HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY Writ Petition Nos.11215, 11501, 11513, 11514 & 11515 of 2004 Writ Petition No.11215 of 2004 Between: The Municipal Corporation of Kurnool rep. by its Commissioner, Smt.K. Vijayalakshmi … Petitioner And A. Padma Reddy and another … Respondents Writ Petition No.11501 of 2004 Between: The Municipal Corporation of Kurnool rep. by its Commissioner, Smt.K. Vijayalakshmi … Petitioner And S. Ibrahim Saheb and another … Respondents Writ Petition No.11513 of 2004 Between: The Municipal Corporation of Kurnool rep. by its Commissioner, Smt.K. Vijayalakshmi … Petitioner And U. Lakshmana Swamy and another … Respondents Writ Petition No.11514 of 2004 Between: The Municipal Corporation of Kurnool rep. by its Commissioner, Smt.K. Vijayalakshmi … Petitioner And Chinna Laxmamma and another … Respondents Writ Petition No.11515 of 2004 Between: The Municipal Corporation of Kurnool rep. by its Commissioner, Smt.K. Vijayalakshmi … Petitioner And M. Gangadhar and another … Respondents :: ORDER :: Counsel for Petitioner Corporation: Shri S. A. Chari Counsel for Respondent No1 in all the writ petitions: Shri P. Raghavender Reddy January 17, 2007 Per G.S. Singhvi, CJ These petitions filed by the Municipal Corporation of Kurnool for quashing order dated 4-5-2005 passed by Chairman-cum-Presiding Officer, Industrial Tridunal-cum- Labour Court, Anantapur in I.A.No.413 of 2003 (I.D.No.77 of 2003) and batch have been listed before the Division Bench for determination of the following question of law: “Whether Rule 11 (6) and Form K-4 of the Andhra Pradesh Industrial Disputes Rules, 1958 are mandatory or directory? The background facts: In the year 1989, the Government of Andhra Pradesh, after noticing that the practice of engaging daily wage employees and demand for regularisation of such employees has been resulting in over-staffing in the local bodies, issued Memo No.102191/ ESTT/IV/88-1 dated 9-1-1989, whereby the Gram Panchayats were permitted to get the work relating to sweeping of roads, cleaning of side drains, maintenance of water supply, electricity and scavenging done on contract basis by meeting the expenditure from out of their own funds. In furtherance of the above noted policy of the State Government, Kallur Gram Panchayat (for short, ‘the Gram Panchayat’), after seeking permission from District Panchayat Officer, Kurnool called for tenders in the year 1993 for engaging Sanitary Mistries, Sweepers, Scavengers, Fitters, Pump Operators, Tractor Drivers, Coolies, Electricians, Watchmen and Motor Mechanics. Respondents No.1 in these petitions (who shall hereinafter be collectively described as workmen), submitted their tenders. Since their tenders were found lowest, the Gram Panchayat engaged them on contract basis for a period of one year. They were paid out of the funds of the Gram Panchayat. Their work was controlled and supervised by the authorities of the Gram Panchayat. The term of their contract was renewed/fresh contracts were entered by increasing the amount by 10% over the earlier rate of contract. This continued till the merger of the Gram Panchayat with the petitioner Corporation in terms of G.O.Ms.No.68, Municipal Administration, dated 8-2-2002, pursuant to which, the services of the workmen were also taken over by the petitioner Corporation. They worked in the Corporation till March 2003. In the meanwhile, the petitioner Corporation issued tender notice dated 9-1-2003 for maintenance of water supply and distribution in Kallur area and awarded contract to the lowest tenderer G. Lakshmi Reddy. As a sequel to this, services of the workmen were discontinued. While they were still working under the Gram Panchayat, some of the workmen filed Writ Petition No.24024 of 2000 for issue of a direction to the Gram Panchayat to regularise their services. The same was disposed of by the High Court with an observation that the petitioners can avail remedy by approaching the Labour Court. Some others filed O.A.No.7365 and 7367 of 1999 before the Andhra Pradesh Administrative Tribunal for similar relief. Both the applications were dismissed as not maintainable on the ground that the Tribunal does not have the jurisdiction to decide disputes which can appropriately be raised under the Industrial Disputes Act, 1947 (for short, ‘the Act’). Another batch of workmen filed Writ Petition Nos.24245 and 23486 of 2000 for regularisation of service, but they were allowed to be withdrawn without prejudice to their right to workout their remedies in the Labour Court. Immediately after termination of their services in March 2003, the workmen filed applications under Section 2-A (2) of the Act as amended by Andhra Pradesh Act No.32 of 1987. The same were registered as I.D.Nos.77, 82, 6, 7 and 8 of 2003. On being noticed by Industrial Tribunal-cum-Labour Court, Anantapur (hereinafter referred to as ‘the Labour Court’), the Corporation filed Writ Petition No.20232 of 2003 and batch for issue of a writ of prohibition restraining the Labour Court from adjudicating the dispute raised by the workmen. According to the petitioner Corporation, the applicants were engaged on contract basis by the erstwhile Gram Panchayat and, as such, there did not exist master-servant relationship which could justify filing of an application under Section 2-A (2). During the pendency of the writ petitions, the petitioner Corporation filed interlocutory applications before the Labour Court and raised various objections to the maintainability of the applications filed by the workmen. Therefore, the learned Single Judge dismissed the writ petitions with a direction to the Labour Court to dispose of the applications filed by the Corporation and decide the nature of employment of the workmen and its jurisdiction to entertain the claim made by them by treating the same as preliminary issue. The operative part of order dated 26-9-2003 passed by the learned Single Judge reads as under: “The writ petitions are, therefore, dismissed. However, having regard to the facts and circumstances of the case, I direct the second respondent-Tribunal to dispose of the applications filed by the petitioner, if necessary by recording evidence, to decide the nature of employment and jurisdiction to entertain such claims, as preliminary issue, as expeditiously as possible, preferably within a period of two months from the date of receipt of this order. No costs.” Writ Appeal Nos.1947 and 1948 of 2003 preferred by the petitioner Corporation against the order of the learned Single Judge were dismissed by the Division Bench vide its order dated 7-11-2003. Two of the writ petitions filed by the petitioner Corporation, which were registered as Writ Petition Nos.24058 and 21096 of 2003 were dismissed by another learned Single Judge by recording detailed order dated 6-11-2003. The learned Single Judge held that once the workmen have averred that they were directly engaged and paid by the Corporation, they will be deemed to be the employees of the Corporation and, as such, the applications filed by them under Section 2-A (2) of the Act are maintainable and the Tribunal cannot be restrained from adjudicating the same. Writ Appeal Nos.2224 and 2235 of 2003 filed by the petitioner Corporation were allowed by the Division Bench on 19-12-2003 and liberty was given to it to raise all legally permissible objections regarding the nature of employment and jurisdiction of the Labour Court to entertain the claim of the workmen. After disposal of the writ appeals filed by the petitioner Corporation, the Labour Court framed the following points for disposal of the interlocutory applications: 1. Whether there is Master and Servant relationship between the respondent and the petitioners? 2. Whether the Service Certificate and the Acquittance resigters (xerox copy) be relied upon? Whether an adverse inference has to be drawn against the respondent for non-production of documents? 3. Whether the termination after expiry of contractual period by afflux of time does not attract Section 2 (OO) and 25-F of the Industrial Disputes Act, 1947? 4. Whether the petitions are not maintainable under Section 2-A (2) of the Industrial Disputes Act, 1947? The workmen examined three witnesses and produced documents, which were marked as Exs.W.1 to W.67. The Corporation did not examine any witness, but produced documents marked as Exs.M.1 to M.16. The learned Presiding Officer of the Labour Court briefly noted the contents of the applications filed by the workmen, the objection raised on behalf of the petitioner Corporation, analysed the evidence of the parties, considered the arguments of their advocates and decided all the points in favour of the workmen. Since we are not adjudicating on the legality of the order passed by the Labour Court, we do not consider it necessary to make a detailed reference to the order, which is impugned in the writ petitions. However, paragraph 32 thereof, which gives a broad picture of the nature of employment of the workmen, is reproduced below: “In this case, admittedly the petitioners are entrusted with the work of water supply and maintenance, sanitation and public health maintenance of electrical works etc. It is also not in dispute that these are the works of the respondent. This means that the petitioners rendered services for the respondent. It is also not in dispute that the work allotted to the petitioners is still available and it is perennial in nature. It has also come in evidence that the petitioners are also directly paid by the Kallur Gram Panchayat after merger of Kallur Gram Panchayat with the respondent Corporation by the respondent. W.W.1 and W.W.2 have deposed that the Kallur Gram Panchayat used to supervise their work regularly and subsequently the Kurnool Municipal Corporation authorities used to supervise their work. So, from the evidence it is clear that the petitioners worked for the respondent and they are paid by the respondent and their work is supervised by the officials of the respondent.” While dealing with Point No.4, the Labour Court took cognizance of the objection raised on behalf of the petitioner Corporation that the application had not been filed by the workmen in the prescribed form and held as under: “It is true that Form K-4 envisages that the application should serve a demand letter by registered post with acknowledgement due on the management to reconsider its decision of termination. It has to be seen that in the Format it is mentioned that the said Form pertains to sub-rule 6 of Rule 11 of A.P. Industrial Disputes Rules, 1958. Sub-Rule 6 of Rule 11 envisages that the workman discharged, dismissed, retrenched or otherwise terminated from service and who desires to represent his dispute directly for adjudication shall submit an application in Form K-4 duly signed by him to the said court along with as many as spare notices as there are opposite parties. It has to be seen that Form K-4 is only a Format prescribed for the presentation of that application under Section 2-A (2) of the Industrial Disputes Act, 1947. It is not mandatory. Nothing has been shown that the claim petition filed under Section 2-A (2) of the Industrial Disputes Act has to be straight away dismissed for non-compliance of the Format. When it is the case of the respondent that they have allotted a work to the contractor Lakshmi Reddy by inviting tenders and had taken a specific stand that there is no relationship of Master & Servant between it and the petitioners, it appears that no useful purpose would have been served even if the petitioners sent a representation to reconsider the decision of termination. The purpose of issuing letter by registered post is to avoid future litigation. It is not the case of respondent that it would have considered the case of petitioners had they sent a demand letter. It appears that a party cannot be denied substantial justice merely on the ground of technicalities. It is also settled law that strict rules of evidence of technicalities cannot come in the way of doing justice particularly in cases arising under the provisions of Industrial Disputes Act, 1947 which is a beneficial legislation.” In the writ petitions filed by it, the petitioner Corporation has questioned the findings recorded by the Tribunal on all the four points. The case set up by the Corporation is that the applicants do not fall within the definition of ‘workman’ under Section 2 (s) of the Act and, as such, the applications filed by them under Section 2-A (2) seeking adjudication of the so-called dispute relating to the termination of their services cannot be adjudicated by the Labour Court. Another plea taken by the Corporation is that the applications filed under Section 2-A (2) are liable to be dismissed because of non-compliance of the mandate of Rule 11 (6) of the Andhra Pradesh Industrial Disputes Rules, 1958 (for short, ‘the Rules’) read with Form K-4. Before the learned Single Judge, it was argued by the counsel for the workmen that the writ petitions should be dismissed and the petitioner Corporation should be left free to raise objections to the maintainability of the applications filed by the workmen only after final adjudication of the disputes by the Labour Court. The learned Single Judge did not accept this submission and, after noticing the arguments of the learned counsel for the parties and apparently conflicting views expressed by two learned Single Judges in Oil and Natural Gas Company Limited v. N. Satyanarayana and Writ Petition No.380 of 2005 – M. Narasaiah v. Presiding Officer decided on 1-2-2005, on the interpretation of Rule 11 (6) of the Rules, referred the matter to the Division Bench for determination of the question, which has been reproduced in the opening paragraph of this order. Arguments: Shri S.A. Chari, learned counsel for the petitioner argued that Rule 11 (6) of the Rules is mandatory in character and an application filed by the workman without taking steps enumerated in Form K-4 is liable to be dismissed. Shri Chari laid emphasis on the expression ‘in the prescribed manner’ appearing in sub-section (2) of Section 2-A and argued that the Labour Court gets jurisdiction to adjudicate the dispute relating to discharge, dismissal, retrenchment or termination of the services of the workman only if an application is filed after serving notice of demand on the employer for re-consideration of its decision to discharge/dismiss/retrench the workman and a period of 15 days has elapsed. He then submitted that the applications filed by the workmen do not satisfy the requirement of Form K-4 inasmuch as, they did not serve demand letter on the competent authority of the petitioner Corporation by registered post for re-consideration of its decision to discontinue their services and, therefore, the Labour Court cannot entertain and adjudicate the so-called dispute raised by them. Learned counsel submitted that when the legislature has prescribed the mode of filing application under Section 2-A (2), and also prescribed the format in which such an application is to be filed, the Labour Court cannot entertain an application filed without fulfilling the conditions specified in the statute. In support of his arguments, Shri Chari relied on the judgments of the Supreme Court in Bhikraj Jaipuria v. Union of India, Express Newspapers v. Their Workers, Shambhunath Goyal v. Bank of Baroda, National Council for Cement & Building Materials v. State of Haryana, Banarsi Dass v. Brig. Maharaja Sukhjit Singh, Rai Vimal Krishna v. State of Bihar, Krishna Bahadur v. Purna Theatre State of U.P. v. Jai Bir Singh and Sk. Salim Haji Abdul Khayumsab v. Kumar. Learned counsel for the workmen argued that Rule 11 (6) is procedural in nature and, therefore, the same cannot be treated as mandatory and non-submission of application by the workmen in Form K-4 or non-fulfillment of the condition of issuing demand letter to the petitioner Corporation is not sufficient to denude the Labour Court of the jurisdiction to adjudicate the dispute. He emphasized that the decision of the petitioner Corporation to discontinue the services of the workmen clearly falls within the ambit of Section 2-A, and argued that the Labour Court is duty bound to adjudicate the dispute on merits. He then submitted that the petitioner Corporation does not have the locus to raise an objection to the maintainability of the applications filed by the workmen because it had opposed the writ petitions filed by them on the ground of availability of alternative remedy under the Act. We have considered the respective submissions. For deciding the question noted hereinabove, it will be useful to notice the relevant statutory provisions. The same read as under: Sections 2(k), 2-A, 10 (1) and 12 of the Industrial Disputes Act, 1947 2. Definitions: (k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person; 2-A. Dismissal, etc., of an individual workman to be deemed to be an Industrial Dispute: 1. Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. 2. Notwithstanding anything in section 10, any such workman as is specified in sub-section (1) may, make an application in the prescribed manner direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to or pending before it, in. accordance with the provisions of this Act; and accordingly all the provisions of this Act, shall apply in relation to such dispute as they apply in relation to any other industrial dispute." (Inserted by A.P. Act No.32 of 1987 w.e.f. 27-7-1987) 10. Reference of disputes to Boards, Courts or Tribunals: (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing,- (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Labour Court for adjudication: Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c): Provided further that where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government; 12. Duties of conciliation officers: (1) Where an industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government or an officer authorised in this behalf by the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Govern- ment a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. (6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government: Provided that, subject to the approval of the conciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute. Rules 9, 10 and 11 of the Andhra Pradesh Industrial Disputes Rules, 1958: Part III 9 . Powers, procedures and duties of Conciliation Officers, Boards, Labour Courts, Tribunals, Arbitrators: 1. The Conciliation Officer, on receipt of a notice of a strike or lock-out given under Rule 73 or Rule 74 shall forthwith arrange to interview both the employer and the workmen concerned with the dispute at such places and at such times as he may deem fit and shall endeavour to bring about a settlement of the dispute in question. 2. Where the Conciliation Officer receives no notice of a strike or lock-out under Rule 73 or Rule 74 but he considers it necessary to intervene in the dispute he may give formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings with effect from such date as may be specified therein. 10. Conciliation proceedings in non-public utility service: Where the Conciliation Officer receives any information about an existing or apprehended industrial dispute which does not relate to public utility service and he considers it necessary to intervene in the dispute, he shall give formal intimation in writing to the parties concerned declaring his intention to commence conciliation proceedings with effect from such date as may be specified therein. 11. Parties to submit statement: 1) The party representing workmen involved in an industrial dispute in a public utility service shall forward a statement of its demands along with a copy of the notice prescribed under Rule 73 to the Conciliation Officer concerned. The statement shall be accompanied by as many spare copies thereof as there are opposite parties. 2) The party representing workman involved in a dispute in a non-public utility service or in a dispute in a public utility service, where no notice of strike is given under sub-rule (1) of Rule 73 or the case of an individual workman, who is himself involved in an industrial dispute shall forward a statement of its or his demands to the Conciliation Officer concerned before such date as may be specified by him for commencing conciliation proceedings. The statement shall be accompanied by as many spare copies thereof as there are opposite parties. 3) The statement of demands submitted by the individual workman or by the party representing the workmen under sub-rule