IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 36645 of 2005(K) ------------------------------------ ID.15/1999 of LABOUR COURT, ERNAKULAM .................... PETITIONER: ------------------- 1. T.M. POKKER, KANIVELIPARAMBIL, ERAMAM KARA, KADUNGALLUR, ERNAKULAM DISTRICT. 2. K.M. DEVASSAY, KALLAMAMPARAMBIL, MUPPATHADAM, KADUNGALLUR, ERNAKULAM DISTRICT. 3. ANNA, W/O. LATE K.M. PAILY, KOLLAMAMPARAMBIL, MUPPATHADAM, KADUNGALLUR, ERNAKULAM DISTRICT. 4. SINTA, D/O. ANNA, -DO-. 5. SINI, D/O. ANNA, -DO-. 6. SIBI, D/O. ANNA, -DO-. 7. SYAM, S/O. ANNA, -DO-. 8. SIJI, D/O. ANNA, -DO-. ADDITIONAL PETITIONERS 9 TO 12 ADDL. P9 - HAIJIRA, W/O LATE T.M. POKKER. KANIVELIPARAMBIL, ERAMAM KARA, KADUNGALLUR, ERNAKULAM DIST. ADDL. P10 - LAILA K.C., W/O AZAD, MANGARIPARAMBIL, WEST VELIYATHUNADU. ADDL.P11 - MEDIAN KUNJU K.C., REP. BY HIS POWER OF ATTONEY, JASEENA, PUTHUVELIL PARAMBIL, ERAMAMKARA, MUPPATHADAM. ADDL.P12 - NAUSHAD.K.C., KANIVELIPARAMBIL, ERAMAMKARA, KADUNGALLUR, ERNAKULAM DISTRICT. ADDITIONAL PETITIONERS 9-12 ARE IMPLEADED AS PER ORDER DT.22.8.2007 IN \ I.A. NO. 588/07. BY ADV. SRI.P.VIJAYAKUMAR SRI.ASHIM.M.V. SRI.ASHIM.M.V. FOR ADDL.P9-12 RESPONDENTS: ---------------------- 1. TRAVANCORE COCHIN CHEMICALS LIMITED, REPRESENTED BY ITS PERSONAL MANAGER, UDYOGAMANDAL. 2. THE LABOUR COURT, ERNAKULAM. BY GOVERNMENT PLEADER SRI.M.R.SABU SRI.A.M.SHAFFIQUE (SR.) FOR R1 SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36645 of 2005(K) -2- APPENDIX PETITIONERS' EXHIBITS EXT.P1 - TRUE COPY OF THE JUDGMENT IN O.P.NO.17329/98 DATED 13/1/1988. EXT.P2 - TRUE COPY OF THE STATEMENT IN I.D.15/1999. EXT.P3 - TRUE COPY OF THE WRITTEN STATEMENT IN I.D. 15/1999. EXT.P4 - TRUE COPY OF THE LETTER DATED 28.7.1988 MARKED M. CITED BY 2ND RESPONDENT. EXT.P5 - TRUE COPY OF THE SETTLEMENT DATED 15.7.1988 MARKED AS M CITED BY 2ND RESPONDENT. EXT.P6 - TRUE COPY OF THE ABSORPTION ORDER DATED 21.7.1988. EXT.P7 - TRUE COPY OF THE REPLY STATEMENT IN I.D.15/1999. EXT.P8 - TRUE COPY OF THE AWARD IN I.D. 15/1999 DATED 20.05.2005. EXT.P9 - TRUE COPY OF THE CERTIFICATE DATED 6.12.2005 ISSUED BY DLO ERNAKULAM. /TRUE COPY/ PA TO JUDGE S.SIRI JAGAN, J ================== W.P(C)No.36645 of 2005 ================== Dated this the 16th day of July, 2008. J U D G M E N T The workmen involved in I.D.No.15/1999 before the Labour Court, Ernakulam is challenging Ext.P8 award passed by the Labour Court in that I.D. in this writ petition. The issue referred for adjudication was : “Whether the persons namely T.K.Pokker, K.M.Devassy and Paily who had been working under contract system are eligible for absorption to the regular service of the company especially when all such other workers have been absorbed in the service of the company? Whether the stoppage of work of lime handling under contract system amounts to dismissal from the TCC company? If yes what remedies the workers are eligible to get?” 2. The contentions raised by the petitioners are that they were actually the workers of the company itself, although they were termed as contract workers. According to the petitioners, the management was indulging in unfair labour practice in terming the workers as contract labourers, while the workers were actually directly employed by the company. They rely on the decision of the W.P(C)No.36645 of 2005 - 2 - Supreme Court in Gujarat Electricity Board, Ukai v. Hind Mazdoor Sabha and others AIR 1996 S.C.1893 as also Hindustan Petroleum Corporation Ltd. v. Ashok Ranghba Ambre (2008) 2 S.C.C. 717 in support of their case. The contention is that the Labour Court has not actually considered the contentions of the workmen in the right perspective and assuming the workers as contract workers considered only the question as to whether they are entitled to be absorbed as regular workers of the company, which was not really the case of the petitioners. The counsel for the workmen would point out that as is clear from the award, it is their claim that they were working as contract laborers up to 1977 under a society who were doing the loading and unloading of lime in the management company. That society ceased to function in the year 1979 and thereafter they were actually working under the management directly, although they were termed as workmen engaged under a contractor named W.P(C)No.36645 of 2005 - 3 - M.K.Andavan who was in fact an employee of the company itself. Counsel refers to Exts.P4, P6 and P9 documents which according to him would go to show that the said Andavan was actually an employee of the company. He submits that going by the decision in Gujarat Electricity Board's case (supra) public sector companies should not indulge in unfair labour practice by engaging contract labourers when workman can be employed directly. He also submits that, in the Hindustan Petroleum Corporation case (supra) the Supreme Court had directed to give permanency to a workman who had been working for twenty years in the company. The Counsel for the petitioners would argue that the workman in this case are also entitled to similar treatment since they have actually worked under the management company itself for years together. 3. On the other hand, the management would contend that the workmen never had any such case as is clear from the issue referred for adjudication itself. According to him W.P(C)No.36645 of 2005 - 4 - the issue referred for adjudication itself was whether the workmen who were contract workers, are eligible for absorption in the regular services of the company. He further points out that this issue was specifically considered by the Labour Court and after finding that the company had decided to absorbe workers after consideing their age, educational qualifications and physical capacity, accepted the contention of the management that since these workers did not satisfy those requirements, they were not eligible for absorption. He would further submit that in so far as this is purely a question of appreciation of evidence and there is no perversity in the findings this court may not interfere with such findings is their contention. 4. I have considered the rival contentions in detail. 5. As is clear from the issue referred for adjudication which is quoted at the beginning of this judgment, the issue referred is as to whether the workmen who had been working under contract system are eligible for absorption in W.P(C)No.36645 of 2005 - 5 - regular service of the company as has been done in other similar cases. Therefore, the workmen cannot now be heard to contend that they are not contract workers but are workmen directly engaged by the company. In fact they had not raised any contention that the contract relied upon by the management is a sham contract. 6. In the above circumstances, I cannot now at this point of time countenance the contentions of the petitioners that they are not contract workmen, but workmen directly employed by the company. In so far as, the finding is to the effect that the absorption of contract workmen was subject to certain conditions which were admittedly not satisfied by the petitioners, I cannot find any infirmity in the finding that these workmen were not entitled to be absorbed as in the case of others. 7. I am of opinion that the decisions referred to by the Counsel for the petitioners are not applicable to the facts of this case. In Gujarat Electricity Board's case, the question W.P(C)No.36645 of 2005 - 6 - itself was whether there was an unfair Labour practice by engaging contract labour when workman can be employed directly. There was no such issue in this case at all. In fact in that decision the Supreme Court observed that the Central Government should amend the Contract Labour (Regulation and Abolition) Act by incorporating a suitable provision to refer to the industrial adjudication the question of direct employment of the workers of the ex-contractor in the principal establishment, when the appropriate Government abolishes contract labour. Therefore, the said decision would be applicable only in a case where the contract labour system is abolished which is not the case here. Here, it is seen from the issue referred for adjudication itself, that the case of the workmen themselves before the conciliation officer was that they were contract workmen, and they were eligible for absorption like other similarly situated persons. The case of Hindustan Petroleum Corporation,(supra) was the case of a temporary workman W.P(C)No.36645 of 2005 - 7 - working in the Corporation for a long period of time, who was held to be entitled to be made permanent in view of such long period of employment. Such is not the case here. Here, admittedly the petitioners are contract workmen. Therefore, both the above decisions are not applicable in the facts of the case. In the absence of any challenge to the finding that the petitioners do not satisfy the conditions for absorption, they cannot now claim absorption like other workers, who were actually absorbed since they satisfied the conditions imposed by the management for such absorption. In the above circumstances, I do not find any merit in the challenge against Ext.P8 award. Accordingly the writ petition is dismissed. S.SIRI JAGAN, JUDGE rhs