Gujarat Energy Transmission ... vs Akhil Gujarat General Mazdoor ...
2022 Latest Caselaw 5563 Guj

     C/SCA/6262/2017                            ORDER DATED: 28/06/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 6262 of 2017
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      GUJARAT ENERGY TRANSMISSION CORPORATION LIMITED
                           Versus
       AKHIL GUJARAT GENERAL MAZDOOR SANGH & 3 other(s)
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR AK CLERK(235) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,4
NOTICE SERVED BY DS for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
                  Date : 28/06/2022
                   ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed by the petitioner challenging the impugned award dated 19.10.2016 passed by the Labour Court, Anand in Reference (Demand) No.1 of 2012 and further prayed to reject the reference of respondent No.1.

2. Learned advocate Mr. Dipak Dave appearing for the petitioner submits that the present petitioner seeks to challenge absolutely illegal and unjustified award dated 19.10.2016 passed by Labour Court, Anand in Reference (Demand) No. 1 of 2012, whereby the Labour Court has been pleased to allow the reference of respondent no.1 and it has been declared that the workmen concerned in the reference are held to be the regular workmen of the petitioner from 16.11.2010 and further to pay regular wages and all other benefits alongwith difference amount to the said employees. It is submitted that despite the fact that respondent No.1 is not the recognized union of the petitioner, chartere of demand came to be raised by respondent No.1 on 16.11.2010. It is submitted that there are about 13000 number of employees working in the petitioner company and petitioner company is engaged in transmission of energy which is a public

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utility service. Thus, the very basis of raising industrial dispute against the petitioner rests on false and fraudulent ground. Learned advocate for the petitioner submitted that without properly continuing the conciliation as also verification of members as also the fact that respondent No.1 is not having sufficient number of employees as its members, reference came to be made before the Labour Court, Anand.

2.1 It is submitted that in the year 2009 demand was made for the purpose of getting provident fund from the concerned contractor and the matter was settled between the contractor and the concerned employees, in which the petitioner was made intervener in the said settlement being the principal employer. The settlement clearly accepts the fact that the concerned employees are the employees of the contractor and they are to be paid provident fund dues by the contractor. Before the Labour Court several other documents also came to be produced to show that in fact the concerned employees are the employees of the contractor. In fact the petitioner is a Government company where there is a procedure prescribed for recruitment of Class IV employees/watchman, the concerned employees are held to be the employees of the petitioner. The Labour Court vide impugned award dated 19.10.2016 held that the concerned employees are to be treated as regular employees of the petitioner w.e.f. 16.11.2010 and they shall have to be paid wages, benefits and other allowances from the said date. Though reference case is of the year 2012, right from the date of charter of demand and without holding any justification for back wages, the impugned award came to be passed. It is submitted that there was no supervision and control over the concerned employees by the petitioner. The concerned employees were never appointed by the

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petitioner. The work of the concerned employees cannot be said to be permanent or perennial in nature. Merely on the basis of some answer given by the witness of the petitioner that work of security is essential requirement, it cannot be held to be essential requirement work of the petitioner.

2.2 Learned advocate for the petitioner submitted that the Labour Court has failed to appreciate that it has no jurisdiction to receive, entertain and decide the reference. In fact the respondent No.1 is not registered union with the petitioner. The reference raised by the respondent No.1 is therefore null and void. The respondent No.1 does not have sufficient employees as its members. Even as per the case of the respondent No.1 it is having only 10 employees as its members. Thus the respondent No.1 does not have even 1% of membership of the total employees of the petitioner which is 13000. The Labour Court has exceeded its jurisdiction while holding that the contract is sham and bogus. The terms of reference as referred to the Labour Court contained the dispute as to whether the employees shown in schedule who are so-called employees of contractor to be treated as permanent employees of the petitioner? Admittedly, there is no reference as to whether the contract is to be declared as sham and bogus. In absence of any terms in reference as to whether the contract is sham and bogus, Labour Court could not have considered the said issue. It is submitted that in fact when there was no challenge to the contract being sham and bogus and there being no terms of reference on the said aspect, Labour Court, a court of limited jurisdiction, could not have travelled beyond the scope of terms of reference. The Labour Court transgressed its jurisdiction and stepped into the role of appropriate Government and exercised jurisdiction of

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appropriate Government while observing that the work of security guard is essential work of the petitioner and the same has to be done by the employees of the petitioner, thereby holding the concerned employees as regular employees of the petitioner.

2.3 It is submitted that the Labour Court entirely overlooked the documents produced on record in form of provident fund slip, attendance register, appointment orders of the concerned employees. Though the provident fund slips are admitted by the employees and admittedly the same being Government document, showing that the contractor was deducting provident fund of the concerned employees and depositing the same with the provident fund department on its own provident fund number.

2.4 It is submitted that the Labour Court has failed to appreciate that petitioner being Government company there is procedure for the purpose of appointment of Class IV employees and/or watchman. The petitioner is required to call names from employment exchange and/or the petitioner shall have to give advertisement in the newspaper inviting applications.

2.5 The strength of the contract employees are below 20 in number. As per the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, in case strength of contract employees is below 20, no license is required to be obtained. 2.6 Learned advocate for the petitioner has relied upon the decision of Apex Court in case of Workman of Dharam Pal Prem Chand (Saughandhi) Vs. Dharampal Chand (Saugandhi) reported in AIR 1966 SC 182 to submit that the

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industrial dispute may not be an industrial dispute unless it is supported by Union or in absence of Union by number of workmen. It is submitted that the respondent-Union did not have a representative capacity, as it represented only the case of 8 or 12 workmen as against the force of 13000 workmen.

2.7 In support of his contention that the onus is upon the workman to establish his relation with the employer on the basis of number of days he has served lies heavily upon the workmen, learned advocate for the petitioner has relied upon the decision of Apex Court in case of State of Uttarakhand & Ors. Vs. Sureshwati reported in AIR 2021 SC 923 and in case of Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharatlal & Anr. reported in 2011 (1) SCC 635.

2.8 Learned advocate for the petitioner has relied upon the decision of Apex Court in case of Steel Authority of India Limited Vs. Union of India reported in 2006 (12) SCC 233 to submit that there cannot be a direction for absorption of the workmen as employees of the petitioner more particularly, when the establishment does not have any sanctioned post. For this contention, learned advocate for the petitioner has also relied upon an unreported judgment of Apex Court in case of Rajasthan State Road Development and Construction Corporation Ltd. Vs. Piyush Kant Sharma & Ors. passed in Civil Appeal No.3489 of 2020 (arising out of SLP (C) No. 95 of 2020).

2.9 In support of his argument to the extent that the nature of work in the present case is not an ultimate object of the petitioner, as the petitioner is in the business of power

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generation, and therefore, issue of security is not directly connected to the power generation, and therefore, in case of International Airport Authority of India Vs. International Air Cargo Workers Union reported in 2009 (13) SCC 374, the Apex Court decided on the dispute as to whether the authority was right in not absorbing the workers, who were working through a Contractor.

2.10 Answering the contention of the respondent on the issue of raising of new plea at the stage of writ-petition, learned advocate for the petitioner has relied upon the decision of this Court passed in case of Manubhai Ambalal Patel Vs. Chanchalben Jethabhai Patel reported in 1995 (1) G.L.H. 365.

2.11 Learned advocate has lastly relied upon the decision of Apex Court in the case of Balwant Rai Saluja & Anr. Vs. Air India (LTD) & Ors. reported in 2014 (9) SCC 407 to submit that where the workers are engaged on casual or temporary basis with the contractor under any provision on the premises of the factory can such workmen can be said to be workmen of the factory or corporation.

3. Learned advocate Mr.A.K.Clerk appearing for the respondent No.1 submitted that in the present petition under Articles 226 and 227 of the Constitution of India, this Court would not re-appreciate the evidence. This Court would not interfer with the award/order pased by the Labour Court/Industrial Tribunal merely because a different view is possible. It is submitted that this Court would not entertain the petition unless a jurisdictional error is committed by the Labour Court/Industrial Tribunal. It is submitted that the award/order pased by the Labour Court/Industrial Tribunal does not warrant

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any interference. It is submitted that the petitioner did not challenge the order of reference. The petitioner cannot be permitted to raise such issues at this belated stage.

3.1 The Labour Court has found that the petitioner has not produced any documents regarding termination of contract and engagement of new contractor. The Labour Court has further found that though in the written statement the case of the petitioner was that contractor Alert Allied Security Service was engaged from 01-01-08 to 30-11-10, whereas the documents produced by the said contractor vide the List Ex. 26 shows that the contract is existing in the year 2014 but the identity card register does not contain any year nor it is approved by the Factory Inspector or any other authority and it is not signed by any authorized signatory of the contractor. Therefore there is inconsistency between the versions of the contractor and the petitioner and the documents are not reliable documents. The Labour Court has also found that if the contract is genuine and the contractor is engaged through process of tender the petitioner ought to have produced tender related papers. The Labour Court also found that the identity cards of the workmen show names of different security contractors between the years 1995-2008. The Labour Court also found that the petitioner did not produce any rules regarding appointment of workmen in the company or any documents regarding process of tender regarding security services. The Labour Court has found that the concerned workmen have worked continuously for 15 to 18 years and the work of security is of perennial in nature. The concerned workmen were first appointed by the petitioner and later on they were shown to the workmen of so called contractors. The concerned workmen were working under the supervision and

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control of the petitioner. It is submitted that the Labour Court has also found that neither the petitioner nor the alleged contractor have not produced a single document regarding registration certificate of the petitioner or the licence of the contractor under the Contract Labour Act.

3.2 It is submitted that the Labour Court has found that the petitioner did not produce the copies of contract given by them and has also not proved when the first contract was given to the contractor. The petitioner also did not produce any document regarding appointment of workmen or standing orders or seniority list of workmen or the rules any bye laws of the company. The Labour Court also found that adverse inference has to be drawn against the petitioner for not producing the copies of alleged contract. The Labour Court recorded a finding that the burden of proof was on the petitioner to prove that there was a valid contract and the other requirements of Contract Labour Act were fulfilled. The petitioner and the so called contractor have not produced any documentary evidence or oral evidence to establish that the contract system was genuine.

3.3 It is submitted that the concerned workmen are security guards and supervisor. The work of the concerned workmen is of regular and permanent nature and they have been working continuously for 15 to 18 years as found by the Labour Court. The concerned workmen work under direct supervision and control of Chief Security Officer and Asst. Executive Engineer of GEB. Ifthe workmen want leave or change in shift etc. they have to take permission from the said officers of GEB. There is no supervision or control of any officers of the so called contractor. Further, during the service of the concerned workmen several

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contractors have changed but the workmen have continuously worked even during the break between 2 contractors. The concerned workmen work in different shifts and at 4 security Points. One guard is posted at each point and one supervisor in general shift. The officers of GEB exercise full control over the entire security force.

3.4 The petitioner has not raised any objection before the Conciliation Officer or before the Labour Court that the union is not a recognized union or that it cannot espouse the cause of the concerned workmen. The petitioner acquiesced in the proceedings before the Labour Court and therefore, it cannot be permitted to challenge the order or reference after the award is passed. All 13 persons working as Security guards and Security Supervisor are members of the sponsoring union and the dispute pertains to only these 13 workmen. The documents which are not produced before the Labour Court cannot be produced before this Court and cannot be looked into for the purpose of examining the impugned award. The workmen has established that they were continuing in service for last 15 to 18 years though the contractors has changed. Thereafter, if it is the assertion of the petitioner that the contract labour system is genuine and therefore, it was for the petitioner to prove that facts by leading documentary and oral evidence. The burden of proof was on the petitioner to prove its case and it cannot be said that Labour Court has wrongly placed the burden of proof on the petitioner as alleged.

3.5 Learned advocate for the respondent has relied upon the decision of the Apex Court in case of Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers' Union & Anr. reported in

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2000 (4) SCC 245 to submit that the Court under Article 226/227 of the Constitution of India will have a limited jurisdiction to interfere with the award of the Labour Court.

3.6 Learned advocate for the respondent has relied upon the decision of the Apex Court in case of Harjinder Singh Vs. Punjab State Warehousing Corporation reported in 2010 (3) SCC 192 to emphasize on his submission of limited jurisdiction and also the issue of raising of new plea at the stage of filing of the petition before the High Court where such plea was not before the Labour Court.

3.7 Learned advocate for the respondent has also relied upon the decisions in case of Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat Vs. Hind Mazdoor Sabha & Ors. reported in 1995 (5) SCC 27 and in case of Bharat Heavy Electricals Ltd. Vs. State of U.P. & Ors. reported in 2003 (6) SCC 528 to contend that the factors which are necessary to be addressed to conclude that the contract labour system is shame and bogus and all those factors are examined and existing in the facts of the present case, and therefore, the Labour Court was justified in passing the award after concluding that the contract in the present case is shame and bogus.

3.8 Learned advocate for the respondent has also relied upon the decisions in case of Sathyanarayana Brothers (P) Ltd. Vs. T.N.Water Supply & Drainage Board reported in 2004 (5) SCC 314 to contend that, as the petitioner has participated in the entire dispute, now, cannot take up a plea of maintainability and that too by raising such contention not even in the petition, but, at the stage of filing of rejoinder. This submission is made

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with reference to the contention that the respondent is not a registered union.

4. Having considered the rival submissions of the parties and having perused the documents on record, the petition raises following issues:-

(A) The respondent-union does not represent the majority of the employees of the petitioner-corporation and that the respondent-union is not even a recognized or registered union.

(B) The Labour Court exceeded the jurisdiction and acted beyond the terms of reference to hold the contract as shame and bogus.

(C) The work of security to which the 9 members of the respondent-union were attached, cannot be treated to be an essential work of the petitioner-corporation, which is engaged in electric power generation, and therefore, no prohibition applies to engage the workmen through contract labour.

(D) That the Labour Court has overlooked the documents placed by the petitioner in the form of appointment orders, provident fund, attendance register etc., and therefore, has not rightly appreciated the evidence on record.

(E) That the Labour Court could not have passed the impugned order to declare workmen as regular workers of the corporation, as the corporation can engage an employee only through the procedure settled for recruitment. Moreover, there is no sanction strength of security man so as to treat the respondent-workmen as an employee of the petitioner-

       C/SCA/6262/2017                              ORDER DATED: 28/06/2022



corporation.

5. From the record, it appears that the group of workmen has raised the dispute before the Deputy Labour Commissioner, Vadodara against the management for conciliation on dated 25.11.2010 with the help of Joint Secretory of Akhil Gujarat General Mazdoor Sangh, the Chartered of Demand was submitted before the said Commissioner, after due efforts no compromise made hence he opined to refer the dispute before this Court for adjudication under the provision of I.D.Act vide his Order KHR/SHMC/12/2012/IDR/AJ/DLC/360/11 dated 21.01.2012 on following terms.

TERMS OF REFERANCE :

Whether the workmen shown in scheduled who are so-called workmen of contractor be treated as permanent workmen of Gujarat Energy Transmission Corporation Limited and whether they shall be paid wages as permanent workers with back wages ?

On behalf of the workmen, Union has filed amended Statement of claim vide Exh.19 and submitted mainly that :

The Union is registered under the Trade Union Registration Act 1926 and the workmen are the members of said Union. This Union has served first demand notice to management on 16.11.2010, but the management has not acted upon, theretore Union has raised the dispute before the Deputy Labour Commissioner same has been failed and dispute refer to this Court Accordingly.

5.1    It appears from the record that the petitioner-corporation






       C/SCA/6262/2017                                       ORDER DATED: 28/06/2022



has    made        sham,   camouflage       and        mere      paper       arranged

agreement with Contractor. This dispute is raised based on the principle laid down by the Various High Courts and the Apex Court. The petitioner-corporation is registered under the Companies Act-1956 and exclusively run by Government of Gujarat. The said company is running without public fund and turn from the name of Gujarat Vidhut Board functioning generation of electricity and transit it. The dispute has raised by the security workers of the unit situated at: Kasor, Ta. Sojitra. The workman Mr.Chandrakantbhai M. Prajapati is the supervisor and rest of the workmen are working as guard since the time Mentioned in schedule annexed with Statement of Claim. It is submitted that by management, supervisor is paying 3500/- per month while rest of the workmen are paying 2700/- per month and cost of uniform being deducted from Salary. It also appears from the record that all the workmen were employed by responsible officer of Gujarat Vidhut Board, who is petitioner-corporation and than they are treats as workmen of Contractors as other private Companies appoint such workmen by contractors though said workmen are working same as regular and permanent workmen of management. It also appears from the record that management has created contract system only on paper arrangement, sham and camouflage as workmen are doing work to supervise the building from theft and observe discipline which is in permanent nature. It also appears from the record that in fact employment work is doing by only principal management and all the formalities like physical test, interview, selection procedure, medical test, distribution of work IT, were also done by principal employer - petitioner corporation and selected workmen's names shows in muster roll in which

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employees are shown as workmen of contractor. In fact workmen are even not know who is current contractor and under whom contractor they are working. The contractor and workmen are not working under the direction of Contractor and they are obeying the order of officers of petitioner-corporation, if any workman wants to leave, they have apply to petitioner- corporation and contractor does not even comes to the workplace also. During the service tenure, workmen have work under the following contractors : (1) Gujarat Personal Security Service (2) Jay Security Service (3) Express Security Service (4) Gujarat Security Service (5) National Security Service (6) Siddhi Security Service (7) Reliable Investigation and Security Service (8) Alert Allied Security Service. These all are contractors are came and gone, but all the workmen have served in permanent nature and having intact service. Interestingly these all contractors have not selected them, not given any appointment letter or removal orders and even workmen are not know who are running these contracts and when contracts ended. It appears from the record that even some times workmen have served between the time when one contract ends and another came into force. Whenever petitioner-corporation raised any complaint against some of the workmen, he used only letter head of the such so called contractor. In February 2004, contractor had decide to employ Ex-army men and also employed such type of workmen, and these workmen was decided to be removed from their service, but these workmen probed by hunger strike and at that time, by mediation of local MLA, petitioner-corporation has withdrawn his decision and workmen were remained in service by so called assign new Contract to the Siddhi Labour and Security Service and workmen were included in said contractor. The workmen

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have to work in Three shift that First is Morning 6-00 o'clock to Noon 2-00 o'clock, Second is Noon 2-00 o'clock to Night 10-00 o'clock and Third is Night 10-00 o'clock to Morning 6-00 o'clock, these timings have also decided by the petitioner-corporation and workmen have to perform their duty at Security point situated at (1) Main Gate (2) Residential Colony (3) 220 K.V. Yard and (4) 440 K.V. Yard in one security guard and one is their security supervisor. General shift is Morning 10-00 o'clock to Evening 6-00 o'clock and duty of workmen does decide by an officer of the petitioner-corporation. It appears from the record that whoever enrolled as security guard with contractor are getting wages as per contract including grade pay, increments, dearness allowance, leave with wages, other allowances, and doing secure job while these workmen are doing} same job are getting only Rs. 2700/- per month.

6. From the reply given by the petitioner-corporation before the Labour Court, it appears that Gujarat government has allotted land at Kasor for built up 400 K.V. Sub-station and he has paid Rs.17,49,605/- on 28.04.1992 to the Government. After the issuance the order from Collector, Khaira District, petitioner-corporation had started the construction and for that purpose there was need for security staff, therefore, tender was issued. The contractor whose tender was passed by petitioner- corporation were employed the workmen, got licence from concerned authority and also supervise themselves and wages were also paid by that contractor. The petitioner-corporation has given contract to the Contractor-Alert Allied Service from 01.01.2008 to 30.11.2010 and said contractor did not pay the salary to his workmen. When contract has given to Contractor- Alert Allied Service, he has appointed the said workmen by

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getting application from respective workmen.

7. With regard to issue of the respondent-union not being a registered union and not having proper representation of the workmen of the petitioner-corporation, it would be appropriate to refer to a unreported decision of the Apex Court in case of Newspapers, Limited, Allahabad Vs. State of Industrial Tribunal, Uttar Pradesh & Ors. passed in Civil Appeal No.348 of 1959 dated 04.05.1960, wherein while examining the contention raised that the association which sponsored the case of the workmen was a unregistered body and that made the reference invalid. The Apex Court held that it is not necessary that a registered body should sponsor a workmen's case to make it an industrial dispute. Once it is shown that a body of workmen either acting through their union or otherwise had sponsored the workmen's case, it becomes an industrial dispute. Moreover, from the record, it appears that the written reply filed by the petitioner-corporation did not raise this issue to challenge the reference on the ground of the respondent-union not being registered or not representing the majority of the workmen. It is evident from the affidavit-in-rejoinder filed on behalf of the petitioner-corporation (Page No.149 - Para 5) that for the first time, the petitioner-corporation has challenged the locus of the respondent-union.

8. The Apex Court in case of Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat Vs. Hind Mazdoor Sabha & Ors. reported in 1995 (5) SCC 27 in Paragraph No.33 has held as under:-

"33. These decisions in unambiguous terms lay down that after the coming into operation of the Act, the authority to abolish the

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contract labour is vested exclusively in the appropriate Government which has to take its decision in the matter in accordance with the provisions of Section 10 of the Act. This conclusion has been arrived at in these decisions on the interpretation of Section 10 of the Act. However, it has to be remembered that the authority to abolish the contract labour under Section 10 of the Act comes into play only where there exists a genuine contract. In other words, if there is no genuine contract and the so called contract is sham or a camouflage to hide the reality, the said provisions are inapplicable. When, in such circumstances, the concerned workmen raise an industrial dispute for relief that they should be deemed to be the employees of the principal employer, the Court or the industrial adjudicator will have jurisdiction to entertain the dispute and grant the necessary relief. In this connection, we may refer to the following decision of this Court which were also relied upon by the counsel for the workmen."

And ultimately concluded in Paragraph No.53 and relevant for the purpose of this case being Paragraph No.53(ii), the said paragraph quoted herein below:-

"53 [ii] if the contract is sham or not genuine, the workmen of the so called contractor can raise an industrial dispute for declaring that they were always the employess of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of Section 10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. It is only if the adjudicator comes to the conclusion that the contract is sham, that he will have jurisdiction to adjudicate the dispute. If, however, he comes to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of the contract labour under Section 10 of the Act and keep the dispute pending. However, he can do so if the dispute is espoused by the direct workmen of the principal employer. If the workmen of the principal employer have not espoused the

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dispute, the adjudicator, after coming to the conclusion that the contract is genuine, has to reject the reference, the dispute being not an industrial dispute within the meaning of Section 2 (k) of the ID Act. He will not be competent to give any relief to the workmen of the erstwhile contractor even if the labour contract is abolished by the appropriate Government under Section 10 of the Act."

9. Again, the Apex Court in case of Bharat Heavy Electricals Ltd. Vs. State of U.P. & Ors. reported in 2003 (6) SCC 528 taking note of the practice of making of artificial arrangements, who engaged the workmen through some intermediary observed in the facts of the case in Paragraph Nos.10 & 11. The said paragraphs read as under:-

"10. Looking to what is stated in paras extracted above, it is clear that where workman-labour is engaged to produce goods or services and these goods or services are for the business of another, the other is employer. The work of the respondents- workmen is not totally disassociated in fact between them and the appellant to say that they were not employees of the appellant judged by what is stated in para 7 of the same judgment in the following words:-

"7. Of course, if there is total dissociation in fact between the disowning Management and the aggrieved workmen, the employment is, in substance and in real-life terms, by another. The Management's adventitious connections cannot ripen into real employment."

11. The definition of 'employer' given in Section 2(i)(iv) of the Act is an inclusive definition. If the respondents-workmen as a matter of fact were employed with the appellant to work in their premises and which fact is found established after removing the mask or facade of make-believe employment under the contractor, the appellant cannot escape its liability."

10. At the outset, it would be appropriate to mention that the powers of this Court under Articles 226 and 227 of the Constitution of India to interfere with the findings of the

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Industrial Tribunal / Labour Court is restricted as is held by the Apex Court in case of Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers' Union & Anr. reported in 2000 (4) SCC 245, wherein in Paragraph No.8, the Apex Court while raising the very question whether in view of categorical findings of fact arrived at by the Tribunal, can a single judge while exercising jurisdiction under Article 226 of the Constitution of India, could have reappreciate the evidence and come to a different conclusion. The said Paragraph No.8 reads as under:-

"8. The question is whether in view of such categorical findings of fact arrived at by the Tribunal, the learned Single Judge exercising jurisdiction under Article 226 of the Constitution of India could re-appreciate the evidence and come to a different conclusion. We have already pointed out that the learned single Judge had erred in appreciating certain documents and the evidence in the case. We are clearly of the opinion that the learned Single Judge had no material to characterise the judgment of the Tribunal as perverse. We will once again refer to certain important matters which would go a long way to decide the matter. The inference drawn from Ex.M1 that it was the Union, who wanted the canteen is far from truth. The subsequent evidence has got to be looked into on this aspect of the case. In Ex.M4, dated 23.4.1988, the Union has informed the bank about the new canteen promoters for the record of the bank. The inference drawn by the learned Judge from Ex.M5 that the canteen was not exclusive for the bank is based on a misconception. The evidence of MW1 clearly shows that the canteen is meant only for the bank. His evidence is as follows:

"... The canteen is meant only for the staff of the bank the canteen will remain only for closed on bank holidays..."

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The observation that the bank was running the canteen to retain good relationship between the union and the management is not appropriate and on the other hand, it only shows that the bank was implicitly bound to maintain the canteen. The learned Single Judge has not given due weight to the two principles enunciated in the LIC case and undisturbed by the RBI case. We have already quoted those principles.

9. One other significant fact which has escaped the attention of the learned Single Judge is the letter written by the Central Office of the bank when the promoters expressed their inability to run the canteen with effect from 26.4.90. Says the management as follows:

'Member of staff are advised that the canteen will function in our canteen block with effect from 21.10.1992. The contractors will run the canteen with minimum staff for a week on a trial basis to overcome the difficulties if any. The canteen will run normally after a week or so....'

The bank further says that the canteen is for the welfare of the staff and directs as follows:

'All members are requested to avail this facility and refrain from going out for coffee and tea. Since the canteen has started functioning the Department Heads should inform all the staff members to restrict their lunch time to half an hour between 12.30 and 3.00 p.m. and the staff may be permitted to go for lunch in fixed time to avoid heavy rush at the canteen...'

The above passage quoted from the letter of the Central Office of the Bank amply establishes that the bank had an obligation to run the canteen and in fact, was running the canteen, through contractors, even though the promoters had withdrawn their services. Actually, it appears that the promoters were desirous of forming a co-operative society and

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it did not fructify. In this view of the matter, it is clear that as in the LIC case, the bank had been running the canteen by one or other of the agency."

11. In yet another judgment, the Apex Court in case of Harjinder Singh Vs. Punjab State Warehousing Corporation reported in 2010 (3) SCC 192 has laid down the parameters to exercise the jurisdiction under Articles 226 and 227 of the constitution of India. The Paragraph No.13 of the said judgment reads as under:-

"13. In Surya Dev Rai's case, a two-Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions:

"(1) Amendment by Act 46 of 1999 with effect from 1-7- 2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction -- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction -- by

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overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and

(ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and

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only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot

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substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

12. In the opinion of the Court, the numbers of members will not be a deciding factor to sponsor an industrial dispute on behalf of the workmen. The case of the petitioner that the respondent-union is an unregistered union and the industrial dispute is not maintainable at his behest ought to have taken at the first point of time and as is held by the Apex Court in case of Harjinder Singh (supra), the Court is not inclined to examine the issue at a belated stage.

13. The petitioner had an occasion to raise such issue even at the stage of reference being made by the Conciliation Officer. The petitioner not having challenge such reference at the relevant time is deemed to have acquiesced. Moreover, thereafter, the petitioner has fully participated in the industrial dispute without raising such contention, and therefore, such contention, in the opinion of the Court, is an afterthought, which will not render the order of the Labour Court vulnerable. Yet in another decision of the Apex Court in case of Workmen of Rohtak General Transport Company vs. Rohtak General Transport Company passed in Civil Appeal No.349 of 1961 dated 27.02.1962 explaining an industrial dispute what is dispute between some workmen and their employer. While examining the facts, the

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Court held that, if the respondent has raised an issue that even a minority workmen has not espoused the cause, it would have been open for the appellants therein to lead the evidence to show that the union which served the demand notice was entitled to act on behalf of the workmen and as in the facts of that case, that cause was not adopted, as the issue before the Labour Court was different, and therefore, the cause of the two workmen not being espoused by the majority of the workmen was not held to be a ground to refuse the reference. Similarly, when the issue was not before the Labour Court, there was no scope for either side to establish this fact.

14. The contention raised with regard to the Labour Court having exceeded its jurisdiction, cannot be accepted considering the terms of reference itself, which categorically provided for that whether a workman of contractor be treated as a permanent workman of the petitioner-corporation and it is in this regard, the evidence appears to have been led by both the sides, which consisted of oral evidence of the workmen, representative of the petitioner-corporation, the documentary evidence with regard to the attendance register etc., which would indicate the status of the respondent-workman with the petitioner. The Labour Court has correctly appreciated the evidence with regard to the connection between the petitioner and the respondent-workmen.

15. This Court has also even considering the additional documents, which are placed on record to convince this Court that the contract was proper and legally acceptable still the Court cannot come to such a conclusion, as the additional documents, which are produced along with the rejoinder pertains to a single advertisement issuing tender for contract

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that too for year 2002, but not pertaining to the period in question been examined by the Labour Court and some terms and conditions with regard to the tender contract. At the best, such documents would only indicate about the tender procedure and that too cannot cover up entire period during which time and again the new contractors have been given contract, but the respondent-workman have continued to work with the petitioner-corporation under different workmen.

16. The Court is of the view that had the contract been a genuine contract even as per the policy of the respondent- corporation, the same required to be established by placing on record the necessary evidence, which would include a proper tendering process adopted by the petitioner-corporation even for the period during which the workmen have rendered their service with the petitioner-corporation, which is in no uncertain terms spent for the period of 12 to 15 years.

17. The issue argued by the learned advocate for the petitioner that as the nature of work in which the respondents have been engaged viz. Security Man not being in anyway connected to the object of the petitioner-corporation, which is established for power generation. The workmen could not have been engaged through the contractor. In the opinion of the Court, the nature of work, as is described in the preceding paragraphs, would clearly indicate that the respondent-workman were engaged for the maintenance of the security of a Unit of the petitioner- corporation though the same may not be directly connected with the generation of electricity yet the work of security is closely connected with the corporation as Security would also be a potential part to maintain transmission/generation of power,

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which is a basic object of the petitioner-corporation. The Labour Court has therefore applied the correct principle, as is laid down in the decision of Steel Authority of India Ltd (supra) and by applying such principles and having examined the facts based on evidence vide Exh.61, Exhs.38 to 41, Exh.25 & Exh.36 arrived at a conclusion that the security work would essential, perennial and has been taken from the respondent-workmen for the period 15 to 18 years.

18. The submission of learned advocate for the petitioner regarding overlooking certain documents which the petitioner in support of his contention has placed on record at Annexure-F (Colly) consisting of one P.F. Receipt, Identity Card, Register etc. to submit that the contractor was genuine and contractor was the real employer. In the opinion of the Court, as is held in the preceding paragraphs, the Court is not satisfied with the documents, which were placed before the Labour Court as well as before this Court to conclude that the contract was a genuine contract. In favour of the contractor, there was nothing on record that while issuing the the contract in favour of the contractor viz. respondent nos.2 & 3 herein, the petitioner-corporation has followed tender procedure and pursuant to such tender procedure, the contract has been allotted.

19. Over and above, the oral evidence of the workmen had clearly indicated the nature of work, which was performed, instructions being issued and the manner in which the salary has been paid to the respondent-workmen. The same indicate that the contract was shame and bogus and the Court does not see any reason to interfere especially on the ground that the documents of the petitioner-corporation were not properly

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appreciated.

20. In view of the limited scope to examine the evidence, the Court is not inclined to interfere with the award of the Labour Court.

21. In aforesaid connection, reliance is placed upon the decision of Balwant Rai Saluja (supra), wherein the Apex Court is examining the issue as to whether the workers engaged on temporary or casual basis by the contractor to operate and run statutory canteens under the provisions of Factories Act, 1948 on the premises of the employer can be said to be workmen of the said company or corporation. In aforesaid fact situation, the Apex Court while considering the various decisions including the decision in case of Bengal Nagpur Cotton Mills (supra), which is also cited herein has concluded that workmen could not be said to be under the effective or absolute control of Air India, as Air India has controlled the supervision over the work of the given statutory canteens, which being a subsidiary of the principal employer therein, whereas the issue regarding the appointment of the workmen, their dismissal, payment of the salary were controlled by the contractor. The issue, therefore, was examined from the perspective running of a statutory canteens, as provided under the provisions of Factories Act, 1948. Such not being the facts in present case. The facts, which were established before the Labour court in the present case, would go on to establish that the respondent-workmen were under the control of the petitioner-corporation and the respondent nos.2 & 3 were merely contractors for the name sake.

22. The last contention raised by the petitioner that the petitioner-corporation can appoint employees only through

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procedure set for appointment by relying upon the decision of the Apex Court in Rajasthan State Road Development and Construction Corporation Ltd. (supra). The aforesaid decision was examining the interim order of the High Court, which restrained the appellant therein from appointing new sets of contractual employees in place of the writ-petitioners and while doing so, the Apex Court has found that respective High Courts have failed to appreciate and consider the fact that with the appellant-corporation, there was no regular sanctioned post of Computer Operator in the Corporation and there was also no employer-employee relation between the writ-petitioner and the corporation. Thereafter, interim relief was quashed and set aside.

23. The facts being in present case at variance, where even from the evidence, the Labour Court has concluded the respondent-workmen had served the petitioner-corporation in the capacity of Security Man for long period of 15 to 18 years was justified in passing the order of declaring the workmen to be regular workers of the petitioner-corporation.

24. With the aforesaid reasonings, the Court is not inclined to interfere with the impugned award dated 19.10.2016 passed by the Labour Court, Anand in Reference (Demand) No.1 of 2012. Hence, the present petition is required to be dismissed and the same stands dismissed. Notice is discharged.

(A.Y. KOGJE, J) GIRISH