Bharat Sanchar Nigam Ltd v. Sanjay & Ors

ORDER

20.03.2013 C.M.Appln. No. L2569/2007 (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 1.9.2002 till date. In reply, the petitioner has contended that the respondent is working as a property dealer in parlnership with one Parveen and Narender of the same village. It is stated that he also takes ups casual , work at times Perlinently, in the rejoinder, there is no specific denial of allegation that the respondent is working as a properfy dealer '# ;, ii oh tl-the in 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. \7 t" - partnership with Parveen and Narender of the same village. Learned counsel for the respondent-applicant submits that it is not clairned by the peJitioner that the respondent is deriving any income from the said business. This is apart from the submission that the respondent has generally 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 l7-B of the Industrial I)isputes Act. The failure of the respondent denying the specific averment with regard to his working as a property dealer in paftnership with Parveen and Narender of the same village tantamounts to his admission of his so working as a property dealer. He has also not denied that he takes up casual work at times. This Court is not willing to accept that the respondent would not be earning adequate wages from the said business as the propefty dealer would earrr at least, if not moreras a class IV casual worker would earn as a minimum wages. This application is accordingly disrnissed. The application stands dismissed. Writ Petition (C) No. 3596/2007 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. VIPIN SANGHI, J MARCH 20,2013 sl .'t $-37. ,F NNI 't'FI[i' ITTGFI COURN] OF' f,}Etr,T{I AI] NEW I}]EI,F]I.[ Ilato of Dccision: 20.03.20X3 w.P.(c) 3xs0/2007 I}.S.N.I,. qY Mr. Raj nirUul S, ::lff; Ms. Raavi Ilirbal, Advocate -F 'fhror-rgh: VCISLIS n't"r'Al{ SINGII & olts. 'fhrough: ..... Itcsi:ondcnts Mr.. Vikrarn Nandi:ajog, Mr'. Amit Singh, Mr. Sheetesh I(hanna atrcl Mr. Sdshil Jaswal, Advocatcs COI{AM: ITON'BLE MR..IUSTICE VXPII\ SANGTII VItr)XN SANGtr{I" J. (OXTA.L) I . 'l'his batch of writ petitions under Article 226 of thc, Conslitution cif lnclia 6nvc bccn prelbrred by Bhalat Sanchar Nagam Limited (IISNL) to ' ^^," o'rr.r,..1 r14eer Incltistrial ;.rssail thc colllmon awarcl passed by fire Central Govelnment 'l'r-ibgrral cr-rp l,abour Court II, I{ajendra Place, I{ajcndla l]liarvan, Ncw I)cllii (CGl'f), in scvcral refclences made in rcspcct of .thc respondent r,t,orl<uretn 2,. 'l'5c rcl-crcncc in respect o'[ cach of thc urorkman is morc or le:;s irjcgtical. 'J'fic Salrrc issues arise fron the refercnccs and, consequently, have bocn clcatlt wjth in the common a*ard passecl by thc CGIT' As au cxanr'plc' I iillr 1.cr)rocluci'g hcrcin bclow thc refe'ence rnacle in respect of sli. Balbir' I'rye I r'./'20 tr''.P.K") Ntts. -i t50-56/2007 & olher contrecleil tttulters L{9 Siriglr.- the responclcnt in W.P.(C.) No.36 4gl2007,whicla reads as follor,vs: "lf/hether the action of the ntanagemenl of GNITD, ]ISNL, licrt'/cla.bacl. in terntinating/disengaging lhe services of Sh. Italbir singh so sh. I(haian singh w.e.f 0L09.2002 vvithout complying with the provisions of the .tD Act, 1947 and non-con/brring of temporary stattts on him tn accordance vvith the DOPTS Scheme of Septentber 1993 and thereby non regttlarizing his set"vices in terms of provtsions of cLQl&A) Acl, 1970 enryloyed throttgh sectu'ity contractors viz. M(s Luxntctn Secru"ity Agency, M/s. Ikshav Secw"ity Services. M/s. Anttradha sectu"ity services was iust, fair and legal? If not., yrthat relief he is entttled to andfrom whtch date?" ' i. 't'hc CGI'| by the 'impugned award has answcrcd thc t'cference in Iirvo;rr. o[- tlic worlcrnen by holding that the action of ihc pctitioner prernagcnlent in tcr.minating/clisengaging services of the wolkman without corirplyilg with the provisions of Inclustrial Disputes Act, lg41 (the Act), arrcl i' not confcrring temporaly status on thern in accordance with the t)cparrmcnt of Pcrsonnel 'fraining (DoPT) Scheme of Septembcl 1993 and flicrclry not regularizing tlieil scrvices in terrns of the provisions of the Corrtr-erot Llbour (Itegr-rlatiori and Abolition) Act, 1910 (the CLRA Act) cniployccl thlough sccurity contractols nartely, IWs. L,uxman Seci-uity Agerrcy, M/s I(eshav Security Services, M/s.'Anr-rladha Seculity Services is 'ot jr-rst or. lair or legal. 'thc mar'r.agementhas been dilcctecl to reinstate all Lhc rcspclnc{ent workmcn. relercuces wel'e made had Some of the workman in respect of whom not lecl theil evidence and, consequently, no such clirectiol has beel issued in lespect of thern. They are not befole this Court. 'l'hc CGI1' has also awarded 50% back wages to the responderrt wotkman rv-c.f'. 01 .09.2002. tl'.P.(C.) Ntts. 3150-56/21)07 & otlrer conneclel ntutters Puge 2 of 20 q6 tl. Ms. Ilir-bal, learneel colursel for thp petitioner has sr-rbmittcd that the ''ly t6ree issues rvhich wel-e referred for deterrnination by thc CGIT'were in relation to:

i) '[he termination/clisengagement of th; services of the workman with effect frorn 01.09.2002 - whethel tlrc same was illegal on account of rion compliance of the provisions of Act;

ii) Whcther-' the non confening of ternporary statlts on thc workman in accorclance with DoPT Schcme of September 1993 was fair just and legal, and;

iii) Whether the non regularization of the services of the workman in terms of the provisions of the ci,RA Act - cnployed through security contractors, was just fair and legal.

¶5l,,earnecl cottnscl submits that the telms of refetence did hot r:efer thc , issuc wit6 r-egar:cl to the contracts between the petitioner ancl the c6ntt'actorS, uatnely, the three service. security agencies tnentioned in the tcrrns ol'rcfer-cnce, being'sham or a calrrouflage, fol adjr-rdication by the CGI'I"

¶6Lcarled counsel for thc petitioner submits that in the IISNL ther'e wars er practicc of appoilting labour codtractors for providing of security services. She subrnits th.at such contracts \Yere legal, as thele was no ,prol.ribitiorr agalnst the ernployment of contrhct labor-rr for provision Of ll".P.(C.) Nos. -? 150-56/2007 & othet connected nrfltlers Puge 3 of20 q+ scoLrrity scrvices.- as no notification undel section 10 of the CLii.A,r'\ct had trccn iss.recl by thc Central Government. She sr-rbmits that ear'lier pr:ivate secr.rr-ity agencies - such as those mentionecl in the tertns of refei'ence, were also bcing edgagecl. However, an office iltemo]:andum dated 0I-02.1999 wzts issr-rccl by thc I)epartmcnt of Pr-rblic lJnterpliscs, whioh wtts iatcr {bllowccl by thc I)efence Ministry's circular dated 26.0'4.200I. l'hey rcciLrirccl that all IISNL establishnents should elgage the security persopci liorn tlie l)irector General Resetllernent (DGI{),sponsorecl agencies only"

¶7Shc subrnits that in the light of the aforesaid instructions, IJSNL issrrccl zr mct1ol'anclum clated 03.04.2002 incorporatilg thc saicl condition' Consequently, thc contracts with privatq security agencies which were not s'o'sor-ec1 by tlic DGR had to be discontinr-red' Learned cottnsel submits that alI thc rcsponclents wcl'e employed through the said secutjty agencles' ti. l,earnecl counsel for the petitioner has drawn'the attention of the' Cor-rrr to thc juclgrnent of the I)ivision Bench of this Coult tn tr(es[sut' securitjt services Ltd. r,. (Jnion oJ'India & ors.,2004II A.D. (Delhi) a69' '['he petitioncr l(eshav secr-rrity services Ltd. had sor'rght to assail the presoriptio' laicl clown by the Dcpartment of Enterprises, as afo'esaid' that only DGII-sponsorecl agency be engaged for providing security services to l,lrc pctitioncr-

¶9'l'hc Divisior-r Ilelch lejectecl the said challenge by holding that it was nclt nccessary for the IISNL to aclOpt open .tender system for cugage'rcnt of 'sccr-rrity seLvices, and the petitioners action of drar'ving sccur-ity personnel throurgh a DGR sponsorecl agency was neither arbitrary Puge 4 of20 ly-P.(C.) Nos-3150-56/2007 & otltcr connected ntotlers q8 nor cliscrirninatory, ancl the sarle was .held as not being violativc of Article lzt of thc Clonstittttion of Inclia. I0. I.earned counsel for the petitioner has subtnitted that a perusal of L6c awarcl shows that the same is primarily premised on a finding that the co*tracts between the petitioner and the security ageircies wele sharn and a carllollflage. She submiis that the saicl issue did not alise for consideration lrcforo thc CGI'I' - either frorn the telms of reference, or cvcn fiorn the pleaclilgs of thc parties. She has refer:red to the following extract fi'om the irrrpr-rgpccl awarcl to sr-rbrnit that the cliscussion and finding of the CGII. to the c ftcct that 1hc contract betwecn the petitioner and thc sccurity agcncics arc sharn arncl a carnouflage has swung the dccision of the tribunal in favor-ir of thc rvor-kman. The t'elevant extract in the award reads as foilows: ' ".n becayte qtLite obviotrs that the management has not fiIed cop)) ctf even conl.ract agreement with the cQntractot' and cl.octr1tents regarcling payment to the contractors. The .yrtorlotten have .fitect attendance sheets to shovv their presence. The n,tanagenxent ha.s not denied the pholocopies oJ' crttenclance sheets filed by the worlotten. There is no enclorsentent of clenia]. The management vvitness has not stated. in his cross examination that photocopies co'e not lrue copies of the grigina] attendance sheets. The ori,ginal. al.en.cl.a.nce sheets are in the possession of the managetlxent. ' Sct the yvorlcruen cannot be expected to file the Saln.e' The worlcmen hat,efi.lecl attendance sheetfrom Jananry, 1996 to .Ia.n.rnr1t, IggB. These attendance sheets are admissible in et,idenLe as the origtnals at'e n the possession of the mana.geytent. This proves the fact that the worlatten have yvorlce-cl 'in the premises of the management as Secu"ity (]tr,a.rcls contiru,totts.\,fi"ont Janctary, I996 to January, I99B. TI.te case of the worlqnen is that they were engaged in 1994, ly-t'-((:.),\rr.r. J 150-56/2007 & ollter cottnected nratlets I>nge 5 of 20 1995, 1996, 1997, I99B and they have v,orked continuously tili 01.09.2002. The chart of the dtu"ation of worlc of the tvorlcnten has been given. The vvorlayen have deposed that they yvorlced under.the' ;rrpervision and control of the management. Duty rvas assignecl to the yvorlcnten by the JtLnior Engineer of the mnnagentent. It yvas the burden of the managenxent to prol)e 1hal the contractors have made payment to the yvorlmt.en. No strch pctper in proof of the payment being made by tlte contraclors to the vvorlcmen has been filed by the ma.nagernent. It. was fttrther submitted that there was no contract (tgreem.ent befuveen the contractors and the ntanagetnent. The yvorlon.en were talcen directly by the managenxent. The conl.ract'ors were nxere name lender. They got sotlxe contnt.iss iott. In case of real contract there is agreement bettve-ett the tlxanagemenr and the contractor for sotpply of vvorlattett on cerf:a.in tenns a.ncl conditions.'lVages are to be paid by the contractor. ]iPF is to be deposited by the contractor. The yvorlanen cLre enrotted in Ii$C. T-he ntanagentent has not .filecl any paper to prove that EPI| was dedtLcted froru the "u)ages of the worlvnen and their names were registered by the contractors tmder the ESIC Scheme. No such doct'unent ha.s been fited. Thts proves that there yvas no contract in existence and the yvorlonen vvorlced dtrectly crnder the control ancl sttpervision of the nxanagenxent. The vvorkmen canttot be expectec{. to file slips of EPF and the Registration Card ttnder ItflC. These are rnaterial doctunents for a valid contract but no strch cloctrment has been filed by the managentent. The trtorlonen ha.ve fited photocopies of attendance sheets t,e4rifiec{ by the Syb-Divisional Engineer, SDE and the Jtmior lingineer ancl these docttments have nat beei clenied ltlt l.he tlxctnagetnent. So it stands proved that the vvorlcmert iouu tvc;rkecl fi"om 1994 onyvards as hcts been specified in the qe lV.P.(C.) Ntts. 3150-56/2007 & olher connecterl tllotle''s I'age 6 of 20 chart of tenrre of work of theworlcruen. It also stands proved l.h.al the nxanagement has been making payntent directly. There is no contract'or even as nanxe lender. No EPI;'has been cleposf.tecl. The worlcnten have not been registere.d mder HSIC Scl.tente. The managentent has committed gt'ave violation o.f the provisions of the ID Act, 1947, PI" Act and . e,)en \tflC. Sttch practice has been held as uffiir la,bow" practice tmder ID APt, 1947 -" 1 I . l,earnecl counsel fol the petitioner sllbmits that the statcrnent of clzrir's lilecl by the responclent workmen is identical. In the said statemcnt of cl*im, there is pot a whispel to stiggest that the security conlr'acts entered ilto bctween the petitionel' ancl the contractors were sham or calnollflage. 'nre said staternent of claim is rather shorl and cryptic. The relevant pail of Llrc satnc lcads as follows: " J. \'httt l.he Claimant/Worlcma.n tva3 employecl by the abot'e' managetrrent since Feb. 1999 and at the relevant period was .trtorlcing as a s. Gttarcl ancl was drawing a monthly wages of ' Ils. 2650/-.

¶2Tha.t the yvorlc and condttct of the worlcrnan vvas qzLite satis.factoryt dttring the period of etnployment'

¶3]"hat the DEMAND NOTICE of claimantA'vorlunan nxcty ctl.so lte reacl as part of this claim statement. The photocopy of the Dentancl Notice ts enclosed as Annex.A vu.i'fh th.is claint stctl,entent

¶4ThaI the ctfuresai.cl. rixanagem.ent termiizated the services of tl,te above nintec{ y,or'lcman with effect front 0l-09.2002 by verba.l orcler. Thts is ct case of refi'tsal of dttty and amounts to terminatiott of services and retrenchment and that too t'vithout complianr" i7 the ntandatory pre-reqt'isites of Section 2!- N&25-G oJ',the Inclttslrial Disputes Act, 1947. It is also a case ly.P.(C.) Ntts. -l 150-56/2007 & other cotrnecterl nl(llets Page 7 o/'20 fl of tmfair la.bour practice, Aftq tern'tination nxy services the iforisafcl Morog.)rrent appiintecl new other entployee. Itt nty ptoru which is vtolation of the I.D. Act, 1947'

¶5That the termination of services in the instant case is tvrondttl, illegal, against the principles of natw'al jus,tice, ,ro1o-\cle ,,rio case of ttinclictiveness and also unfair labou"' practice, the y,orlcman iS, therefore, .entitled to re-insta.tentent -t.vith att conseqttential benefits tncluding 'wages for the intervening Period. It is, therefore, prayecl that the Hon'ble Court be pleased to pass an cnuard in di.recting the Respondent/Managetnent to re-instate the worlcntan in their services vvith ft'il| back 1'vages, ancl wtth continttity of services and with all benefits" '

¶12She submits that a perusal of the demand noticb which was arurexecl as Annexure-A to the statement of claim, also placed on record, shows that the responclent worlalen did not allege the contracts betweeri the petitioner ancl the security ug.n"i.* to be sham or a caffIouflage'

¶13Learned counsel for the petitioner submits that the CGIT lrad no juriscliction to go into the issue as tc whether or not the contracts entered ilto betWeel the petitioner ancl the securify agencies \,vefe sham or a camoutlage, since no such dispute was raised by th.e respondents; no reference was macle by the appropriate governinent in that respect, aud; there were 1o pleadings made to that eft-ect by the respondent/claimants. Slre places reliance on the decision of this Court in Ashok Kwmat & Ors. v. The Stste & ,Lnr. in W.P.(C.) Nos.9438-4212004 decided on 20'12'2006, MANU/DE/}807/2006. In this case, the learned Single Judge observed that no clispute hacl been raised about the contract being sham or.a camouflage' \Y.P.(C.) Nos.3I50'56/2007 & other connected nntte$ Fuge 8 of20 9L 'l'lie claiui of tlre wollcneu was that they wele direct maltagemelL ancl clid not clairn that they were employees 'I'he Court observed: employees of the of the contlactdt'. "Il is noyt setlled, lavv that where the worlcmett claim that the conlrctct bettveen principle employer and contractor vvas sl,tant ancl camottflage, they have to raise an industrial c11spttte to that ffict and it ts indttstrial adjudicalor t'vho, after going throngh the evidence and the ternts and concli.tiorts of tl'te contract and other. circtunstances has to ' cleci.de yrthether the contract beh,veen principal employer and lhe contra.ctor vvas shant and catnouflage" ' Itl.. In paila 7 of the judgment, this Court further obsetved as follor'vs: "It is obviotts that the v,orkmen in this case clicl nol raise correct disprde and did not approach. the appropriate Governntent yvith the cohtentions that the contract t'vas shant ancl cantotrflage or that the contract labour systetn should be altolisl,ted. They got refeyred ct disptie that they vvere the ern.ployees of the management and tvere not being regilarizecl. This clatm. was .fotmd false. The Labour Cou"t hac{. no ctlterna.tive brtt to dtsmiss the claint. h is settled lavt fucil fhe Labotu Cotu4./Tribtmals cannol travel beyond the . !.et'ms of' reference. If no reference had been ntade to'the I.,abotu, Corrl for cletermining whether the contract'vvas shant a.ncl carttotrflage, the Laboar Cotrt cot'tld nol have entered into this isstte ancl clecid.ed whether the contrac! was shant and. cam.otLflage".

¶15Lcarnecl counsel for the petitioner has drawn the attentipn.of the Clourt to the written staternent filect by the petitioner before the CGIT' It is submittecl that in its writlen statemqnt,.the petitioner had stated that there \^/as no relalionship of employer-employee between the parlies' 'fhe , ll'-P.(C.) Nos: 3150-56/2007 & other conneclerl mullers Page.9 of 20 S7 respoltclent workman had neither been engaged nor recruited by the pctitioner lllanagenlent and that the respondents were not membels of the scrvicc. No appointment lettels ha.1e been issued to them, nor were their services terminated by the petitioner rnanagement. Reference had also been' rnade to thc aforesaid judgment of the Division Bench in thc casc of Kesfacsv Securi4t Sbrvices /-trl (supla). It was pleaded by the petitioner-that the scctrrity personnel provided by the security agencies are in no way cgnncctecl with the recruitment procedure of the petitioner management. I{ather, thcy pre employees of the agency under the terms of the ernployment scttlecl betwcen the workmen and the agency concerned. :

¶16Learned collnsel for the petitioner h.as also refellecl to the affidarrit by way of evidence frled by the petitioner management of Sh. Netra Pal Sing, nGM, Legal wolking in the office of the Genelal Manager, Administt'ativc Cornplex, Ilaridabad, wherein he had slatecl that thc ,n,orkmcn were neither ernployed by the managernent nor were they tcrminatecl/rctrenched and that thele was no employer-ernployee t:elationship bctween the workrnan and the rnanagement. It was also affiruecl that in vicw ol'tfte jr-rclgrnent rn l(eshuv Security Services (supra), all the BSNL cstablishnrents engage the workrnan fi'orn DGR sponsored agenc,v oniy. ll . Lcarned counsel for the'petitionel has placed leliance on the cf ccisicrrr of tlre Suprerne Courl in Indian Drugs and Pharrnrsceutic&ls nAd. v. \'lte ll/orkman, Inclian Drttgs and Pharntaceuticals X-tt{., (.2007) l. SCC

¶408'l'hc Sr-rprcmc Court aftel referring !o the judgment of the constitution bcrrclr in The Secretary, Stote of Karnatakh & Other v. Wnaa Det'i & Others, (2006) 4 SCC 1 has observed that economic realities cannot be lost l'l/.P.(C.) Nos. 3150-56/2007 & olher connected motters Puge 10 of20 sr/ sight oL No doubt, Article 41 provides for the right to work, but this has bcen clcliberately kept by the founding fathers of the constitution in the clircctive prilciplcs and hence made unenfbrceable in vierry of Aif;icle 37 of the Copsiitution, because the founding fathers in theil wisclom reaiized that u,hilc it was their wish that evelyone should be given ernployment, the gron.cl r-calities of onr country did not pennit the same. The Sr-rpretne Cout1 observecl that Arlicle 2I of the Constitution cannot be stretched so far as to rnean that evelyone rnust be given a job. lhe number of available jobs is limitecl zrncl hence the Courls rnust take a realistic view of the tnattel and rnust cxet'cise self restlaint. lU. on the other hand, Mr. Nandrajog, learned counsel for the rcsponclcnt workman has subrnittecl that in the presenl case, the petitioner liacl lzrilccl to leacl any evidence before the CGIT to establish that the u,oLlolan hacl been engaged thlough the contractols. They did not ploduce any clocurnent ol other evidence to show that there wel'e arry contiacts cntcrecl ilto between the petitioner and the contractors/security agencies; that the security agencies hacl, in turn, posted the workrnan at the facilities of the petitiot're1'; that the salaries of the worlcman have bcen paid by" the contlactols and not by the petitioner directiy. It was not even disclosed as to whicli ot'thb workman hacl been deployed through which of the contractors. Aparr flom filing thc affidavit by way of evidence, as afolesaid, ilo clocuurentary cviclence was placed on recorcl by the petitioner rnanagement. I [e sr-rbrnits that the case of the r'espondent worlcman was that they \'vcre clirect appointees/employees of the BSNL.

¶19L.earnecl counsel. for the respbndent submits that the demand letters ll/.P.(C.) Nos.3I50-56/2007 & other connectetl nwltets Poge II of 20 ' isslecl by tho respondent workman categorically stated that the petitioner "6nlSt. hacl. appointecl me in this instittttion bttt had not given n'te any atrtltoiltnt.enl letter nor any attenclance carcl nor even any vvages slip vvere pilt€(1.. The a.ntormt to.yvarcls ESI ancl PF rvere being cle'chtctecl frotn ncy ntontl,tllt salarlt f.om. the very begtnning btft neither I tvas given ESI card or any PIi ;;lip. Ancl on the pretext of pension scheme, had got signed b1t nte on ltIanlc papers, blartlcvouchers ancl blanlcvottchers" '

¶20I-Ie subrnits that in their written statetnent, the management dici not specil-rcally disclose as to by which security ageficy, each of these wolkmen wcre clcployecl through. 'fhe said position was not elabolated cvcn in thcir affidavit by way of evidence.

¶21L,eelned cor;nsel for the respondent has also refelred to the ct'oss i exalrination of thc rnanagemeni,witness, Sh. Netrapal Singh conducted on

07.0t1.2006. 'fhe rnalagement witness had stated that they had not fiied any recorcl other than the written statemenl ancl affidavit. Lcaln'ed counsel s1rbnits that the work of seculity gualds is of a perennial nature' The pctitiopcr rccluired security gr-rardg at all its installation. The petitioner has rrot clisclosccl as to what is the requisite qualification under the recluitment r-ulcs lbr-thc posts of security gualds. Consequently, it cannot be said that the appoiltrndnt of the respondcnt wotlanan was illegal or irregular.

¶22Ilavilg heard learned counsel for the parlies, perused the impr-igned arwarcl as well as the record relied Lrpon by the patties, considered the variotts clccisio's citccl bcfore me and the lespective submissions of the paflics, I am of the view thar ilre impugnecl award cannot be stistained and is liable to be lV.P.(C.) Nos. -1t 50-56/2007 & other connected maltets Ptrge I2 tf 20 gL set aslcle.

¶23I lrave already set out herein above the terms of teference made to thc CGI']'. 'I'he saicl terrns of leference, which were made at the instance of thc wor-kpren do not contain. any reference for examination of the issue whcther the contracts between the petitioner and the security agencies \'vel'e s6am or a callouflage. On the contrary, the tertns of reference thetnselves clisclosc tfiat thc workrnen wcre employed through secr,rrity contractols naulely, M/s. I-r-rxman Seculity Agency, M/s l(eshav Security Scrvices, IWs. Anur-aclha Security Services. I-Iad the case of the respondent wot'lcmen being [hart the cgntracts between the petitioner and the aforesaid secr,tr.ity agency wel-e a sharn or a calnoriflage, tftey would have sought a specific i]cference in tSaL rcspect ancl, if not macle, they wottld have eithel sor-rght arnenclment of t5c rcf'erence as rnade, ol assailecl the same. I-Iowever', no such steps in this rcgarcl were taken. Iiven in theil statement of claim, the r-espondcnt workurau clid not laise any issue to assail the contracts entercd into between thc pctiticlncr eurcl thc security agencies.

¶24Pertincntly, in the notices of demand - which are also more or less icleltically worcled in respect of all the workmen, the wori<rnen had stated in para 4: "4. Thal yoLL teintinated nxy services w.e.f. 01.09.2000 trtilhotl any writl'en order 07' yvithottt any reason and t.ecrttitecl other n.eyv worlcers at my place. only previot'ts sttpervisor has remained, on being asked yot't told tltat corntract hus been given to Anuradhg Secwrity Serttices' )roLt have neither give nte any charge sheet nor any shovv ca.use nolice nor has got any tnqtiry donq nor has issued any term.ina.ti.on letter nor^has settled my accorLnts. ThiS type of Page 13 of20 ly.P.(C.) Nos. 3 | 50-56/2007 & other connected ttruttets s?- \ cr.ctivity is wrong, illegal. acttvity, vtndictive, uniusl labou' pra.clice and anti labortr policy and side by side yort h.ave openly violated Sectton 25N and 25F of 1.,D. Act, 1947. As strch I ant entitled to reinstatement in my service alongwith .full salary of my past and continuocts and brealc up.servibe yvith other benefits". (Ernphasis supplied) 2'5. 'fherefore, the case of the respondent workrnen was that they were etrgagecl throrlgh seculity agencies. Since no such dispute was raised or rel-er;ecl, the occasion fol the petitioner to either piead or prove"- thai the F cbltraots wele not sham or camouflage clid not arise. The faihg'e of the petitioner to produce the contracts and the other infolmation in relation to these contracts coulcl not have led to the conclusion that the contla-cts dicl not exist, or they were sharn or camolrflage. The fact that they were not shatn or cauronflage is evident fiom the fact that I(eshav Secririty Selviccs had even approachccl this Court to assail the termination of their contract by thc pctitiorrer ancl thc irnposition of the condition that only DGR.rpor.ro."d 4gencies cor-rlcl be engagecl for providing security services. it is also notcworthy that the petitioner is a govemment corporation. The provisioir of sccr-rrity selvices involves appointment of responsible and credibie persons, sir-rcc it has an element of trr-rst and faith. Security services are availed of by t6c petitioner to safeguald its assets and properlies. For sr-rch engagetnent, tfic petitioncr was contracting with security agencies who wele providing pcrsonncl at theil responsibility. l'he petitionet, obvior-rsly, cottld not havc elgagccl casual workers on individual basis for pqlpose of providing sccurity services.

¶26I uray also ,"f"r to the cross examination of the managetnent ly.P.(C.) Nos. 3150-56/2007 & ttlher cotutecletl t'lallers Puge 1.4 of 20 5y witrless Sh. Netrapal Singh. The said.cross examination, in fact, supporls t6c casc ot'thc petitioner as it clearly shows that the case of thc respondent workmal also was that they. wer:e engaged by the petitioner through contractors. In response Io one question, the answel girren by the marlagctnent witness is: "I atn not avvare vvhether the vvorlc done by the con.tractor have been.orron plirhed by the yvorlvnan in this case(s) or nof'' Irl rcsl:o5se to another query, the answer given by the witness is: ".I/ is incorr.ect to sttggest that there is arry tripartite agreement.beh'veen. the marxdgetl,tenl., contrcrctor and tl'te worker". The Witness fui1her states "I do nctt lcnotv whether these worlana.n have vvorked ttnder the aforesaid conlractoft or nol".

¶27'l'6e aforesaicl answer-s clearly' suggest that the .stand of the rcspo6clelt wolkrnan was that there were contractors engaged , by the petitioler', and the workrnen had perfortned the contracts by rendering their scrvices thereunder. It is also 'pertinent to note that in the entile cross cxamilation of the rnanagement witness, not a single sllggestion has been giveg to the witness that the contlacts between the petitioner and the secr-rlity argcncics wcre shart or cafiIollflage.

¶28Since no ret'erence was made by the appropriate governinent on thc isst-rc oIthc validity of the contracts between the petitioner and the security lgcncics, tlie CGIf had no jr-rrisdiction to examine the sainc. The decision in Asholc l(umar(supra) is clearly applicable in the facts of the present case. 'l'hc approach of the CGIT, in the light of the aforedaid cliscr-tssion, in cleclaripg that the contracts between the petitioner and the security agencies wel-e a sham ol a camouflage is compietely erroneolls. The said issue did Puge I 5 of20 ll'. f .K) Ntt.s. 3 t 50-56/2007 & other connectetl ltt(lle$ t? not arise lor consicleration of tlie CGIT. The non filing of docr-rments or auy cviclence in this lespect by the petitioner was clearly on accottnt of the fact tlrat the saicl issue was not even raised by the respondents. On the contrary, they had adrnitted the position, and it was their own case that they had been cngagecl through contractors.

¶29It is also intelesting to note that on the one hand, the CGIT has held tlie coutracts to bc sharn and camouflage, while on the othct'hand, r'vhile lnswcr-ipg the lcference it has been heid that thc action of thc petitioner rrranagemcnt in terminating/disengaging the services of the worlcman "tttilhorrl complyin.g with the provisions of ID AcL 1947 and non'confe.rring of tentporary statts on them in accordance with the DOPTS Scheme of Septentber 1993 cmcl rhereby non regulariT,.ing tteeir services iye termes af provisions t2f'CL (R&A) ,4ct, 1970, employed through Secr'trity Contractors viz,. M/s Luxnrsn Secttrity Agency, M/s lkshuv Secwrity Setvi'ces, M/s tlntrradlrn Security Services' is neither iilsf nor fait' nor tegat-T'he ntanagentenl n directbd to reinstate all the above nanted worlctnen atrtplicants except S/Shri Mahesh (ID N'o.53/2004), Mukesh. QD No.56/2004) ancl. Shri Amar Singh (ID No.90/2004) becatrce these three v,orlctnen. have notfil.ecl their ffidavits alongwith 50% baclcrvages w.e.f 01.09.2002 and nmlce payment of the entire arrears.withtn ttvo months f"ont the date o.f prt bl icati.on of' the avvarcf' . (Emphasis sllpplied)

¶30Frorn the afolesaicl, it'woulcl be seen that the CGI'| has itself gbser-vecl that these worlcmen were ernployecl thlough security contLactots, lanrely M/s. Luxrnan Seculity Agency, M/s I(eshav Secui'ity Services, lvlls. Anuradhar Security Services. The question of invoking the Provisions of ly.P.(C.) No.s. 3150-56/2007 & olher cotutecled matlets Puge 16 rif 20. 6o CI,RA Act wonld arise only if the services of the worlanell were taken t6ror.rgh labonr contractols. The aforesaicl declalation by the CGIT has cmbecldect i1 it the cteclaration that tho respondent worltmen had been " e.gaged through contractors. Therefore, there is no merit in tlie subrnission o['thc responclelts that theil cade rvas that they had been dilectly engaged by t5c petitioncr lranagement ol that they had, in fact, been engageci clirectiy by L6c petilioner marlagernent. It was neither their case that they had becn clirectly engagecl by the petitionel managelnent, nor was it so established by tliern on the recor-d. Perlinently, they hacl not ploduced any lettet's. of appointnelt issued by the petitioner appointing them as security gualds. As aforesaicl, the petitioner is a government corporation and it is absolutely ulzrcceptabie ancl unbelievable that persons to such vital positions - which i'volve trust ancl faith, would be appointed casually without even issuance of appointm ent letters. 3 t. A lrcr-usal of the impugned award shows that the samc plimarily pr-oceecls on the basis that the contracts between the petitioner and the secr"rrity agencies are sham and camouflage. As aforesaid, this finding has' bccn r-enclerecl without jurisdiction. The CGIT was also swayed by the fact t6at the respondent worlanen were able to establish that they had been wor-kilg at tho prernises of the petitioner for a couple of years atleast. 'lhat, by itself, cogld not have lead to the conclusion that the relationship of crnployer-ernployee existed between the parties. This is for the reason that tlie pctitioner clocs not even dispute the fact that the respondcnt wolicrnen wel.e. senring the petitioner at its facilities. However, the case o'f the petitioncr is that they wele serving through contractoLs, i'e' security Prge l7 o.f 20 ll/.P.(C-) Nol;. 3 150-56/2007 & other c0nttecled nrutlers -J. agencies. Itendering of such contract labour woulcl np1 make the rcsponclcnts the workmen of the petitioner

¶32'l'he situation rnay bc viewccl liorn another angle. fhe award iiself cgntails the dates on which these lespondent workmen had been engaged. I 't'hc saicl tabulation shows that the earliest engagements weie made on' N4alch 1994. Engagernents were made each year thereaftel right upto the ycar 2000. According to the respondents, they were all disengaged on

01.09.2002. Even if the submission of the respondents: that they were clireqtly engaged by the petitioner as casual workels were to be accepted - lor thc sake of argument, theil engagements ranged between 8 years to 2 years. Ilven if they are treated as casual workers of the petitioner, since their' . appointments were made irregularly and not tJgor-igh the process of rccruiturcnt by pr-rblic adverliscrnent, they would not havc a light to the post. (.lonseqLrently, in any event, the direction to reinstate the respondeuts was not callecl lbr and cannot be sustained.

¶33I may refer to the judgment of the Supreme Court in "nnghir Simgtrt Vs. [Ioryunu Ststi Agriculture Marketing Bosrd & Another, (2409) .I5 SCC 327, whereinlhe Supreme Court has noted the shift in law, particuiarly in casc of casual workers and those who are not regularly ernployed,.it has bccn licld tliat the lelief of reinstaternent does not automatically follor,v the finding that thc tcrrnination is illegal 4nd in breach of scction 25F of the Act. 'l'[c awatd of cornpensation has been held to be sufficient to meet the ends ofjLrslicc. I rnay ernphasise here itself that the respondents could not be said to be the casual employees/worlanan of the petitionel and the hbove r"easoning has been given only as an additional reasoning' ll/. P.(C.) Nos. 3 I 50-56/2007 & olher conrtecterl niatters Puge I9.of 20 \ 6z 3tl. Leerured counsel fol the petitioner points out that the r-espondent wcl'lcmcn havc bccli receiving wages nnder section 178 of thc Act. fhe Clor-rrt has directed payrnent of the last drawn wages or the minirnr-tm'wages, whichcver is higher. The.same has been paid fi'oin the date of the ar,vard onwalds i.e. 04.12.2006 and the same continues to be paid even now. These werges have already been paicl for over six years. It is submitted that each of thc responclents have leceived wages ttnder section 178 of the Act to the luge of over Its.3 lacs (on the basis of the revisecl minimum \,vages frorn time Lo tir1e, as they wel'e higher than the last drawn wages) except in lespect of Llrc rcspotrclents in W.P.(C.) Nos.3 15212007, 31 5312007, 315412007, 3156120Q7, 315912007, 316012007, 359612007 and 365012007, whele the applications uncler section I7B are still pending consideration. 'fhese a1:plications are being dealt with separately.

¶35'fhe lesponclents, as aforesaid, have received wages under section lTIl in cxccss of Its.3 lacs a,ft.er their telmination. I may obscrve that though wliilc allowing the applications of the worlcman under sectiori 17I] of the Act, vicle comrron order dated 13.10.2011, the Courl had lequired the rvorlcrlan to give an undeft4king to the Court that in case the writ petitiotl succeecls, they shall refund the diffelence between the amount of last clrawn wages and the rninimrun wages. The respondents havc been receiving werges uncler section l7B atthe rninirnurn wages rates prevalent fi'orn time to tirne, which is higher than the last chawn wages drawn by them. The effect ol'the award being set aside would be that they would be lequired to lefund the saicl clift-erence. I{owever, I am not inclined to direct.the same, and the saicl amonlt coulcl well be tleated as acleqttate colnpensalion payable to them Pug.e l9 nf 20 ll'.P.(C.) Ntts. 3150-5(t/2007 & other conne'cletl "lutlet's in lieu of reinstatement ancl baclc 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 of workmen who are 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 and, consequently, no case of retrenchment is made out by them against the petitionel. 36, Accordingly, the writ petitions are allowed and the impr-rgned common awarcl clatecl 04.12.2006 is set aside, leaving the parties to bear their respective costs

¶37All the pending applications stand disposed of. MAITCH 20,2013 ST W.P.(C.) Nos. 3150'56/2007 & other connected mdters vnPxN s'aNcrm, .x |: Page 20 of20

Ll2- * .rl. trl $-50 * IN THE HIGH COURT OF DELHI AT NEW DELHI w.P.(c) 3s9612007 BHARAT SANCHAR NIGAM LTD. ..... Petitioner r) 'fhrough: Mr. Raj Birbal, Sr. Advocate with Ms. Raavi Birbal, Advocate VCTSUS SANJAY & ORS. ..... Respondent Mr. Vikram Nandrajog, Advocate with Mr. Bijender Singh, Advocate Through: CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI