Bombay High Court
Shiril Pundlikrao Guldeokar vs The Senior Regional Manager, Food ... on 3 April, 2017
Bench: Z.A. Haq
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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
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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
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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
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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
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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.
JUDGE
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