Case: Balwant Rai Saluja &amp; Anr Etc.Etc Vs. Air India Ltd

it by the Central Government upon which adjudication is made by the CGIT. The same cannot be termed either as erroneous or error in law. Accordingly, I answer the point No.3 in favour the concerned workmen. Answer to point No.4: 50. The findings and reasons recorded on the contentious points by both the learned single Judge and the Division Bench of the Delhi High Court in the impugned judgment that no better service conditions than the Management of HCI would be provided to the canteen workers except to get free air tickets which apparently some employees of Air India are entitled to, is untenable in law. Incidentally this is another aspect which may have a bearing on the question of viability in terms of prevailing practice in industry. Perhaps, Air India must explore the significance of the region cum industry principle so well developed in our labour jurisprudence. It is seriously concerned about competition and viability rather than focus on the handful of canteen workers. 51. The learned single Judge and the Division Bench have interfered with the finding of fact recorded in the common award passed by the CGIT by disagreeing with the findings and reasons recorded by the CGIT and holding that the HCI is a subsidiary corporation of Air India and it has got 100% share holding and power to appoint the Directors of the HCI and after referring to the decisions of this Court in Kanpur Suraksha Karamchari Union case (supra), it held that it is a separate legal entity which finding of fact and reason has been concurred with by the Division Bench by assigning the similar reasons placing reliance on the decision of this Court in M.M.R. Khan?s case which decision supports the case of the concerned workmen. The said decision is distinguished by the Division Bench of the High Court after adverting to certain paragraphs without considering the relevant paragraph Nos. 25 and 30 which has laid down the legal principle and also referred to other judgments namely Indian Petrochemicals Corporation Ltd. and Hari Shanker Sharma referred to supra without piercing the veil to the real facts of the case. 52. Both the learned single Judge and the Division Bench have exceeded in their jurisdiction in exercising their extraordinary and supervisory jurisdiction in the Writ Petitions and the Letter Patent Appeals, while examining the correctness and findings recorded by the CGIT in the common award which the High Court has disagreed with and has set aside the common award impugned in the Writ Petitions filed by Air India. Both the learned single Judge and the Division Bench have exceeded their jurisdiction in interfering with findings of fact recorded by the CGIT on the points of dispute and the contentious issues on proper appreciation of pleadings, evidence on record and law laid down by this Court in the cases referred to in the award I have referred to the relevant factual aspects and legal evidence and the statutory provisions of the Factories Act, Rules and the Industrial Disputes Act, while answering to Point Nos.1, 2 and 3 in favour of the concerned workmen by recording my reasons in this judgment. Therefore, I have to hold that the learned single Judge and the Division Bench exceeded in their jurisdiction to interfere with the finding of fact recorded by the CGIT on the points of dispute which were referred to by the Central Government. For the reasons recorded by me on point Nos. 1 and 2 in this judgment and further answering the point No.3 in affirmative in favour of the concerned workmen holding that findings and reasons recorded by the CGIT on the point of dispute referred to it by the Central government are neither erroneous nor suffers from error in law. Also I have to hold while answering to point No. 4 that both the learned single Judge and the High Court have disagreed with the correct finding of fact recorded by the CGIT in its award. The findings recorded by the learned Singh Judge and Division Bench in the impugned judgment are not only erroneous but suffers from error in law as the same is contrary to the statutory provisions and law laid down by this Court which have been extensively referred to by me in the reasoning portion of this judgment in answer to point Nos. 1 and 2. Hence, I have to hold that findings and reasons recorded in the impugned judgment is wholly untenable and liable to be set aside and accordingly set aside by answering point no. 4 in affirmative in favour of the concerned workmen. Answer to Point No.5: 53. Since I have answered point No. 4 in favour of the concerned workmen and against Air India, the appellants are entitled for the reliefs as prayed for in these appeals. Accordingly, these appeals are allowed and common award dated 5.5.2004 passed in I.D. Nos.97 to 99 of 1996 in favour of the workmen is restored. Further, I direct the Management of Air India to absorb all the concerned workmen covered in the I.D. Nos.97 to 99 of 1996 as permanent workmen on its rolls from the date of their appointment and grant all the consequential benefits such as salary for which they are entitled for after computing properly, taking into consideration the pay scale and periodical wage revision that has taken place and are applicable to the respective posts of the concerned workmen as per the notification issued by the Lt. Governor, Union Territory of Delhi and on the basis of similar notifications applicable for them.54. Since I have allowed I.D. Nos. 97 to 99 of 1996, the Industrial Dispute case Nos. 107 and 108 of 1996 involving the workmen whose services were terminated during the pendency of petition before CGIT, must also be treated as permanent workmen at par with the concerned workmen involved in the instant case. The award for their reinstatement to their posts shall be passed with all consequential benefits with full back wages.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]53. Since I have answered point No. 4 in favour of the concerned workmen and against Air India, the appellants are entitled for the reliefs as prayed for in these appeals. Accordingly, these appeals are allowed and common award dated 5.5.2004 passed in I.D. Nos.97 to 99 of 1996 in favour of the workmen is restored. Further, I direct the Management of Air India to absorb all the concerned workmen covered in the I.D. Nos.97 to 99 of 1996 as permanent workmen on its rolls from the date of their appointment and grant all the consequential benefits such as salary for which they are entitled for after computing properly, taking into consideration the pay scale and periodical wage revision that has taken place and are applicable to the respective posts of the concerned workmen as per the notification issued by the Lt. Governor, Union Territory of Delhi and on the basis of similar notifications applicable for them.54. Since I have allowed I.D. Nos. 97 to 99 of 1996, the Industrial Dispute case Nos. 107 and 108 of 1996 involving the workmen whose services were terminated during the pendency of petition before CGIT, must also be treated as permanent workmen at par with the concerned workmen involved in the instant case. The award for their reinstatement to their posts shall be passed with all consequential benefits with full back wages.Both the learned single Judge and the Division Bench have exceeded in their jurisdiction in exercising their extraordinary and supervisory jurisdiction in the Writ Petitions and the Letter Patent Appeals, while examining the correctness and findings recorded by the CGIT in the common award which the High Court has disagreed with and has set aside the common award impugned in the Writ Petitions filed by Air India. Both the learned single Judge and the Division Bench have exceeded their jurisdiction in interfering with findings of fact recorded by the CGIT on the points of dispute and the contentious issues on proper appreciation of pleadings, evidence on record and law laid down by this Court in the cases referred to in the award I have referred to the relevant factual aspects and legal evidence and the statutory provisions of the Factories Act, Rules and the Industrial Disputes Act, while answering to Point Nos.1, 2 and 3 in favour of the concerned workmen by recording my reasons in this judgment. Therefore, I have to hold that the learned single Judge and the Division Bench exceeded in their jurisdiction to interfere with the finding of fact recorded by the CGIT on the points of dispute which were referred to by the Central Government. For the reasons recorded by me on point Nos. 1 and 2 in this judgment and further answering the point No.3 in affirmative in favour of the concerned workmen holding that findings and reasons recorded by the CGIT on the point of dispute referred to it by the Central government are neither erroneous nor suffers from error in law. Also I have to hold while answering to point No. 4 that both the learned single Judge and the High Court have disagreed with the correct finding of fact recorded by the CGIT in its award. The findings recorded by the learned Singh Judge and Division Bench in the impugned judgment are not only erroneous but suffers from error in law as the same is contrary to the statutory provisions and law laid down by this Court which have been extensively referred to by me in the reasoning portion of this judgment in answer to point Nos. 1 and 2. Hence, I have to hold that findings and reasons recorded in the impugned judgment is wholly untenable and liable to be set aside and accordingly set aside by answering point no. 4 in affirmative in favour of the concerned workmen.In view of the foregoing reasons recorded by me in answering the point Nos. 1 and 2 after adverting to the relevant facts and interpretation of certain provisions of the Factories Act, Rules and the Industrial Disputes Act, particularly Sections 2(k), 2(s) read with the provisions of Section 25(T) and Section 25(U) of the Industrial Disputes Act and Entry No.10 in the Vth Schedule under the definition of unfair labour practices as defined in Section 2(ra) regarding the employment of the workmen on contract basis against the permanent nature of employment in the statutory canteen I have held that this practice by Air India constitutes unfair labour practice. The decisions rendered by this Court which have been extensively referred to by me and some of the cases referred to by the CGIT have rightly answered the points of dispute in favour of the concerned workmen, on proper appreciation of the facts pleaded, legal evidence on record and I have applied the legal principles laid down by this Court in the cases of Basti Sugar Mills Ltd., Parimal Chandra Raha, Kanpur Suraksha Karamchari Union and M.M.R. Khan (all referred to supra) to the fact situation of the case on hand to restore the award of the CGIT. The CGIT has rightly come to the conclusion and recorded the finding of fact assigning valid and cogent reasons. Therefore, I have to answer that the findings and reasons recorded by CGIT on the points of dispute in relation to the concerned employees declaring that the concerned contract workers of the canteen are deemed employees of Air India is a right decision which has been reached after appreciation of evidence on record and adhering to the legal principles laid down by this Court in catena of cases. Further, setting aside the termination orders passed against some of the concerned workmen covered in the industrial dispute case Nos.97 to 99 of 1996 is also justified for the reason that the services of the concerned workmen in the above cases were terminated during pendency of the industrial disputes before CGIT regarding absorption of the concerned workmen as permanent employees, without obtaining approval from the CGIT as required under Section 33(2)(b) of the I.D. Act. Apart from the above reason, the termination of services of the workmen involved in the above industrial dispute cases is unsustainable in law for the reason that they have not complied with the mandatory provisions of Section 25F, clauses (a) and (b) of the I.D. Act and have not obtained the permission from the Central Government as required under Section 25N of Chapter VB of the I.D. Act. Therefore, the orders of termination passed against the concerned workmen are void ab initio in law and the same are liable to be set aside. I have to hold that the CGIT has rightly passed an award in favour of all the workmen in all the Industrial Disputes on the file of CGIT on findings and reasons recorded on the points of dispute referred to it by the Central Government upon which adjudication is made by the CGIT. The same cannot be termed either as erroneous or error in law. Accordingly, I answer the point No.3 in favour the concerned workmen.The legal principle laid down by this Court by following the exposition of law for lifting the veil to find out real facts is very much necessary to the facts of the case in hand having the law laid down in the case of Salomon v. Salomon (supra) to examine the correctness of the findings of the High Court in reversing the finding of fact recorded in favour of the concerned workmen by the CGIT in its award with a view to find out whether the arrangement with or without the consent of the owner company facilitated the violation of the basic principles of labour jurisprudence established in this country over a period of more than six decades, especially principles relating to security of tenure, retrenchment, natural justice, and many other standards relating to "decent conditions at work". If two statutory corporations owned by the Government of India are governed by Rule of law, namely Factories Act and Industrial Disputes Act, in the manner in which they contended, it would be opposed to the labour jurisprudence and constitute a clear case of unfair labour practice which is against the law enunciated by this Court in plethora of cases referred to supra whose relevant paragraphs are extracted as above in support of my conclusion to hold that the finding in the impugned judgments of the High Court that is, the HCI, though it is a subsidiary company of Air India, yet it is a separate and distinct legal entity and that the concerned workmen have been employed by the HCI and not Air India and hence, there is no relationship of employer and employee and disciplinary control upon them by Air India, which has been reached at by the High Court and setting aside the findings recorded by the CGIT in favour of the concerned workmen, is not only erroneous but also suffers from error in law as the same is opposed to the law laid down by this Court in catena of cases referred to supra.43. Any other test required to be applied to the question of the legal entity of the so called independent contractor, is irrelevant to the critical issues which arise in this case. The view taken by the Delhi High Court regarding the separate legal identity of both these corporations, and erroneously setting aside the findings of the CGIT is not the determining factor in this case. There have been varying practices in vogue in this regard. In the Parimal Chandra Raha?s case (supra), it is noticed that there were Managing Committees?, and Cooperative Societies which could not exist without a separate legal personality that is, Contractors, many of them also create convenient legal personalities under garb of different legal entities. The presence of a contractor clothed with a legal personality or not as in the case of the defence establishments referred to above in the Suraksha Karamchari Union?s case (supra) also has hardly ever been considered to be a determinative test pertaining to canteen workers on contract.44. For the reasons recorded by me on the contentious points with reference to the facts, legal evidence and law laid down by this Court in plethora of cases, I am in agreement with the CGIT on the finding of facts recorded by it on the question of the relationship between the concerned workmen and the Air India on proper appreciation of pleadings and the legal evidence on record and piercing the veil to the fact situation to find out true facts which is rightly answered by CGIT on the points of disputes and the said finding is in conformity with the law laid down by this Court in Hussainbhai? case and M.M.R. Khan and other cases referred to supra for the reason that the contract with the HCI which is a subsidiary Company of Air India and employing the contract workers to work in the statutory canteen, is a sham contract. They have been engaged in permanent nature of work continuously for number of years. The finding of fact recorded by the CGIT on the points of dispute holding that they are entitled for regularization and to be absorbed as employees of Air India, without prejudice to any managerial arrangement to avail the expertise of the HCI of India through existing arrangements. Indeed that would be asituation for all the stake holders concerned in this casethe corporates, the Air India employees numbering more than 2000 in this case and the disempowered canteen workers and that would also be in harmony with our constitutional jurisprudence.For the above reasons, in addition to the test of economic control, as held by this Court in Hussainbhai?s case, I am of the view that the relief sought for by the concerned workmen which is accepted by the CGIT is legal and valid. Therefore, I have to accept the finding and reasons recorded by the CGIT though the reasons which I have assigned are not the reasons assigned by it but the conclusions arrived at by the CGIT while determining the points of dispute referred to it are legal and valid. Therefore, the reasons assigned by me in this judgment must be read into the reasons of the award of the CGIT. The aforesaid reasons are assigned by me in this judgment after careful examination of the rival legal contentions urged by the learned senior counsel on behalf of the parties with reference to the provisions of the Factories Act, Rules, Contract Labour Act and Industrial Disputes Act and law laid down by this Court in catena of cases. These points are accordingly answered in favour of the workmen.However it must be clarified that the requirement of reservation as provided for in Articles 14 and 16 of the Constitution must be complied with while regularizing the canteen workers as employees of Air India. This can be achieved by complying with relevant provisions of the I.D. Act in contrast to the action taken by the HCI in violation of the said statute. It is also further relevant to note that the only relief the workers have sought is one of regularization on the rolls of Air India. This does not itself impose any additional expenditure for it. Therefore, the concern of the learned single Judge of the High Court, on this count is not attracted in the context of the relief sought for by the concerned workmen.For the above reasons, in addition to the test of economic control, as held by this Court in Hussainbhai?s case, I am of the view that the relief sought for by the concerned workmen which is accepted by the CGIT is legal and valid. Therefore, I have to accept the finding and reasons recorded by the CGIT though the reasons which I have assigned are not the reasons assigned by it but the conclusions arrived at by the CGIT while determining the points of dispute referred to it are legal and valid. Therefore, the reasons assigned by me in this judgment must be read into the reasons of the award of the CGIT. The aforesaid reasons are assigned by me in this judgment after careful examination of the rival legal contentions urged by the learned senior counsel on behalf of the parties with reference to the provisions of the Factories Act, Rules, Contract Labour Act and Industrial Disputes Act and law laid down by this Court in catena of cases. These points are accordingly answered in favour of the workmen.