wardha,
Tahsil and District Wardha. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Road,
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Borivali (E), Mumbai -400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2663 OF 2016
Shri Ramdas Shamraoji Navghare,
Aged 49 years, Occ. - Labourer,
R/o Sant Tukaram Ward, Ward No.20,
Ramnagar, Wardha, Tashsil and
District Wardha. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2664 OF 2016
Deepak s/o Namdeorao Pandit,
Aged 49 years, Occ. - Nil,
At Belora Vimantal, Post - Badnera,
District Amravati. .... PETITIONER
VERSUS
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1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), Mantri Bhawan,
Dinisha Wachha Road, Mumbai-400 020.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
WITH
WRIT PETITION NO .2665 OF 2016
Shri Pundlikrao Guldeokar,
Aged 50 years, Occ. - Nil,
At Post Nibhora Nagar, Near Nemani
Godown, Badnera Road, Amravati. .... PETITIONER
VERSUS
1) The Senior Regional Manager,
Food Corporation of India,
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapala Road,
Borivali (East), Mumbai-400 066.
2) The District Manager,
Food Corporation of India, Ajni,
Nagpur - 440 015. .... RESPONDENTS
______________________________________________________________
Shri V.S. Kukday, Advocate for the petitioners,
Shri S.R. Deshpande with Shri J.K. Matale, Advocates for the
respondents.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 3 APRIL, 2017.
rd
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ORAL JUDGMENT :
1. All these writ petitions are being disposed by the common judgment as common issue is involved in the writ petitions.
2. Heard Shri V.S. Kukday, learned Advocate for the petitioners-employees and Shri S.R. Deshpande, learned Advocate for the respondents-employer.
3. Rule. Rule made returnable forthwith.
4. The employees have challenged the orders passed by the Central Government Industrial Tribunal answering the reference against them, concluding that the reference is bad in law as the Contractor through whom the employees are alleged to have been employed, has not been impleaded as party to the proceedings.
5. According to the employees, they were appointed as Security Guards with the respondents-employer and continued to be in the employment till March 1999. It is the case of the employees that the employer made a show that they are engaged through the Contractor and that they are the employees of the Contractor, though ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:00:15 ::: 6 wp2659.16 infact they had been employees of the respondents. The tenor of the statements of claim filed by the employees before the Tribunal reflects this stand and the grounds are culled out in paragraph No.7 of the statements of claim filed by the employees before the Tribunal, as under :
"7. The Party No.1 has shown new contract after every 2 years. It was merely a farce to deny the claim of the Party No.2 of being regularised in service. In fact the Food Corporation of India is a corporation having huge material to stock. For watch and ward purposes, they need their own guards. If they want to allot this work of watch and ward to contractor, as per Contract Act, it is necessary to get first the corporation registered as a Principal Employer. The Party No.1 has no such Certificate of Registration. Similarly the so-called contractor has also no Licence of contract required under Contract Labour Act. These facts go to show that the Party No.1 has made only show that the Party No.2 is engaged through the Contractor. Thus the Party No.2 is the employee of Party No.1. Therefore, in such a situations also the workman became the direct employee of the Food Corporation of India management, and the management was an employer of the workman. No doubt, even though the work is done initially under the contract, the Food Corporation of India has to supervise also whether the work is done or not. However, there is a difference between the nature of supervision. If the security guards are employed by the Food Corporation of India then the security guards are to be supervised so also the work, whereas if it is given on contract basis the Food Corporation of India has to only see whether the work is properly done or not, and if it is not done properly, then to inform the contractor. But in the matter of workman the supervision work is done by the Food Corporation of India ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:00:15 ::: 7 wp2659.16 management through their officers. Therefore, the oral termination of the deceased workman, is illegal, unlawful and against the principle of natural justice."
6. The respondents-employer opposed the claim of the employees by filing their reply. The respondents pleaded that the employees were employed by the contractor and they were not the employees of the respondents. The respondents contended that the contractor was a necessary party and as the contractor was not impleaded, the complaints were liable to be dismissed for non-joinder of necessary party.
7. The Tribunal proceeded with the matter and after completing the trial of the proceedings, by the impugned orders, recorded that the reference is bad in law for non-joinder of the contractor as party to the proceedings.
8. After hearing the learned Advocates for the respective parties and considering the documents placed on the record of the petitions, I find that the Tribunal has dealt with the matters under the misconception that the employees/workmen have themselves come out with the case that they were engaged by the contractor, as reflected ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:00:15 ::: 8 wp2659.16 from the observations of Tribunal in last paragraph of the impugned orders, as follows :-
"It is the own case of the workman that he was engaged by the contractor. So the contractor, who had engaged the workman, is a necessary party in the reference. The said contractor has not been added as a party in this reference. Due to non-joinder of necessary party, the reference is bad in law."
9. Writ Petition No.1986/2014 and other connected matters, in which same points were raised, are decided by the judgment given on 12th January, 2016. The learned Advocates for the respective parties submit that these writ petitions can also be disposed on the same considerations.
10. Writ Petition No.1986/2014 and connected writ petitions were filed by similarly placed employees as the petitioners in the present writ petitions i.e. by the persons who were appointed as Security Guards by the respondents-employer and continued to be in the employment till March, 1999. Writ Petition No.1986/2014 and connected writ petitions are allowed and the matters are remitted to the Central Government Industrial Tribunal for deciding the reference afresh. In the judgment given in Writ Petition No.1986/2014 and ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:00:15 ::: 9 wp2659.16 connected writ petitions, in paragraph No.9 it is recorded that the employees (petitioners in those writ petitions) had pleaded in the statement of claim that the respondents-employer were not having certificate of registration as required by Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970 and the contractor was not having licence issued by the Regional Labour Commissioner under the Contract Labour (Regulation and Abolition) Act, 1970, however, the Tribunal had not considered the challenges raised on behalf of the employees in the light of the above submissions.
As claim of the present petitioners is similar to the claim of the petitioners in Writ Petition No.1986/2014 and connected writ petitions, in my view, it would be appropriate that these writ petitions should also be allowed and the matters should be remitted to the Central Government Industrial Tribunal for fresh decision on all the points raised by the parties. It would be further appropriate to direct the Central Government Industrial Tribunal to dispose these matters alongwith matters remanded by the judgment given in Writ Petition No.1986/2014 and connected writ petitions.
11. In my view, the interests of justice would be sub-served by passing the following order :
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(i) The orders passed by the Central Government Industrial
Tribunal, Nagpur which are challenged in all these writ petitions, are set aside.
(ii) The matters are remitted to the Central Government Industrial Tribunal, Nagpur for deciding the reference, afresh.
(iii) The learned Advocates for the respective parties submit that as the matters are being remanded, the parties may be granted an opportunity to amend the pleadings, produce documents and lead evidence, if required. The submission made on behalf of the petitioners and the respondents is accepted. The Central Government Industrial Tribunal, Nagpur shall grant an opportunity to the parties, if requested, accordingly.
(iv) As the matters are very old, the Central Government Industrial Tribunal, Nagpur is directed to dispose the matters expeditiously.
(v) The petitioners and the representatives/Advocates of the respondents shall appear before the Central Government Industrial Tribunal, Nagpur on 5th May, 2017 and abide by the further orders in the matters.
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(vi) The Central Government Industrial Tribunal is directed to
dispose these matters alongwith the matters remanded by the judgment given in Writ Petition No.1986/2014 and connected writ petitions.
Rule is made absolute in the above terms in all these writ petitions. In the circumstances, the parties to bear their own costs.
It is clarified that the issues raised in the matters on merits, are not considered and they are left open for consideration by the Central Government Industrial Tribunal.
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