The Commissioner Jalgaon City ... vs The Workman Through The General ...
2016 Latest Caselaw 4273 Bom

                                          1




                                                                           
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                   
                            WRIT PETITION NO.9657 OF 2015

    Jalgaon Mahanagar Palika Kamgar union
    B-7, Old B.J.Market, 3rd floor, Jalgaon




                                                  
    Through its General Secretary
    Vikas Kashilatn Alavni,
    Age-52 years, Occu-Social Service,
                                                               PETITIONER
    R/o Same as above.




                                         
    VERSUS                    
    1. Jalgaon City Municipal Corporation,
        Jalgaon,
                             
        Through its Commissioner,

    2. Miraj Mahila Audyogik Co-operative Society Ltd.,
        154, Baliram Peth, Jalgaon,
        Through its Secretary,
      


    3. Ganesh Pachuji Sankat,
   



        Age-Major, Occu-Business,
        R/o Shani Peth, Gurunanak Nagar,
        Mamurabad Road, Jalgaon,





    4. Kamlabai Atmacharan Dhandore,
        Age-Major, Occu-Business,
        R/o Shani Peth, Gurunanak Nagar,
        Jalgaon,

    5. Prasad Ramesh Sanap,





        Age-Major, Occu-Business,
        R/o 67, Baliram Peth,
        Jalgaon                                                RESPONDENTS 

WITH WRIT PETITION 10745 OF 2015

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The Commissioner, Jalgaon City Municipal Corporation, PETITIONER

Jalgaon, Dist. Jalgaon

VERSUS

1. The Workman, Through the General Secretary, Jalgaon City Municipal Corporation Kamgar Union, Jalgaon,

Dist. Jalgaon,

2. Miraj Mahila Audyogik Co-operative

Society LTd., 154, Baliram Peth, Jalgaon,

3. Ganesh Pachuji Sankat, Shani Peth, Gurunanak Nagar, Mamurabad Road, Jalgaon,

4. Kamlabai Atmacharan Dhandhore,

Gurunanak Nagar, Shani Peth, Jalgaon,

5. Prasad Ramesh Sanap, Age-75 years, Baliram Peth, Jalgaon RESPONDENTS

Mr.P.V.Barde, Advocate for the petitioners. Mr.S.C.Swamy with Mr.V.D.Gunale, Advocate for the respondents.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 29/07/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

khs/JULY 2016/9657-d

2. The First petition has been filed by the Union praying for

quashing the award dated 02/04/2015 passed by the Industrial

Tribunal Jalgaon in Ref.(IT) No.1/2007, only to the extent of the

rejection of the second demand and imposition of conditions for

granting permanency.

3. Prayer clause A and B of the first petition read as under :-

"A. By issuing appropriate writ, order, direction or any other appropriate order in the nature of writ, the Hon'ble High Court

may be pleased to quash and set aside the Award dated 02/04/2015 passed by Member, Industrial Tribunal, Jalgaon in Reference (IT) No.2/2007 only to the extent of refusal of second

demand and conditions for permanency mentioned in order part

of Award.

B. By issuing appropriate writ, order, direction or any other appropriate order in the nature of writ, the Hon'ble High Court

may be pleased to modify the Award dated 02/04/2015 and direct respondent No.1 to advance permanency to 645 employees in listed in order of reference from the date of their continuous service of one year and/or completion of 240 days."

4. The Municipal Corporation, which is respondent No.1 in the

first petition, is the petitioner in the second petition. The Corporation

also challenged the said award and prays that the entire award be

quashed and set aside. Relevant prayer clause C and D in the second

khs/JULY 2016/9657-d

petition read as under :-

"C. By issuing writ of certiorari or any other appropriate writ or order or directions in the like nature, the order passed by the respondent bearing No.AZPKSPS/EST-492/2015 dated

27/10/2015 as well as the order passed by the learned Divisional Joint Registrar, Co-operative Societies at Aurangabad in Misc.Appeal No.52/2015 dated 19/05/2016 may kindly be

quashed and set aside by reinstating the petitioner with the back wages in the services of respondent.

D. Pending hearing and final disposal of this writ petition, the respondent may kindly be directed not to appoint any person as

Manager in place of present petitioner if not already appointed."

5. I have heard Mr.Barde, learned Advocate for the Union.

Mr.Swamy h/f Mr.Gunale, learned Advocate for the Corporation has

strenuously criticized the impugned award.

6. I have considered their submissions and have gone through the

petition paper book and the record available, with their assistance.

7. Though the Union, representing the cause of the daily wage

workers, insists that they are the employees of the Corporation, the

Corporation has through out canvassed before the Tribunal that the

employees represented by the Union are deployed by various labour

khs/JULY 2016/9657-d

contractors and none of them have employer-employee relationship

with the Corporation.

8. In the light of the judgments delivered by the Hon'ble Supreme

Court in the matter of Vividh Kamgar Sabha Vs. Kalyani Steels

Limited, reported in 2001[1] CLR 532, Cipla Limited Vs. Maharashtra

General Kamgar Union, reported in 2001 LLR 305 = 2001(2)

Bom.C.R. (S.C.) 822 = (2001) 2 SCC 381 and Steel Authority of India

Ltd. and others etc. Vs. National Union Water Front Workers and

others, [2001(III) CLR 349], the law has crystallized that the contract

labourers or similar labourers can make a grievance only under the

Industrial Disputes Act, 1947 raising an issue of the contractor being

a camouflage and the principle employer being the real employer.

The 5 judges bench of the Hon'ble Supreme court in the Steel

Authority of India Ltd. (supra) has also laid down the law that

abolition of contract system or doing away with the contract system

would not, ipso facto mean that the contract labourers would become

the employees of the principle employer, though the principle

employer may consider absorption of such employees.

9. Despite the above, the Deputy Commissioner, Labour, by its

order dated 22/08/2007 referred the industrial dispute raised by the

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Union to the Industrial Tribunal alongwith the annexures consisting

645 Safai Kamgar as being party to the reference proceedings,

without referring the issue as to whether the Union proves that the

contractors are sham and bogus and the Corporation is the real

employer.

10. Though the issue as to whether the Union proves that the

"Corporation is it's real employer" has not been referred, the

Industrial Court has framed a similar issue at Sr.No.2. However, it

has erroneously placed the burden on the Corporation to prove that

it has no employer-employee relationship with the second party

Union Workmen. On this count, I am interfering in the impugned

award and while remitting the reference to the Industrial Tribunal, I

am exercising my writ jurisdiction for re-framing issue No.2 as

under :-

"Does the second party Union prove that the Labour Contractors mentioned in the cause title (4 contractors) are a

camouflage and whether the Municipal Corporation is the real employer of the 645 Safai Kamgar mentioned in the annexures ?"

The above framed issue shall replace Issue No.2 already framed

by the Industrial Tribunal.

khs/JULY 2016/9657-d

11. It is apparent from the conclusions drawn by the Tribunal from

paragraph No.11 onwards that though the Municipal Corporation

was directed to permit the representative of the Union to peruse and

inspect the documents, the Municipal Corporation has declined to

permit any inspection of its records. As an outcome of the same, the

Industrial Tribunal has drawn an adverse inference against the first

party corporation, leading to a serious effect of concluding that the

645 Safar Kamgar are the direct employees of the Corporation.

Though this conclusion is likely to have serious ramifications and

cannot be sustained, it cannot be ignored that the Corporation is the

cause of such adverse inference being drawn by the Industrial

Tribunal. It is, in this backdrop, that I am constrained to impose

costs on the Corporation.

12. I find from the impugned award that besides the adverse

inference drawn by the Tribunal, there was no material before it to

conclude that the contractors are sham and bogus and the

Corporation is the actual employer of the 645 Safai Kamgar.

13. Considering the conspectus of the matter, the petition filed by

the Corporation is allowed and consequentially the petition filed by

the Union is dismissed. The impugned award dated 02/04/2015 is

khs/JULY 2016/9657-d

quashed and set aside and Ref.(IT) No.1/2007 is remitted to the

Industrial Tribunal, Jalgaon for deciding the matter afresh on the

following conditions :-

[a] The Corporation shall deposit costs of Rs.1,00,000/- (Rs.One

lac only) before the Industrial Tribunal, Jalgaon, within a period of 6 (six) weeks from today.

[b] Rs.40,000/- from the said costs shall be remitted by the

Industrial Tribunal to the District Legal Services Authority,

[c] Jalgaon.

Rs.60,000/- shall be withdrawn by the Union without conditions for the rigours of litigation being suffered by it.

[d] The Corporation shall deposit all the documents directed by the Industrial Tribunal in the said proceedings within a period of 12 (twelve) weeks from today and shall not pray for any

extension of time, failing which, the Industrial Tribunal may

consider imposing heavy costs thereafter for ensuring the production of the documents.

[e] Both the litigating sides are at liberty to lead additional

evidence in the light of the documents to be produced by the Corporation.

[f] In so far as the age factor of the 645 Safai Kamgar is concerned, in the event the Industrial Tribunal comes to a conclusion of

granting benefits to these workers, it shall consider their age as on the date of joining the services of the Corporation and not their age as on the date of the award. In short, there shall be no issue of age bar or relaxation unless any Safai Kamgar is age barred as on the date of the order of reference by the Dy. Commissioner, Labour.

khs/JULY 2016/9657-d

14. The Industrial Court shall note that all the contentions of the

litigating sides are kept open and it shall not be influenced by any of

its observations set out in the impugned award, which now has been

set aside.

15. Rule is made absolute in the above terms with regard to the

petition filed by the Corporation.

16. Rule is discharged with regard to the petition filed by the

Union.

( RAVINDRA V. GHUGE, J.)

khs/JULY 2016/9657-d