The Kurnool Municipal ... vs M. Gangadhar
2021 Latest Caselaw 3263 AP

      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,

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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

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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:

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"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

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

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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

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

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

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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

                                                             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