Karnataka High Court
Smt. Baligar Chandbi W/O Baligar Khaja ... vs The State Of Karnataka on 26 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 102060 of 2024
IN THE HIGH COURT OF KARNATAKA, R
DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.102060 OF 2024(S-RES)
BETWEEN:
SMT. BALIGAR CHANDBI
W/O. BALIGAR KHAJA MAINUDDIN,
AGE: 30 YEARS, OCC: CONTRACT EMPLOYEE,
R/O: 248, MAIN ROAD, NEAR GOVERNMENT
HOSPITAL, 5TH WARD, HIREHADAGALI,
HUVINAHADAGALI, TQ: HUVINAHADAGALI,
DIST: VIJAYANAGARA - 583 216.
... PETITIONER
(BY SRI ROSHAN SAHEB CHABBI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THE DEPARTMENT OF AGRICULTURE,
Digitally signed
REP. BY ITS PRINCIPAL SECRETARY,
by V N
BADIGER
4TH FLOOR, 3RD GATE,
Location: High M. S. BUILDING, BENGALURU - 01.
Court of
Karnataka
2. THE JOINT DIRECTOR OF AGRICULTURE,
OFFICE OF THE JOINT DIRECTOR OF AGRICULTURE,
BEHIND CENTRE OF NATIONAL COLLEGE,
N. C. COLONY, HARIHARA ROAD,
HOSAPETE, TQ: HOSAPETE,
DIST: VIJAYANGARA - 583 203.
3. THE DEPUTY DIRECTOR OF AGRICULTURE,
BEHIND CENTRE OF NATIONAL COLLEGE,
N. C. COLONY, HARIHARA ROAD,
HOSAPETE, TQ: HOSAPETE,
DIST: VIJAYANGARA - 583 203.
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WP No. 102060 of 2024
4. THE ASSISTANT DIRECTOR OF AGRICULTURE,
OFFICE OF THE ASSISTANT DIRECTOR OF
AGRICULTURE, HUVINAHADAGALI,
TQ: HUVINAHADAGALI,
DIST: VIJAYANAGARA - 583 219.
5. THE AGRICULTURE OFFICER,
RAITA SAMPARKA KENDRA,
HUVINAHADAGALI, TQ: HUVINAHADAGALI,
DIST: VIJAYANAGARA - 583 219.
6. OM SECURITY SERVICE AND MAN POWER AGENCY,
REP. BY ITS PROPRIETOR,
OFFICE AT. HOSPET ROAD,
NEAR 2ND GATE, CANTONMENT,
BALLARI, DIST: BALLARI - 583 104.
7. PANNAGA ENTERPRISES MAN POWER SUPLY OFFICE,
REP. BY ITS PROPRIETOR SMT. YASHASWINI,
OFFICE AT 228, 2ND FLOOR,
1ST MAIN ROAD, 2ND STAGE,
GOKULAM, MYSORE - 570 002.
8. SHRI PRAVEEN KYALAKATTI,
AGE: MAJOR, OCC: ACCOUNTANT,
R/O: C/O: RAITA SAMPARKA KENDRA,
HUVINAHADAGALI, TQ: HUVINAHADAGALI,
DIST: VIJAYANAGARA - 583 219.
...RESPONDENTS
(BY SRI P.N.HATTI, HCGP FOR R1 TO R5;
NOTICE TO R6 TO R8 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OF
MANDAMUS OR A WRIT OF ANY OTHER NATURE DIRECTING THE
RESPONDENTS NO. 2 TO 5, AND DIRECTING THE OTHER
CONCERNED RESPONDENTS, TO PERMIT THE PETITIONER TO
CONTINUE TO WORK IN THE SAME POST IN WHICH SHE WAS
WORKING BEFORE THE PERIOD OF MATERNITY LEAVE, BY
CONSIDERING ANNEXURE-H AND J DATED 24/01/2024 BY MAKING
PAYMENT OF THE ENTIRE ARREARS WHICH ARE DUE TO THE
PETITIONER AND FOR WHICH THE PETITIONER IS LEGALLY
ENTITLED, ALONG WITH AN INTEREST AT THE RATE OF 24% , TILL
THE DATE OF ITS REALIZATION AND IMPOSE COST ON THE
RESPONDENT AUTHORITIES, TO MEET THE ENDS OF JUSTICE AND
EQUITY AND ETC.,
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WP No. 102060 of 2024
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 24.07.2024, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING;
ORDER
1. The State and its instrumentalities, who are
excepted to act as "model employers" are finding one after
the other reason not only to brazenly flout the
constitutional mandate, which they are obligated to uphold
and implement in the process of public employment, but
also have systematically engaged, to say the least, in
conscious exploitation and abuse of constitutional and
statutory rights conferred on the citizens seeking public
employment. Present case is a classic example of such
brazen act. Stance adopted by the State and its
instrumentalities, when questioned, is making bold in
defending its action with its usual leitmotif of complete
denial of existence of privity of contract and relationship of
employer and employee, thereby leaving the employee at
lurch without any statutory protection even after having
made them to work for over a decade. This after series of
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cautions and deprecations by the Apex Court and various
High Courts all of which has fallen as its deaf ear.
2. THE CASE OF THE PETITIONER:
(a) The petitioner in this case had apparently entered
into an agreement dated 09.05.2014 with certain
Man Power Serving Agency known as M/s. Smart
Detective and Allied Services (India) Pvt. Ltd.,
Bengaluru. In furtherance to which she was
appointed on contract basis to the post of Accountant
at Raitha Samparka Kendra (Kasaba),
Huvinahadagali by respondent No.4 - Assistant
Director of Agriculture, Huvinahadagali in terms of an
Office Order dated 16.06.2014. Admittedly, the
petitioner has been working as Accountant at the
Office of respondent No.4 from the date of said
appointment till the month of May-2024.
(b) The petitioner conceived for her second child and as
suggested / advised by her consultant Gynecologist
to take rest for at least six months, she submitted
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her request letter dated 05.05.2023 to respondent
No.5 - Agricultural Officer, Raitha Samparka Kendra,
Huvinahadagali seeking sanction of maternity leave
from 06.05.2023 to 31.08.2023. Pursuant thereof,
respondent No.4 issued a letter dated 22.06.2023 to
the then operating agency - respondent No.6 namely
OM Security Services and Man Power Agency
intimating the grant of maternity leave. On
completion of her maternity leave from 06.05.2023
to 31.08.2023, the petitioner reported herself before
respondent No.5 - Agricultural Officer,
Huvinahadagali along with a letter dated 01.09.2023
expressing her readiness and willingness to join her
work. However, to the shock and dismay of the
petitioner, she was orally informed by respondent
No.5 that respondent No.8 namely one Praveen
Kyalakatti was working in her place and accordingly
denied and declined to permit the petitioner to
continue her work.
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(c) The petitioner approached respondent No.4 - the
Assistant Director of Agriculture seeking redressal of
her grievances, who asked her to wait for few days
as he would obtain required permission from the
concerned authorities permitting her to resume the
work. Acting upon the assurance so made, the
petitioner waited expecting the positive response.
She has been following up with respondent No.5
regarding her grievances, who kept on assuring her
of positive response. However, when the petitioner
approached respondent No.5 during third week of
January - 2024, she was yet again denied permission
to continue her work and even refused to answer to
her quarries. After the expiry of the maternity leave
period, the salary of the petitioner has also been
stopped by the respondents' authorities causing her
severe financial distress and constraints.
(d) The petitioner having no other option, made a
representation dated 24.01.2024 to respondent
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Nos.2 & 3 - the Joint Director of Agriculture & the
Deputy Director of Agriculture, requesting them to
permit her to resume her work in her earlier post. It
is further contended that except making assurance,
the respondents - authorities have not taken any
action, constraining her to approach this Court. The
petitioner being entitled to receive her salary and
also the statutory benefits as provided under the
provisions of the Maternity Benefit Act, 1961 (for
short "the Act, 1961") is before this Court seeking
relief as sought for in the petition.
3. CASE OF THE RESPONDENT - STATE:
(a) In the statement of objection to the above writ
petition the respondent - State while denying the
case of the petitioner has contended that the
petitioner is working as an "outsourced employee" in
the Office of respondent No.5 in terms of an
agreement dated 09.04.2014, which she had entered
into with one M/s. Smart Detective and Allied
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Services (India) Pvt. Ltd., Bengaluru. That, the said
outsourcing contract is yearly contract. That, the
State Government on expiry of the yearly
outsourcing contract would issue tenders by
advertisement and the successful bidders would
supply employees on outsourcing contract basis.
That, the outsourcing agency in turn would enters
into individual contracts with the employees. That,
the State would make payment directly to the
outsourcing agency, who in turn make payments
towards the salaries / wages and other benefits to
their employees.
(b) That, there is no privity of contract between the
employees and the State and there is no relationship
of employer and employee between them. As such,
the petitioner who is an outsourced employee cannot
claim the benefits directly from the respondents.
That, relief / grievance, if any, is required to be
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addressed only by the outsourcing agencies, who had
deputed the petitioner at the respondents' place.
(c) That, the document produced at Annexure-D is an
agreement dated 09.05.2014, which is valid only for
a period of one year and whereas the maternity
leave as sought for by the petitioner is for the period
between 06.05.2023 to 31.08.2023 and as on the
said date, the said outsourcing agency namely M/s.
Smart Detective and Allied Services (India) Pvt. Ltd.,
Bengaluru with whom the petitioner had entered into
an agreement was not in existence. That the last
outsourcing agency with whom the petitioner had
entered into an agreement was respondent No.6
namely OM Security Services and Man Power Agency,
whose contract to provide man power was valid
between 01.11.2022 to 30.06.2023.
(d) That, for the year 2023-24 a separate bid had been
issued for procurement of man power by respondent
No.2 and respondent No.7 namely Pannaga
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Enterprises is the present outsourcing agency. That,
there is no document produced by the petitioner
regarding she having entered into any contract /
agreement with respondent No.7. As such in the
absence of any contract between the present
outsourcing agency and the petitioner, she cannot
claim any relief of continuity of service, as her earlier
contract has come to an end. The petitioner as
matter of right cannot claim the benefit of maternity
leave. On these grounds, the State has sought for
dismissal of the petition.
4. SUBMISSIONS OF THE COUNSEL FOR THE
PETITIONER:
(a) Learned counsel appearing for the petitioner drawing
attention of this Court through the Office Order dated
16.06.2014 produced at Annexure-A submitted that
the respondent Nos.1 to 5 by issuing the said Office
Order have acknowledged the petitioner to be their
employee, though on the contractual basis. He also
refers to a communication, dated 22.06.2023
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produced at Annexure-F issued by respondent No.4
to one OM Security Services and Man Power Agency
- respondent No.6 forwarding the request of the
petitioner for grant of maternity leave between
06.05.2023 and 31.08.2023. Thus, referring these
two documents, learned counsel for the petitioner
submits that the petitioner has been rendering
continuous services as an Accountant between the
period of 16.06.2014 to 22.06.2023 and she had
proceeded for maternity leave. Thus, he submits that
in the light of the said documents, the respondents -
authorities cannot deny the petitioner to be the
employee working as Accountant.
(b) He referred to the Official Memorandum dated
23.06.2023 produced at Annexure-C to the writ
petition, by which the respondent - State
Government had consented for extension of the
benefit of maternity leave to the women employees
working in the Corporation / Boards / Government
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Institutions on contract basis. It is his submission
that since the said benefit of maternity leave has
been extended to the employees like the petitioner,
she was entitled to avail the maternity leave and
without granting the same, respondents - authorities
could not have denied / declined the permission to
resume the work after completion of maternity leave.
(c) Learned counsel also referred to the provisions of
Sections 2, 3(e), 3(o) and 5 of the Act, 1961 to
contend that in terms of the said provisions, the
petitioner being the woman employee is entitled for
the benefit under the Act, 1961.
(d) He also referred to the provisions of the Contract
Labour (Regulation and Abolition) Act, 1970 (for
short "the Act, 1970") and submitted that the
respondent - State cannot deny the protection
envisaged under the said Act from the petitioner
being exploited.
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(e) That, merely because a camouflage arrangement has
been entered into between the State and the
outsourcing agencies, year after year, the statutory
safeguards and benefits which the petitioner is
entitled to cannot be denied and deprived of.
(f) That, whoever raises the voice against oppression is
punished with dismissal / termination of service on
the premise of there being no employer and
employee relationship and the petitioner is one such
victim of exploitation and oppression by none other
than the State, which is meant to protect the interest
of the employees like the petitioner. He further
submits that there is no law presently in place to
protect the interest of the employees like that the
petitioner, that too against the State and the
petitioner has no other option but to approach this
Court seeking grievances of her rights.
(g) He relies upon the following judgments:
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(i) Secretary, H.S.E.B. Vs. Suresh and Ors.,
passed in Civil Appeal No.190/1991, dated
04.04.1999;
(ii) Mahanadi Coalfields Ltd., Vs.
Brajrajnagar Coal Mines Workers' Union,
passed in Civil Appeal Nos.4092-4093/2024,
dated 12.03.2024;
(iii) State of U.P. and Anr. Vs. Ehsan and Anr.,
passed in Civil Appeal No.5721/2023, dated
13.10.2023;
(iv) Pigeon Education Technology India Pvt.
Ltd., Vs. Directorate of Enforcement and
Ors., passed in W.P. No.11532/2023, dated
19.09.2023;
(v) The Madras Aluminium Co. Ltd., Vs. the
Tamilnadu electricity Board and Anr.,
passed in Civil Appeal Nos.7224-7226/2009,
dated 06.07.2023;
(vi) Workmen of BEML Ltd., and Ors. Vs. UOI
and Anr. passed in W.P. No.573/2023, dated
21.06.2024;
(vii) The Management of M/s. Tata Advanced
System Ltd., Vs. the Secretary to
Department of labour and Ors., passed in
W.P. No.7674/2023, dated 18.01.2024;
(viii) B.H.E.L. Workers; Association Hardware
and Ors. Vs. UOI and Ors.,1
(ix) R.K. Panda and Ors. Vs. Steel Authority
of India and Ors.2;
(x) All India Food and allied Workers Union
Vs. Delhi State Civil Suppliers
Corporation
1985 SCC (1) 630
(1994) 5 SCC 304
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(xi) Sri. Raman S/o.Minichinnappa and Ors.
Vs. the Aeronautical Development
Agency and Ors., passed in W.A. Nos.7641-
56/1996, dated 05.03.1998;
(xii) Smt. Nanjamma W/o. Late Shri Oblesh
Vs. UOI and ors., passed in W.P.
Nos.19936-19938/1999 & Connected
matters, dated 18.03.2005;
(xiii) The Aeronautical Development Agency
Vs. Smt. Nanjamma W/o. Late Oblesh,
passed in W.A. No.2571/2005, dated
23.05.2012;
(xiv) Smt. Nanjamma W/o. Late Oblesh and
Ors. Vs. the Aeronaautical Development
Agency and Ors., passed in CCC Nos.1384-
1396/2013 (Civil), dated 23.09.2013;
(xv) Smt. Nanjamma W/o. Late Oblesh and
Ors. Vs. the Aeronaautical Development
Agency and Ors., passed in CCC Nos.1384-
1396/2013 (Civil), dated 20.12.2013;
(xvi) Smt. Nanjamma W/o. Late Oblesh and
Ors. Vs. the Aeronaautical Development
Agency and Ors., passed in CCC Nos.1384-
1396/2013 (Civil), dated 25.02.2014;
(xvii) N. Nagendra Rao & Co. Vs. State of
A.P.4;
(xviii) Nandini Sundar and Others Vs. State of
Chhattisagarh5;
(xix) Sushanta Tagore and Others Vs. Union of
India and others6;
96 (2002 DLT 194
(1994) 6 SCC 205
(2011) 7 SCC 547
(2005) 3 SCC 16
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5. SUBMISSION OF THE LEARNED HCGP:
(a) Reiterating the contents of the statement of
objections and taking this Court through the
tender document produced at Annexure-R1 he
submitted that the petitioner is neither a contract
labourer nor there is any relationship of the
employer and employee between the respondents
- authorities and the petitioner.
(b) That, the petitioner was employed through a
contact which was entered into between the State
and outsourcing agency and there is no privity of
contract between the petitioner and the State. The
appointment, conditions of service and benefits of
service are governed in terms of agreement
entered into between the petitioner and the
outsourcing agencies, year after year, and the
respondent - State is not answerable or
responsible for any breach therein. As such the
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petitioner cannot claim the relief as sought for in
the writ petition.
(c) That, the official memorandum produced at
Annexure-C in page No.24 of the writ petition
purportedly extending the benefit of the Act, 1961
is not applicable to the case of the petitioner, as
the petitioner is not a Government Employee and
an employee working directly under the
respondents - authorities.
(d) That, reliance placed on by the learned counsel for
the petitioner on the judgments referred to are of
no avail. Hence, seeks for dismissal of the
petition.
6. Heard. Perused the records.
7. THE POINTS THAT ARISE FOR
CONSIDERATION ARE:
(a) Whether the respondent - authorities in
the facts and circumstances of the case
are justified in adopting the stand of
petitioner not having any legally
enforceable rights against them on the
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premise of there being no relationship of
employer and employee between them?
(b) Whether the petitioner is entitled for the
relief as sought for?
ANALYSIS
8. Before adverting to the issues involved in this
petition, submissions and the counter submissions made
by the parties, relevant at this juncture to encapsulate the
following excerpts from the judgments of the Apex Court
in the context of the facts and circumstances of the
present case:
(a) In the case of Secretary, State of Karnataka and
others Vs. Umadevi (3) and others7 the Apex
Court referring to the constitutional obligation of the
State in the public recruitment process at paragraphs
Nos.2, 3, 4 & 6 has held as under:
"2. Public employment in a sovereign
socialist secular democratic republic, has to be as
set down by the Constitution and the laws made
thereunder. Our constitutional scheme envisages
employment by the Government and its
instrumentalities on the basis of a procedure
established in that behalf. Equality of opportunity is
(2206) 4 SCC 1
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the hallmark, and the Constitution has provided
also for affirmative action to ensure that unequals
are not treated equals. Thus, any public
employment has to be in terms of the constitutional
scheme.
3. A sovereign government, considering
the economic situation in the country and the work
to be got done, is not precluded from making
temporary appointments or engaging workers on
daily wages. Going by a law newly enacted, The
National Rural Employment Guarantee Act, 2005,
the object is to give employment to at least one
member of a family for hundred days in an year, on
paying wages as fixed under that Act. But, a
regular process of recruitment or appointment has
to be resorted to, when regular vacancies in posts,
at a particular point of time, are to be filled up and
the filling up of those vacancies cannot be done in a
haphazard manner or based on patronage or other
considerations. Regular appointment must be the
rule.
4. But, sometimes this process is not
adhered to and the Constitutional scheme of public
employment is by-passed. The Union, the States,
their departments and instrumentalities have
resorted to irregular appointments, especially in the
lower rungs of the service, without reference to the
duty to ensure a proper appointment procedure
through the Public Service Commission or otherwise
as per the rules adopted and to permit these
irregular appointees or those appointed on contract
or on daily wages, to continue year after year, thus,
keeping out those who are qualified to apply for the
post concerned and depriving them of an
opportunity to compete for the post. It has also led
to persons who get employed, without the following
of a regular procedure or even through the
backdoor or on daily wages, approaching Courts,
seeking directions to make them permanent in their
posts and to prevent regular recruitment to the
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concerned posts. Courts have not always kept the
legal aspects in mind and have occasionally even
stayed the regular process of employment being set
in motion and in some cases, even directed that
these illegal, irregular or improper entrants be
absorbed into service. A class of employment which
can only be called 'litigious employment', has risen
like a phoenix seriously impairing the constitutional
scheme. Such orders are passed apparently in
exercise of the wide powers under Article 226 of the
Constitution of India. Whether the wide powers
under Article 226 of the Constitution is intended to
be used for a purpose certain to defeat the concept
of social justice and equal opportunity for all,
subject to affirmative action in the matter of public
employment as recognized by our Constitution, has
to be seriously pondered over. It is time, that
Courts desist from issuing orders preventing regular
selection or recruitment at the instance of such
persons and from issuing directions for continuance
of those who have not secured regular
appointments as per procedure established. The
passing of orders for continuance, tends to defeat
the very Constitutional scheme of public
employment. It has to be emphasized that this is
not the role envisaged for High Courts in the
scheme of things and their wide powers
under Article 226 of the Constitution of India are
not intended to be used for the purpose of
perpetuating illegalities, irregularities or
improprieties or for scuttling the whole scheme of
public employment. Its role as the sentinel and as
the guardian of equal rights protection should not
be forgotten.
6. The power of a State as an employer is
more limited than that of a private employer
inasmuch as it is subjected to constitutional
limitations and cannot be exercised arbitrarily (See
Basu's Shorter Constitution of India). Article 309 of
the Constitution gives the Government the power to
frame rules for the purpose of laying down the
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conditions of service and recruitment of persons to
be appointed to public services and posts in
connection with the affairs of the Union or any of
the States. That Article contemplates the drawing
up of a procedure and rules to regulate the
recruitment and regulate the service conditions of
appointees appointed to public posts. It is well
acknowledged that because of this, the entire
process of recruitment for services is controlled by
detailed procedure which specify the necessary
qualifications, the mode of appointment etc. If rules
have been made under Article 309 of the
Constitution, then the Government can make
appointments only in accordance with the rules.
The State is meant to be a model employer. The
Employment Exchanges (Compulsory Notification of
Vacancies) Act, 1959 was enacted to ensure equal
opportunity for employment seekers. Though this
Act may not oblige an employer to employ only
those persons who have been sponsored by
employment exchanges, it places an obligation on
the employer to notify the vacancies that may arise
in the various departments and for filling up of
those vacancies, based on a procedure. Normally,
statutory rules are framed under the authority of
law governing employment. It is recognized that no
government order, notification or circular can be
substituted for the statutory rules framed under the
authority of law. This is because, following any
other course could be disastrous inasmuch as it will
deprive the security of tenure and the right of
equality conferred on civil servants under the
Constitutional scheme. It may even amount to
negating the accepted service jurisprudence.
Therefore, when statutory rules are framed
under Article 309 of the Constitution which are
exhaustive, the only fair means to adopt is to make
appointments based on the rules so framed."
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(b) In the case of Shankar Mukharji and others Vs.
Union of India and others8 dealing with the State
engaging contract employees at paragraph No.5 has
held as under:
"5. It is surprising that more than forty
years after the independence the practice of
employing labour through contractors by big
companies including public sector companies is still
being accepted as a normal feature of labour-
employment. There is no security of service to the
workmen and their wages are far below than that of
the regular workmen of the company. This Court
in Standard-Vaccum Refining Co. of India Ltd. v. Its
Workmen, [1960] 3 SCR 466 and Catering Cleaners
of Southern Railway v. Union of India & Anr.,
[1987] 1 SCC 700 has disapproved the system of
contract labour holding it to be 'archaic', 'primitive'
and of 'baneful nature'. The system, which is
nothing but an improved version of bonded-labour,
is sought to be abolished by the Act. The Act is an
important piece of social legislation for the welfare
of labourers and has to be liberally construed."
(c) In the case of Secretary, H.S.E.B. Vs. Suresh and
other9 dealing with the object, reason and purpose
of the Act, 1970, inevitability of entering into labour
contracts and also the approach of Courts in applying
(1990) (Supp) SCC 668
(1999) 3 SCC 601
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doctrine of "lifting the veil", at paragraph Nos. 1, 2,
9, 10, 11, 12, 13, 14, 17 & 18 has held as under:
"1. The doctrine of equality as enshrined in
the Constitution promised an egalitarian society and
the Contract Labour (Regulation & Abolition) Act,
1970 is the resultant effect of such a constitutional
mandate having its due focus in that perspective.
This Court in Minerva Mills' case ( AIR 1980 SC
1789) in no uncertain terms laid down that the
equality clause in the Constitution does not speak
of mere formal equality before the law but
embodies the concept of real and substantive
equality which strikes at the inequalities arising on
account of vast social and economic differentiation
and is thus consequently an essential ingredient of
social and economic justice. In short, this Court has
equated the security clause in the Constitution so
as to mean that the people of the country ought to
be secured of socio-economic justice by way of a
fusion of Fundamental Right and Directive Principles
of State Policy. As a matter of fact this Court has
been candid enough on more occasions than one
and rather, frequently to note that socialism ought
not to be treated as a mere concept or an ideal, but
the same ought to be practised in every sphere of
life and be treated by the law courts as a
constitutional mandate since the law courts exists
for the society and required to act as a guardian-
angel of the society. As a matter of fact the
socialistic concept of society is very well laid in Part
III and Part IV of the Constitution and the
Constitution being supreme, it is a bounden duty of
the law courts to give shape and offer reality to
such a concept.
2. In this context reference to the
Constitution Bench decision of this Court in
Nakara's case (D.S. Nakara & Ors Vs. Union of
India) (AIR 1983 SC 130) seems to be rather
apposite. This Court stated that democratic
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socialism aims to end poverty, ignorance, disease
and inequality of opportunity. The primary impact
of socialism as a matter of fact is to offer and
provide security of life so that the citizens of the
country may have two square meals a day, and
maintenance of a minimum standard of life, it is
expected, would lead to the abridgment of the gap
between the have-s and have not-s. The feudal
exploitation and draconian concept of law ought not
to outweigh the basic structure of the Constitution,
or its socialistic status.
9. The High Court did in fact note with care
and caution the doctrine of `lifting of veil' in
industrial jurisprudence and recorded that in the
contextual facts and upon lifting of the veil,
question of having any contra opinion as regards
the exact relationship between the contesting
parties would not arise and as such directed
reinstatement though, however, without any back
wages. While it is true that the doctrine enunciated
in Soloman vs. Soloman (1897 Appeal Cases page
22) came to be recognised in the corporate
jurisprudence but its applicability in the present
context cannot be doubted, since the law court
invariably has to rise up to the occasion to do
justice between the parties in a manner as it deems
fit. Rescopound stated that the greatest virtue of
the law court is flexibility and as and when the
situation so demands, the law court ought to
administer justice in accordance therewith and as
per the need of the situation.
10. Turning attention, however, on to the
legislative intent in the matter of enactment of the
Act of 1970, at the first blush itself, it appears that
in expression of its intent, the legislature very aptly
coined the enactment, as such, for regulation and
abolition of contract labour. Conceptually,
engagement of contract labour by itself lends to
various abuses and in accordance with devout
objective as enshrined in the Constitution and as
- 25 -
NC: 2024:KHC-D:10643
noticed herein before, this enactment has been
introduced in the statute book in the year 1970, to
regulate contract labour and to provide for its
abolition in certain circumstances since prior to
such, the factum of engagement of contract labour
stood beset with exploiting tendencies and resulted
in unwholesome labour practice.
11. Incidentally, however, be it noted that
the legislature did not feel it expedient to do away
with the contract labour altogether, since there are
several fields of employment where it is not
otherwise possible to have continuous employment
and as such, regard being had to the necessities of
the situation, the Act of 1970 provides for
continuation of contract labour. As a matter of fact
the legislature in the enactment, has itself provided
various provisions pertaining to the working
conditions of contract labour, provided however
engagement of contract labour becoming invariable
or necessary in the interest of the industry
concerned.
12. The legislation therefore subserves twin
purpose, to wit:
(i) to abolish the contract labour; and
(ii) to regulate the working conditions of
contract labour wherever such
employment is required in the interest
of the industry.
13. There is however, a total unanimity of
judicial pronouncements to the effect that in the
event, the contract labour is employed in an
establishment for seasonal workings, question of
abolition would not arise but in the event of the
same being of perennial in nature, that is to say, in
the event of the engagement of labour force
through intermediary which is otherwise in the
ordinary course of events and involves continuity in
the work, the legislature is candid enough to record
- 26 -
NC: 2024:KHC-D:10643
its abolition since, involvement of contractor may
have its social evil of labour exploitation and thus
the contractor ought to go out of scene bringing
together the principal employer and the contract
labourers rendering the employment as direct, and
resultantly a direct employee. This aspect of the
matter has been dealt with great lucidity, by one of
us (Majmudar,J.) in Air India Statutory Corporation
etc. vs. United Labour Union & Ors. etc. [JT 1996
(11) SC 170].
14. While recording concurrence with
Ramaswamy, J. and but: presenting his own
reasons therefor Majmudar, J. observed (SCC pp.
443-44 para 69)
"It has to be kept in view that contract
labour system in an establishment is a
tripartite system. In between contract
workers and the principal employer is the
intermediary contractor and because of this
intermediary the employer is treated as
principal employer with various statutory
obligations flowing from the Act in connection
with regulation of the working conditions of
the contract labourers who are brought by the
intermediary contractor on the principal's
establishment for the benefit and for the
purpose of the principal employer and who do
his work on his establishment through the
agency of the contractor. When these
contract workers carry out the work of the
principal employer which is of a perennial
nature and if provisions of Section 10 get
attracted and such contract labour system in
the establishment gets abolished on fulfilment
of the conditions requisite for that purpose, it
is obvious that the intermediary contractor
vanishes and along with him vanishes the
term `principal employer'. Unless there is a
contractor agent there is no principal. Once
the contractor intermediary goes the term
- 27 -
NC: 2024:KHC-D:10643
`principal' also goes with it. Then remains out
of this tripartite contractual scenario only two
parties - the beneficiaries of the abolition of
the erstwhile contract labour system i.e. the
workmen on the one hand and the employer
on the other who is no longer their principal
employer but necessarily becomes a direct
employer for these erstwhile contract
labourers. It was urged that Section
10 nowhere provides for such a contingency
in express term. It is obvious that no such
express provision was required to be made as
the very concept of abolition of a contract
labour system wherein the work of the
contract labour is of perennial nature for the
establishment and which otherwise would
have been done by regular workmen, would
posit improvement of the lot of such workmen
and not its worsening. Implicit in the
provision of Section 10 is the legislature
intent that on abolition of contract labour
system, the erstwhile contract-workmen
would become direct employees of the
employer on whose establishment they were
earlier working and were enjoying all the
regulatory facilities on that very
establishment under Chapter V prior to the
abolition of such contract labour system.
Though the legislature has expressly not
mentioned the consequences of such
abolition, but the very scheme and ambit
of Section 10 of the Act clearly indicates the
inherent legislative intent of making the
erstwhile contract labourers direct employees
of the employer on abolition of the
intermediary contractor. It was contended
that contractor might have employed a
number of workmen who may be in excess of
the requirement and, therefore, the principal
employer on abolition of the contract labour
may be burdened with excess workmen. It is
difficult to appreciate this contention. The
- 28 -
NC: 2024:KHC-D:10643
very condition engrafted in section
10(2)(d) shows that while abolishing contract
labour from the given establishment, one of
the relevant considerations for the appreciate
Government is to ascertain whether it is
sufficient to appoint considerable number of
whole time workmen. Even otherwise there is
an inbuilt safety valve in Section 21 of the Act
which enjoins the principal employer to make
payment of wages to the given number of
contract workmen who he has permitted to
be brought for the work of the establishment
if the contractor fails to make payment to
them. It is, therefore, obvious that the
principal employer as a wordly businessman
in his practical commercial wisdom would not
allow contractor to bring larger number of
contract labour which may be in excess of the
requirement of the principal employer. On the
contrary, the principal employer would see to
it that the contractor brings only those
number of workmen who are required to
discharge their duties to carry out the work of
the principal employer on his establishment
through, of course the agency of the
contractor. In fact the scheme of the Act and
regulations framed thereunder clearly indicate
that even the number of the workmen
required for the given contract work is to be
specified in the licence given to the
contractor."
17. Needless to note at this juncture that
the Contract Labour Regulation Act being a
beneficial piece of legislation as engrafted in the
statute book, ought to receive the widest possible
interpretation in regard to the words used and
unless words are taken to their maximum
amplitude, it would be a violent injustice to the
framers of the law. As a matter of fact law is well
settled by this court and we need not dilate much
by reason, therefor to the effect that the law courts
- 29 -
NC: 2024:KHC-D:10643
exist for the society and in the event of there being
a question posed in the matter of interpretation of a
beneficial piece of legislation, question of
interpreting the same with a narrow pedantic
approach would not be justified. On the contrary,
the widest possible meaning and amplitude ought
to be offered to the expressions used as otherwise
the entire legislation would loose its efficacy and
contract labour would be left on the mercy of the
intermediary.
18. As noticed above Draconian concept of
law is no longer available for the purpose of
interpreting a social and beneficial piece of
legislation specially on the wake of the new
millennium. The democratic polity ought to survive
with full vigour: socialist status as enshrined in the
Constitution ought to be given its full play and it is
in this perspective the question arises - is it
permissible in the new millennium to decry the cry
of the labour force desirous of absorption after
working for more than 240 days in an
establishment and having their workings supervised
and administered by an agency within the meaning
of Article 12 of the Constitution - the answer cannot
possibly be in the affirmative - the law courts exist
for the society and in the event law courts feel the
requirement in accordance with principles of justice,
equity and good conscience, the law courts ought
rise up to the occasion to meet and redress the
expectation of the people. The expression
`regulation' cannot possibly be read as contra
public interest but in the interest of public."
9. The points that arise in this petition needs to be
addressed in the light of the aforesaid pronouncement of
the Apex Court.
- 30 -
NC: 2024:KHC-D:10643
10. Claim for redressal of grievance of the
employees with regard to breach of their statutory rights
to avail the maternity benefit under the Act, 1961, is no
more res integra, in view of the decisions of the Apex
Court in the case of Corporation of Delhi Vs. Female
Workers (Muster Roll) and another10, followed by the
Coordinate Bench of this Court in the case of B.S.
Rajeshwari Vs. State of Karnataka passed in W.P.
No.10677/2020 dated 04.02.2021. However, since the
State has taken a contention of non-application of the
provisions of the Act, 1961 to the case at hand on the
premise of petitioner being employed through an
outsourcing agency, relevant to refer to the definitions of
the terms "Employer", "Establishment", "Woman" as
defined under Sections 3(d), 3(e) & 3(o) respectively of
the Act, 1961 are as under:
3. Definitions.- XXXXX
(d) "Employer" Means-
(2000) 3 SCC 224
- 31 -
NC: 2024:KHC-D:10643
(i) in relation to an establishment which is
under the control of the Government, a
person or authority appointed by the
Government for the supervision and
control of employees or where no
person or authority is so appointed, the
head of the department;
(ii) In relation to an establishment under
any local authority, the person
appointed by such authority for the
supervision and control of employees
or where no person is so appointed, the
chief executive officer of the local
authority;
(iii) In any other case, the person who, or
the authority which, has the ultimate
control over the affairs of the
establishment and where the said
affairs are entrusted to any other
person whether called a manager,
managing director, managing agent, or
by any other name, such persons;
(e) "Establishment" means-
(i) a factory;
(ii) a mine;
(iii) a plantation;
(iv) an establishment wherein persons are
employed for the exhibition of
equestrian, acrobatic and other
performances;
[(iv-a) a shop or establishment ; or]
(v) an establishment to which the
provisions of this Act have been
- 32 -
NC: 2024:KHC-D:10643
declared under sub-section (1) of
Section 2 to be applicable;]
(o) "Woman" means a woman employed,
whether directly or through any agency, for
wages in any establishment."
11. It is also relevant note that the provisions of
Section 5 of the Act, 1961, which is as under:
"5. Right to payment of maternity benefit.--
(1) Subject to the provisions of this Act, every
woman shall be entitled to, and her employer shall
be liable for, the payment of maternity benefit at
the rate of the average daily wage for the period of
her actual absence, that is to say, the period
immediately preceding the day of her delivery, the
actual day of her delivery and any period
immediately following that day.]
Explanation.--For the purpose of this sub-
section, the average daily wage means the average
of the woman's wages payable to her for the days
on which she has worked during the period of three
calendar months immediately preceding the date
from which she absents herself on account of
maternity, 3 [the minimum rate of wage fixed or
revised under the Minimum Wages Act, 1948 (11 of
1948) or ten rupees, whichever is the highest].
(2) No woman shall be entitled to maternity
benefit unless she has actually worked in an
establishment of the employer from whom she
claims maternity benefit, for a period of not less
than 4 [eighty days] in the twelve months
immediately preceding the date of her expected
delivery:
Provided that the qualifying period of 1
[eighty days] aforesaid shall not apply to a woman
- 33 -
NC: 2024:KHC-D:10643
who has immigrated into the State of Assam and
was pregnant at the time of the immigration.
Explanation.--For the purpose of calculating
under this sub-section the days on which a woman
has actually worked in the establishment, 2 [the
days for which she has been laid off or was on
holidays declared under any law for the time being
in force to be holidays with wages] during the
period of twelve months immediately preceding the
date of her expected delivery shall be taken into
account.
(3) The maximum period for which any
woman shall be entitled to maternity benefit shall
be 4 4 [twenty-six weeks of which not more than
eight weeks] shall precede the date of her expected
delivery:]
[Provided that the maximum period entitled
to maternity benefit by a woman having two or
more than two surviving children shall be twelve
weeks of which not more than six weeks shall
precede the date of her expected delivery:]
[Provided further that] where a woman dies
during this period, the maternity benefit shall be
payable payable only for the days up to and
including the day of her death: [Provided also that]
where a woman, having been delivered of a child,
dies during her delivery or during the period
immediately following the date of her delivery for
which she is entitled for the maternity benefit,
leaving behind in either case the child, the
employer shall be liable for the maternity benefit
for that entire period but if the child also dies
during the said period, then, for the days up to and
including the date of the death of the Child.]"
- 34 -
NC: 2024:KHC-D:10643
12. It is also necessary to refer the provisions of
Section 2 of the Act, 1961, which is as under"
"2. Application of Act.-- [(1) It applies, in
the first instance,--
(a) to every establishment being a factory, mine
or plantation including any such
establishment belonging to Government and
to every establishment wherein persons are
employed for the exhibition of equestrian,
acrobatic and other performances;
(b) to every shop or establishment within the
meaning of any law for the time being in
force in relation to shops and establishments
in a State, in which ten or more persons are
employed, or were employed, on any day of
the preceding twelve months:
Provided that the State Government may,
with the approval of the Central Government, after
giving not less than two months' notice of its
intention of so doing, by notification in the Official
Gazette, declare that all or any of the provisions of
this Act shall apply also to any other establishment
or class of establishments, industrial, commercial,
agricultural or otherwise.
(2) [Save as otherwise provided in 6 [sections
5A and 5B], nothing contained in this Act] shall
apply to any factory or other establishment to
which the provisions of the Employees' State
Insurance Act, 1948 (34 of 1948), apply for the
time being."
13. The aforesaid provisions read in the light of the
official memorandum dated 23.06.2022 produced at
- 35 -
NC: 2024:KHC-D:10643
Annexure-C to the writ petition makes it clear that, the
benefit of the Act, 1961 has been extended even to the
woman employees who are working on contract basis, the
said official memorandum is extracted herein under"
"C¢üPÀÈvÀ eÁÕ¥£
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UÀÄwÛUÉ (Contract) DzsÁgÀzÀ ªÉÄÃ¯É PÁAiÀÄð
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¤PÀl¥ÀǪÀðzÀ°è ¥ÀqA É iÀÄÄwÛzÀÝ ªÉÃvÀ£PÀ ÉÌ ¸ÀªÀÄ£ÁzÀ ªÉÃvÀ£ª
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gÀeÉAiÀÄ CªÀ¢A
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5. JgÀqÀÄ CxÀªÁ ºÉZÀÄÑ ªÀÄPÀ̼£À ÀÄß ºÉÆA¢gÀĪÀ ªÀÄ»¼Á UÀÄwÛUÉ
£ËPÀgj
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- 36 -
NC: 2024:KHC-D:10643
ªÀiÁvÀÈvÀé gÀeÉUÁV ¸À°è¸ÀĪÀ CfðAiÉÆA¢UÉ ¸ÀA§A¢üvÀ UÀÄwÛUÉ
ªÀÄ»¼Á £ËPÀgg À ÀÄ F PÀÄjvÀÄ ¸ÀéAiÀÄA-WÉÆõÀuA
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gÀeÉAiÀÄ£ÀÄß ªÀÄAdÆgÀÄ ªÀiÁqÀĪÀ C¢üPÁjUÉ ¸À°è¸v À PÀ ÀÌzÀÄÝ.
6. UÀÄwÛUÉ DzsÁgÀzÀ ªÉÄÃ¯É £ÉêÀÄPÀUÉÆAqÀ ªÀÄ»¼Á £ËPÀgÀjUÉ UÀjµÀ×
180 ¢£ÀU¼ À ª
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¤AiÀÄvÀUÉƽ¸ÀvPÀ ÀÌzÀÄÝ.
1. ²æêÀÄw X EªÀgÀ M¥ÀàAzÀzÀ CªÀ¢ü ¢£ÁAPÀ:
15/07/2021 jAzÀ ¥ÁægAÀ ¨sªÀ ÁV ¢£ÁAPÀ:
14/07/2022PÉÌ ªÀÄÄPÁÛAiÀĪÁUÀÄvÀÛz.É CªÀgÀÄ ¢£ÁAPÀ:
01/05/2022 gÀAzÀÄ ªÀiÁvÀÈvÀé gÀeA É iÀÄ ªÉÄÃ¯É vÉg½
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ºÁUÀÆ CªÀgÀ UÀÄwÛUÉ CªÀ¢A ü iÀÄÄ «¸ÀÛj¸À®àqÀ¢zÀÝ°è
CªÀgÀ ªÀiÁvÀÈvÀé gÀeA É iÀÄ CªÀ¢A
ü iÀÄ£ÀÄß M¥ÀàAzÀzÀ UÀjµÀ×
CªÀ¢A ü iÀĪÀgÉUÉ CAzÀgÉ ¢£ÁAPÀ: 14/07/2022 gÀªÀgÉUÉ
¹Ã«ÄvÀUÉƽ¸ÀvPÀ ÀÌzÀÄÝ.
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DUÀ CªÀgÀÄ UÀjµÀ× 180 ¢£ÀU¼À À ªÀiÁvÀÈvÀé gÀeA
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§gÀĪÀAvÉ ªÀÄAdÆgÀÄ ªÀiÁqÀ¯ÁVzÉ."
14. A rather intriguing stand is adopted by the
respondent State in the statement of objections, wherein it
is contended that the petitioner has been employed in the
establishment of Respondent No.5 through M/s. Smart
Detective and Allied Services (India) Pvt. Ltd., Bengaluru
in terms of agreement dated 09.05.2014 and that the said
agreement is valid only for a period of one year and that
the said outsourcing agency is no more in existence and in
- 37 -
NC: 2024:KHC-D:10643
its place several agencies were allotted outsourcing
contract by the State through tender process and one
Pannaga Enterprises Man Power Supply Office -
respondent No.7 in the present petition was rendering its
services in providing / supplying human resources as on
the date when the petitioner had sought for maternity
leave.
15. This Court taking note of the submissions made
on behalf of the State and wanting to apprise itself of the
modes operandi being adopted by the respondent -
authorities in appointing the employees, by order dated
21.06.2024 had called upon the respondent - authorities
represented by the learned HCGP to furnish the details as
to the process / method and manner in which the
appointment of the employees as that of the petitioner
was made by them. In response to which learned HCGP
had sought time enabling him to submit records pertaining
to the appointment of the petitioner and the process of
engaging the services of the outsourcing agencies.
- 38 -
NC: 2024:KHC-D:10643
However, no records in justification of its stand taken are
produced except the following documents furnished along
with the statement of objections, which are:
(i) Tender document for providing man power
services to the Office of Joint Director of
Agriculture, Vijaynagar and subordinate
Offices, dated 28.10.2022 (Annexure-R1).
(ii) Work Order dated 19.11.2022 issued by Joint
Director of Agriculture, Vijaynagar addressed
to one Ajjappa Renuka, Proprietor of Om Sai
Security Services and Man Power Agency
(Annexure-R2).
(iii) Agreement dated 25.11.2022 entered in to
between Joint Director of Agriculture,
Vijaynagar and Ajjappa Renuka, Proprietor of
Om Sai Security Services and Man Power
Agency (Annexure-R3).
(iv) Tender document for providing man power
services to the Office of Joint Director of
Agriculture, Vijaynagar and subordinate
Offices RSK Stock Maintenance dated
17.07.2023.2022 (Annexure-R4).
(v) Work Order dated 09.08.2023 issued by Joint
Director of Agriculture, Vijaynagar addressed
to one Yashswini, Proprietor of Pannaga
Enterprises Man Power Supply Office
(Annexure-R5).
(vi) Communication dated 01.08.2023 from
Pannaga Enterprises Man Power Supply Office
and to Joint Director of Agriculture,
Vijayanagar (Annexure-R6).
- 39 -
NC: 2024:KHC-D:10643
(vii) Communication dated 19.06.2023 by the
Agriculture Officer to the Assistant Director of
Agriculture, Huvinahadagali (Annexure-R7)
(viii) Communication dated 20.06.2023 issued by
Assistant Director of Agriculture to Om Sai
Security Services (Annexure-R8).
(ix) Communication dated 01.07.2024 issued by
Assistant Director of Agriculture to Pannaga
Enterprises (Annexure-R9).
(x) Reply by Pannaga Enterprises dated
01.07.2024 (Annexure-R10)
16. Referring to the aforesaid documents, learned
HCGP contended that the services of the Man Power
Serving Agencies have been engaged by awarding them
annual contract through tender process and that the
employees like petitioner would be deputed by the
successive Man Power Serving Agencies. The petitioner
who was deputed in the year 2014 by the then Man Power
Serving Agencies has not entered into any new contract
with the present Man Power Serving Agencies namely
Pannaga Enterprises - respondent No.7.
17. The aforesaid defence set up by the State based
on the documents referred to above, in the absence of
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plausible explanation has led to gaping holes exposing the
false facade of defence. The following are the few amongst
various questions that have remained unanswered by the
respondent - authorities for the consideration of this
Court:
(i) As to the provision of law, Rule or
Regulations under which the Joint Director
of Agriculture, Vijayanagar - respondent
No.2 is engaging the services of the
purported Man Power Servicing Agencies?
(ii) As to how the respondent - State which is
obligated under directive principles of
State Policy enshrined in the Constitution
of India is ensuring the welfare of
employees especially women employees
in the matter of their service benefits, in
the case of this nature?
(iii) As to how the respondent - State is
ensuring obligation casted on it to abolish
perennial contract labourers and their
safety as envisaged under the Act, 1970?
(iv) As to how an employee like the petitioner
who was admittedly appointed by the
respondents' authorities in terms of office
order dated 30.05.2014 / 16.06.2014
(Annexure-A) continued to render service
for almost ten years even when according
to the respondent - State there were
successive changes in the alleged Man
Power Servicing Agencies year after year
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and the petitioner did not enter into
individual agreements with them?
(v) No explanation is given as to the authority
who maintains muster roll / daily
attendance register or who supervises or
controls the terms of service of the
employees like that of the petitioner. This
is for the reason even from the documents
furnished by the respondent - authorities
as noted above, the purported agencies
are located at places like Bengaluru,
Mysore and Ballari and it is
incomprehsible that such agencies would
have daily / regular / periodically control
and supervision of the employees like the
petitioner?
(vi) As to the reason why the respondent -
authorities no adhering to the repeated
directions given by the Apex Court to
ensure regular appointments strictly
following the mandate of the constitution
pertaining to public appointments?
18. Necessary also to refer to the provisions of the
Karnataka Transparency in Public Procurement Act, 1999
(for short "the Act, 1999") which mandates ensuring
transparency in the public procurement of goods and
services by streamlining the procedure in inviting,
processing an acceptance of tenders and includes contract
execution management by procurement entities and the
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matters related thereto. Nothing is brought on record with
regard to applicability or non-applicability of the provisions
of the said Act, 1999 to the purported contracts which
respondent authorities are entering year after year with
the purported Man Power Supply Agencies.
19. Offering no explanation to the aforesaid
questions amongst others would only compel the
Constitutional Courts to infer that the respondent -
authorities have more to hide than to answer. For, a
prudent mind would not be convinced with the so called
inability of the State to adhere and implement its own
Laws, Rules and Regulations governing the public
employment.
20. Thus, from the reading of the aforesaid
provisions of law, and the pronouncements of the Apex
Court and from the statement of objection filed by
respondent - State along with the documents produced
therewith as noted above, it is clear that when the
doctrine of "lifting of the veil" is applied to the facts of the
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instant case, the petitioner has indeed made out a case for
outright rejection of the contentions of the respondent -
State of there being no relationship of employer and
employee between the petitioner and the respondent No.4.
21. It is not the case of the respondent - authorities
that the petitioner has not worked from 16.06.2014 till she
went on deemed maternity leave on 06.05.2023. Further,
it is necessary to note that the requirement of the services
of the employees like petitioner is continuous with
compelling need to the respondent - authorities. The
services of the petitioner therefore cannot be termed
either as temporary or adhoc in nature. In fact, from the
records it is clear that the respondent - authorities were
depending on the services of the petitioner and her
absence had caused them extreme inconvenience. Such is
the need and necessity of the said post having sufficient
work load though out and year after year. Necessary to
refer averments made in paragraph No.9 of the Statement
of Objections, wherein it is pleaded that :
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"Further the period of leave submitted by the
petitioner co-insides with the monsoon session
primarily sowing seed distribution period at the
respondent NO.5 office. There was inconvenience in
the respondent No.5 - Office duty to provide timely
and effective service of seed distribution to the
farmers. Hence, respondent No.5 has requested
respondent No.4 to make alternative arrangement
of manpower in place of the petitioner. Respondent
No.4 has requested respondent No.6 to provide the
same to give better service to the farmer at
Annexures-R7 and R8"
22. The aforesaid aspect of the matter would reveal
that the nature of the post held by the petitioner is not
temporary as sought to be contended. Admittedly, the
petitioner has not entered into any subsequent
agreements with any outsourcing agencies other than M/s.
Smart Detective and Allied Services (India) Pvt. Ltd., after
16.04.2014. She has been allowed to work year after year
by the respondents. She has been admittedly paid salaries
uptill 5th September 2023. This perennial period of
employment of the petitioner, even as held by the Apex
Court is the factor to determine the relationship of
employer and employee. Merely because the State has set
up the theory of "outsourcing contract", "man power
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outsourcing agency", "intermediatery contracts" etc., and
conveniently and interchangeably using the same, the
entitlement of the petitioner guaranteed under the
Constitution and the Statute for maternity leave and other
benefits cannot be ignored. This is nothing but a well
thought over modes operandi adopted by the respondent -
State to shirk its responsibility of complying with various
constitutional and statutory obligations in the domain of
public employment.
23. It is settled principle of law that an adhoc
employee cannot be replaced by another adhoc employee
and he can be replaced only by another candidate who is
regularly appointed by following regular procedure
prescribed. The Apex Court in the case of Ratanlal and
others Vs State of Haryana and others11 at pargraph
No.1 has held as under:
"1. In all these petitions the common
question which arises for decision is whether it is
open to the State Government to appoint teachers
on an ad hoc basis at the commencement of an
academic year and terminate their services before
(1985) 4 SCC 43
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the commencement of the next summer vacation,
or earlier, to appoint them again on an ad hoc basis
at the commencement of next academic year and
to terminate their services before the
commencement of the succeeding summer vacation
or earlier and to continue to do so year after year.
A substantial number of such ad hoc appointments
are made in the existing vacancies which
have remained unfilled for three to four years. It is
the duty of the State Government to take steps to
appoint teachers in those vacancies in accordance
with the rules as early as possible. The State
Government of Haryana has failed to discharge that
duty in these cases. It has been appointing
teachers for quite some time on an ad hoc basis for
short periods as stated above without any
justifiable reason. In some cases the appointments
are made for a period of six months only and they
are renewed after a break of a few days. The
number of teachers in the State of Haryana who are
thus appointed on such ad hoc basis is very large
indeed. If the teachers had been appointed
regularly, they would have been entitled to the
benefits of summer vacation along with the salary
and allowance payable in respect of that period and
to all other privileges such as casual leave, medical
leave, maternity leave etc. available to all the
Government servants. These benefits are denied to
these ad hoc teachers unreasonably on account of
this pernicious system of appointment adopted by
the State Government. These ad hoc teachers are
unnecessarily subjected to an arbitrary "hiring and
firing" policy. These teachers who constitute the
bulk of the educated unemployed are compelled to
accept these jobs on an ad hoc basis with miserable
conditions of service. The Government appears to
be exploiting this situation. This is not a sound
personnel policy. It is bound to have serious
repercussions on the educational institutions and
the children studying there. The policy of 'ad
hocism' followed by the State Government for a
long period has led to the breach of Article
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14 and Article 16 of the Constitution. Such a
situation cannot be permitted to last any longer. It
is needless to say that the State Government is
expected to function as a model employer."
Similarly the Apex Court in the case of Hargurpratap
Singh Vs State of Punjab and others12 at paragraph
No.3 has held as under:
"3. We have carefully looked into the
judgment of High Court and other pleadings that
have been put forth before this Court. It is clear
that though the appellants may not be entitled to
regular appointment as such it cannot be said that
they will not be entitled to the minimum of the pay
scale nor that they should not be continued till
regular incumbents are appointed. The course
adopted by the High Court is to displace one ad hoc
arrangement by another ad hoc arrangement which
is not at all appropriate for these persons who have
gained experience which will be more beneficial and
useful to the colleges concerned rather than to
appoint persons afresh on ad hoc basis. Therefore,
we set aside the orders made by the High Court to
the extent the same deny the claim of the
appellants of minimum pay scale and continuation
in service till regular incumbents are appointed. We
direct that they shall be continued in service till
regular appointments are made on minimum of the
pay scale. The appeals shall stand allowed in part
accordingly."
(2007) 13 SCC 292
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24. As rightly contended by learned counsel for the
petitioner, by filing the statement of objections contending
petitioner not being in service any more, the respondent -
authorities have unceremoniously and impliedly
terminated her services. Though in an attempt to fill up
this lacuna, documents in the nature of communications at
Annexures-R9 & R10 of even dated 01.07.2024 are
produced, the same falls flat on its face. In that,
Annexure-R9 is a communication addressed by Assistant
Director of Agriculture - respondent No.4 from his Office
at Huvinahadagali purportedly enquiring with the Pannaga
Enterprises - respondent No.7 as to the documents, if
any, furnished by the petitioner with regard to her
employment at respondent No.5 and Annexure-10 is a
purported reply by the respondent No.7 from its office at
Mysore to the effect of it not receiving any such
application from the petitioner. The aforesaid letters bear
the very same date i.e., 01.07.2024 raising serious doubts
about the authenticity of the said letters being "sent",
"received" and "replied" on the very same date. So much
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to reflect the traits of respondent - State being "model
employer".
25. In the words of the Apex Court, "the primordial
constitutional value is that it is the responsibility of any
organ of the State to function within the four corners of
constitutional responsibility. That is the ultimate rule of
law." (Nandini Sundar and others Vs. State of
Chattisgarh13).
26. It is equally settled law that a case of wrongful
denial of employment for no fault of workman would not
restrict an order of reinstatement and continuity of service
with all benefits. The Apex Court in the case of Deepali
Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others14 at paragraph
Nos.22 & 23 held as under:
"Para No.22: When the termination is held to be
bad in law, if the employer wants to deny the back
wages and entitlement of employee to get
consequential benefits then it is for employer to
plead and prove that the employee was gainfully
(2011) 7 SCC 457
(2013) 10 SCC 324
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employed. In the absence of the same denial of
back wages and consequential benefits would be
rewarding the employer for the illegal act done
by him.
Para No.23: when the termination is held to be
illegal, the employee would be entitled to full back
wages except to the extent that he was gainfully
employed during the enforced idleness. That is the
normal rule."
CONCLUSION:
27. For the aforesaid reasons and analysis, this
Court is of the considered view that the petitioner has
been unjustifiably denied of her entitlement of maternity
leave and has been shown exit doors illegally. This Court
in exercise of its power under Article 226 of the
Constitution of India, do not see any reason not to extend
the benefit of reinstatement with consequential benefits
including the benefit contemplated under the Act, 1961.
28. The points raised above are answered
accordingly.
29. Hence, the following:
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ORDER
(i) The petition is partly allowed;
(ii) Respondent Nos.2 to 5 are directed to
forthwith permit the petitioner to assume
charge of the post at which she was
working prior to she going on maternity
leave i.e., prior to 06.05.2023 and permit
her to continue until regular appointments
are made by the respondent - authorities
to the said post in accordance with law;
(iii) The petitioner will also be entitled to back
wages and respondent Nos.2 to 5 shall
also ensure payment of the same along
with all the benefits as contemplated
under the Maternity Benefit Act, 1961 as
amended from time to time for the period
as permitted thereunder;
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(iv) Respondent Nos. 2 to 5 shall pay
Rs.25,000/- towards the cost of this
petition to the petitioner herein.
SD/-
JUDGE
VNP*/CT-ASC
