Brijbhushan
Yadav & Ors Vs. Union of India & Anr [2007] Insc 916 (14 September 2007)
Tarun
Chatterjee & P. Sathasivam
CIVIL
APPEAL NO. 4264 OF 2007 (Arising out of SLP (C) No. 6174 OF 2006) P. Sathasivam,
J.
1)
Leave granted.
2) The
workmen who secured an award for reinstatement with full back-wages at the
hands of the Central Government Industrial Tribunal-cum-Labour Court, Lucknow
(in short "Tribunal-cum-Labour Court") and lost before the High Court
of Judicature at Allahabad are the appellants before this Court.
3) The
above appeal is directed against the order dated 08.08.2005 whereby the High
Court of Judicature at Allahabad allowed the batch of writ petitions filed by
the Union of India - Ministry of Telecommunication, Bharat Sanchar Nigam
Limited and quashed the award passed by the Tribunal-cum-Labour Court.
4)
Though the Tribunal-cum-Labour Court passed a separate but identical order
holding that the termination of services of the workmen concerned are void and
ordered reinstatement with full back-wages, the Union of India and Bharat Sanchar
Nigam Limited challenged the same before the High Court by filing separate writ
petitions.
5) The
High Court, by adverting to the facts in I.D. No. 39 of 2001, namely, Shri Brijbhushan
Yadav vs. The General Manager, Telecom Department, accepted the stand of the
department and quashed the award therein. Similar orders have been passed in
all other connected writ petitions.
6) We
heard Mr. Amit Kumar, learned counsel for the appellants and Mr. R.D. Agrawala,
learned senior counsel for the respondents.
7) In
view of the order to be passed hereunder, we are of the view that it is
unnecessary to refer all the factual matrix as stated by the parties. On the
basis of the request made by the workman, the Central Government, in exercise
of powers conferred by Clause (d) of sub-section (1) of Section 10 of the
Industrial Disputes Act, 1947, referred the industrial dispute between Shri Brijbhushan
Yadav and the General Manager, Telecom Department, Varanasi for adjudication.
The reference referred for adjudication is as under:
"Whether
the action of the Management of Telecom Department in terminating the services
of Shri Brijbhushan Yadav w.e.f. 1.6.1999 is justified? If not, to what relief
the workman is entitled?"
According
to the workman, he was initially appointed as Security Guard with the Telecom
Department, Varanasi(East), Varanasi w.e.f. 1.10.1996 and he was
performing his duties till his services were terminated w.e.f. 1.6.1999. There
was no genuine contract labour system in vogue with the Telecommunication
Department to engage security guards.
The
so-called security agency i.e. M/s Security and Protection Services was a mere
name lender and almost a broker or agent of Telecommunication Department for
procuring labour and was not a registered licensee contractor. He worked for
more than 240 days in preceding twelve calendar months prior to his
termination. His termination without notice or retrenchment compensation is
contrary to provisions of Section 25-F of the Industrial Disputes Act, 1947 and
he is entitled to reinstatement with back-wages.
8)
According to the employer Telecommunication Department, there was temporary
need of security guards for safety of its assets, hence, an agreement was
signed between M/s Security and Protection Services, Varanasi and the General Manager(East), Varanasi on 10.9.1996. Under the terms of
the contract, the workman was supplied by the said security services, to
perform work of security guard and he was performing duties of security guard
since 1.10.1996. In order to protect the articles and equipments of telecom
department, the Telecom Department had entered into a contract with M/s
Security and Protection Services on the terms and conditions mutually agreed
upon. The same was duly registered by the Labour Commissioner. The agreement
was for fixed term, which expired. The workman was not taken as an employee of
the Telecom Department nor had worked for more than 240 days and so, the notice
or retrenchment compensation as provided under Section 25-F of the Industrial
Disputes Act, 1947 is not applicable.
9) The
Tribunal-cum-Labour Court, after considering the materials, held that since
after expiry of the agreement i.e. on 31.10.1997, all the workmen including Shri
Brijbhushan Yadav were provided work by the Telecommunication Department till
31.05.1999, there was direct master and servant relationship between the
Department and the Workman during the said period and observed that the workman
rendered continuous service of security guard for 570 days directly under the
Department which is more than 240 days and is covered by the definition of
"continuous service" as defined under Section 25-B of the Industrial
Disputes Act, 1947. The Tribunal-cum-Labour Court, by applying the benefits of
provisions of Section 25-F of the Industrial Disputes Act, 1947 accepted the
case of the workman and passed the award granting reinstatement with full back-
wages. Similar awards have been passed in respect of others.
10) In
the writ petitions filed by the Union of India and BSNL, the High Court mainly
relying on the assertion of the Department that contract with Security Agency M/s
Security and Protection Services, Varanasi was extended from time to time till
31.5.1999 and finding that the workmen concerned were not employees of the
Telecommunication Department quashed the award of the Tribunal.
11)
Before us, learned counsel appearing for the Workman, vehemently contended that
after expiry of the agreement i.e. from 1.11.1997 although the workmen were
employed by the Telecom Department up to 31.5.1999, the High Court ought not to
have interfered with the finding of fact arrived at by the Tribunal-cum-Labour
Court. On the other hand, learned counsel appearing for the Department, by
pointing out that contract was extended up to 31.5.1999 with the Security
Agency, the High Court was right in accepting the stand of the Department that
these workmen were not employees of the Department, hence, there is no ground
for interference.
12) We
have carefully considered the relevant materials and rival contentions. Though
the High Court passed a lengthy order adverting to various factual aspects as
well the decisions of this Court, as rightly pointed out, various orders said
to have been executed extending the contract up to 31.05.1999 by the Department
with the security agency have not been fully highlighted by the High Court. If
it is established that after 30.10.1997, there was no valid contract between
the security agency and the Department, the stand of the workmen that they were
continued as security guards by the Telecom Department is to be accepted. As
observed earlier, perusal of the order of the High Court does not show that any
specific reference and discussion was made to the order/orders extending their
contract with security agency up to 31.05.1999.
13) In
fact, before this Court, respondents-Department have filed an application for
permission to file additional documents as Annexures R-3 to R-8 in support of
their stand that all the workmen were employed by the security agency and not
by the Department. Inasmuch as the agreement or contract up to 31.5.1999 with
the security agency are relevant materials for consideration of the issue
raised in the reference and in the absence of any specific discussion and
finding by the High Court, we are of the view that ends of justice would be met
by remitting the matter to the High Court for fresh disposal with reference to
the said aspect. Though we adverted to certain factual details of both the
parties, it is made clear that we have not expressed any opinion on merits.
14) In
the light of what is stated above, we set aside the impugned order passed by
the High Court in all these matters and remit the same to the High Court for
fresh disposal after rendering a specific finding as to the
subsistence/existence of agreement or contract with the security agency up to
31.05.1999 and pass appropriate orders. Both the Department as well as the
workmen are permitted to place all the relevant material before the High Court
in support of their respective claim and it is for the High Court to decide the
issue on merits as mentioned above as early as possible.
15)
The appeal is disposed of on the above terms. No costs.
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