Bharat Sanchar Nigam Ltd v. Narender

ORDER

20.03.2013 C.M.Appln. No. 12580/2007 (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 averment of the workman made in para 2 is that he is not employed in any establishment after the unlawful termination of his services with effect from I.9.2002 till date. In reply, the petitioner has contended that the respondent is working as a property dealer in partnership with one Sanjay and Praveen of the salne village. It has further been stated that the respondent is the owner of the office of the property dealership. It is stated that he owns an Alto car for his personal conveyance and he has two plots near his office ..... Respondent Mr. Vikram Nandrajog, Sr. Advocate with Mr. Bijender Singh, Advocate t 4: o /r1 ja Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. a i1 9t and inherits approx 2bigas of agricultural land. Peftinently, in the rejoinder, there is no specific denial of the allegation that the respondent is working as a properfy dealer in parlnership with Sanjay and Parveen of the same village. It is denied that he is owner of the properfy dealership business. Learned counsel for the respondent-applicant submits that it is not claimed by the petitioner that the respondent is deriving any income from the said business. This is apart from the submission that the respondent has gengrally denied his alleged employment. Having heard learned counsel for the parties, I am of the view that the respondent is not entitled to wages under Section I7-B of the Industrial Disputes Act. The failure of the respondent denying the specific averment with regard to his working as a properly dealer in partnership with Sanjay and Praveen of the same village tantamounts to his admission of his so working as a property dealer. He has also not denied that he owns the office of the properfy dealership. This Courl is not willing to accept that the respondent would not be earning adequate wages fi'om the said business as the properfy dealer would earn at least, if not more, agra class IV casual worker would earn as a minimum wages. /'tu( This application is accordingly dismissed. The application stands dismissed. Writ Petition (C) No. 3159/2007 In view of the orders passed today in Writ Petition (C) No. 315012007, this writ petition also stands disposed of. All the pending applications, if any, also stand disposed of. MARCH 20,2013 sl VIPIN S u\L' l,-ot ,* 'fFrE II'GII colJRn' oF DELTI' ATt *Ew Dtrtr trxI ' Date of l)ccision: 20-03.2013 + w.P.(c) 31s0/2007 1' I]'S-N-L. s" 'fhror-rgh: VCl'SLIS A'I"INR SINGI-I & ORS. 'fhrough: ..... Respondcnts Mr. Vikrarn Nandrajog, Ml-Anrit Singh, Mr. Sheetesh l(tranna and Ml-Srishil Jaswal, Advocatcs . COITAM: II.ON'I}[,}I MII. .IIJSTICE VIPIN SANGHI vn IN SANGX{I" .I. (oltA.tr ) | . 'fhis balch of wr.it petitions uncler Articlc 226' of thc Conslitution clf Inclia 6nvc bec' prel'erred by Bha'at sanchar Nagam Limited (IlsNL) to assair tric corl.lr-r-lor1 awarcl passed by the central Governme't I'dustrial 'l'riburrrarl ctrm l,abour Court II, Rajeldra Place, Rajcndra l]liawan' Ncw I)clhi (Clcl'f), in sevcral lefelences made in rcspcct of thc lespondent r,l,orl<uratr

¶2'l'[c rcl'crcncc in respect. o'l' cach of thc workman is mot'c or ]ess itjcrrtical. 'l'hc Salnc issues art:e fl'om the refercnces and; consequently' have bocn dcalt with in the comrlon award passed by thc CGIf' As an cxampie' I iull rcproclucing hcrcin bclow the reference macle in respect of 'sh' Balbir' I'ilge I 0f .20 ll''.P.(C) No't. -1 t 50-56/2007 & other contrecteil "urtters \ \3 Singlr.- the responclcnt in W.P.(C.) No.36 4912007 , whicla reads as follorvs: "['Yhether" the action of the n'tanagement of GMTD, ]ISNL, l,'ariclabac{ in terntinating/ctisengiging the services of Sh. Ilatbir singh so sh. I{hajan singh w.e.f 01.09.2002 without contplying tvith the provisions.of the ID Act, 1947 and non-coi/brrtng of teruporary statns on htm in aicordance'vvith the 'Ddpfs Scheme of September 1993 and thereby non reg.larizing his services in terrus of provisions of CL(R&A) ttit, 1970 employed throngh sectrtty contractors .viz. Itl/s Luxman Sectu"ity Agency, M/s. I{eshav Security Services, IVI/s' Anttraclha Security-Servi.ces was jttst, fair and legal? If not, what relief he is entttled td andfrom which date?" '

¶3't'hc CGI l' by the irnpugned award has answclcd the lefotence in lirvour of thc worl<rnen by holding that the action of the pctitioner' pranagcr"r-lent in tcrminating/clisengaging services of the workman without conplying with the plovisions of.Industrial Disputes Act, 1947 (the Act), .i a.cJ in not conferring ternporaly stalus on them in accoldance with the I)cfartr-1c1t of Pclsonnel Training (DoPT) Scherne of Septernber-1993 and Lliereby lot r-egularizing thdir scrvices in terms of the provisions of the golrracr Labour (Itegulation and Abolition) Act, 1970 (the CLRA 'Act) cprployccl through secr-rrity contractors natnely, IWs. L,uxman Seculity Agency, M/s I(eshav Security Services, M/s. Anurbdha Security Selvices is 'ot.j'st-or. lair or legal. 'fhc rnanagement has been dircctecl to leinstate all t6c r.csponclent, workmcn. Some of the workman in rcspect of whom refer.ences were macle had not lect their evidence and, consecluently, no such clirsction has been issued. in respect of them. They ale not before this Court' I.hc CGIT lras also awarded 50Yo bacl< wages to the lespondctlt worianan tv"c.f. 01 .09-2002' ,f.P.(C.) Nos..3l50-56/2t)07 & other connecteil ntutters Puge 2 qf 20 {\, Y\ tl.. Ms. Ilirbal, learnecl coursel for the petitioner has subrnitted that the orriy three issues which were refelred for determination by thc CGIT were in relalion to:

i) 'l'he terrnination/disengagement of the 'setvices of the workman with effect frorn 01.09.2002 - whether t[re san1e was illegal on account of rion cornpliance of the pi'ovisions of Act; Whetheri the non conferring of. temliorary stalus on the I workrnan in accordance with DoPT Sbheme of Septernber 1993 was fair just and legal, and; Whether the non regulalization of the services of the workrnan in terms of the provisions of the GLRA Act - ^.1. oo..rr'il'rr e.nn1 it fair and cmployed throUgh seculity contractors, was Jrls legal.

¶5I-earned connsel submits that the terins of refelence did hot refer tlre. issue with legarcl to the contracts betw€ien the petitioner and the contractors, namely, the three service secttrity agencies inentioned in the tcnns ot'r'cfercnce, being sharn or a caillouflage, for adjudicaiion by the CGIl..

¶6Learned counsel for thc petitioner submits that in the BSNL there wers a praoticc of appointing labour contractors fcjr providing of secui'ity services. ' She subrnits that such conlracts were legal, as thele was no ,prohibitiol against tire ernployrncnt of contlact labour for provision of

ii)

iii) ,4 ff.f.rc1 Nos. -7 t 50-56/2007 & other connecteil ntalters Pttge 3 of 20 ri. '.1 J se.curity selvices - as no.notification uncler section 10 of the CLi{A,Act had bccn issurccl by tl-rc Central Government. She submits that earlier private sectrr.ity age'cies - sr:ch as those mentioned in the te'ns'of refei'ence, vvere also 6cing erigagecl. However, an office merlolandutn dated 0L.A2.I999 wzls issuccl by the Departrncnt of Public .Enterprises, which was latcr followecl by thc Defence Minist'y's circula' dated 26.04.2001" I'hey rcclr,rirccl that all IISNL establishments shottld engage the security pelsorurcl liorn the Director-(ieneral Resettlement (DGR) sponsor'e,d agencies only'

¶7S6c subrnits that in the light of the aforesaid instluctions, BSM, issurecl a l1.l.c11to1'andum datecl .03.04.2002 incorporating the saicl condition' Consequeritly, the contracts with private security agencies which were not s1:onsor-ecl by ltre DGR hacl to be cliscontinued. Learned connsel subinits that al! the;'csponclents wcre employed through the said security agencies' g. Lea'recl counsel 'for the petitioner has drawn'the atte'ntion of the Conr-t to thc jr-rclgrnent of the Division Bench of this Cottit tn Keshrn' security services Ltd. v. (Jnion oJ'Inclio & ors-,2004II A'D' (Delhi) 469. .l.he 1:etitioner I(eshav security services Ltd. had sought to . assaii the. 1:rescription laicl clown by the Department of Enterprises, as aforesaid' that orily l)GIt sponsolecl agency be engaged for providing security services to llrc pctitiorrcr. g. 'l'lic Division lJench rejccted the said challenge by holding that it was not necessary for the BSNL to adopt open .tender systern for engagenrent of 'sccurity services, and the petitionels action of dlar'ving security pefsonnel thlourgh a DGR sponsored'agency was neither arbitrary Page 4 of20 -l ly.P.(C.) Nos. 3150-56/2007 & othcr connecled trtullers {,\ i \6 nor cliscrirlilatory, ancl the sarre wasJreld as not being violative oi Article ' lzt of thc Constitr-rtion of India.

¶10Learned connsel for the petitioner has submitled that a ielusal of thc awarcl shows that the same is prirnarily prernised on a finding that the contiacts between the petitioner and the securrty 4geircies were sharn ancl a caurouflage. She sr-rbmits that the said issue dicl not arise for 6onsideration [:c[orc thc cGI'f - either from the telms of reference, 01' cvcn'fi'om the pleaclings of thc parties. She has referred to the following extlact 4o* ir'pugned awarcl to subrrit that the discussion and finding of the CGII]to tire c tI-ect that thc contract between the petitioner and thc sccurity agcncies are sham arncl a camouflage has swung the decision of the tribunal in favour of l"he rvorl<uran. The relevant extract in the award reads as follows: -t ,,.11. became qtite obviotts that the management has not filed cop)) of erin conlract agreement with the centractor and cl.ocrmtents regarcling. payment to the contractors. The .tvorlcnten have .fitect attendance sheets to shotv their 'presence. The nxanagement has not clinied the photocopies oJ' ailenclance sheets fiIed by the yvorlcmen. There ,s no inclorsement of clenial. The mdnagement vvitness has not st:atecl in h.is crosl examination that photocopies are not true copies of the original attendance sheets. The ori.ginal' a.t'tenclance sheets are in the pos.session of the mancLgeme'nt' So the tvorkmen cannot be expected to fiIe the satne. The yvorlcmen have fitecl attendance shebt from January, 1996 to Jantmry, IggB. These attendance sheets are admissible in et,idenLe as the origtnals are n the possession of the management. This pio\'es the fact that the worlcnen have ,vorkicl.in the primises of the mandgement as Security (]uarcls contiru't6usl1'from Janrtary, 1996 to January' 1998' The case of the vvorlrrnen is th'at they were ehgagecl in lgg4' ly. P.(C-) Ntts. 3 150-56/2007 & oltter cortttecletl ntutterls Puge 5 of 20 1995, 1996, lgg7, lgg| ancl they have worked continuously titl 01.09.2002. The chart of the duration of worlc of the 'tvorlcmen has been given. The yvorlcmen have deposed that they viorked tmder. the sttpervision and control of thg management. Dutlt tvas aisignecl to the yvorlcmen by the Jttnior Engineer of the management. It was the burden of the management to prove lhat the contractors have made p.ayment to the vvorlcnten' No sttch paper in proof of the p.ayment being made by the contractors to the workmen has bean. filed by the t t1Iafidg€ment. It v)as fi,rther subntitted that there was no contract agree.nxent between the contractors and the management. The worlcm.en were taken directly by the management. The contractors were mere name lender. They got sonxe : conxnxlssnn. In case of real contract there ts agreement betwe-en the managetnent and the contractor for supply of worlcrttett on certain terms ancl conclttions. 'Wages are to be paid'by thb contractor. EPF is to be deposited by the contractor-The yt,orkmen are enrotled in ESIC. The management has not .filecl a.ny pcper tcs prove that EPI| yvas deducted from the "y)ages of thL worlcmen and their names were registered by the contractors tmder the ESIC Scheme. No suc,h docutnent has been filecl. Thts proves that there was no conlract in exi.stence and the rrorL.", worlced directly under the control ancl srtpervtsion of the nxanagement. The vvorlcrnen Qannot be' expeciect to fite slips of EPF and the Registration Card under ItStC. These are itaterial. doa,ments for a valid contract but no such docttment has been fiIed by the management' The tvorlcmen have filed. photocopies . of attendance sheets ve4rifi.ecl by the silb-Divisional Engineer, sDE and the Juniir lingineer ancl these clocttments have not beei denied by|.hemanagement.Soitsta,ndsprovedthattheyvorlcnxen irry" rvorpecl from I994 on,arcls as has been specified in the A ', PqSe 6 tf 20 lV.P.(C.) Nos.3l50'56/2007 & other connected nntters / chart of teru,tre of worlc of the vvorlcmen. It also stands proved that the *onog"*ent ias been making payment directly. 'fhere is no contractor even aS nanxe lender. No EPI-has lteen clepositecl. The yvorlcmen have not been registered under trslc Schente. The management has committed grave violati.on of the provisions of the ID Act, 1947, PI" Act and et)en 1i5rc. Strc:h practice has been held as unfair labqtn' pract'ice rmd.er ID Act, 1947'" I |. l,earnecl. counsel for the petitioner subinits that the statement of clairls tilecl by the respondenl worlcmen is identical. In the said statcment of claim, there is not a whispel to suggest.that the security'conlr'aqts entered into between the petitioner and the contractors were sharr or camouflage' 'fhe said staternent of claim is rather short and cryptic. The relevant pail of llrc samc rcads as follows: "J. T'hat lhe Claimant/Worlvnan was employed by'the apove nlanagem.ent s'ince Fieb. 1999 and at the relevant period was - .,rorki"ng as a S. Gtmrd and yvas clrmtttng a monthly wages of I?s. 2650/- :

¶2That the yvorlc and condttct of the worlvnan Tvas quite satisfactctrlt dt'rtng the period of employment'

¶3T',hat the DEMAND NOTICE of claimant/vvorkman' mcty cilso be reacl as part oJ'this claim statement. The photocopy of the Dema.ncl Nitice is enclosed as Annex.A wi.th thts claim stal.etnent.

¶4That tlte ctforesai.cl ntanagem"ent terminated the services of tl,te above'namecl yvorlcman yvtih effect fro* 01.09'200? by verbal orcler. This is a case of reft'tsal of dtdland amott:': 'o. terntination of services and retrenchment and tha't too vvithout complfan"" o.f the mandatory pre-reqtdsites of.Sectiotc 25-rva)s_c oJ the Inchtstrial Disputes Act, 1947. It is also a case Page 7 of20 l'Y.P.(C.) Nos. -J150-56/2007 & other connectel ntatters \1 "l of unfair labour practtce. Aft,, termiic|tion ft|y services the iforisaia Management appointed new other employee' In my ito"n which is ttiolation of the I'D' Act, 1947'

5.Thattheterminationofservicesintheinstantcaseis 'tvrongfril,illegal,againsttheprinciples-ofnaturaliustice' n olo-4cte onio casi of vindicttveness and also unfair labozn' practice, the worlcman is, therefore, entitled to re-instatement tvithallconsequentialbenefitsincludingwagesforthe intervening Period' Itis,therefore,prayectthattheHon'bleCourtbepleasedto pass an muard in clirecting the Respondent/Management to re-instate the 'pvorkntan in their services with full ba'clc wages' anclwith contiru.dty of services and'vvtth all benefits"'

¶12She submits that a perusal of the demand notice which was annexed as Amexure-A to the statement of claim, also placed on record, shows that the respondent workmen did not allege the contracts between the'peiitioner ancl the secu.ity agencies to be sham or a calno.tflug".

¶13Learned counsel for the petitioner subrnits that the CGIT lrad no jurisdiction to go into the issue as tc whether or not the contracts ente'ed intb between the petitioner and the security agencies \'vere sham or a camolrf'lage, since no such dispute was raised by ttle respondents; . no reference was made by the appropriate goverrurlent in that respect' and; there were no pleadings made to that eft-ect by the respondent/clairnants' Slre places reliance on the decision of this Court tn'4'shok l{umeu' & Ors'.v' The State & Anr..in W.P.(C.) Nos.9438-4212004 decided on 20'L2'200;6' MANUIDElgg}l12006. In this case, the learned single Judge observed that 1o dispute hacl been raised about the contract being sham otl o tu*or-rflage' ly.!.(C) Nos. 3150-56/2007 & other connecteil nnttet's Page I of20 f 'l'6e clairl of t|e workrnen was that they were direct employees of the managemelt ancl did not claim that they were employees of the contractcir-The Court observed: "-It' i.s now settlecl. law that where the worlvnen claim that the ' contracl bettveen principle entployer and contractor was shant ancl. camottflage, they have to raise an tndustrial clisptte to that ffict and it is indt'tstrial adjudicator who, ; ofrT going throttgh the evidence and the terms and' conclitions of the contr.act and other circumstances has to cleci.de ythether the contract bettveen principal employer and lhe contra.ctor was sham and camottJlage". In pala 7 of the judgment, this Court further observed as follows: ,,It i.s obviotn that the worlcmen in this case clid not raise" correct cltsptte and dtd not approach. the appropriate Governmdnt with the contentions that the contract was sham ancl. camottflage or that the contract labour system shot'ild be a.bolishecl. rnry got referirecl a disptte that they vvere the entpl.oyees of the .management and vvere not being reg,tlarized. Th.ts clatm was found false. The Labottr Court hicl. no ctlternative bttt to dismiss the claim. It is settled law fuaf the Labotu, Cottrt/Tribupals cannot travel beyond the Iernts of reference. If no reference had been ntade t:o the I,abotul Coirtfor cletermining whether the contract vvas shatn ancl. camottflage, the Labottr Court could not have entered into this tsstrc and decid.ed wh.ether the contract was shant a.nd. camou/Iage" -

¶15Lcarned collnsel for the petitioner has drawn the attention of the clour.t to the written statenient filed by the petitioner before the GGIT' It is subrnittecl that in its writlen statenqnt,.the petitioner hacl statecl t'trpt there was no relaliolship of ernployer-ernployee between -the parlies' 'fhe H'.P.(C-) Nos-3150-56/2007 & olher connecteil malters I tl. t. { \ ) responclent worlflnall hacl neither been engaged nor recluitecl by the pctitiorrer management and that the respondents were not mctnbers of the scrvice. No appointment letters have been issued to them, nol wele their' ser.vices Lerminated by the petitioner management. Reference had also been macle to tlrc aforesaicl judgment of the Division Bench in the case of Keshov Securitlt Sbrt,ices,I-trl (supla). It was pleaded bV the petitioner that the security pelsollnel provided by the security agencies are in no way conncctecl with the recruitment procedure of the petitioncl managem.elt' Rather, thcy are ernployees of the agency under the terms of the ernployment sctlled between the wollcmen and the agency concerned.

¶16Learnecl counsel for the petitioner has also refened to the affidavit by way of evidence filed by the petitioner management of Sh' Netra Pal Sipg, AGM, I.,egal working in the offtce of the Genelal Manager' Aclministr-ative Cornplex, Ilaridabad, wherein he had stAted ihat tl't' workrncn were neither employed by the management 'nor were they tcllipatccl/retrenched and that there was no ernployer-employee lelationship bctweel the worlanan and the managernent. It was also affinned that in vicw of the judgmcnt in Ikshav security services (supra), all the BSNL cstablishments engage the workman fiorn DGR sponsored agency only'

¶17Lcarnccl counsel for the'petitioner has placed leliance on the clccisiori of the Slrpreme Courl in Indian Drugs and Fharrnaceaticsls I'td' t,. TIre Workmsn, Indian Drttgs and Pharmacetdicals I'td', (2007) 1 SbC

¶408'l'hc suprcmc court afler leferring to the judgrnent of the constitution bcnclr in The secretary, state of Karnatakh & other v' '{Jwta Devi & others,(2006) 4 scc 1 has obsewed that economic realities cannot be lost l,y.P.(C.) Nos. -1 150-56/2007 & other connecletl tttulters ' Puge 10 of 20 , I siglrt of. No cloubt, Arlicle 41 provides for the right to rvork, but this has bcen dcliberately kept by the founding fathers of the constitution. in the cf irective principles and hence made unenforceable in view of Ailicle 37 of the Co'stitution, because the founding fathers in their wisdom realized'that u,hilc it was their wish that evelyone should be given employment, the gronncl r-ealities of our country did not pelnit the same. The Suprerne Court observed that Arlicle 2l of the Constitution cannot be stretched so far as to mean that everyone rnust be given a job. The number of available,jobs is lirnitecl ancl hence the Courts must take a realistic view of the mattet' and rnust cxercise self restraint. I U. on the other hancl, Mr. Nandrajog, learned counsel for "the rcsponclcnt workman has submittecl that in the present case, the petitioner ftacl failcd to leacl any evidence beforg the CGIT to establish that the workman had been engagecl through the conlractols. They did not produce arry' cloct-tment or other evidence to show that there wele any coniiacts cnterecl into between the petitioner and the contractors/security agencies; tftat tfie security agencies had, in turn, posted the worlcman at the facilities of the petitionef; that the salaries of the worlcman have bcen paid by' the contractors and not by the petitioner directly. It was not even disclosed ds to which ol'the wor-kman had been deployed through which of the. contractors. Apeu1 fi'orn filirig thc affidavit by way of evidence, as aforesaid' no clocr-ulcntary evidence was placed on record by the petitioner management' IIe sr,rbrnits that the case of the r'espondent worlcman,was that they'ffcre direct appointees/ernployees of the BSNL'

¶19Learned counsel. for the respondent submits that the demand letters ly.P.(C.) Nos.3I50-56/2007 & other connecteil nratters Page 1I of 20 I issued by the respondent workman categorically. stated that the petitioner "onllt hac{ ctppointecl me in this instttution but had not given me. cmy appointntenl. letter nor ctny attenclance card nor even any vvages slip luere g.iven. .The antount toyvarcts ESI ancl PF were being de:ch,rcted from ll nrorilr1, salarlt front the very beginning btft neither I vvas given ESI card or crrqt PIi ,slip. AncI on the pretext of pension scheme, had got signed by tne on blanlc papers, blanlc vorrchers ancl blank vouchers" '

¶20I.Ie sr-rbrrits that in their wlitten ,tut.ro.nt, the management dici not speci{iczrlly disclose as to by which security agency, each.of these woi'kmen wcre clcployecl through. The said position was not elaborated cven in thcir al'fidavit by waY of evidence.

¶21Lear-nect counsel for the respondent has also referred to the "bross examinatiOn of the managernent witness, Sh. Netrapal Singh conducted on

07.08.2006. 'fhe rnanagernent witness had stated that they had not filed any record othei' than the written staternenL and affidavit. Learned counsel submits that the wofk of security guards is of a perenniAl natule' The petitioncr recluiled secr-rlity guarcls at all its installation. The petitioner has rrot clisclosccr as to what is the requisite qualification under the recruitrnent rules lor-tl'rc posts of security guards. Consequently, it cannot be said that the appointrnint of the respondent worlcman was illegal or irregular'

¶22Ilavipg hearcl learned counsel for the parties, perused.the impugned award as woll as the record relied upon by the parlies, considered the var-iotts clecisio's citcd before me ancl the respective subrnissions of thc parties, I am of the view that the impugned award cannot be sustained and is liable to be ), Puge "12 of 20. lV.P.(C.) Nos. 3 t50-56/2007 & olher connecteil ntntlets )\ set asicle.

¶23and the aforesaid seculity agency have sought a specific refelence in I l,Y. P. (C. ) N os -. 3 1 5 0-5 6/2 0 0 7 & ot h e r co n n.ect erl r t.t ul t e rs I have already set out herein above the terms of reference made to the CGII'. 'fhe saicl terms of refelence, which were made at the instance of thc workpren do not contain any reference for'examination of the issue whether-the contracts between the petitioner and the security agencies wel'e slam or a calrrouflage. On the contraly, the terms of reference themselves clisclose that thc workmen were ernployed through secruity contractols namely, M/s. Luxman security Agency, \zlls l(eshav Security Scrvices, IWs-A.uraclha Security Services. I-Iad the casei of the respondent wollcmen being Lhat tlre contracts between the petitioner wete a shatn or a cafilouflage, they would Lhat lespect ancl, if not ntade, they would have either sought amendment of tfic rc.le1ence as rracte, or assailecl the salne. I-Iowever, n6 such steps in this regard were taken. Even in their statement of claim, the ::esponde't workuran clid lot raise any isslle to assail the contracts entercd into betwecn thc petitioncr and the security agcncies'

¶24Pertinently, in the notices of demand - which are also 1Tlore or-.'less iclentically wordecl in lespect of all the worlcmen, the worlcmen had stated in pt'ta 4: "4. That yoll terminatecl my services w'e'f' 01'09'2000 withottl. any written order or withoti any reason and r.ecrliteclotherneyvworkersatmyplace'onlypreviot'ts supervisor has remained, on being usked yow' told that contract hos been given to Anurotlhg Security Services' ' )rou have neither give nte any charge sheet nor any shovv cctuse notice ro, his got any tnqttiry dong nor has issued any termination letter noq ho, t"ttfia my accotmts. lhis type of krye I3 of 20 r/ crctivity is tvrong, iltegat activity, vindictive, unjust .labour practice and anti labotr policy and side by side you ]tave :openly violated Section 25N and 25F of I-'D-Act, 1947' As sirch I ant entitled to reinstatement in my service alongwith fi.tll salary of my past and continuoui and break.np set'vibe tltith other benefits". (trmphasis supplied)

¶25'fherefore, the case of the respondent worftrnen was that they were epgagecl tlrloqgh security agencies. Since no such dispr-rte was raised or rel-elred, the occasion for the petitioner .to either plead or plove, that the cbntracts were not sharn or camouflage did not arise. The failW'e o.f the petitioner to produce the contracts and the other infonnation in relation to these contr-acts coulcl not have led to.the conclusion that the contracts.did not exist, or they were sham or carrolrflage. The fact that they lvere not sham or camonflage is eviclent frorn the fact that I(eshav Security Services had cven appr-oachecl this Court to assail the terrnination of their contract by thc petitioger and the irnpositign of the'condition that only DGR spbnsored agencies could be engaged for ploviding security services' it is -also notewolthy that tlre petitioner is a government corporation. The provisiiin of sccr;,rity services involves appointrnent of responsible and credible persons, si^ce it has an elernent of tlust and faith. Security services are availed of by tftc petitioner to safeguald its assets and properties. For sttch engagement, tlic petitioner was contracting with se'curity agencies who were providing ' pcrsonnel at their responsibility. The petitioner, obviously, could not havc cngaged casnal workers on indiviclual basis for puryose of providing security setvices.

¶26I maY also refer to the cross examination of the management l'l/.P.(C.) Nos-3150-56/2007 & othet connecleil ntullers a Page 1.4 of 2() iL t6c case of the petitioner as it clearly shows that the case'of thc lespondent ivorkr'a' also was that they were engaged by the petitioner through contractors. In lesponse to one questionl the answer given by th.e r'anagernelt witness is: "f am not avvare vvhether the vvorlc done'by the conlractor have been accompltshed by the workrnan tn this case(s) or nof'' l' response to anothel query, the answer give' by the witness is: "/Z 's incorrecl. to suggest that there is any trtparttte agreement betuveen the m.anagenlenl, conlrctctor ancl the tvorker". The witness fuilher states "I do rvitness.sh..Netrapal Singh. The said cross exarnination, in fact, 'supports clgarly suggest that flre stand there were contractols engaged of the l^-- +L^ uy Ll.r(' ) n6t latoty tvhether these yvorlcman have worlced under the aforesaid contractoti or.not".

¶27'I'he aloresaid answers rcsoouclent workrnan was that pctitioner, and the workrnen had performed the contracts by lendering their sewiccs thereunder. It is also pertinent to note that in the entire cross examination of the rnanagernent witness, n<it a singie suggestion has been given to tl-re witness that the contracts between the petitionel and the seculity ergcncies wcre shain or camouflage'

¶28Since no relbrence was rnacle by the appropriate govelnment on thc issuc oIthc validity of the contracts between the petitioner and the seculity agencies, the CGIT had 1o jurisctiction to exarnine the same' .The decision in Asholc l(tmtar (supra) is clearly applicable in the facts of the plesent cas'e' .l.he approach of the CGIT, in the light of the aforesaid discussion, in cleclar-ing that the contracts between the petitioner and the security agencies were a sham of a camouflage is completely elroneous. The said issue did l lf.P.(C.) Nos. 3150-56/2()07 & other cottnected rnalters Puge l5 of 20 ^.LJ I not ar-ise for consicleration of the'CGIT. The non fiting of docunents or hny cviclc.cc ip this respect by the petitioner was clearly on aocount of the fact that the saicl issue was not even raisecl by the responclents. On the contfary, they had adsrittecl the position, and it was their own case that they had beel cngaged through contractors.

¶29It is also intelesting to note that on the one hand, the GGIT has held tfie coltracts to be sham and catnouflage, while on the othcr hand, r'vhile answcr-ing the reference it has been held that thc action of the pctitioner nrarnagement in tenninating/disengaging the services . of the wollcman "withoul contplying with the provisions of ID Act,\|947 dnd 'o' conferring of temporarlt status on them in accordance with the DOPTS Schemq of Septenther 1993 and thereby non regularil.ing 'their services irt terwes af ltrovisions of cL (R&A) Act, 1970, employecl through secwrity contrsclors ,i.c"s, M/s viz. M/s Luxmun' security Agency, Mh Keshav secwrity sert Anurorllto Security Services'is neither iist nor fair nor tegqt' The manag;emenl ,s directbd to reinstate all the above natned' worlcnten crpltlicants except S/Shri Mahesh. (ID N'o.53/2004), Mukesh QD No'56/2004) crncl shri Amar singh (D No.90/2004) because these three v'or.krnen have not fil.ecl. the'ir ffictavits along with 50% back wctges w.e'f 0I'09'2002 and ptalce ltaltntent of the entire arrears.within t'vvo months from the date of prrblication of the at'varcf'' (Emphasis supplied)

¶30Iirom the aforesaicl, it'would be seen that the CGIT has itseif observecl that these worlcmen were ernployed through seculity conttactors, garnely M/s. Luxman Security Agency, I\4/s I(eshav Security Services' M/s' Anuradha Security services. 'fhe question of invoking the provisions of ly.P.(C'.) Nos-3 150-56/2007 & other connecterl ntalters , Pnge 16 of20 )ry CI,Rr\' Act would arise only if the services of the workrnen \'vele taken through labour contractors. The aforesaicl declaration by the CGIT has embedclecl in it the declaration that the respondent workrnen had been , engagecl tl'rrough contractors. Thelefore, there is no merit in the subrnission of thc responclents that their case rvas that they had been dilectly engaged by' the petitioncl' l'ttanagement or that they had, in fact, been engaged clirectly by thc petitioner-managernent. It was neither their case that they had beera clirectly elgaged by the petitioner managgment, nor *u' it so established by thern on 1he lecorcl. Perlinently, they had not ploduced any lettels of appointment issued by the petitioner appointing theT as security gria'ds' As aforesaicl, the petitioner is a governinent corporation and it is absolutely nnacceptable ancl unbelievable that pelsons to such vital positions - which involve trust and faith, would be appointed casually without even issuance of appointtn ent letters' 3 t. A pclusal of the impugned award shows that the 'same plimalily pr oceecls or-r the basis that the contracts between the petitionel and the secglity agencies are sham and catnouflage' As aforlesaid' this finding has' bccn renclerecl withor-rt jur-iscliction. The CGIT was also swayed by'the fact that the respondent workmen were able to establish that thel' had been workilg at thc premises of the petitioner for a couple of yeals atleast' Tha[' by itself, could not have lead to the conclusion that the relationship of employer-ernployee existed between the parties' This is for the reason that the pclitioncl cloes not eveu dispgte the fact that the respondent wollcmen' wel-e servitrg the petitioner at its facilities' However, the case. o'f the pctitioucr is that they were serving tlu'oirgh contractors' i'e' security llt.P.(C-) Nos-3150-56/2007 & other conneclerl tnalterc a. Puge I7 of20 N agencies. Renclering of such contract labour would n9t make the rcspondcnts the worlcmen of the petitioner

¶32'l'he situation rnay bc viewcd frorn anoflrer angle. 'I'he awar;d itself contains the clates o1 which these respondent worlanen had been engaged. I'l-rc said tabulation shows that the earliest engagements were made on Mar-ch lg94. Elgagernents were ffrade each year thereafter right upto the year 2000. Accorcling to the respondents, they were ,all disengaged on

01.09.2002. Even if the sr-rbmission of the respondents: that they were clireqtty elgaged by the pelitioner.as casLlal workers were to be accepted - . fior thc sake of algument, their engagements ranged between 8 years'to 2 yeal-s. Ilvel if they are tleated as casual worlcers of the petitioner, since their appointmelts wbre made irregularly and not tlrrough the plocess 'of rcciuritprclt by public aclvefliscment, they would not havc a right to the post. Conseqr:ently, in any event, the direction to reinstate the respondents was not callecl for and caunot be sustained.

¶33I nay r.efer to the judgrnent of the Suprerne Courl ii -fagbir Singtrt . vs. I.{tryanu stote Agriculttre Marketing Board & .,A.nother, (2009) 15 SCC 32J, wherein the Supreme Court has notecl the shift in law, parlicularly in casc of casual workers and those who are not regularly employed, it has bccn helcl that the r-elief of rcinstaterrent does not automatically follow the fi'cli1g lhat thc tcrmination is illegal ancl in breach of section 25F of the Act' .l'6e award of cornpensation has been held to be sufficient to rneet the ends ofjustice. I rnay cmphasise here itself that the respondents could not be said to be the casual ernployees/worlcman of the petitioner and the -above r.easoning has been given only as an additional reasoning. ) I'Y.P.(C.) Nos. 3 150-56/2007 & olher connected ntallers nryi.t 8.o7 ztt {u ;\ t\

¶34Leagrecl counsel for"the petitioner points out that the lespondent wor.lcmcn [ravc bcc.n receiving wages under section 178 of the .Act. fhe Court has clirected payrnent of the last drawn wages or the miniinum wages' whichcver. is higher. The same has been paid fi'om the date of the awld on*u.d, i.e. 04. 12.2006 and the same continues to be paid even now. These wages have already been paicl for over six years. It is submitted that each of thc responclents have received wages under section 178 of the Act to tire tr-rpe of over Rs.3 lacs (on the basis of the levised minimum \'vages frorn tirne lo time, as they were higher than the last drawn wages) except in lespect of Llrc rcsporrdents in w.P.(C.) Nos.3 15212007, 315312007, 315412007, 3t56120Q7, 315912001, 31601200i1, 359612007 and 365012007, whele the applicalions unc{er section 178 are still pending consideration- 'fhese applications ale being dealt with separately.

¶35'Ilhe respodclents, as a'foresaicl, have received wages.undel section lTIl i1 cxccss of Ils.3 lacs afi.er their termination. I may obscrve that though whilc allowilg the applications of the worlcman under"section 17R of the Act, vicle colnmon older dated 13.10.2011, the courl had required the rvor.krnag to give an underl4king to the Corut that in case the.writ petition succeecls, they shall refund the cliffelence between the amount o1'last dlawn \r/agcs ancl the minirnuin wages. The respondents have beeir receiving wages urrcler section l7B atthe minirnllm wages rates prevalent fi'orn tifire to lirne, which is higher ttran the last dlawn wages drawn by thern' The effect of tl-re awarcl being set asicle would be that they wottld be required to leftind lhe saicl cliffere'ce. I-Iowever, I am not inclined to direct the.same, and the saicl amonnt could well be treated as adequate colnpensation payable to them H/.1',(C.) Ntt.s. 3l 50-56/2007 & other corttrecteil nullers Puge l9 of20 ) [1 in lieu of reinstatement ancl baclt wages, even if it were to be accepted for the Sake of argument that they were the casual workman of .the petitioner' I-Iowever, in respect oi workmen who ale found not entitled to r'vages under Section 17-B of the Act, no compensation is payable as they, in any event' are not workmen of the petitioner ffid, consequently, no case pf retrenchment is made out by them against the petitioner.

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

¶37All.the pending applicatioris stand disposed of' /--'/ MARCI{ 20,2013 ST l(.P.(C.) Nos' 3150'56/2007 & other connected n'atte''s a. vxPIN S'ANGHX, J Puge 20 of20

9o $-4s * IN THE HIGI{ COTIRT OF DELHI AT NEW DELHI w.P.(c) 3rs9t2oo7 BFIAITAT SANCI-IARNIGAM LTD. ..... Petitioner Through: Mr. Raj Birbal, Sr. Advocate with' Ms. Raavi Birbal, Advocate VETSUS NARENDER Through: CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI