B.S.N.L v. Charat Singh

ORDER

20.03.2013 C.M.Appln. No. 12588/2007 (u/s 17-B of the I'D'Act) This is an application filed under Section 17-B of the Industrial Disputes Act, filed by the respondent on the premise that the impugned Award directing reinstatement of the respondent has been challenged by the Petitioner and has been interdicted by this Court vide order dated

30.04.2007. The avertnent of the workrnan made in para 2 is that he is ngt employed in any establishrnent after the unlawful termination of his seryices with effect from r.9.2002 till date. The petitioner has filed its reply to the application. In the reply, the petitioner has stated in para 3 as follows:- '!i ,,3. Without prejudice to other submissions, it is submitted that on enquiry it has come to the lcnowledge that the \?) OF DELHI AT NEW DELHI ..... Petitioner Mr. Raj Birbal, Sr. Advocate with Ms. Raavi Birbal, Advocate ..... ResPondent Il4r. Vikram Nandrajog, Advocate with IW. Amit Singh, Advocate & \4r. Bijender Singh, Advocate \l\5 respondent is running a Kirana shop along with lis brother Bh-arat Singh. They are said to be earning Rs. 10,000/- to Rs' 15,000/- pi, *onih. He drives a Buggt. He inherits 2 to 3 btgas of'agricultural land as his share.f'o* 6 to 7 Keels of i"a cbUectively inherited by ioint family. Proof in this regard is annexed herewith as Annexure R-7 (Colly) The respondent workrnan has filed his rejoinder-In paragraphs 2 and 3, the following averments have been made by the respondent-workman:

¶2That the contents of para No. 2 are vexatious, incorrect and hence dented. However, it is submitted that there is proper ffidavit filed on behalf of respondent No. I along *tttrittu apptication u/s l7-B of the I.D.Act, 1947 and that is or r"rord-It is again pertinent to mention here that respondent No. 1/ worlqnan ,s not employed in any eslablishment after the unlawful termination of his service till date. The iontents of para No. 2 of the application tt/s I7-B are re-ffirmed-

¶3That the contents of para no. 3 arefalse, tncorrect and hence denied in toto. However, it is submitted that the respondent no. I is not working anywhere and because of his unZntployment it has become very dfficult for him to support *" htmilf and his family. He has to depend upon his relatives to meet the houie hold expenses. The contents of para no. 3 of the application u/s I7-B are re-ffirmed' The submission of learned counsel for the respondent-applicant is that the petitioner has sought to place reliance of an uncorroborated report stated to have been obtained by the detective agency' The author of the said report is not tendered his evidence. He also submits that the +-?'\ \\ respondent has denied the said allegations in their entirety and has stated that the respondent is not employed in any establishment after the termination of his services. He has stated that because of his' unemploytnent, it is difficult for him to support his family and he has to depend upon his relatives to meet his household expenses' He fuither stated that the allegation that the respondent is running the Kirana shop with his brother or that he is driving a Buggy are vague inasmuch as the period from when the respondent has been so working has not been disclosed. There is no basis to claim that the respondent is earning Rs' 10,000/- to Rs. 15,000/- per month from the business' Having heard learned counsel for the parties, I am of the view that the respondent is not entitled to any wages under Section 17-B of the I.D. Act. The petitioner has made a categoric and specific assertion in its reply as extracted above that the respondent is running a Kirana shop along with his brother Bharat Singh. It has also been categorically stated that he drives a Buggy. In the rejoinder filed by the respondent-workman, there is no specific denial of either of these averments. Though the respondent states that he is not employed in establishment, he does not state that he is also not self-employed' >; very difficult for an ernployepfind out the actual tmth as to whether or not the workman is working elsewhere to earn his wage. In this case, the petitioner has placed the original report prepared by Sharma Detectives on record along with a photograph to claim that the respondent is running a Kirana shop with his brother Bharat Singh. The respondent should have specifically rnet the averment of the petitioner alleging that he is running a Kirana shop along with his brother Bharat Singh and that he is driving a Buggy. Neither of these averments has been met. The response of the respondent to these averments is rather evasive' Consequently, I am any It is :1 t'!,5 inclined to dismiss the application. Dismissed' Writ Petition (C) No. 3L52/2007 In view of the orders passed today in writ Petition (c) No. 3 15012007, this writ petition also stands disposed of. All the pending applications, if any,'also stand disposed of. I VIPIN SANGHI;J MARCH 20,2013 sl v \{ .$-37. ,I. IhI '[.SIE ilTc}t COURI] OF' DN,I,T{I A1] F{EW I}]Dtr-,FI.I ' Data of tr)ccision:20-03.2013 w.P.(c) 31s0/2007 I}.S.N.I,. 'fhlough: . VCISLIS A'I"I'NRSINGII&ORS. 'fhrough: \6 ..... Resp.oudcnts Mr. Viklarn Nandrajog, Mr" u\mit Singh, Mr. Shcetesh I(tralna and Mr' Srishil Jaswal, Advocatcs rt COITAM: I,ION'BLIT MIl. .XIJSTICE VXI'il\ SANGIXI v[t]tN SANGI{I. J. (OI{A.L) I . 'l'his batch of writ petitions uncler Articlc 226'ofthc Constitution of Irrclia lravc bcc. prelb'recl by Bha'at Sanchar Nagarn Limitcd (IlSNi') to i.rssair trrc co.r'or.r award passed by the central'Gove.nme'rt I'dustrial 'l'ribr,r'al cr-rrn l,abour Court II, Rajendra Place, I{ajcndra []hawan' Ncy' I)clhi (C(il'f), in sevcral refelences macle in rcspcct of thc respondent u,orlctttattr ?.. 'l'hc rcl-cfcncc iu respect o[ cach of tl'rc workman is morc or icss idc.tical. 'l-hc samc issues arise fi-o'r the referenccs and, consecjr-re'tly' have trccrr dcarlt wittr in the common award passed by thc CGIT. As an cxarnplc, I iu.lr rcproclucing lrcrcin bclow'thc reference rnacle in tespect of sh. Balbir' I'age i of 20 ,r'.r'.K-) Nrt.r- -1 | 50-i6/2007 & other cortrtcclel tttullers i \r Singh .- t6e responclcnt in W.P.(C.) No.36 4912007, which leads as follorvs: "l'Yhether" the action of the management of GMTD, BSNL' licrric{abac{. in ternthtating/disengaging the services of Sh' Ital.bir singh so sh. Khaicm singh w.e.f 01.09.2002 without conqtllting with the provtsions of the ID Aet, 1947 and non-conlbrring of temporary stattts on him in accordance with the DdpTS -siheme of September 1993 and thereby non regtilarizing his services in ternts of provisions of CL(R&A) Ait, 1970 employecl throttgh" sectrtty contractors viz. IUI/s [,uxnta.n sectu"ity Agency, M/s. Keshav securiiy services, M/s. Anuraclha Secttri0' Services was jttst, fair and legal? If not' tttl'tat relief he is entitled td andfrom which date?" ' :i. 't'hc CGI'; by the'irnpugned award has answelcd thc refclence in liivoun. of thc worl<rnen by holding that the. action of the pctitioner' ptelnagctllent in tcrminating/diselgaging services of the r'vorkman withOut cornplyirig with the provisions of Industrial Disputes Act, 1947 (1he Act)' ancl irr not confelring temporaly stalus on them in accordance with the l)cpartmcnt of Pclsonnel ltaining (DoPT) Scheme of Septembcl 1993 and Lhcrcby not regtrl atir.ing their scrvices in terrns of the provisions of the Ccrnrreict Lerbour (I{egulation ancl Abolition) Act, L970 (the CLRA Act) crriployccl through security contractors narnely, IWs' L'uxtnan Secr-rrity Agerrcy, M/s l(estrav Seculity Seivices, I\{/s. Anr-rradha Seculity Selvices is 'ot.j'sr. or. lirir or legal. 'fhc ma'agement has been di'ectecl to reinstate all thc rcsponclent worktncn. Sorne of the wortrnan in rcspec't of whom rcfer.e'ces wel'e macle hacl not lecl their evidence and, consequently,'no such clircction has bee[ issued in respect of thern. They are not befole this Court' 'l'hc CGI'I has also awardect 50% back wages to the respondent workman iv.c.1-. 0l .09.2002. tl'.P.(C.) Nos. 3 I S0-56/2007 & othet connected ntullers t -t Puge 2 of 20 t tl.. Ms. llirbal, learneel coursel for the petitioner has subrnitted that the o.ly three issnes wirich wele referrecl for detennination by thc CGIT were in relal-ion to:

i) 'fhe terrnination/disengagement of the services of the workmanwittreffect.frorn0l.09.2002_whethert[rcsame was illegal on accottnt of rion compliance of the pr'ovisioirs of Act;

ii) Whcther the nou conferting of ternporary status on thc workrnan in accordance with DoPT Scheme of Septernber 1993 was fair just and legal, and;

iii) Whether the non wollcran in terms crnployed through legal.

¶5L,earned counscl submits that the terms of refelence did not refer thc issnc with regalcl to thg contracts between the petitioner and the coltracl"ors, natncly, thc three SeIVice sdclrity agencies mentioned in the Lcrms ol' rcfcrcnce, being sham or a cafilollflage, for adjuclication by the ' C]GI]"

¶6' Lcarnecl counsel for thc petitioner'submits that in the BSNL there wers a practicc of appointing labour contractors for providing of seculity services. ' Slre sublrits that suoh conlr'acts were legal' as there was no prohibition against the ernploymcnt of contlact iabour for provision of -i ll'.P.(C.) Nos. 3150-56/2007 & olher connectetl tnatters legularization of the .services of the of the provisions of the CI,RA Act - securiry contractors, was just fair and Puge 3 of20 \\ (b scclrrity scl-vices - as no notification under section 10 of the clilA Act had bccn issuccl by thc centr.al Government. she submits that earlier pi-ivate sec'r-ity age'cies - such as those mentioned in the te'rns of refet'ence, were arlso bcing erigagect. Flowever, an office memorandum dated 0I'02'1999 wzls issr-rccl by the l)epartrncnt of Pr-rblic li'terpriscs, r'vhich wars latcr lbllowccl by thc Defence Ministry's circttlal dated 26'04'200I' they recir-rirccl that all llsNl establishments shottld engage the security pei-sorurcl ltorn the Director General Resettlement (DGR).sponsor'ect agencies only'

¶7Shc subrnits that in the light of the aforesaid instructions' BSM' issr-rcd a mcrnorandum clated .03.04.2002 incorporating thc saicl condition' Colsequently, the contlacts. with plivate security agencies which were not sponsotecl by ftrc DGR hacl to be cliscontinuecl' I'earned counsel subinits t-hat all t6c rcspo.cle'ts wcre employed tluough the said securrity agcncies' g. l,eamecl counsel for the petitioner has drawn'the attention of 'the Court to the jr-rdgment of the Division Bench of this Cor-ut tn tr{'eshut' security services Ltd. v. (Jnion of Inclia & ors" }OO4Ii A'D' (Delhi) a69' 'l'he petitioncl I(eshaV Seculity Services Ltd' had sought to assail the 1lr-esoription laicl clown by the Dcpartrnent of Enterprises' as aforesaid' that only DGI{ sponsorecl agency be engaged for providing securiq' services to llic pctitiorrcr-c). 't'hc Division Ilench rejecled the said challenge by holding that it wasnotnecessaryfor'l':BsNl.toadoptopen.tendersystemfor cugagemcnt of 'sccurity services, and the petitioUers action of dra1ving sccurity pel'sonnel tluough a DGR sponsored agency r'vas neither arllitrary *1F: U/.P.(C-) Nos' 3150'56/2007 & othcr connected mntlers Page 4 of20 (. - nor cliscrimi'atory, a'd the same was lreld as not being violative of Article ' lzt of thc Constitution of India.

¶10Learned coLrnsel for the petitioner has submittecl that a perusal of thc awarcl shows that the sarle is plimarily premised on a finding that the contracts between the petitioner and the security aggircies were sharn and a carroltflagc. She sibmits that the said issue dicl not alise for ionsideration bcforc thc CGI'f - either frorn thc tenns of reference, or cvcn fi'orn the plearclings of thc parties. She has refened to the following extract fi-om the irr1l11rgnecl awarcl to subrnit that the discussion and finding of the CGII. to the ct-t-ect that thc contract betwecn the petitioner and thc sccrir:ity agcncies are sham a.cl a camouflage has Swullg the dccision of the tribulal in favottr of the rvor-knran. The relevant extlact in the award leads as follows: ,,[l became qtite obvtotts that the management has not fi'led cop)) of erir.contract agreem.ent with the cOntractot' and cloctunents regarcling payment to the contractors-The .tvorknten have .filect attenclance sheets to show their 'presence. The n,tanagement has not clenied the photocopies oJ' attenclance sheets fited by the yvorkrnen. There ls no enclorsement of clenia.l. The management vvitness has not s/atecl i.n his cross examination that photocopies are not true cotrties of the ortginal attenclance sheets' The 'original at'l.en.clance sheets are in the possession of the management' so the tvorlcnten cannot be expected to file the sam'e. The worlcmen have fiIecl attendance sheet from January, 1996 to January, 1998. These attenclance sheets are admissible in evidenle as the originals are n the possession af the managentent. This pioves the fact that the workinen have ,rorkJrl in the printises of the management as Security Guarcls continuiusll'front Janrnry, 1996 to Januarlt' l99B' The case of the worlcrnen is that they were engagecl in 1994' .-f.- W.P.(C.) Nos-3150'56/2007 & other connectetl nrutte$ Puge 5 of20 'd.) -f\ 1g95, I996, lgg7, Igg| and they have worked continuously titl 01.09.2002. The chart of the dttration of work of the tvorlcnten has been given The trtorlcmen hav.e cleposed that they vvorlced under. the sttlterviston and control of the management' Duty t'vas aisignecl to the workmen by the Jrtnior Engineer of the ma.nagemprd. It was the bttrden of the mcrnagement to prove that the contractors have made p.ayment to the vvorlatten' No strch pctper in proof of the payment being made by tlte contraclors to the workmen has been filed by the managenxent. It tvas fttrther submittecl that there wa'S no contract agreenxent between the contractors and the managentent. Tl,re worlcnlen were taken directly by the management, The conlract'ors were mere name lender. They got Sotne contmission. In case of real contract there zs Ctgreement DetuVeen .[ne nxanagetnent and the contractor for supply of workmen on certain terms ancl conclttions. Wages are to be paid by the agreement betvve-en the there contrcrctor. EPF is to be clepostted by the contractor' The' tt,orhnen are enrolled tn ESIC. The management has not .filecl ctny paper to prove that EPI| was deducted from the ''l,vages o1'tfi .rvorlcrnen and their names were registered by the contractors tmder the ESIC Scheme. No such docutnent ' has been fitecl. This proves that there lvas no contract in exfstence ancl the tror|*", yvorkecl directly under the control ancl stpervision of the management. The vvorlcrnen cannot be ,*purira to file tfipt of I1PF ancl the Regtstration Card under ESIC. These are iratirial. donments for a valid contract but no strch docttment has lteen filed by the management' The worlanen ha.ve filed photocopies . of attendance sheets ve4rtfiecl by the Sttb-Divisional Engineer' SDE and the Junior lingineer and these clociments have not beei dented hllthemanagement.Soitstanclsprovedthattheyvor|cmen ior" worked from I994 ontvarcl,s as has been specified in the lV.P.(C.) No.r. 3150-56/2007 & olher conuecteil nnllers Puge 6 of20 (v G chart of teru.re of ,vvorlc of the worlcrnen. It also stands proved thar the ,roro[",nent has been making payment directly. Th.ere is no contractor even as name lender. No EPI; has been cleposi.tecl. The workmen have not been registered uttder ESIC Scheme. The management has committed grave violation of the provisions of the ID Act, 1947, PI" Act and et,en IISIC. Sttih practice has been held as urzfair labour practice rmder ID Act, 1947." I l. l,ealnecl counsel for the petitioner subinits that the statcrnent of clari.rs l;lecl by the r-esponde'l worlcmen is identical. In the said statcrnent of clainr, there is not a whisper to suggest.that the security contracts entered irrto bctwcgn the petitiOner and the .contractors.were sham or capouflage' .t he said sl-aterneut of clairir is rather short and cryptic. The relevant pait of Llrc sarnc rcacls as follows: ,'l. \'hat fhe Claimant/Worlcrnan was employecl by the abot'e management since ['eb. 1999 and at the relevant period was - ,u,orkin.g as a S. Gttarcl ancl was clrawing a monthly wages of Ils. 2650/-. .

¶2That the yvorlc and condttct of the yvorlcmhn was quite satisfactorlt dtring the period of employment'

¶3That the DI|MAND NOTICE of claimant/vvorlcmalx may al.so be reacl as part of this claim statement. The photocopy of ilte l)entancl Notice is erclosed as Annex-A vvith this claim sta.f.ement.

¶4That the aforesa.i.cl management terminated the services of the a.bove namecl worlcman with ffict fro* 01.09.2002'by verbal orcler. Ihis is a case of refusal of duty and amountl to terntination of services and retrenchment and that too without complian"n o7 the mandatory pre-reqtisites of Section 25-wa)s_c o.f the Inch,tstrial Dtsptftes Act, 1947. It is also a case r+.1 ly. P.(C.) Nos. 3 150-56/2007 & other coilnected nilttets Puge 7 of20 \n t2 of unfair labour practice. Aft" termination my services the iforisoia Management appointecl new other employee' In my itorc which is ttiolation of the I'D' Act, 1947'

5.Thattheternlinationofservicesintheinstantcaseis ,,rrongful, illegal, against the principles of natural justice' ,ro677d" onio casi of vindicliveness and also unfair labozu' prorir", the utorkntan is, therefore, entitled to re-instatement tvith all conseqttential benefits including 'wages for the intervening Period' It is, therefore, prayecl that the Hon,ble Court ble pleasecl to pnri or roiorit in clirecting the Respondent/Management io re-instate the worlcntan in their services with fuII back fiages' ' ancl tvith contintity of services and with all benefits" ' l?. She submits that a perusal of the demand notice which was annexed as A*exure-A to the staternent of claim, also placed on record, shows that lhe respondent workmen did not allege the contracts between the ptiitio"t' ancl the security agencies to be sham br a camouflage' Y.

¶13Lealned counsel for the petitioner submits that the CGIT had no juriscliction to go into the issue as to whether or not the contracts entered into between the. petitioner and the security agencies were sham or a camolrflage, since no such dispute - was raised by the respondents; 'no reference was made. by the appropriate .governlnent in that respect, and; there wet'e 1o pleadings made to that eft-ect by the responclenVclairnants' She places reliance on the decision of this Court in 'Ashok l{umur & Ors'. v' TIte State & Anr..in w.P.(c.) Nos.9438-42/2004 decided on 20'12'2006' MANU/DElgg07l2006. In this case, the learned single Judge observed that no clispute hacl been raised about the contract being Sltam or a camouflage' lY.P.(C.) iVos. 3150-56/2007 & other connected nntters Puge S of20 ff '['[re clairl of the workrnen was that they were direct employees of they were ernployees of the-contractcjr- "It i.s notv settlecl lavv that where the worlcrnen claim that the contract befuveen prtnciple employer and conlractor was shant a.nd. ,o*or,7og", they have to ratse an industrial clispttte to that ffict and it is industrial adjudicator who, ofr", going through the evidence and the terms and ioncttttors-of the contract and other circumstances has to cleci.cle ttthether the contract bettveen principal employer and l.he contractor vvas sham and camot'tflage" ' In para 7 of the judgment, this Court fuither obselved as follows: "It is obviotts that the vtorlcrnen in this case clid not iaise correct dispt'tte and did not approach the appropriate Government with the contentions that the contract was sham ancl. camottftage or that the contrqct labour system should be ' abolishecl.- rnry got refeyred a cltsptte that they vvere the empl.oyees of the management 'and were not being reglirizect. This clatm was fomd false. The Labour Court lricl no alternative bttt to dtsmiss the claim. It is settled law fha.t the Labour Cotrt/Tribtmals cannot travel beyond the terms of reference. If no reference had been rhade to the Lctboul Coirtfor cletermining whether the contract vvas sham ancl camo,Jlige, the Laboul Court cottlcl not have entered into this issue ancl clecided whether the contract was sham ancl camottflage". petitioner has drawn the attention of the subrnittecl that in its written statemqnt,.the petitioner had stated that thele \^/as no relalionship of employer-employee between 'the parlics' 'Ihe ly.P.(C.) Nos. 3150-5.6/2007 & other connectetl mallers Page 9 oi 20 the -,.E. \*. ..i management and did not claim that 'I'he Cor-rrt observecl :

¶15Lcarnecl collnsel for Court to thc written statement filed by the petitioner before the CGIT' It is I tl. the .\ v* 9t responclent workman hacl neither been engaged nor recruited by the pctitioner management and that the responclents were not membels of the scrvice. No appointrnent letlels havq been issued to thetrl, no1' were their scr.vices tellinated by the petitioner managernent. Reference hacl also been' madc to tlrc aforcsaid judgment of the Division Bench in thc case of Keskav sectrri4t sert,ices,I-trl (supra). It was pleaded by the petitionel that the scclrity personnel provided by the security agencies are in no way clonpccted with ttre lecruittnent procedure of the petitionei managemenl' Rather, thcy are ernployees of flre agency under the terms of the employment scttlecl between the woricrnen and the agency concefned.

¶16Learnecl counsel for the petitioner has also refered to the affidavit by way of eviclence filed by the petitioner management of sh. Netra Pal Si,.,g, AGM, Legal working in the office of the Gene'al' Ma'ager, Aclministrativc Complex, Ilaridabad, wherein he had stated that the workmcn were neither employecl by itt" managernent nol were they tc''inatecl/rctrenched and that.there was no employer-employee relationship bctweel the workrnan and the management. It was also affi1:red that in vicw o1'tl're juclgrnent in l{eshav Security Services (supra), all the BSNL c.stablishments engage the wortman fi'om DGR sponsored agenc,v only'

¶17Lcar-ned counsel for the'petitioner has placed reliance on the cf ccision of the supreme court in Indian prugs ond pharrnaceuticals Ltd. v. Tlre Workman, Inclian Drtrgs and Phsrmsceuticals I-tt!', (.2007) I SCC 40g. 'l'hc Suprcme Court aftel referring to the judgment of ihe constitution bcrrclr in The secretary, stote of Karnatskh & other v' uma Devi & otlters,(2006) 4 SCC 1 has obselved that economic realities catmot be lost Puge 10 of 20 :ra.- H/.P.(C.) Nos. -i | 50-56/2007 & other connected ntalter'r (L (l: siglrt oL No doubt, Arlicle $1 provicles for flre right to r,vork, but'this has bcen clcliberately kept by the founding iathers of the constitution' in the clircctive principles ancl hence made unenforceable in view of Articie 37 ,of the co.stitutio', because the founding fathers i'their wisdorn realized'that u,hilc it was their wish that everyone should be given employinent' the gronncl realities of our country did not permit the same' The Supreile Court observecl that Arlicle 2r. of the constitution carrnot be stretched so far as to 6ean that cveryone tnust be given a job. The number of availabie jobs is li'ritecl ancl hence the courts rn'st take a realistic view of the matter and nrust cxet'cise self restraint. lU. On the other hancl, Mr'. Nanclrajog, learned counsel fo1 the r.csponclcnL workman has sgbrnitled that in the presenl case, the petitioner hacl lailcd to leacl any evidence before the CGIT to estabiish that the rvorknan hacl been engaged through the contractors' They did not ploduce a,.,y ilocr,rnent or other evidence to show that there wele a:ry Contracts enterecl into between the petitioner and the contractols/security agencies; tliat the security agencies had, i'tutn, posted the work'ran at the facilities of the petitionet'; that the salaries of the workman have bcen paid by the contractors and not by the petitioner dilectly. It was not even disclosed as to which of the wolkman had been cleployed through which of the contractors' Apart h-om filing. the affidavit by way of evidencc, as aforesaid, ro clocLunentary evidence was placed on recorcl by the petitioner manage4rent' l.[e sr-rbmits flrat the case of the r'esponclent workman was that they vvcl'e rc/ernnlovees of the BSNL. clirect appointees/ernployees of the BSNL'

¶19L.earnecl counsel. for the respondent submits that the demand letlers Pnge 1I of 20 --lr:. lV.P.(C.) Nos-3 | 50-56/2007 & other connectetl nntlers (n {: . issyecl by thc respondent workman categorically stated that the petitioner "onl1t'hacl. crppointecl me in this tnstitution but had not given me arry appointntent letter nor any attenclance card nor even any wages slip lvere g.iven. q'he a.mount toyvards ESI aincl PF rvere being de:ch'tcted front my itontltlt salarlt from. the very beginning but neither I was given ESL card or ernlt PIi slip. Ancl on the pretext of pension scheme, had got signecl by me on lt I a.n lc pape rs, blanlc vor,rchers ancl blanlc yot rchers" .

¶20l.Ie submits that in their written staternent, the tnanagement did not specilically clisclose as to by which security agency, each of these wo'k'ten wcre cleployccl through. l'he said positioir was not elaboraied cven in thcir alfidavit by waY of evidence'

¶21Learned coursel for the respondent has also referred to the cross examinatiOn of thc managetnent witness, Sh' Netrapal Singh conducted on

07.08.2006. 'fhe managernent witness had stated that they had irot" filed any r.ecor.d other than the written statement and affidavit. Learnqd counsel surbmits that the work of secnrity guards is of a pelennial nature' The 1:etitioncr rcclurred security guards at all its installation' The petitioner has rrot cliscrosccr as to rryrrat is trre recluisite qualification r-rnder the recruitrnent r.ules [br-thc posts of security guards. consequently, it cannot be said that the appointment of the respondcnt workrnan w1s itlegal or irregular'

¶22I.Iaving heard learned counsel for the parties, perused the irnpugned awarcl as well as the record relied upon by the parties, considered the vai'ious clecisio's citccl bcfore me ancl the respective subrnissions of thc parlics, I art of the view tirat the impugnecl award cannot be sustained and is liable to be Pnge I2 of 20 :-f * ly.P.(C.) Nos- -J t 50-56/2007 & olher connecletl tttolle''s # :: set aside.

¶23I have already set out herein above the telms of leference tnade to the CGI'I'. The said terrns of lefelence, which were made at the instanie of t5e workmen do not gontain any reference for exarnination of the issue whether the contracts between the petitioner and the security agencies were sfuarm of a callouflage.' On the contraly, the telns of reference thernselves clisclosc that thc workmen were ernployed through security conlractors namely, M/s. Luxman Security Agency, Iws I(eshav Security Sci'vices, IWs. Auuraiclha Security Services. I-Iad the case of the respondent woricmen being L6art the c'ntracts between the petitioner and the aforesaid security agency vr'ere a sham or a carrouflage, they would have sought a specific reference in Lhal" rcspecl and, if not ntade, they would have either sought amendment of t5c r-e1erence aS tnade, or assailed the Salne. I-Iowever, no such.steps in this \al. regalcl were taken. Even in their statement of claim, the Iespondent work.ran clid lot raise any issnc to assail the contracts entelcd into befwecn tlic pctitioner and thc security agencies.

¶24Pertinently, in the notices of demand - which are also more oI less iclentically wolded in respect of all the worlonen, the workrnen had stated in pat'a 4: ,,4. Thal yolr terminatecl nxy services w.e.f. 01.09.2000 trtithottl any written order oy yvtthott any reason and recrttitecl other nevv vvorkers at my place' Only previolts sttpervisor has remained, on being asked you' told that cintract has been given to Anursdhg Security Serviges- , )roLt have neither give nte any charge sheet nor any shotv cause notice ,o, his got any tnEtiry done nor has issued any i,r;rr;"oron lette*ol ho, setttict my accotmts. This type of l,y.P.(C.) Nos. 3150-56/2007 & other connectetl tt'ntters Puge 13 of20 g. (t crctivity is .vvrong, itlegal acttvity, vindictive, unjust labour practice ancl anti labottr policy and side by side you h.ave :openly vtolated Section 25N and 25F of I.'D-Act, 1947' As sttch I am entttled to reinstaterhent in my service alongwith fi,tll salaty of my past and continttous and break "tp.serttibe with other benefits". (Emphasis supplied)

¶25'fherefore, the case of the respondent workrnen was that thcy were elgagecl fhroqgh seculity agencies. Since no such dispute'was raised or rel-errecl, the occasion for the petitionel to eilher plead or plove" that the I cbntracts were not sham ol caurouflage did not arise. The faiirt'e of the petitioner to pr-oduce the contracts and the other infonnation in relation to these contracts coulcl not have led to the conclusion that the contracts did not exist, or they wele sham or cautollflage. The fact that they were not sham or caurouflage is evident frorn the facl that I(eshav Security Selviccs had cverl appr.oachect this Court to assail the termination of their conh'act by thc petitioler-ancl the irnpositign of the condition that only DGR spbnsored agelcies cor-rlci be engaged for providing seculity services. It is also .otcwor.thy that tlre petitioner is a government corporation. The provision of sccr-rr-ity services involves appointrnent of responsible and credible pelsons, sincc it has an element of trust and faith. Security services ale availed of by thc petitioner to safeguard its assets and propefiies. For such engagetlent, tlie petitioncr was contracting with security agencies who were providing pcrsonncl at their responsibility. 'Ihe petitioner, obviogsly, could not havc engaged casual workers on individual basis for pqryose -of providing sccur-ity services.

¶26I rnay alSO refer to the cross examination of the inanagetnent llt-P.(C.) Nos. 3l i0-56/2007 & oilter cortnecteil mltters )'ta'-. Puge 14 of 20 * witpess Sh. Netlapal Singh. The said cross exarnination, in fact, supports L[c casc ot'the petitioner as it clearly shows that the case of the lcspondent workman also was that 'they were engaged by the petitioner thror-rgh conLrarctors. In lesponse 'to one questionl tlr.e answel' given by the management witness is: "f am not aware whether the worlc done by the contrcrctor have been a""orrpilished by the worlvnan tn this case(s) or not" ' ln response to anothel quefy, the answer given by the witness is: "'Il is irtcorr.ect to sl4gest that there is any triparttte agreement betuveen the rltanagement., contractor and the worker". The witnesS fufiher States "I do not lcnotv tvhether these workman have worked under the aforesaid conlraclon or nof'-

¶27'l'he aforesaid answel's clear'Iy suggest that the stand of the rcspo.clent .woplcryral was that there were contractols e'gaged by ihe ltelitioner, and the workrnen had performed the contracts by renclering their scrviccs thereuncler. It is also pertinent to note that in the entile cross cxaniination of the rnanagement witress, not a single suggestion has been given to the witness that the contracts between the petitionel and the secutity ergcncics wcre sham or calnouflage'

¶28Since no rel:efence was rnacle by the appropriate govelnment on the issuc oIthc validity of the contracts between the petitioner and the security agencics, the CGIT hacl no jurisdiction to exarnine the same-The dccision i^ Asholc l{nmar(sgp1a) is cleally applicable in the facts of the plesent case' .l.hc approach of the CGIT,'in the light of the aforesaid discr:ssion, in \*. dcclar ing that wel'e a sham the contlacts between the petitioirer and flre seculity agencies or a calnollflage is completely eroneous' The said issue did i ll'.t'.((:.) Nos. 3150-5(t/2(lOZ * ottrcr conrtected nrulters Puge I5 of20 \h b\ not ar-ise fior consicleration of the'CGIT. The non filing of docurnents or any crricleucc in this r-espect by the petitioner was clearly on account of the fact Lftat the saicl issue was not even raised by the respondents-On the conlrary, they hacl adrnittecl tl-re position, and it was their own case that they had been errgagecl through contractors. ZL). It is also inler-esting to note that on the one hand, the CGIT has held L[e contracts to bc sharn ancl camouflage, while on the othel hand, i'vhile answcr-ing the rcference it has been held that thc action of the pctitioner ntanagement in tenninating/disengaging the services of the workraan '"withotrl complying with the provisions of ID Act, 1947 and non conferring of tentporarlt status on them in accordance 'vvith the DOPTS Scheme of September 1993 an'd thereby non reguluiz:.ing their services i'n terms of ltrovisions tf CL (R&A) Act, 1970, employed through Secwrity Contractors vir.. M/s Luxman Security Agency, M/s Keshuv Secwrity Services, M/s Anurodlrtr Security Services,is neither iilst nor fair nor legaL The managentenl. /J clirectecl to reinstate all the above named vvorlcmen crpplicants except S/Shri Mahesh (ID N'o.53/2004), Muke.sh QD No'56/2004) ancl shri Amar singh QD No.90/2004) becattse these three wo.rlcnten have not filecl their fficlavits along with 50% backwages w'e'f 0l'09'2002 'and ,tape 1)astntent of the entire aryears.within ttvo months from the dqte of ptiblication of the an'vard'. (Emphasis supplied)

¶30ljrom the aforesaicl, it'woulcl be seen that the CGIT has itseif observecl that these workmen wele employed through security contractors, narlely M/s. Luxrnan seculity Agency, I\{/s I(eshav seculity services, M/s' Anuradhar Sccurity Services. The question of invoking the provisions of \{-ly.P.(C'.) Nos. 3150-56/2007 & olher connecteil nntlers Puge I6 of 20 \r-\.,* vr) cl,RA Act would arise only if the services of the workmen wele takeu tlrrough laboul contractors. The aforesaid declaratiop by the GGIT has crnbedclecl in it the declaration that the respondent workm.el had been engaged t1rrough contractors. Therefore, there is no merit in tlie"subrnission of thc respoldents that their case rvas that they had been dilectly engaged by the petitioncl' lrlanagement or that they had, in fact, been engaged directly by Lhc petitioner rranagernent. it *ut neither their case that they had becn clirectly engaged by the petitioner managsment, nor was it so established by thern on the recolcl. Pertinently, they had not produced any lettels of appointment issued by the petitioner appointing them as security guards' As aforesaid, the petitioner is'a government corporation and it is absolutely unacceptable ancl unbelievable that persons to such vital positions -which irtvolve trust and faith, would be appointed casually without even issuance o I appo intm ent letters. 3 l. A pcmsal of the irnpugned award shows that the saine plimarily proceecls on tl're basis that flre contracts between the petitioner and the sccurity age'cies are sham and camouflage. As aforesaid, this finding has' [ree. render-ecl wilhout jurisdiction. The CGIT. was also swayed by'the fact l_hat the responclent workmen were able to establish that they had been working at the premises of the petitioner for a couple of years atleast' That' by itself,. coulcl not have lead to the conclusion that the relationship of ernployer-ernployee existed between the parties' This is fol the'1eason that the pclitionet cloes not even dispute the fact that the respondcnt workrnen were serrritrg the petitionel at its facilities. However', the case. o'f the pctitioncr is that thby were selving tluough contractors' i'e' security ,y.P.(C.) Nos. 3 150-56/2007 & other connecled nrulters Pnge 17 o.f 20 6) \q 'q. agencies. Rendering of such contract labour would npt make the rcsponclents the wolkrnen of the petitioner-

¶32'l'6c situation rnay be viewecl fiorr anoilrer angle. The awar;d itself contains the clates on wllich ihese respondent workrnen had been engaged. 't'hc saicl tabulation shows that the earliest engagements were made on' Mar.ch lgg4. Engagernents were macle each year thereafter righi r-rpto the ycar 2000. Accorcling to the respondents, they were all disengaged on

01.09.2002. Ilven if the submission of the respondents: that they wele clireqtly gngaged by the petitioner.as casLlal workers wer,9 to be accepted -for thc sakc of argument, their engagements ranged befween 8 years to 2 year.s. Ilven if they are treated as casnal r,vorkers of the petitioner, since their appoiltments wele rnad.e inegularly'and not flnough the pr:ottss of rcciuitprclt by public adverl.iscment, they would not have a right to the post. ConseqLreltly, in ally event, the direction to reinstate the respondents was no1 called for and cannot be sustained-

¶33I pray refer to the juclgrnent of the Supreme Courl in .Iagbir Singh [/s. I.Iultunu State Agriculture Marketing Board & Another^ (2009) 15 SCC 3ZT,wherein the Suprerne Coufl has noted the shift in law, particula-rly in casc of casual workers and those who are not regularly ernployed, it has bccn hetcl that thc lelief of reinstatement does not automatically follow the fi'ding that thc tcrmination is illegal and in breach of section 25F of the Act. 'l'6c award o.[ cornpensation has been held to be sufficient to meet the ends olj,stice. I nay emphasise here itself that the respondents couid not be said to be the casual ernployees/wortraan of. the petitionel and the above r.easoning has been given only as an additional reasoning. l.l/.P.(C.) Nos. 3 t 50-56/2007 & other connectetl ntatters Page 19.of 20 3tl. Learned counsel for the petitioner points out that ,n" i-.rpondent w.r.lc'rcn lravc bcc.n receiving wages under section 178 of the Act. I'he Conrt has directed payment of the last drawn wages or the minimrun wages, whichcver is higher. The sarne has been paid from the date of the ar'vard onwards i.e. 04. 12.2006 and the same continues to be paid even now-These wages have already been paict for ovel six yeafs. It is sgbmitted that each of tlrc responclents have received wages under section'17B, of the Act to the [une of over Rs.3 lacs (on the basis of the revisecl minimum wages frorn tjrne t-o [imo, as they were higher than the last drawn wages) except in respect of rlic rcsponclents in w.P.(c.) Nos.3 15212007, 31 53/2007, 315412007 ' 3t56120Q7. 315912007, 316012007, 359612007 and 365012007, where the applicartio's u.cler section 178 are still pending consideration- 'rhese applications are being dealt with separately'

¶35'fhe responclents, as aforesaid, have received wages undqr sectiot-t l7t] i. cxccss of Its.3 lacs aff.er their telmination. I may obsctve that though while allowilg thc applications of the workrnan under section i7I] of the Act, vicle comrrron older dated 13.10.2011, the Courl had lequired the rvorlcrnan to give an undertalcing to the Courl that in casc the writ petition succeeds, they shall lefund the difference between the amount of last dlawu rvagcs ancl the nlinimllln .wages.' The. respondents have been receiving wages gncler sectiou 178 attthe rninimLlut wages rates prevalent fi-om tirne to tilne, which is higher than the last drawn wages drawn by them' The effect ot'the awar-d being set aside wo'ld be'that they wonld be required to'eflind the saicl clif[erence. I-Iowever, I arn not inclined to direct the same, aird the saicl a'ron.t could well be treated as aclequate colnpensation payable to them Puge l9 of 20 \ \; F L|/.P.(C')Ntts.3I50-56/2007&otherconnecleilnta||ers / -I \t-in lieu of teinstatement and back wages, even if it were.to be accepted for the sake of argument that they were the casual workman of the petitioner' Flowever, in respect of workmen who are found not entitled to r'vages under Section 17-B bf the Act, no compensation is payable as they, in any event, are not workmen of the petitioner ffid, consequently, no case of retrenchment is rnacle out by them against the petitioner'.

¶36Accordingly, the writ petitions are allowed and the impugned conrmon award dated 04.12.2006 is set aside, leaving the parties to bear their respective costs.

¶37All the pencling applications stand disposed of' MAIT.CH 20,2013 Sf vrPIN Stancmr,.l l. ly.P.(C.) Nos. 3150'56/200'7 & other corutecterl ntttters Puge 20 of20

t- --{J ,.L s-39 * IN Tt{E HIGH COURT w.P.(c) 3rs2t2007 B.S.N.L. Through: VETSUS CHARAT SINGH Through: l:" o CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI