Punjab-Haryana High Court
Mahinder Singh And Ors vs Haryana Power Generation ... on 6 October, 2021
CWP-11218-2016(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-11218-2016(O&M)
Date of decision:-6.10.2021
Mahinder Singh (since dead) through his LRs and others
...Petitioners
Versus
Haryana Power General Corporation Ltd. and others
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.J.S. Maanipur, Advocate
for the petitioners.
Mr.Adwiteya Grover, Advocate
for respondents No.1 to 3.
****
H.S. MADAAN, J.
Petitioner Mahinder Singh through his legal representatives
and 26 others had brought the instant civil writ petition under Article 226
of the Constitution of India against respondents i.e. Haryana Power
Generation Corporation Ltd. through its Managing Director, Chief
Engineer, Deen Bandhu Chhotu Ram Thermal Power Project, Haryana
Power Generation Corporation Ltd., Yamuna Nagar, Resident Engineer,
WYC HE Project, HPGCL, Bhudkalan, District Yamuna Nagar and M/s
Friends Associates, Panchkula through its Manager praying for issuance
of a writ in the nature of certiorari for quashing the letter/order dated
16.5.2016 (Annexure P6) sent by respondent No.2- Chief Engineer, Deen
Bandhu Chhotu Ram Thermal Power Project, Haryana Power Generation
Corporation Ltd., Yamuna Nagar being illegal and unjust contrary to the
policy dated 12.1.2011 (Annexure P1) and settled law on the issue.
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As per the case of the case of the petitioners, they had been
working in Haryana Power Generation Corporation Ltd. - respondent
No.1 doing unskilled job on payment of minimum wages since July -
August, 1995; they had been engaged by different contractors, namely,
S/Sh.Alis, Tajewala, Surja Ram, Arriyanwala, Lader, Mindru, Om Kumar,
Subhash Saini, Malik, M/s Kanhaiya Engineering Words and M/s Friends
Associates (respondent No.4); the services of the petitioners were
dispensed with all of a sudden. According to the petitioners, as per settled
law no contractual employees can be replaced by another set of
contractual employees until and unless their work and conduct is found
unsatisfactory. The petitioners had requested the respondents several
times to allow them to work and had served legal notice dated 11.4.2016
also but to no effect. As such, they had filed the present civil writ petition.
On notice, respondents put in appearance through counsel.
Respondents No.1 to 3 filed a joint written statement inter alia raising
preliminary objections that the answering respondents had hired
contractors for cleaning of trash racks installed at various Hydel project;
the contractors were supplying labour and no recruitment was made by the
respondents; since the contractor has changed, therefore, the persons
employed by the contractor are also required to leave; there is no
relationship of employer and employees between the respondents and
petitioners; the writ petition against the answering respondents is not
maintainable; respondent No.4 M/s Friends Associates - contractor is
doing his work for more than one year, therefore the petitioners cannot
ask relief of reinstatement against the answering respondents. On merits
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the material assertions in the petition were controverted, whereas pleas
taken in the preliminary objections were reiterated while praying for
dismissal of the writ petition.
The petitioners filed replication to the written statement filed
on behalf of respondents No.1 to 3 controverting the allegations in the
written statement, whereas reiterating the averments in the writ petition.
I have heard learned counsel for the parties besides going
through the record and I find that the present writ petition is doomed for
dismissal. The reasons for the same are as follows:
As per the own case of the petitioners, they were hired by
various contractors and not respondents No.1 to 3 directly that means they
are employees of the contractors, who used to supply the work force to
respondents No.1 to 3. The contractors for supplying the work force stood
changed from time to time. There is no relationship of employer and
employees between respondents No.1 to 3 on one side and petitioners on
the other side. As such, the present writ petition filed by petitioners
against respondents No.1 to 3 is not maintainable.
As regards, respondent No.4, which is a private entity, the
writ petition against it is also not maintainable.
Secondly as has been observed by a Co-ordinate Bench in
CWP No.21042-2020(O&M) decided on 18.12.2020, the petitioners, who
were hired by a contractor, which had entered into contract with
respondents No.1 to 3 to supply the work force fall within definition of
workmen and they have equally efficacious remedy of applying for a
reference under the Industrial Disputes Act, 1947. Finding that the
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CWP-11218-2016(O&M) -4-
petitioner in that case was not entitled to issuance of a writ, the petitioner
was relegated to the alternative remedy. Such view taken by the Single
Judge was affirmed by Division Bench while disposing of LPA No.40 of
2021(O&M) in CWP No.121 of 2021 on 14.1.2021. For ready reference,
the relevant part of the judgment is being reproduced as under:
ISSUE No. 1.
[4] The concept of workman is central to the concept of an
industrial dispute as an industrial dispute can be raised either by a
"workman" or an "employer." Since the Industrial Disputes Act,
1947 (for short "ID Act") is a piece of beneficial legislation, the
courts have enlarged the scope and applicability of this Act by
giving wide interpretation to the term "workman." Section 2(s)
defines workman as any person (including an apprentice) employed
in any industry to do any manual, unskilled, skilled, technical,
operational, clerical or supervisory work, for hire or
reward, terms of employment be express or implied and includes
any such person who has been dismissed, discharged or
retrenched in connection with, or as a consequence of dispute. It
excludes persons employed in army/Navy/Air Force/Police and
those employed in mainly managerial or administrative,
supervisory capacity and drawing wages of more than Rs. 6500.
[4.1] The basic purpose of statute is to settle all the disputes that
arise amongst the parties in an expeditious manner after taking in
evidence from both the sides. Further, the proceedings being
summary in nature, rigors of Evidence Act are not as strictly
applicable as they are applicable to a civil suit. Still further,
proceedings under the ID Act, 1947 culminate into an award at a
much faster pace as compared to civil suits filed for similar claims.
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Thus, any person who falls within the definition of "workmen"
under Section 2(s) of the ID Act, 1947 and is working in an
Industry as defined under Section 2(j) of ID Act, 1947 must be
relegated to their alternative efficacious remedies.
[4.2] In the instant case, it is seen that learned Single Judge has
relegated the appellants under the ID Act, 1947 which has been
opposed by them before us only on the ground of not being covered
under the definition of "workmen" by relying upon the judgment of
Hon'ble Supreme Court in MGT Som Vihar's case (supra). A bare
perusal of the Judgment shows that the issue involved in the said
case and the issue raised in the present case are completely
different. The Hon'ble Supreme Court had held that a person
working in an apartment is not covered under the definition of
"workmen" as defined under the ID Act, 1947 and therefore award
passed by Tribunal under the ID Act was incorrect. In the present
case, the appellants are working as Data Entry Operators under
respondent No.2-HSVP, which is not a 'Housing apartment', but a
statutory authority constituted by State Legislature. That apart, no
other basis has been shown, even prima facie, that appellants are
not covered under the definition of "workmen". Thus, the reliance
placed upon the judgment by appellants is totally misconceived and
therefore, the argument is rejected.
Therefore, the petitioners have got alternative remedy under
the Industrial Disputes Act. Furthermore, the petitioners being employees
of the contractor, their claim is against the former and not against
respondents No.1 to 3 with whom they are not having any direct
connection.
Under the circumstances, the petitioners cannot find any fault
with the letter issued by Chief Engineer/DCRTPP, HPGCL, Yamuna
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Nagar, which is nothing but reply sent by him to Advocate, who had
served notice upon the former on behalf of the petitioners. It has been
categorically mentioned therein that petitioners were outsourced through
contractor and HPGCL has no direct relationship of employer and
employees with the said labour, therefore claim of regularization in the
Hydel Project, HPGCL, Bhudkalan did not arise. No fault can be found
with such reply sent to the legal notice. As already observed since the
petitioners were not hired by respondents No.1 to 3 by way of any
selection process, they do not have any claim for regularization of their
services against such respondents. The judgments mentioned in the
petition and otherwise relied upon by counsel for the petitioners are not
helpful to the petitioners in any manner. The petitioners are not entitled to
get wages at enhanced rate from respondents No.1 to 3 and their claim, if
any, is against respondent No.4. They may agitate their such claim against
respondent No.4 in particular forum or Court but not by way of filing the
present writ petition.
Even otherwise, a writ is to be issued in exceptional cases
and not in routine. Here I do not find any reason to exercise such power.
The instant writ petition is dismissed accordingly.
6.10.2021 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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