Manab Kumar Paul vs Anz Grindalys Bank

Ruma Pal, J.—The 12 writ Petitioners are employees of the Respondent No. 7 which is a security service. They were appointed on different dates between 1991 to 1993. The Respondent No. 1 and Respondent No. 7 entered into a contract on February 18, 1995 by which the Respondent No. 7 agreed to provide security and protection at the different branches of the Respondent No. 1. The Respondent No. 7 assigned the 12 writ Petitioners the job of carrying of carrying out this contract.

The contract between the Respondent No. 1 and the Respondent No. 7 was valid till February 28, 1996. On expiry of the period the Respondent No. 7 was required to remove the guards from the bank premises of the Respondent No. 1. Before the expiry of the period on January 30, 1996 a representation was made to the Chief Executive Officer of the Respondent No. 1 on behalf of the Petitioners by the Paschim Banga Karmi Union for absorption into the services of the Respondent No. 1. The Respondent No. 1 did not accedes to the request. On November 26, 1996, a dispute was sought to be raised by the Union before the Regional Labour Commissioner, Government of India with regard to absorption of the security staff by the Respondent No. 1 as permanent workers. This letter was forwarded to the Respondent No. 1 by the office of the Regional Labour Commissioner (Central) on January 6, 1997. The Bank replied to the demand of the Union. Correspondence was exchanged in this regard before the Assistant Labour Commission and the proceedings appear to be pending.

By letter dated November 20, 1997 the Respondent No. 7 wrote to the Respondent No. 1 stating that as the providing of security service in banks has been prohibited, the Respondent No. 7 was compelled to withdraw the services of its staff with effect from January 1, 1998.

This writ application was moved on December 19, 1997. As interim order was passed on December 24, 1997 to the effect that the status quo as on that date would continue till 2 weeks after the Winter Vacation of the Court. It does not appear that the interim order has since been extended.

Affidavits have been exchanged between the parties. At the hearing, the Petitioner has contended that a notification u/s 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereafter referred to as the 1970 Act) had been issued. Although no copy of the notification has been procedure, the Petitioners have relief upon the letter of the Respondent No. 7 dated November 20, 1997 to contend that a notification must have been passed prohibiting the appointment of contract labour with regard to security services by banks. The second submission of the Petitioner is that the bank was a State or other authority within the meaning of Article 12 as it was discharging public services and banking activity was subject to the control and authority of the Reserve Bank of India and statutory provisions of the Banking Company Regulation Act. The third submission of the Petitioners is that even if they did not have a right to absorption, nevertheless, in keeping with the observation of the Supreme Court in several decisions, the Petitioners were entitled to be given preference in the matter of appointment by the bank.

The Respondent No. 1 has submitted that the writ application was not maintainable at all on the ground that the Respondent No. 1 was not a State or other authority within the meaning of Article 12. It is also submitted that there was no notification issued u/s 10 of the Act and there was as such no question of the employees of the Respondent No. 7 becoming employees of the Respondent No. 1. According to the Respondent No. 1 the Petitioners had not been appointed by the Respondent No. 7 for the purpose of rendering service to the bank and were not within the purview of the definition of ''Contract Labour'' u/s 2(b) of the 1970 Act. It is further alleged that the requirement of Section 1(4) of the 1970 Act not having been fulfilled, the 1970 Act has no application. The final submission of the Respondent is that the Petitioners have raised an industrial dispute which was still pending. According to the Respondent the Petitioners having availed of their alternative remedy should not be permitted to invoke the jurisdiction of this Court under Article 226.

In my opinion the writ application must fail on at least two grounds. The writ Petitioners have based their claim for absorption and preferential treatment on the basis that they are contract labour within the meaning of the 1970 Act.

Section 2(b) and 2(c) defines ''contract labour'' and ''contractor'' as follows:

Definitions. - (1) xxx

(b) a workman shall be deemed to be employed as ''contract labourer'' in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer;

(c) ''contractor'', in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplied contract labour for any work of the establishment and includes a sub-contractor;

It is clear from the phrase ''when he is hired in or in connection with the work of an establishment'' that a contract labourer is one who is hired for a particular job by a contractor. This presupposes that the labourer is not a permanent employee of the contractor and also that the hiring of the labourer is simultaneous with or subsequent to the undertaking given by the contractor to the establishment.

In the present case the Petitioners fulfil neither criteria. They are permanent employees of the Respondent No. 7 and joined service with the Respondent No. 7 much prior to the contract between the Respondent No. 7 and the Respondent No. 1. The Respondent No. 7 also has never claimed to be a licensed contractor u/s 12 of the Act.

Even assuming the Petitioners are ''contract labourers'' within the meaning of Section 2(b) of the 1970 Act, they have no right either to claim absorption or preferential treatment in the matter of appointment unless a notification u/s 10 of the 1970 has been issued abolishing employment of contract labour in the work of providing services in Banks. in both the decisions relied on by the Petitioners in this context, viz. Association of Chemical Wrokers, Bombay Vs. Sh. A.L. Alaspurkar and others, and Air India Statutory Corporation, etc. Vs. United Labour Union and others [overruled], , the Supreme Court considered the effect of a notification on the relationship between the principal employer and the labourers rendering in respect of which the notification applied. No such notification has been produced in this case. I am not prepared to infer the existence of the notification whether from the letter of the Respondent No. 7 or otherwise. Besides, the letter of the Respondent No. 7 does not refer to any notification, and significantly was written almost after two years after the Petitioners sought absorption with the Respondent No. 1.

In the circumstances, the writ application must be and is hereby dismissed. The other points raised are left open. There will be no order as to costs.