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Judgment
P. Jyothimani, J.—The writ petition is directed against the award of the Labour Court passed in I.D. Nos. 73 to 140 and 221 of 2001,
dated 20.10.2004, by which the Labour Court has held that the non employment of respondents 6 to 74 is not justified and directed reinstatement
and absorption in regular service with continuity of service, back-wages and other attendant benefits.
2.1. Brief facts of the case leading to the filing of this writ petition are that respondents 6 to 74 herein were working under the petitioner/Thermal
Power Station as Security Guards, stated to be under the control and supervision of the petitioner/Thermal Power Station through various
contractors from 1985 to 1990 and it is stated that each of the workman were working for more than 480 continuous working days. It has been
the case of the contesting respondents that they were not paid salary and therefore, they filed various petitions and also took steps to get their
employment on regular basis and it was in those circumstances, the petitioner has terminated their services on 31.3.1990.
2.2. On the basis that the contract labour is sham and nominal, the contesting respondents have earlier approached this Court by filing W.P. No.
11348 of 1988 for regularisation of their services. They have also filed W.P. No. 314 of 1989 u/s 19 of the Contract Labour (Regularisation and
Abolition) Act, 1970. As per the direction of this Court, they have approached the Government. However, it has been the case of the contesting
respondents/workmen that the petitioner/management has not referred the matter before the Hon''ble Justice Khalid Commission. According to the
respondents, the contract system was illegal and was used as a mask to employ the workmen on casual basis and several junior workers were
regularised by the petitioner/Thermal Power Station. The conciliation proceedings ended in failure. Hence, the contesting respondents/workmen
raised industrial disputes.
2.3. It has been the case of the petitioner herein, who was the first respondent in the industrial disputes, that there was no relationship of employer
and employee between the petitioner and the contesting respondents/workmen and they were not appointed by the petitioner/Thermal Power
Station and were engaged only by the contractors and that the contractors have utilised the services of the workers and the petitioner/management
has no control over the contractors and it has nothing to do with the engaging of workmen by the contractor.
2.4. The petitioner herein submitted that there is no direct or indirect connection between the petitioner/Thermal Power Station and the workmen
and the respondents are not coming under any category � neither as per the conditions of the Hon''ble Justice Khalid Commission nor under the
Board proceedings dated 28.4.1999. It is stated that the contract workers covered under the works contract are not considered for selection and
absorption in regular service of the petitioner. As per the report dated 11.2.1991 of Hon''ble Justice Khalid Commission, the contract workmen
were to be absorbed before 31.3.1993 in four thermal stations. Since the contesting respondents/workmen were not working during 1985 to
1990, the question of their absorption does not arise.
2.5. It is stated that as per the guidelines dated 7.5.1999, those contract workmen who had been working for not less than 480 days in a
consecutive period of 24 calendar months have to be considered for regular absorption. The total number of contract workmen who were
identified for absorption in the petitioner/Thermal Power Station was 1867 and the sanctioned post for absorption was 512 and therefore, the
remaining contract workmen have no right to claim absorption in excess of the sanctioned post. It is stated that the writ petitions filed by the
contesting respondents/workmen were dismissed on 28.2.1996 and the contesting respondents/workmen were not identified as contract labourers
as on 5.1.1998 and there is no record produced to show that the contesting respondents/workmen were working for more than 480 days.
2.6. The second respondent in I.D. Nos. 87 and 101 of 2001, who is the second respondent herein, who is carrying on the business of security
agency and detective services has stated in the counter affidavit before the Labour Court that they work as security contractors and during 1984
when the petitioner/Thermal Power Station was constructed, the second respondent supplied its men to the premises of the writ petitioner for
watch and ward service and the contesting respondents/workmen were in service as security men from 6.2.1984 to 24.11.1984. Since the relief
claimed by the contesting respondents/workmen is only against the writ petitioner, the second respondent has stated that the industrial disputes as
against them ought to be dismissed. That was also the case in the counter affidavits filed by the other security agencies, namely respondents 3, 4
and 5.
2.7. The Labour Court, on examining one witness on the side of the workmen and one witness on the side of the writ petitioner/management and
after perusing the 23 documents marked on the side of the workmen and 5 documents marked on the side of the management, has ultimately
directed reinstatement and absorption in regular service of the said contesting respondents/workmen with continuity of service, back-wages and
attendant benefits.
Aggrieved by the said award, the employer has filed the present writ petition on various grounds, including:
(i) that the contesting respondents/workmen have contested the case after nearly 10 years of alleged cessation of employment and that there has
been delay and laches which has not been considered by the Labour Court;
(ii) that the contesting respondents/workmen were engaged only by the licensed contractors of the petitioner and they cannot claim any
employment against the principal employer;
(iii) that the Labour Court has failed to consider that the question whether the contract between the petitioner and the contractor was sham and
nominal cannot be considered in an individual dispute raised u/s 2-A of the Industrial Disputes Act;
(iv) that the dispute raised by the contesting respondents/workmen was only for absorption in service and for regularisation and not about the
termination of employment;
(v) that on the expiry of the contract, the employment of the contesting respondents with the contractor itself comes to an end;
(vi) that the Labour Court ought not to have gone into the fact as to whether the contract between the petitioner and the contractors was sham;
(vii) that the Labour Court ought to have considered that respondents 2 to 5, who were the contractors, have taken certificate of registration under
the Contract Labour (Regulation and Abolition) Act and therefore, the contract cannot be said to be sham or mala fide;
(viii) that the Labour Court ought to have seen that the petitioner has nothing to do with the employment or non employment of the contesting
respondents, who were under the exclusive control of the contractors, namely respondents 2 to 5, who are liable to answer the contesting
respondents regarding termination and as respondents 2 to 5 remained ex parte, the award ought to have been passed against them;
(ix) that even though the contesting respondents were working in the premises of the petitioner, they were under the control and employment of
respondents 2 to 5;
(x) that the claim of the contesting respondents itself is for regularization and absorption as per the report of the Hon''ble Justice Khalid
Commission and that cannot be raised as a dispute u/s 2-A of the Industrial Disputes Act;
(xi) that when the contesting respondents were parties to W.P. Nos. 11348 of 1988 and 314 of 1989 in which liberty was given to them to
approach under the Industrial Disputes Act, there can be only a collective dispute and therefore, the individual disputes raised by the contesting
respondents are not maintainable; and
(xii) that the Labour Court has failed to appreciate that it has been the admitted case that the contesting respondents were employed under
respondents 2 to 5 being the contractors and they were alone answerable for the claims.
4.1. In the counter affidavit filed on behalf of the contesting respondents, it is stated that the maintainability of the petitions u/s 2-A of the Industrial
Disputes Act has never been raised by the petitioner/management at any point of time and throughout the conciliation proceedings, the
petitioner/management has taken part and has not disputed about the proceedings regarding non employment.
4.2. It has been the case of the contesting respondents that even prior to the insertion of the contract system for Security Guards under the
petitioner/management, the contesting respondents were working and thereafter the contract system was introduced only as a mask and therefore,
there is a direct relationship between contract workmen and the principal and therefore, the termination is not valid.
4.3. In respect of the delay, it is stated that after the writ petitions were disposed in 1996, the contesting respondents have filed applications before
the Labour Officer. It has been the case of the contesting respondents that the contract system is sham and nominal and that at present the
petitioner is absorbing nearly 20000 contract employees in a phased manner and the contesting respondents have been without employment for the
past 17 years.
5.1. Mr. Ravindran, learned Counsel appearing for the petitioner/Thermal Power Station would submit that the industrial disputes raised by the
contesting respondents u/s 2-A of the Industrial Disputes Act as individual disputes are not maintainable and such a claim can be made by the
contesting respondents/workmen only u/s 2(k) of the Industrial Disputes Act as a collective dispute.
5.2. It is his submission that there is absolutely no control of the petitioner on the said workmen and the control and supervision has been with
respondents 2 to 5, who are the contractors registered under the Act and in such circumstances, when the contesting respondents have already
approached under the Contract Labour (Regulation and Abolition) Act, 1970 for regularization, there is no question of principal employer to
absorb into regular services of the contract labour. He would rely upon the judgment of the Supreme Court in International Airport Authority of
India Vs. International Air Cargo Workers'' Union and Another, .
5.3. It is the further contention of the learned Counsel for the petitioner that the Labour Court has not given any finding about sham and nominal
transaction of the contract and there is no evidence to that effect also. He would also refer to various documents, viz., W1, W3 and W9 to
substantiate his contention that there was no control over the function of the contesting respondents.
5.4. It is his contention that when once the contesting respondents have sought their right under the Contract Labour (Regulation and Abolition)
Act and there was a direction by this Court to work out their remedy in the manner known to law, the petition u/s 2(k) of the Industrial Disputes
alone is maintainable.
6.1. On the other hand, it is the contention of the learned Counsel appearing for the contesting respondents that various records were produced on
behalf of the workmen to show that the petitioner/Thermal Power Station has recognized the services of the contesting respondents and in fact, as
seen in Ex.W2, the petitioner/Thermal Power Station itself has given a conduct certificate to W.W.1 � V. Elangovan.
6.2. It is his submission that inasmuch as it has been the case of the contesting respondents that the contract system was sham and nominal, the
filing of petitions u/s 2-A of the Industrial Disputes Act is valid in law. It is his submission that the maintainability of petitions u/s 2-A of the
Industrial Disputes Act was never raised by the employer at any point of time. To substantiate his contention that petitions filed u/s 2-A of the
Industrial Disputes Act are maintainable reliance was placed on Hussainbhai, Calicut Vs. The Alath Factory Thezhilali Union, Kozhikode and
Others, ; Steel Authority of India Ltd. Vs. Gujarat Mazdoor Panchayat and Another, ; Management of Institute of Road Transport Technology
Erode v. S. Arumugam and Ors. 2007 II LLJ 312; Hindustan Petroleum Corporation Ltd. and Another Vs. Presiding Officer, Central
Government Labour Court cum Industrial Tribunal and Others, ; and U.P. State Electricity Board Vs. Pooran Chandra Pandey and Others, .
6.3. It is his case that when the enquiry by Hon''ble Justice Khalid Commission was pending, the matter relating to contesting respondents was not
referred to by the petitioner wantonly. To substantiate his contention that control over the contesting respondents has been exercised by the
petitioner, he would rely upon Ex.W7 to show that the authorities of the petitioner have been inspecting the security effected by the contesting
respondents.
I have considered the rival submissions made by respective counsel, referred the various documents filed in the typed set of papers and given
my anxious thought to the issue involved in this case.
The contesting respondents in the writ petition filed by them earlier individually in W.P. No. 11348 of 1988 have sought for a direction against
the writ petitioner herein to regularize their services as permanent Security Watchman, while the Union''s writ petition in W.P. No. 314 of 1989
was to direct the Government to pass orders u/s 10 of the Contract Labour (Regulation and Abolition) Act, 1970, abolishing contract employment
in the security service of the Ennore Thermal Power Station. In that writ petitions, after elaborate arguments, the Division Bench has held as
follows:
A perusal of the above passages show that the petitioners cannot get the reliefs prayed for by them in this writ petition even assuming that they
continue to be in service. It may be open to them to approach the Industrial Tribunal and seek appropriate reliefs. In fact in Gujarat Electricity
Board, Thermal Power Station, Ukai Vs. Hind Mazdoor Sabha and Others, the Supreme Court has observed that the remedy of the workmen
was to raise appropriate industrial dispute as indicated in that judgment for appropriate reliefs and if such dispute was raised, the Government
should make a reference within two months of the receipt of the dispute and the industrial adjudicator should dispose of the same as far as possible
within six months thereafter.
and ultimately refused to grant relief of regularization as prayed for by the individual workmen in W.P. No. 11348 of 1988. In respect of the
Workers Union filing writ petition in W.P. No. 314 of 1989, the Division Bench has held that if the Union approach the Government for a
reference to the Industrial Tribunal as per the parameters laid down by the Supreme Court in Gujarat Electricity Board, Thermal Power Station,
Ukai Vs. Hind Mazdoor Sabha and Others, , on such application, the Government shall make a reference within three months.
It was thereafter the contesting respondents have approached the Labour Officer in the year 2000 and a failure report was submitted on
13.6.2000. In the petitions filed before the Labour Court u/s 2-A of the Industrial Disputes Act, the contesting respondents have clearly stated that
they have been working as Security Guards under the supervision and control of the petitioner/management through various contractors, namely
Guardian Security Service, Southern Security Service, Hindustani Security Detective Service, Security Detective Service continuously from 1985
to 1990 and they have worked for more than 480 days continuously in the Ennore Thermal Power Station.
In the counter affidavit filed before the Labour Court, it was the case of the petitioner/management that the petitioner has no direct or indirect
control over the said workers and it is nowhere connected with engaging or recruiting any particular workman for the completion of the work. As
per the policy of the Board, contract workers under the works contract were not considered for regularization of services and there is no record
available with the Board to show that the contesting respondents have continuously worked and if only the contesting respondents names were
there in the list, they would have been absorbed as per the report of Hon''ble Justice Khalid Commission. It is stated that the number of contract
workmen identified for absorption in Ennore Thermal Power Station was 1867 as against the sanctioned post for absorption of contract workmen
of 512 and therefore, the remaining contract workmen cannot have a right of absorption.
Pending the industrial disputes, the contesting workmen have filed applications for production of various documents including:
(i) list of contractors along with P.F. Code number and ESI Code Number from the period 1983 to 31.3.1990;
(ii) the number of employees who have worked as Security Guards and subsequently absorbed by the petitioner/management as Security Guards;
(iii) the minimum wages paid to the security guards for the period of 1983 to 31.3.1990;
(iv) the list of allocation of work details given to the workmen for the relevant period;
(v) the salary details paid to the Security Guards for the period from November, 1988 to 31.12.1988 by the management;
(vi) the norms under which the workers were made permanent in the year 1999 and number of categories; and
(vi) the details of workers who were working as Security Guards made permanent along with other category of workmen in 1999 through the
Tamil Nadu Electricity Board.
Of course, in the counter affidavit filed for the said interlocutory applications, the petitioner/management has stated that the contesting
respondents have never worked under the control of the petitioner and there are no records to that effect.
The Labour Court in the award has considered the evidence as well as the documents filed by both the sides. In the impugned award, the
Labour Court has found that it has been the evidence of W.W.1 that the contesting respondents were working under the writ petitioner/Thermal
Power Station and many persons who were juniors have been regularised by the Thermal Power Station. Ex.W1 which was given by the Assistant
Divisional Engineer of the petitioner/Thermal Station to one of the petitioners � Dhanapal has been referred to by the Labour Court to show that
the said Dhanapal has been working as Security Guard under the petitioner/management and on the basis of the complaint given by the said
Dhanapal an enquiry was conducted by the Assistant Divisional Engineer. Likewise, Ex.W2 has been referred to by the Labour Court to show that
Elangovan, one of the workmen, who was examined as W.W.1 was working under the petitioner and the Junior Engineer of the
petitioner/management has issued a conduct certificate in favour of him and the Labour Court has in fact found that W.W.1 was working under the
petitioner from February, 1984 as a contract labour for more than two years as per the certificate issued by the responsible officer of the petitioner
dated 23.12.1986.
The Labour Court has also referred to various exhibits to show as to how the contesting respondents have been writing to the officials of the
petitioner/Thermal Station. The Labour Court has referred to Ex.M1 which has been the complaint dated 16.9.1989 by the Security Guards to the
Chairman, Tamil Nadu Electricity Board, as admitted by M.W.1., and on a reference to the complaint it was found that the contesting respondents
were working in the Thermal Power Station and in fact, the petitioner/management has been recruiting new persons as Security Guards.
After referring to Exs.W7 and W9, the Labour Court has come to a conclusion that the Security Guards were supervised by the officers of the
petitioner/Thermal Power Station and also by the Deputy Superintendent of Police and after referring to the evidence of M.W.1, the Labour Court
has come to a conclusion that there has been a control by the petitioner/Thermal Power Station on the working of the contesting respondents, even
though they were engaged through contractors.
The Labour Court, on an admitted fact that the contesting respondents were in fact performing the work of Security Guards in the petitioner
premises, has come to a conclusion that the petitioner is the employer and not the contractor and on the appreciation of Ex.M1, the Labour Court
has found that the contesting respondents have worked for more than 5 years under the petitioner and the contract was entered with the
contractors only for supply of Security Guards. Inasmuch as for the Security Guards the petitioner should have been maintaining register and the
same has not been produced before the Labour Court, the Labour Court found that there is a wilful suppression of valuable evidence and
inasmuch as it was not in dispute that the individual contesting respondents were the members of the Tamil Manila Thozhilalar Sangam, there was a
duty on the part of the petitioner to have referred the matter relating to the contesting respondents to Hon''ble Justice Khalid Commission. On the
factual finding that the petitioner had control over the Security Guards, the Labour Court has rejected the contention of the petitioner that there was
no direct or indirect control over the Security Guards and it was on the basis of the appreciation of evidence, the Labour Court has come to a
conclusion that the petitioner is the principal employer having control over the Security Guards working in its premises.
Even in the judgment relied upon by the learned Counsel for the petitioner in International Airport Authority of India Vs. International Air
Cargo Workers'' Union and Another, , the Supreme Court has held that it is only in cases where the finding has been given by the Tribunal without
any evidence or on the basis of irrelevant evidence, interference by the High Court is possible. The Supreme Court observed that the High Court
while exercising the jurisdiction under Article 226 of the Constitution of India is not sitting as an Appellate Authority over the factual findings and
the award of the Labour Court. Paragraph [24] of the judgment, which has been relied upon by the learned Counsel for the petitioner is as follows:
One of the reasons given by the Division Bench to restore the order of the Tribunal is that the High Court in its writ jurisdiction should not
interfere with the award of Industrial Tribunal based on the findings of fact. Reliance is placed on the decisions of this Court in Indian Overseas
Bank Vs. I.O.B. Staff Canteen Workers'' Union and Another, and R.K. Panda v. Steel Authority of India 1994 (4) SCC 151 : 1994 (5) SCC
It is true that in exercising the writ jurisdiction, the High Court cannot sit in appeal over the findings and award of the Industrial Tribunal and
therefore, cannot re-appreciate evidence. The findings of fact recorded by a fact finding authority should ordinarily be considered as final. The
findings of the Tribunal should not be interfered in writ jurisdiction merely on the ground that the material on which the tribunal had acted was
insufficient or not credible. It is also true that as long as the findings of fact are based on some materials which are relevant, findings may not be
interfered with merely because another view is also possible. But where the Tribunal records findings on no evidence or irrelevant evidence, it is
certainly open to the High Court to interfere with the award of the Industrial Tribunal. In this case, the grounds on which the union sought relief of
absorption and the grounds on which the Tribunal ultimately granted relief are completely different. Having regard to the several decisions in the
earlier rounds of litigation, which had attained finality, it is doubtful whether the Tribunal could have considered these issues at all. Even assuming
that the tribunal could have considered the said grounds as having risen for decision, the question is whether there was any basis or material for its
finding and assumptions. Let us examine the findings.
The further contention of the learned Counsel for the petitioner that there is no finding by the Labour Court about the sham and nominal
transaction of the contract between the contractors and the petitioner has again no basis. In fact, an overall reading of the entire award shows that
the Labour Court has come to a conclusion that there has been a direct control by the petitioner in respect of the work performed by the Security
Guards and in such event, it is only a consequential finding that the claim of the petitioner that the Security Guards who were employed through
independent contractors under works contract should be treated as sham and nominal. When there is a positive finding by the Labour Court that
there has been a definite control by the petitioner against the contesting respondents, I am of the considered view that simply because in so many
words the Labour Court has not declared that the contract with independent contractors for supply of workers is sham and nominal, the award
should be rejected. On the clinching evidence which has been referred to by the Labour Court, especially Exs.W2, W7 and W9, I do not see any
reason to doubt the finding of the Labour Court on fact either on the basis that the finding is with no evidence or irrelevant evidence.
The Supreme Court in Hussainbhai, Calicut Vs. The Alath Factory Thezhilali Union, Kozhikode and Others, has held as under:
The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence
when, on lifting the veil or looking at the conspectus of factors governing employment, we discover the naked truth, though draped in different
paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half hidden in fold after fold of legal
form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour
legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43A of the Constitution.
Applying the said yardstick propounded by the earliest judgment of the Supreme Court to the facts of the present case, especially on the finding of
the Labour Court that there has been a direct control by the petitioner towards the working of the contesting respondents, there is no difficulty to
conclude that the award of the Labour Court does not suffer from any illegality or perversity.
The Gujarat High Court in Steel Authority of India Ltd. Vs. Gujarat Mazdoor Panchayat and Another, has laid down the extent of supervision
and control by the principal employer towards the workmen as follows:
The factors which may establish that a contract between the principal employer and the labour contractor is a mere paper arrangement or an
eye wash or a camouflage or a ruse or a facade or a name lender are; (i) activities/business of the principal employer, (ii) genuine need or
requirement of engaging contract labour, (iii) length of continuous and uninterrupted service of workmen, (iv) nature of work done by workmen,
i.e. whether the work is perennial in nature or intermittent, (v) who has, in fact, supplied the labour force to the principal employer, meaning
thereby, whether the services of the workmen were made available to the principal employer by the labour contractor after making recruitment, (vi)
extent of supervision and control of the workmen by principal employer, (vii) whether the workers do the labour work to produce goods or
service for business of the principal employer, and (viii) whether the provisions of the Act relating to registration and licence etc. are complied with.
The plea that the industrial adjudicator cannot take into consideration the factors mentioned in Clauses (a) to (d) of Section 10(2) of the Act to
arrive at the finding as to whether the labour contracts are genuine or not cannot be accepted in view of the principles laid down in Gujarat
Electricity Board, Thermal Power Station, Ukai Vs. Hind Mazdoor Sabha and Others, .
On the facts of the present case, it is not as if certain piece work has been given for execution in the petitioner''s premises through independent
contractor at his control, but it is the case of the maintenance of the entire premises of the petitioner by the contesting respondents as Security
Guards and even if certain independent contractors have supplied the Security Guards to the petitioner, it does not mean that the petitioner loses
any control over the working of the Security Guards in the premises of the petitioner.
A Division Bench headed by P. Sathasivam, J. as His Lordship then was, in Management of Institute of Road Transport Technology Erode v.
S. Arumugam and Ors. 2007 II LLJ 312 has again dealt with such issue in the following manner:
It is also found by the learned single Judge that the documents on record as well as the evidence of the two management witnesses clearly
indicate that directions were being given through a Supervisor regarding the duty of such persons and on some occasions, those persons were
discontinued for few days on the basis of the directions of the authorities. The said aspect clearly indicate that control is being exercised by the
management. The said practice of entrusting the work to the contractor was suddenly introduced in the year 1991-1992. The learned single Judge
also found that the contracts were sham transactions and there were actual ultimate relationship of employer and employee between the appellant
and the workmen and non-pleading of the case before the Labour Court that the contracts were sham transactions, is due to non-drafting of the
papers by the Lawyer, but because of the poor drafting by the workmen or by some other person.
It was the specific case before the Labour Court that the workmen were directly appointed under the appellant. The learned Judge after going
through the records, gave a specific finding that the contracts were sham transactions and the Labour Court failed to advert to the said aspect and
hence the award of the Labour Court is vitiated. The learned single Judge, on the facts of the case thought fit to shorten the litigation and taking into
consideration the long pendency of the matter, did not remand the matter back to the Labour Court. The learned single Judge also pointed out that
the oral evidence indicate that some amount of control was being exercised over the Security Guards by the Management.
It is also found from the records that the workmen were directly engaged by the management originally and subsequently, the so called
contracts were executed to show as if the persons were engaged through some contractors and found that the respondents 1 to 5 were workmen
under the appellant College and the so called contractor was a mere eye wash. Thus a specific and categorical finding was given by the learned
single Judge after scrutiny of the records that the respondents 1 to 5 have been directly engaged and subsequently disengaged without following the
provisions contained in Section 25-F of the Industrial Disputes Act, 1947. The learned Judge also took note of the fact that the appellant College
is being managed by a Society and running certain Educational Institutions and held that the respondents 1 to 5 are not entitled to get back-wages,
which was also agreed to by the respondents while ordering reinstatement. Thus, the learned single Judge confirmed the award of the Labour
Court insofar as payment of ex-gratia of Rs. 5,000/- to other workmen and set aside other portion of the award.
By referring to the maintainability of the petition filed by the workman u/s 2-A of the Industrial Disputes Act, under similar circumstances, by
relying up a Division Bench judgment of this Court in the Special Officer of the Management of The Special Officer of The Management of
T.U.C.S. Ltd., Madras-5 Vs. S. Loganathan and D. Nampillai, , K. Chandru J. has rejected a similar contention in Hindustan Petroleum
Corporation Ltd. and Another Vs. Presiding Officer, Central Government Labour Court cum Industrial Tribunal and Others, . In paragraphs [19],
[28] and [29] it was held as under:
A Division Bench of this Court vide its judgment in Special Officer of the Management of T.U.C.S. Ltd. v. S. Loganathan (1986) II LLJ 225
upheld the right of the individual workmen to challenge an Award passed by the Industrial Adjudicator on the ground that the individual workers,
who are aggrieved by the Award, are entitled to question it even in their individual capacity. Therefore, the objection raised by the learned
Advocate General with reference to the impleadment of the workmen in the Industrial Dispute has to be necessarily overruled and it is accordingly,
overruled.
...
Considering these arguments, it must be stated that the Constitution Bench of the Supreme Court in the Steel Authority of India Ltd. and
Others etc. etc. Vs. National Union Water Front Workers and Others etc. etc., had categorically laid down in paragraphs 125-(3) to (6) and 126
(as extracted above), the parameters under which an industrial adjudicator can decide the claims of the workmen. In such cases, it was also held
that in case of a sham and nominal contract, the employer cannot contend that it was still a contract and the Court has no power to order relief to
such workmen. Therefore, that position of law has not been so far diluted in the subsequent pronouncement of the Supreme Court.
Though the learned Advocate General tried to contend that there is no statutory bar for engaging labour on contract and outsourcing is the
modern trend in employment, it must be stated that under the existing law, there is limitations in doing so. The workmen in HPCL are governed by
certified standing orders (CSO) framed under the Industrial Employment (Standing Orders) Act, 1946. In that CSO, there is no provision to
engage any contract labour and Courts have held that any contract in violation of Certified Standing Orders will be void. (See: Western India
Match Company Ltd. Vs. Workmen, ).
It was held by the Supreme Court in U.P. State Electricity Board Vs. Pooran Chandra Pandey and Others, that in matter of regularisation
there cannot be discrimination between two similarly situated employees. In paragraphs [7], [8] and [17] it was held as follows:
The learned Single Judge in his judgment dated 21.9.1998 held that there was no ground for discriminating between two sets of employees who
are daily wagers, namely, (i) the original employees of the Electricity Board and (ii) the employees of the Society, who subsequently became the
employees of the Electricity Board when the Society was taken over by the Electricity Board. This view of the learned Single Judge was upheld by
the Division Bench of the High Court.
We are in agreement with the view taken by the Division Bench and the learned Single Judge.
....
In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-�-vis the original
employees of the Electricity Board since they have been taken over by the Electricity Board in the same manner and position. Thus, the writ
petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the
Society. Since they were all appointed in the society before 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board
dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary
view would violate Article 14 of the Constitution. We have to read Secretary, State of Karnataka and Others Vs. Umadevi and Others, in
conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is
the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution.
In such circumstances, I am not able to see any ground to interfere with the finding of the Labour Court either on the basis that the award of the
Labour Court has been passed without evidence or by non appreciation of evidence. In such view of the matter, the writ petition fails and the same
is dismissed. No costs.