IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 26-4-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.Nos.36796, 36797 & 36798 of 2007 W.P.No.36796 of 2007 The Airport Authority of India, rep.by its Regional Executive Director, Southern Region, Chennai 600 027. ... Petitioner Vs. 1. The Central Government Industrial Tribunal cum-Labour Court, I Floor, B Wing, Haddows Road, Shashtri Bhavan, Chennai 600 006. 2. T. Palani 3. Hi-Tech Engineering, rep.by its Managing Partner, No.19, Block T, SIDCO Electronics Complex, Thiru-Vi-Ka Industrial Estate, Guindy, Chennai 600 032. ... Respondents
This Writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records of the first respondent and consequently set aside the order dated 14.5.2007 passed in I.D.No.30 of 2005.
W.P.No.36797 of 2007
The Airport Authority of India,
rep.by its Regional Executive Director,
Southern Region,
Chennai 600 027. … Petitioner
Vs.
1. The Central Government Industrial Tribunal
cum-Labour Court,
I Floor, B Wing, Haddows Road,
Shashtri Bhavan,
Chennai 600 006.
2. J. Manjula
3. Hi-Tech Engineering,
rep.by its Managing Partner,
No.19, Block T, SIDCO Electronics Complex,
Thiru-Vi-Ka Industrial Estate,
Guindy,
Chennai 600 032. … Respondents
This Writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records of the first respondent and consequently set aside the order dated 14.5.2007 passed in I.D.No.47 of 2005.
W.P.No.36798 of 2007
The Airport Authority of India,
rep.by its Regional Executive Director,
Southern Region,
Chennai 600 027. … Petitioner
Vs.
1. The Central Government Industrial Tribunal
cum-Labour Court,
I Floor, B Wing, Haddows Road,
Shashtri Bhavan,
Chennai 600 006.
2. M. Swaminathan
3. Hi-Tech Engineering,
rep.by its Managing Partner,
No.19, Block T, SIDCO Electronics Complex,
Thiru-Vi-Ka Industrial Estate,
Guindy,
Chennai 600 032. … Respondents
This Writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records of the first respondent and consequently set aside the order dated 14.5.2007 passed in I.D.No.31 of 2005.
For Petitioner in : Mr.T.A.Srinivasan, all writ petitions for Sree & Associates 1st Respondent in : Labour Court/Central all writ petitions Govt.Industrial Tribunal For 2nd Respondent in : Mr.S.Vijayadharani all writ petitions For 3rd Respondent in : No appearance all writ petitions COMMON ORDER
The prayer in the writ petitions is to quash the award dated 14.5.2007 made in I.D.Nos.30/2005, 47/2005 and 31/2005 respectively, on the file of the Central Government Industrial Tribunal, allowing the claim petitions filed by the second respondent in these writ petitions, who are all workmen. The Airport Authority of India challenges the said awards, passed granting relief of reinstatement with 50% of backwages, to these workmen.
2. According to the Airport Authority of India, the workmen were employed as Contract Labourers to do the work of Telephone Operators in the Telephone Exchange maintained by the petitioner through Contractor, the third respondent herein. The claims of the workmen are that they were in continuous employment doing similar work as to that of regular employees of the petitioner and licence was issued by the Labour Commissioner to the third respondent. By virtue of the notification issued by the Ministry of Labour, Government of India, prohibiting contract labourers, there is a direct Principal and Servant relationship between the petitioner and workmen and therefore the workmen filed claim petitions, which were allowed by the Labour Court holding that the contract between the petitioner and the third respondent is not genuine and the same is sham due to the notification issued by the Government of India, Ministry of Labour dated 2.3.1993. The Labour Court held that the workmen were in continuous employment and therefore they are entitled to get reinstatement with 50% of backwages.
3. The said awards are challenged contending that the workmen are not entitled to raise industrial disputes as against the petitioner since there is no Employer-Employee relationship between them; that the Labour Court failed to consider that the petitioner never exercised control or supervision over the workmen, who were Contract Labourers; and that, the petitioner has not engaged these workmen and therefore they cannot seek shelter under the provisions of the Industrial Disputes Act, 1947 and the Contract Labour (Regulation and Abolition) Act, 1970.
4. The case of the workmen are that they are fully qualified for being appointed as Telephone Operators in the Telephone Exchange of the petitioner. Since 1992 there is a contract between the petitioner and the third respondent to provide telephone operations and to maintain the same along with the departmental regular employees. The said contract was extended from time to time and the workmen having been engaged for several years without any break-in-service, the petitioner cannot take a plea that they were appointed by the Contractor as Contract Labour system was prohibited by notification of the Government of India dated 2.3.1993 and therefore the third respondent cannot be treated as Contractor of the petitioner on and from 2.3.1993. According to the workmen, they are to be treated as direct employees of the petitioner management as there is a prohibition in engaging Contract Labourers in the petitioner Airport Authority.
5. In the dispute raised before the Labour Court on the basis of the evidence adduced, the Labour Court factually found that the termination of these workmen is not justified and ordered reinstatement with attendant benefits with 50% backwages. Labour Court also observed that the workmen are now aged more than 50 years and therefore at this distance of time they cannot seek for any other employment.
6. Heard the learned counsel for the petitioner as well as learned counsel for the workmen.
7. The workmen filed claim statements before the Labour Court specifically contending that the workmen were sponsored through the Employment Exchange and the period of their employment are from December, 1992; March, 1989; and January, 1991 respectively. As per the claim statements, they have stated that over a period of six to eight years they worked as Telephone Operators at the National Airport Division, Chennai Airport, without any break and salary fixed for all the employees was Rs.8,663/- per month, however the workmen were paid only Rs.1,600/- per month. It is also stated in the claim petition that under Rule 25(2)(5)(a) of the Contract and Labour (Regulation and Abolition) Rules, 1970, the workmen employed by the Contractor shall be paid the same wages, holidays, hours of work and other conditions of service as applicable to the directly employed persons by the Employer. By order dated 2.3.1992, the Government of India prohibited the employment of Contract Labour in the job of Telephone Operator by the petitioner and therefore the Contract entered into between the petitioner and the third respondent after 2.3.1993 would be a camouflage, which is invalid in the eye of law as the same is prohibited under the statute.
8. On 21.3.1995 the Regional Executive Director issued a circular permitting the regular employees and the workmen in these writ petitions to undergo training in the improvised technical telephone operations and some of the employees employed at the Delhi Airport by contract labour system and international Airport Division approached the Delhi High Court and they were given orders of absorption and when the workmen approached this Court, the Division Bench of this Court while dismissing the writ petition directed the workmen to approach the Labour Court for appropriate relief and consequently the workmen raised the respective industrial dispute. The said claim petition was resisted by the respondents by filing counter statement by contending that the workmen worked under the third respondent viz., the Contractor and they were never in the attendance roll, nor in the pay roll of the petitioner and therefore they are not entitled to get any relief.
9. The Labour Court in para 8 of its award held that the appropriate Government has already abolished the Contract Labour System in the year 1993 in the petitioner establishment, whereas the petitioner has entered into a contract with third respondent, which is illegal and invalid and therefore the said contract is only sham and nominal and was created only to deny the rights of these workmen and others. It is also observed therein that the job performed by these workmen are perennial in nature and they have worked for more than 240 days in a year for several years under the direct supervision of the Officers of the petitioner and therefore these workmen are entitled to regularisation.
10. The Labour Court also considered the documents filed as well as the evidence of M.W-1 D.Narayanan, who in the cross examination stated that day-to-day work instruction of Telephone Operators was not given by the Contractor and only by the petitioner, namely the officials of the Airport Authority. Relying upon the said evidence as well as documents filed and also taking note of the notification issued by the Government of India dated 2.3.1993 abolishing prohibition of Contract labourers with regard to Telephone Operator work in the petitioner management and taking note of the length of service rendered by these workmen, allowed the claim petitions and ordered reinstatement with 50% backwages and directed the petitioner management to regularise the service of the workmen from the date of their respective claim petition. There is no perversity in the order in the light of the oral and documentary evidence adduced before the Labour Court as well as the notification issued by the Government of India dated 2.3.1993 which was marked as Ex.W-18.
11. It is not the case of the petitioner that notification was not issued by the Government of India, Ministry of Labour, prohibiting Telephone Operators appointment on contract basis. The said fact pleaded in the claim petitions is not denied. After the said notification, the contract of the third respondent was also not renewed and the Labour Court declared that the alleged contract employment of these workmen is sham and nominal.
12. The decision cited by the learned Counsel appearing for the petitioner reported in (2009) 13 SCC 374 (International Airport Authority of India v. International Air Cargo Workers’ Union) has no application to these cases as it is proved by the workmen that a specific notification to abolish contract labour of Telephone Operators was issued on 2.3.1993 under Section 10(1) of the Contract Labour Abolition Act, 1970. Therefore, there is no dispute with regard to the continuous employment of the workmen beyond 240 days in a calendar year and the workmen also established their right to absorption and regularisation.
13. Insofar as ordering 50% of backwages, there is no material available to deny backwages. Similarly placed workmen were also absorbed with 50% backwages. Thus, the Labour Court is justified in ordering 50% backwages to the workmen. During the pendency of these writ petitions interim direction was issued to pay 17-B wages by order dated 19.11.2008 taking note of their non-employment. Even at the time of final hearing of the writ petitions, the petitioner has not produced any material to prove their gainful employment.
14. The continuous employment of the Workmen even after 1993, the date of issuance of the notification by the Government of India is not denied. Since there is prohibition to engage Contract Labourers after the said notification dated 2.3.1993, the Labour Court was perfectly justified in holding that the workmen are to be treated as employees of the petitioner and granted relief. It is well settled that unless the findings are perverse, the same cannot be set aside. In (2009) 13 SCC 374 (cited supra) in paragraphs 47 and 48 it is held thus,
“47. …. in exercising the writ jurisdiction, the High Court cannot sit in appeal over the findings and award of the Industrial Tribunal and therefore, cannot reappreciate evidence. The findings of fact recorded by a fact-finding authority should ordinarily be considered as final. The findings of the Tribunal should not be interfered with in writ jurisdiction merely on the ground that the material on which the Tribunal had acted was insufficient or not credible.
48. It is also true that as long as the findings of fact are based on some materials which are relevant, findings may not be interfered with merely because another view is also possible. But where the Tribunal records findings on no evidence or irrelevant evidence, it is certainly open to the High Court to interfere with the award of the Industrial Tribunal.”
The same is reiterated in the decision reported in 2010 AIR SCW 1357 (Harjinder singh v. Punjab State Warehousing Corporation). In paragraphs 17 to 20 the Supreme Court held thus,
“17. Before concluding, we consider it necessary to observe, that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the/Industrial Disputes Act and other similar legislative Instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that “the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923.
18. In Y.A. Mamarde v. Authority under the Minimum Wages Act (1972) 2 SCC 108 this Court, while interpreting the provisions of Minimum Wages Act, 1948, observed:
“The anxiety on the part of the society for improving the general economic condition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised countries and the Act which is a pre-constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.”
19. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species, Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen’s Compensation Act, the Employees Insurance Act, the Employees Provident Fund and Miscellaneous Provisions Act and “the Shops and Commercial Establishments Act enacted by different States.
20. In Ramon Services (P) Ltd. v. Subhash Kapoor (2001) 1 SCC 118; R.P. Sethi, J. observed: “that after independence the concept of social justice has become a part of our legal system. This concept gives meaning and significance to the democratic ways of life and of making the life dynamic. The concept of welfare State would remain in oblivion unless social justice is dispensed. Dispensation of social justice and achieving the goals set forth in the Constitution are not possible without the active, concerted and dynamic efforts made by the persons concerned with the justice dispensation system, In L.I.C. of India v. Consumer Education and Research Centre and Ors. (1995) 5 SCC 482; K. Ramaswamy, J. observed that social Justice is a device to ensure life to be meaningful and liveable with human dignity. The State is obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilized living, The principle laid down by this law requires courts to ensure that a workman who has not been found guilty can not be deprived of what he is entitled to get. Obviously when a workman has been illegally deprived of his device then that is misconduct on the part of the employer and employer can not possibly be permitted to deprive a person of what is due to him.”
15. In the light of the above factual findings rendered by the Labour Court, which is based on evidence, I do not find any error/perversity in the order of the Labour Court warranting interference under Article 226 of the Constitution of India. There is no merit in the writ petitions and consequently the writ petitions are dismissed. No costs.
vr
To
The Central Government Industrial Tribunal-cum-Labour Court,
I Floor, B Wing, Haddows Road, Shashtri Bhavan,
Chennai 600 006