State Bank of Travancore Punch Operators Association vs P.O., Industrial Tribunal and Others

T. Meenakumari, J.—The writ petition is for the issue of writ of certiorarified mandamus to call for the records from the first respondent

relating to I.D. No. 86 of 1985 and quash the award passed by the first respondent and consequently direct the second respondent- Bank to

reinstate the petitioners with back wages, continuity of service and award costs.

The writ petition is filed by the petitioner-Association. The case of the petitioner is that the forty-seven workers were employed with the second

respondent-Bank from February 1977 as punch operators through the alleged contractors who are the members of the petitioner''s Association.

As they demanded that they should be regularised in the services of the second respondent/bank, they were suddenly denied employment from;

September 27, 1984. They were forced to raise a dispute before the Conciliation Officer and the same was referred to the first respondent in I.D.

No. 86 of 1985. It is also averred that before the Tribunal, the petitioners filed a claim statement wherein they have stated that they were employed

as Punch Operators from the year 1977. The second respondent entrusted the work of data processing to Data Consultants who brought the data

processing machine to the Head Office of the second respondent bank and the work was done by the 47 workers. It is also stated that the alleged

contractors would change but the 47 workers who were employed for data processing work remained the same. Hence they contended that the

so called contract system was merely a camouflage. It is also stated that they were really employed by the second respondent Bank through the so

called contractors in order to avoid the legal obligations like giving the benefits that are to be paid to bank employees under the various bipartite

settlements. It is also stated that the second respondent has a control over the petitioners and electronic data processing work is an integral part of

the bank''s business.

The second respondent has resisted the claim and the evidence has been adduced by both the sides.

The petitioners herein have claimed in the claim statement that the so called contract system viz., asking A.V.T. Software Research Co. Ltd. to

undertake the work is merely a farce. If this contract system was a genuine one, every time a contractor changed, he would have brought his own

men.

It has been argued by the learned counsel for the petitioners Ms. Vaigai that the petitioners are the direct employees of the respondent Bank and

merely because they have demanded bonus and formed a Union, their services have been dispensed with and it is a clear case of victimisation. She

has further argued that the Tribunal has not gone into the question whether the contract is sham or genuine and she has further argued that the

findings of the Tribunal that it has no jurisdiction or authority to deal with any dispute relating to Contract Labour (Regulation and Abolition) Act is

only perverse. The learned counsel relied upon the decision of the Supreme Court in Gujarat Electricity Board, Ukai v. Hind Mazdoor Sabha,

1995-2-LLJ-790 (SC) to substantiate her contention that the Industrial Tribunal has got jurisdiction to decide whether the contract is sham or

genuine. It is only if the adjudicator comes to the conclusion that the contract is sham, then he will have jurisdiction to adjudicate the dispute. If

however he comes to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of the

contract labour u/s 10 of the Act and keep the dispute pending. It is further argued that even after the contract labour system is abolished, the

direct employees of the principal employee can rise an industrial dispute for absorption of the ex-contractor''s workmen and the adjudicator on the

material placed before him can decide as to why and how many of the workmen should be absorbed and on what terms.

On the other hand, it has been argued by the learned counsel for the respondent that the findings of the Tribunal that it has no jurisdiction over

the contract labour system is perfectly valid and he has argued that the Tribunal has come to the conclusion basing on the evidence adduced and

there is no need to give a finding whether the contract is sham or genuine. It has also been argued by the learned counsel for the respondents that

the petitioners are not the direct employees of the principal Bank. They were working through the contractor and there is no system of punch

operation now and there is no necessity to refer the matter back to the Tribunal for adjudication.

The Supreme Court in Gujarat Electricity Board''s case (supra) at paragraph 18 of its judgment has observed as follows:

If the contract is sham or not genuine, the workman of the so called contractor can raise an industrial dispute for declaring that they were always

the employees of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for

abolition of the labour contract and hence the provision of Section 10 of the Act will not bar either the raising or the adjudication of the dispute.

When such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. It is only if the adjudicator comes to

the conclusion that the contract is sham, that he will have jurisdiction to adjudicate the dispute. If, however, he comes to the conclusion that the

contract is genuine, he may refer the workmen to the appropriate Government for abolition of the contract labour u/s 10 of the Act and keep the

dispute pending. Moreover he can do so if the dispute is espoused by the direct workmen of the principal employer.

From the above, it could be culled out that the Industrial Tribunal has got jurisdiction to decide the matter whether the contract is sham or

genuine and to record the finding. In view of the observation made by the Supreme Court it could be held that the findings of the Industrial Tribunal

that it has no jurisdiction or authority to deal with any dispute relating to Contract Labour (Regulation and Abolition) Act is a perverse finding and it

has to be set aside. In view of the above, the award is set aside to the extent of the finding that the Industrial Tribunal has no jurisdiction to decide

the dispute relating to Contract Labour (Regulation and Abolition) Act. The matter is remanded back to the Industrial Tribunal to decide whether

the contract is sham or genuine following the principles laid down by the Supreme Court in Gujarat Electricity Board''s case (supra). The Tribunal

can take into consideration the evidence which has already been adduced by both the parties in deciding the matter. However, liberty is given to

both the parties to adduce fresh evidence it they so desire to substantiate their contentions. The tribunal is directed to decide the matter within a

period of three months from the date of receipt of a copy of this order. With the above observations, the writ petition is disposed of. No costs.

However, liberty is given to the petitioners in case they are aggrieved by the orders passed by the Tribunal, to agitate their rights before the

appropriate forum.