M/S.Power Grid Corporation Of ... vs The Industrial ...
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           HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

      WRIT PETITIONS No. 33578 OF 2010 & 4329 OF 2011

     COMMON ORDER :

               In Writ Petition No. 33578 of 2010, petitioner -

Power Grid Corporation of India is before this Court questioning

the Award dated 25.11.2010 in I.D. No. 19 of 1992 through which

the Industrial Tribunal-II, Hyderabad granted the relief of

reinstatement with full back-wages and continuity of service to

nine workmen, who were contract workers and members of the 2nd

respondent - NTPC 400 KV Hyderabad Sub-Station Karmika

Sangham (for brevity 'Union') on the ground that the said Award is

vitiated by the errors apparent on the face of the record.

2. It is stated that the 3rd respondent - Management of

NTPC. 400 KV Hyderabad Sub-Station had engaged nine contract

labour during 1985-1990 with the intermediary of a contractor for

the purpose of upkeep and maintenance of works in the sub-

station. Since they were appointed through a contractor, there

was no employee-employer relationship.

In August 1991, functions and area of operation of

petitioner and the 3rd respondent stood bifurcated and since then,

the 3rd respondent Corporation was taken over by petitioner. The

case of petitioner is that they are neither in the know of details of

contract workers engaged by the 3rd respondent through a

contactor V. Sudershan nor did they terminate their services,

hence, they have no knowledge of the above illegal termination.

The justification or otherwise of termination of nine

contractor workers by the 3rd respondent was referred under

Section 10 of the Industrial Disputes Act, 1947 (for short, 'the Act')

to the 1st respondent Tribunal for adjudication by the Government

of Andhra Pradesh which was numbered as I.D.No. 79 of 1991, re-

numbered as I.D.No. 19 of 1992. In the said dispute, the Union

had filed a claim statement before the Tribunal stating that nine

contract workers employed continuously and permanent to do

permanent nature of jobs and they were removed without issue of

notice. The management of NTPC filed a counter in the said I.D.

stating that reference is not maintainable since such power is to

be exercised by Central Government and State Government is not

appropriate government for the purpose of the Act. Petitioner also

filed counter in the I.D. stating that the order of reference is

incompetent and that nine contract workers are not covered by the

Act and they are covered by the Contract Labour (Regulation and

Abolition) Act, 1970. It is stated that rights and liabilities of

contract workers can only be enforced against the contractor and

not against petitioner.

The Tribunal passed the Award dated 23.09.1993

directing reinstatement of contract workers with full back-wages.

Aggrieved thereby, petitioner filed Writ Petition No. 3219 of 1994,

in which the impugned Award was stayed subject to compliance of

the requirements of Section 17-B of the Act. Subsequently, the

said Writ Petition was dismissed on 21.01.2004 against which

Writ Appeal No. 448 of 2004 was filed and an order of status quo

was obtained. Pending the said Writ Appeal, the Union filed

E.P.No. 9 of 2004 claiming arrears of back-wages amounting to

Rs.1.43 crores. Division Bench of this Court vacated the order of

status quo in Writ Appeal, by order dated 29.03.2004; aggrieved

thereby, petitioner carried the matter to the Supreme Court. In

S.L.P.No. 24495 of 2004, the Apex Court granted conditional stay

of the Award pending Appeal. Thereafter, Appeal was allowed and

the matter was remanded to the Tribunal. Against the said

judgment, both the petitioner and Union filed S.L.Ps., wherein a

common order was passed directing the Tribunal to dispose of the

matter afresh, uninfluenced by the reasons or findings. The Apex

Court had also permitted the 1st respondent to consider about

granting benefit under Section 17-B of the Act. It is settled law

that jurisdiction cannot be conferred on a court which is not

within the competence of such statutory, quasi-judicial authority.

Vide Award impugned, the nine contract workers were directed to

be reinstated with back wages and continuity of service.

3. While admitting this Writ Petition, by order dated

31.12.2010, this Court granted stay of payment of back wages and

issued notice to the Union. Taking cue from the order of the

Supreme Court in the S.L.Ps., wherein it was directed that Union

would be at liberty to file fresh Applications under Section 17-B of

the Act and the said Applications would be decided by the

Tribunal within two months from the date of its filing, the Union

filed I.A.No. 43 of 2010 under Section 17-B claiming back wages

for the period during which the workers were not allowed to

continue in service. The Tribunal by order dated 25.11.2010

directed that petitioner is bound to pay wages to the workmen

during the pendency of the proceedings in Hon'ble High Court and

Supreme Court and called upon them to file calculation memos.

The Union did not file any such memo, but however, filed E.P.No.

3 of 2011 in I.A.No. 43 of 2010 for recovery of a sum of

Rs.4,13,18,568/- with interest at 12% per annum and the said

Petition is pending. Hence, petitioner is constrained to file Writ

Petition No. 4329 of 2011.

4. Learned Senior Counsel for petitioner Sri Vedula

Venkata Ramana submits that State Government is not competent

authority to refer the matter to the Tribunal and petitioner as well

as the 3rd respondent Corporations being Central Government

undertakings, the Central Government is the appropriate

authority. It is argued that there was no appointment order or

termination order to the nine workers and the trade union which

has espoused their cause was not the trade union operating in

NTPC 400 KV Hyderabad Sub-Station and the burden of proof

about employment and completion of requisite continuous service

is always upon the claimants, hence, the finding of the tribunal

that the workers were permanent workers of NTPC is perverse.

5. Learned counsel for the Union submits that the

Union in August 1990 submitted an Application to the Regional

Labour Commissioner (Central) for settlement of their dispute,

thereby the Regional Labour Commissioner addressed a letter

dated 30.09.1990 to the State Commissioner of Labour directing to

take up the dispute of the workers' union and the Workers' Union

made an Application to the State Level Commission in September,

1990. The Workers' Union filed two notifications before the

Tribunal dated 25.10.2010, 05.05.2008, as per which, the Central

Government allotted powers to the State Government vide G.O.No.

556, dated 03.07.1998.

6. Initially, the Award dated 23.09.1993 was

challenged by the 3rd respondent which organisation has been

succeeded by the petitioner herein before this Court vide Writ

Petition No. 3219 of 1994. In the said Writ Petition, this Court had

decided on the issue ' whether the management of NTPC 450 KV

Sub-Station, Ghanapuram, Ghatkesar, R.R. District is justified in

terminating the services of the following nine workmen: Sarvasri 1)

B. Sanjeeva, S/o Janaiah, 2) V. Prakash, S/o Anjaiah, V. Kumar,

S/o Muthaiah, V. Sattaiah, S/o Pochaiah, K. Narasimha Reddy

S/o Sai Reddy, 6) B. Ramdas, S/o Anjaiah, K. Ram Reddy S/o

Satti Reddy, K. Butchi Reddy, S/o Sarsi Reddy, B. Lingam, S/o

Pantaiah.'

7. It is complained in the claim statement filed by the

Union that petitioner herein had terminated the nine workmen

from service who worked in the said organisation between January

1985 to 31.08.1990. It was stated that the Union was formed on

08.02.1990 and it was registered on 17.03.1990 with registration

No. B1908. After termination of the said workmen, a dispute was

raised against management before the Labour Court and the same

was admitted in conciliation. Since there was failure of the

conciliation, the matter was referred to the State Government,

which, in turn, referred the matter to the Industrial Tribunal,

Hyderabad for adjudication of the issue. It was stated that the 2nd

respondent in the I.D. was the successor of the management of

NTPC by virtue of bifurcation of NTPC, who is the petitioner in this

Writ Petition. From 31.08.1990 onwards, the workmen were not

allowed to work and the same amounts to termination. They have

also asserted that the workmen were performing permanent

nature of jobs and named as daily paid mazdoors but were paid on

monthly basis. At the time of termination, they were paid at the

rate of RS.22/- per day. It is alleged that the workmen were

deprived of other benefits such as native and festival holidays,

annual leaves, casual leaves, etcetera. Though the workmen were

employed continuously and permanently to do permanent nature

of jobs, they were not treated as permanent workmen. It is also

asserted that the petitioner acquired the land from some of the

workmen and their families, and employment was provided to all

those as being natives and subsequently, terminated them.

Finally, it is alleged that the said termination is bad in law apart

from being contrary to the provisions of Section 25 of the Act. In

the said I.D., a detailed counter was filed by NTPC stating that all

the workmen are not the employees of NTPC. The NTPC was

constituted by Government of India, Public Sector Undertakings

for generation and transmission of power. Thus, there were two

departments one for generation and the other for transmission of

power. Since there was change in the policy of the government,

the NTPC was bifurcated into two organisations. The workmen

were not the workmen within the meaning of the Act and

therefore, the dispute itself is not maintainable.

8. Writ Petition No. 3219 of 1994 was dismissed by

this Court confirming the Award passed by the 1st respondent

holding that the workmen of the 2nd respondent Union are the

workmen employed by the 3rd respondent which Institution has

been succeeded by petitioner and the dispute is an Industrial

Dispute which was rightly referred to by the State Government to

the Industrial Tribunal for adjudication and also decided on the

locus standi of the 2nd respondent union. The Writ Petition was

dismissed challenging which, the 3rd respondent preferred W.A.No.

448 of 2004. In the said Writ Appeal, a stand was taken by the

management that the State Government is not competent to refer

the matter to the Industrial Tribunal as the petitioner company is

the Central Government undertaking, as such, the appropriate

government under Section 2-A of the Act is only the Central

Government but not the State Government. In the instant case,

the State Government has referred the matter to the Tribunal. On

this single ground the matter was remitted to the Tribunal to

decide the same afresh, considering the notification of Gazette of

India dated 31.12.1998 which was published under (1) of 27-A of

the Act to the effect that the Central Government specifies the

Power Grid Corporation of India as the Central Government

company.

9. Challenging the order dated 10.10.2006 in Writ

Appeal No. 448 of 2004, the 2nd respondent union and the

petitioner preferred two Special Leave Petitions No. 24495 of 2004

and 1643 of 2007, they have been disposed of vide orders of the

Apex Court remitting the matter to the Industrial Tribunal for

consideration and disposal of the matter on merits as

expeditiously as possible within a period of six months.

10. The Industrial Tribunal, after remand, heard the

matter and passed an Award again on 25.11.2010 referring to the

evidence of either parties and documents marked on behalf of the

respective parties and held that workmen of the 2nd respondent

Union are the direct employees of the petitioner herein and not the

contract workers, as alleged by petitioner. The Tribunal had also

addressed the issue of reference made by the State Government to

be a valid reference by taking into consideration the documents

submitted by petitioner i.e. letter addressed by the Deputy Chief

Labour Commissioner (Central Ministry of Labour and

Employment) vide letter dated 09.03.2005, mentioning that the

Central Government would be the appropriate government with

effect from 21.02.2005 and in the instant case, reference was in

1990, as such, as on the relevant period, the State Government is

competent to refer the matter to the Industrial Tribunal, however,

it has been fairly conceded by the petitioner's counsel that the

State Government could be the appropriate government and not

pressing upon the said issue, as such, this Court also agrees with

the reasoning given by the Tribunal that the State Government is

the appropriate government to refer the dispute to Industrial

Tribunal as on the relevant period ie. before the year 2005.

11. With regard to the other aspects of the matter, the

workmen are the employees of the 3rd respondent or the petitioner

herein, this argument cannot stand to the legal scrutiny of this

Court as it is an admitted fact that petitioner is the successor of

the 3rd respondent with all its assets and liabilities, hence,

petitioner company cannot contend that the liability of the 3rd

respondent is not binding on the petitioner company.

12. All the issues raised in the present Writ Petition

have already been answered in the earlier round of litigation and

this Court concurs with the findings given by this Court in Writ

Petition No. 3219 of 1994. The matter was remanded only on the

issue of the authority of the State Government to refer the dispute

to the Industrial Tribunal as on that date and the Industrial

Tribunal after discussing the evidence placed by the petitioner

company more particularly the Gazette notification specifically

dated 31.12.1998 published under Section 27(A)(1) of the Act and

the letter of the Ministry of Labour & Employment dated

09.03.2005 had held that the State Government is the competent

authority to refer the dispute to the Industrial Tribunal as on that

date.

13. The impugned Award therefore, does not warrant

any interference and the same is liable to be dismissed.

14. The Writ Petition is accordingly, dismissed. No

costs.

15. Consequently, the miscellaneous Applications, if

any shall stand closed.

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NAGESH BHEEMAPAKA, J

06th November 2023

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