IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7272 of 2000 (O&M) Date of decision:07.08.2009 Municipal Corporation, Amritsar through its Commissioner. ....Petitioner versus Presiding Officer, Industrial Tribunal, Punjab, Chandigarh and others ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr.T.C.Gujral, Advocate, for the petitioner. Mr.J.C.Verma, Senior Advocate, with Ms.Deepinder Kaur, Advocate, for the respondents. --- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. K.Kannan, J. 1. On a reference from the Government on a dispute raised by 37 workmen of whom 30 were working as Tubewell Drivers and 7 were working as Chowkidars, within the limits of Municipal Corporation, Amritsar, seeking for regularization of their services and claiming parity of wages on the principle of ‘equal pay equal work’, the Labour Court, after full-fledged enquiry found that the workmen were entitled to regularization and for payment of wages at the minimum of the applicable scale of pay to Tubewell Drivers and Chowkidars, as the case may, with all attendant benefits. The Municipal Corporation, Amritsar, is aggrieved against the direction contained in the award and challenges the same before this Court. Civil Writ Petition No.7272 of 2000 - 2 - 2. The first contention raised on behalf of the Corporation is that all the workmen had been previously employed through Punjab Water Supply and Sewerage Board and later transferred with tubewell by the Board to the Municipal Corporation. All the workmen under the contractors continued to work with the Municipal Corporation, but the enforcement was through individual agreements with the workman. The threshold argument on behalf of the Corporation was that there had been no relationship of employer and employee and the reference itself was bad in law. The learned counsel for the petitioner refers to the decision in M/s Polymer Papers Limited, Faridabad Versus The Presiding Officer, Industrial Tribunal-cum-Labour Court, Faridabad and another-2009(3) SCT 72, held that if there was evidence that the workman was employer of contractor, there could be no industrial dispute between such a workman and the principal employer. 3. The second submission made on behalf of the Corporation was that the prayer in the claim statement, was not maintainable for, it was beyond the competence of the Labour Court in view of the fact that the right to regularize a post was inherently an executive right vested with the employer and it could not be a subject of a direction from the Labour Court. According to the learned counsel, the regularization of services as sought for by the workmen was incapable of being granted, since the appointments of the various persons had not been made as per law through employment exchange or after inviting applications through advertisement or in any manner conforming the relevant rules and regulations. The mere length of service according to the learned counsel Civil Writ Petition No.7272 of 2000 - 3 - appearing for the petitioner will not avail to the workmen a right to claim for regularization in matters of public appointment. The prayer for parity of wages was also countered by the learned counsel appearing for the petitioner by stating that in view of the fact that the appointments had been irregular, the claim for parity cannot be entertained. To all these submissions a whole wealth of case law had been referred to in the written submissions made on behalf of the petitioner. 4. The learned counsel appearing for the private respondents would submit that the writ petition itself is not maintainable since there had be no valid resolution made authorizing the Municipal Corporation to file the case. This submission, according to the learned Senior counsel appearing for the workmen, would submit with responsibility, having regard to the fact that the members of the municipal council were actually supporting the cause of all the workmen and there had been even recommendation by the senior executive officers of the Corporation that the services of the workmen should be regularized. The unauthorized writ petition was in the eye of law non-est, according to the learned counsel appearing for the workmen. 5. As regards the nature of engagement of the workmen after the Board had handed over the workmen to the Corporation and when their services came directly under the Corporation, the learned counsel would refer to the terms of the agreement dated 17.01.1996 which admitted of no doubt that all the workmen had been engaged only as workmen under the municipality and not in any capacity as a contractor as alleged by the counsel for the petitioner. The learned Civil Writ Petition No.7272 of 2000 - 4 - counsel appearing for the workmen by making reference to the judgment of the Hon’ble Supreme Court in G.M., O.N.G.C., Shilchar Versus O.N.G.C. Contractual Workers Union-2008 AIR Supreme Court Weekly 3996, would contend that Section 10 of the Industrial Disputes Act held if the wording of reference showed that the dispute was as to regularization of service of contractual workers, but however the core issue was itself with regard to the status of workers as employees of the principal employer, the Tribunal would be within his power to adjudicate on the status of the persons as employees of the principal employer and granting to them the relief of regularization. Such a power does not fall outside the jurisdiction of an industrial tribunal. In Ram Singh and others Versus Union Territory, Chandigarh and others-2004(1) RSJ 88, the Hon’ble Supreme Court held that the employees employed through contractors at the sub-station in the medical college and hospital premises, could seek for an adjudication on issues of facts relating to the actual entry of relationship between the principal employer and the contract employees. In Bharat Heavy Electricals Ltd. Versus State of UP-(2003) 6 SCC 528, the Hon’ble Supreme Court had held that the Industrial Tribunal has a power to lift the veil and looking at the conspectus of factors governing the employment, hold that the contractor was merely figurative and sham and the workers were really the workers under the principal employer himself. 6. It is an admitted case that the workmen were still under the employment of the Municipal Corporation. It is also an admitted case that there are regular posts as Tubewell Operators and Chowkidars in the Civil Writ Petition No.7272 of 2000 - 5 - Corporation and as on the date a reference to the Labour Court as well as on the date when the case was being taken up, the vacancies still remained and not filled up by the Corporation. The case has therefore to be examined from the standpoint of the status of the workmen whether there exists a subsisting contract of jural relationship of employer and employee or whether there are merely contractors who cannot avail of any benefits under the Industrial Disputes Act in the light of the decisions of the Hon'ble Supreme Court referred to above. The deed of agreement dated 17.01.1996 was brought between the individual workman and the Municipal Corporation operating through Executive Engineer, Division No.1. The terms of agreement clearly stipulate that each one of the workman shall operate the tubewell in one shift of 8 hours daily within specified hours. There is curiously even a clause that the workmen shall not be entitled to any weekly rest and shall have to operate the tubewells on all days. The agreement was to be effective from 01.06.1995 and shall remain valid for six months upto 31.11.1995. Even after the expiry of the said period, all the persons have been retained by the Municipal Corporation and they had been doing the same duties as being performed originally when the contract was entered into. The terms of the contract also provides for a liberty to either of the party to cancel the contract after providing for a month’s notice. 7. Learned Senior counsel appearing for the workmen would point out to Ex.W2 which had been find before the Labour Court to show that the tubewells along with the staff had been handed over by the Board to the Municipal Corporation and the workers had become the Civil Writ Petition No.7272 of 2000 - 6 - employees of the Sewerage Board before transfer to the Municipal Corporation. He refers to the decision of the Hon’ble Supreme Court in Hussainbhai Versus The Alath Factory Tezhilali Union and others- AIR1978 Supreme Court 1410, which 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, it is found, though draped in different perfect paper arrangement, that the real employer is the Management not the immediate contractor.” This decision is to lend support to the argument that although the individual agreement had been entered into by the Corporation with the petitioner as though they were doing a particular job for a particular period, it was merely a device to deprive to them as workmen, what were actually they were entitled to, when regular work was extracted from them. I have no doubt in my mind that the contract was but a tool to secure work through them but assign a different appellation only for denying to all the persons rights as workman. Under the circumstances, I reject the contentions of the learned counsel appearing for the Corporation that there exists no relationship of employer or employee between the Corporation and the private respondents. On the other hand, I affirm the findings rendered by the Labour Court that they are workmen and the reference made in that regard to the Labour Court was justified. 8. The reliance on the decision of the Hon’ble Supreme Court in Secretary, State of Karnataka Versus Uma Devi-(2006) 4 SCC 1, to state that the private respondents shall not be regularized and that the length of service by itself will be no justification for according to them a Civil Writ Petition No.7272 of 2000 -7 - right to employment is again the very decision, which according to the learned counsel appearing for the workmen, that provides the basis for assuring to them the right of employment. The learned counsel appearing for the respondents have filed Miscellaneous Application No.10212 of 2008 to take on record the policy of the Government of Punjab issued on 15.12.2006 close on heels to the decision of the Hon’ble Supreme Court in Uma Devi’s case. The policy statement itself culls out paragraph 34 and 44 of the judgment that detailed the need to adherence of the rule of equality in public employment and that the State Governments and their instrumentalities should take appropriate steps to regularize as a one time measure, the services of such irregularly appointed persons, who have worked for 10 years or more in duly sanctioned posts but not under cover of orders of Courts or of tribunals. There is also a direction in paragraph 44 that Government should ensure that regular recruitment are undertaken to fill the vacant sanctioned posts that would require to be filled up. While considering the cases of regularization of services of irregularly appointed workers as a one time measure, the Government of Punjab had framed the following guidelines:- “i) the employee should have worked for not less than 10 (ten) years as on 10.4.2006 without the intervention of the orders of the Courts or Tribunals against duty sanctioned posts; ii) the employee fulfils the minimum basic qualifications for the post against which he was appointed; iii) it shall be certified by the competent authority that no supernumerary posts were created to retain the employees in service, when the persons were appointed on regular basis; and iv) it shall be the duty of the Administrative Department that while considering the case of each employee, the orders of the Hon’ble Supreme Court of India passed in the aforesaid case are implemented in letter and Civil Writ Petition No.7272 of 2000 - 8 - spirit. It shall be ensured that there should be no further by-passing of Constitutional requirements and regularizing or making permanent those, who were not appointed as per the said constitutional scheme.” Paragraph 4 of the policy statement also directed that process of regularization shall be completed within six months from the date of issue of instructions. Pursuance to these guidelines, the Executive Engineer (O&S) had sent a proposal to the Government which had been filed as Annexure R-2/C that gives the vacancy positions for Tubewell Drivers and Mali-cum-Chowkidars, as below:- Sr. No. Category No. of posts sanctioned Vacant by Government posts 1. Tubewell Driver 188 80 2. ---- 3. Mali-cum-Chowkidar 24 05 The letter states that the employees of Municipal Corporation in various departments were working under different categories for long time on contract basis at rates approved by D.C.Asr.. The communication states that as on the date there were 260 tubewells, 28 water tanks, 16 disposal tanks and water and sewage lines. It admits that regulars and employees on contract basis take care of the whole work. It also points out to the fact in the year 1993-94, there were 100 tubewells in the city and now it had gone to 260 as the city had developed. The Executive Engineer reports that the recommendations had come from the Additional Commissioner and the Mayor for regularization. The letter marks the copy of the file noting by the Mayor that all these employees who were working in the Corporation for a long time on contract basis deserves Civil Writ Petition No.7272 of 2000 - 9 - sympathetic view of their respective cases and it was requested to the Government to give approval for regularization. The Commissioner, Municipal Corporation has himself sent a letter to the Director, Local Government Department, dated 29.11.2001, addressing the concern on behalf of the workmen and requesting for immediate orders and regularization of all these workmen. 9. Referring to all the above communications, the learned Senior counsel appearing for the respondent would argue that the Municipal Corporation was speaking in two voices, the chief functionaries of the Corporation recommending for regularization of workman at one level and the writ petition filed before this Court to challenge the direction of the Labour Court and characterizing the workmen as usurpers in public office. I find the conduct of the Corporation intriguing and it is in this context that the objection of the learned Senior counsel to the maintainability of the writ petition itself assume significance. The writ petition has been filed at the instance of the Corporation and the petition had been verified by the Joint Commissioner, Municipal Corporation, Amritsar. It is indeed doubtful, as argued by the learned Senior counsel appearing for the workmen if there is any authority given to the Commissioner to file the writ petition. But I find that Section 394 of the Punjab Municipal Corporation Act empowers the Commissioner to institute legal proceedings and legal advice. The said provision does not require any resolution of the Municipal Committee to enable the Commissioner to take appropriate legal proceedings. The power of the Commissioner itself may not be in Civil Writ Petition No.7272 of 2000 - 10 - doubt for the validity of the prosecution of the case in the name of the Corporation, but still I find the attempt of the Corporation to scuttle a legal process which they themselves have started by recommending for regularization before the Government and arguing before the Court that the workmen were not entitled to obtain any relief. In my view, the prosecution of the writ petition is a clear abuse of process of Court. 10. The matter still require consideration only for some legal submissions which are sought to be made before me that the Labour Court does not have any legal right to direct regularization and such a power cannot be exercised without breaching the well known law laid down by the Hon’ble Supreme Court in Secretary, State of Karnataka Versus Uma Devi-(2006) 4 SCC 1 ; Indian Drugs Versus Workmen- 2007 SCT 214; State of U.P. Versus U.P. Madhyamik-AIR 1996 SC 708.. According to the learned counsel for the petitioner, the creation of posts itself is an executive function and the Court shall not either direct creation of posts or direct regularization of the services and to that view the learned counsel appearing for the petitioner would rely on judgments of Hon’ble the Supreme Court in Indian Drugs Versus Workmen-2007 SCT 214; ICMR Versus Rajya Lakshmi-2007(2) SCT 451; Principal Mehar Chand Versus Anu Lamba-2006(7) SCC 161; State of U.P. Versus U.P. Madhyamik-AIR 1996 SC 708. 11. The services had commenced under a lawful contract and therefore, their entry into services could not be characterized as through backdoor or illegal. The claim for regularization had also originated from the Municipal Corporation itself and it was pending consideration Civil Writ Petition No.7272 of 2000 - 11 - with the Government. The direction that the workmen were seeking was only to secure an immediate decision thereof that would assure to them the right to obtain wages on par with regular workmen of the Corporation. In this case, the Labour Court itself had not ordered regularization. It has merely done what it is legally competent to do namely by directing the Government to consider the issue of regularization within the particular time framed. The relevant portion in the award of the Labour Court is as follows:- “The Corporation, is therefore, directed to complete the necessary formalities to obtain formal sanction for the creation of the requisite number of posts of tubewell drivers and chowkidars and to consider the case of each workman for the regularization of their services, with empathy in accordance with the criteria of eligibility and suitability with due regard to the guiding principles laid down in Piara Singh’s case (supra), against the posts already available and those which have to be treated for the purpose by giving relaxation in the upper age limit to the extent they have served it w.e.f. 1.1.1995.” The decision in Piara Singh's case was not approved by Uma Devi dispensation but I have referred to the policy statement of the State that was applying the issue of regularization only in terms of the Constitution Bench decision of the Hon'ble Supreme Court in Uma Devi. I have already indicated that even the communication sent by the Corporation to the Government the actual availability of vacancies have been set forth. It is seen to be in excess of even the number of persons litigating before this Court. The learned Senior counsel brings to fore a poignant fact that several workers have also died over a period of time with the Corporation still dragging its feet and the Government not responding to the needs of the workmen. Unfortunately, in the dispute Civil Writ Petition No.7272 of 2000 - 12 - before the Labour Court, the functionaries of the Corporation alone are parties and the State itself is not a party. 12. Even as regards the demand for equal pay for equal work, the Corporation has been able to peg down the rates of wages to the workmen unrealistically low with no regard to the wages that are payable to regular workmen on approved scales of pay. The principle of ‘equal pay equal work’ is a constitutional norm and deserves every attempt to ensure that in appropriate circumstances the Court lends its supportive hand to realize this goal. The Labour Court had held that the workmen should be paid at par with regular employees of the category at the minimum in the pay scale and the persons shall not be (however) entitled to draw any increments as applicable to the regular scale of pay till final decision is taken for regularization of the services. The pay in the regular scale, the Labour Court has held shall be applicable from the date of regularization of the workmen. It has directed that the benefit will accrue w.e.f. 01.01.1996. 13. The Labour Court’s award in every aspect regarding the prayers in the claim statement is in accordance with law and perfectly justified. It calls for no interference. The writ petition is dismissed with cost assessed at Rs.25,000/- for the utterly frivolous litigation that the Municipal Corporation has been fighting all these years. (K.KANNAN) JUDGE 07.08.2009 sanjeev