Bombay High Court
Shri. Homraj Santoshrao ... vs The Senior Regional Manager Food ... on 27 March, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(1) WRIT PETITION NO.1520/2016
Shri Diwakar Kushabrao Waghmare,
aged 41 Yrs., Occu. Labour,
R/o At Post Paunar, Wardha,
Tahsil & Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(2) AND WRIT PETITION NO.1519/2016
Shri Rajesh S/o Wamanrao Bokade,
aged 41 Yrs., Occu. Labour,
R/o Anjana Mata Mandir,
Balaji Layout, Alodi, Wardha,
Tahsil & Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
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(3) AND WRIT PETITION NO.1546/2016
Shri Narendra S/o Ramdasji Kashimpure,
aged 40 Yrs., Occu. Labourer,
R/o Borgaon Meghe, Wardha,
Tahsil & Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(4) AND WRIT PETITION NO.1558/2016
Shri Sudhakar S/o Namdeo Khandate,
aged 46 Yrs., Occu. Labourer,
R/o Satyadev Nagar, Chitoda Road,
Ward No.6, Borgaon Meghe, Wardha,
Tahsil & Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(5) AND WRIT PETITION NO.1646/2016
Shri Gajanan Daduji Chahande,
aged 44Yrs., Occu. Labourer,
R/o Peth, Post Aanji (Mothi),
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Tahsil & Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(6) AND WRIT PETITION NO.1647/2016
Shri Kureshkumar Sukha Bramhawanshi,
aged 40 Yrs., Occu. Labourer,
R/o Near Indra Sut Girni,
Mahsulnagar,Tahsil & Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(7) AND WRIT PETITION NO.1648/2016
Shri Homraj Santoshrao Ashtankar,
aged 43 Yrs., Occu. Labourer,
R/o Burkuni, Tah. Hinganghat,
Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
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(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(8) AND WRIT PETITION NO.1649/2016
Shri Martandsingh Zanaklal Jangila,
aged 55 Yrs., Occu. Labourer,
R/o Gadge Nagar, Mhasla, Wardha,
Tah. & Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(9) AND WRIT PETITION NO.1650/2016
Shri Rajesh Shriramji Bambodkar,
aged 52 Yrs., Occu. Labourer,
R/o Navin Tar File, Akola,
Distt. Akola. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
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Ajni, Nagpur - 440 015. ..Respondents.
(10) AND WRIT PETITION NO.1651/2016
Shri Harishchandra Tulsiramji Ukale,
aged 47 Yrs., Occu. Labourer,
R/o Sonegaon (Mustafa),
Tah. Karanja, Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(11) AND WRIT PETITION NO.1652/2016
Shri Sunil Krushnaji Mankar,
aged 42 Yrs., Occu. Labourer,
R/o Shirpur, Wardha,
Tah. and Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(12) AND WRIT PETITION NO.1653/2016
Shri Suresh Shridhar Borkar,
aged 53 Yrs., Occu. Labourer,
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R/o Navin Tar File, Akot,
Tah. and Distt. Akola. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(13) AND WRIT PETITION NO.1654/2016
Shri Ashok Harichandraji Maliye,
aged 48 Yrs., Occu. Labourer,
R/o Sonegaon (Abhaji),
Tah. Deoli, Distt. Wardha. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(14) AND WRIT PETITION NO.1655/2016
Shri Rajesh Yadavrao Warkhade,
aged 45 Yrs., Occu. Labourer,
R/o C/o Babaraoji Thakre,
Gond Plot, Wardha,
Tah. and Distt. Wardha. ..Petitioner.
..Vs..
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1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(15) AND WRIT PETITION NO.1656/2016
Shri Ashish Kisanrao Raipure,
aged 45 Yrs., Occu. Labourer,
R/o Paili (Bhatadi), Post Urja Nagar,
Tah. and Distt. Chandrapur. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
(16) AND WRIT PETITION NO.1827/2016
Shri Bhaiyya S/o Ganpat Dhanvije,
aged 56 Yrs., Occu. Nil,
R/o At Post Palasgaon (Jat),
Taluka Chandrapur, Distt. Chandrapur. ..Petitioner.
..Vs..
1. The Senior Regional Manager,
Food Corporation of India
(Maharashtra Region), 5th Floor,
Rajendra Nagar, Dattapada Raod,
Borivali (E), Mumbai 400 066.
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2. The District Manager,
Food Corporation of India,
Ajni, Nagpur - 440 015. ..Respondents.
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Shri V.S. Kukday, Advocate for the petitioner.
Shri S.R. Deshpande, Advocate for respondent Nos.1 and 2. ..(in all petitions)
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CORAM : Z.A.HAQ, J.
DATE : 27.3.2017.
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
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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 infact they had been employees of the
respondents. The tenor of the statement 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 situation 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 guard
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 management through their officers. Therefore, the oral
termination of the workman, is illegal, unlawful and against the
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principle of natural justice."
6. The respondents-employer opposed the claim of the employees by
filing their reply. The respondent pleaded that the employers were employed
by the contractor and they were not the employees of the respondent. 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 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."
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9. Writ Petition No.1986/2014 and other connected matters, in which
same points were raised, are decided by the judgment given on 12 th 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 -
employers and continued to be in the employment till March, 1997. 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 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 license 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
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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 :
(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.
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(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
respondent shall appear before the Central Government Industrial
Tribunal, Nagpur on 5th May, 2017 and abide by the further orders
in the matters.
(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, Nagpur.
JUDGE
Tambaskar.
