Case: Electronics Corporation Of India Ltd Vs. Elec. Corp. Of India Service Eng. Union

a consideration of the facts and the circumstances of this case we direct that the contracts which have been terminated already should be renewed on the same terms and the petitioners will be permitted to work on the basis of this contract. As regards others whose contracts are yet to and their contracts will be renewed as soon as the present terms end and they will also be permitted to work on the basis of the same terms of the contract. We do not find any basis for the contention that the Agreement-in-question are contracts of service.If there is any shortage of work then the available work will be equally distributed amongst the service engineers. Fresh appointments may be considered if the quantum of work justifies.The writ petition pending before the High Court are disposed of.The special leave petition is disposed of accordingly.” 13. Though clarification was later on sought for and this Court clarified that where the contracts are different and contain clauses which exclude the application of the decision in the earlier batch, they should not be held to be bound by the original decision. It is accepted that against the decision in writ petitions filed by almost similarly situated persons before the Delhi High Court, which dismissed the claim by order dated 15.3.1989 in C.W. No. 2855/88 this Court was moved and order dated 16.8.1989 was passed. Though the High Court in the present judgment referred to a decision of the learned Single Judge of the Calcutta High Court to hold that employer employee relationship existed, the Division Bench of the said High Court set aside the order of the learned Single Judge by its order dated 26.4.2004 in M.A.T. No. 1427 of 1998. It is fairly accepted by learned Counsel for the respondent that there has been no further challenge to the orders passed by the Division Bench of the Calcutta High Court. The Tribunal rightly noted the relevant features and observed after making a comparison of the duties of claimants and the regular employees that employer employee-relationship did not exist. 14. A very important conclusion of the Tribunal was that there are no regular posts like Service Engineers or Licensees or retainer in the company and such contracts are entered into by the Company to attend to additional work as and when required. It was further noted that there is a definite procedure for appointment of personnel of the appellant-Company. It was pointed out that the question of designating the claimants as Tradesmen or Technical Officer on permanent basis in the Company does not arise as they have neither requisite qualifications for holding any of the above posts nor were they employees of the Company and they have not been employed after following the procedure required for appointment of the personnel of the Company. Further, technical officers cannot claim to be workmen under the Act as they did mainly supervisory duties and drew wages exceeding Rs. 1,600/- p.m. The Company was entering into individual contracts with its retainers and there was no compulsion whatsoever to enter into the contract year after year. As a matter of fact, it was note that some of the workmen of the Corporation opted for working in terms of those individual contracts as they found the same to be more lucrative and paying rather than being regular employees. There is no denial of this position by learned Counsel for the respondent. 15. With reference to the evidence of the witness examined by the claimants it is clear that even he (Mr. Kasbekar) agreed that the service engineers and the licensees were independent contractors. The agreement signed by them makes the position clear. He accepted that no appointment letter was ever given by the company. They have not enrolled their names with the Employment Exchange. The first agreement was signed in 1978. He joined the company along with others in view of the advertisement regarding retainership. He also accepted that seven persons as noted above were previously working in the company, but left the service and joined as retainers. They were aware at the time of signing the agreement about the service conditions, salary, benefits given to regular workers.16. It was fairly accepted and admitted that taking into consideration that retainership was more beneficial than the regular service employees, all the seven employees left the service of the company and accepted the retainership. It was also accepted that there were several retainers who were working in several places like Delhi, Calcutta, Lucknow. One significant admission was that complaints of T.V. sets were made by the customers to the appellant company. The retainers used to visit the company for collecting complaints, collecting components, for receiving payments and for repairing the calledback sets. Except for these reasons, they were not required to go to the company.17. A further significant admission was that there were several types of employees working in the company whose work cannot be compared with that of the retainers. Whenever the retainers went on leave they used to provide a substitute to the company. The Tribunal also noted that the witness has admitted that the scheme was for retainership and there was no question of his asking for absorption as regular employees. Till 1989-90 they were getting more income than the regular employees and, therefore, had not sought for regularization. But since 1989-90 they found the regular employees were getting more salary than their income, and, therefore, they claimed regularization. Further 2.24% deduction towards Income- tax was made from the bills of the retainers in view of the contract and that was not applicable to the case of salaries of the regular employees. He accepted that he did not know about the nature of work and working hours of the regular employees. Factually, it was found that the retainers were getting Rs. 90/- per set. The agreement was on job contract basis. In Clause 15 of the agreement, there was a provision for arbitration under the Indian Arbitration Act, 1940.

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

Explanation:
1[ds]8. There are no regular posts like Service Engineers or the Licensees or Retainers in the company and such contracts are entered into by the Company to attend the additional work as and when required in accordance with terms and conditions of the contracts. The regular employees are governed by the service condition as applicable to the Company, whereas the Service Engineers/Licensees are governed by the individual contracts signed by them with the Company. It is quite evident that service conditions under which the regular employees of the Company function are totally different and incomparable and, therefore, there cannot be similar wages for different kind of work under different conditions applicable to different categories of persons. So the demand of regularization of the employment of the Service Engineers is not maintainable. They were only required to attend the complaints received in respect of T.V. sets allotted to them and they were not doing any other work in connection with the said sets, whereas the regular employees of the company are required to do other work in addition to the servicing of the T.V. sets manufactured by the Company. The terms of the employment of the regular employees of the company are governed by the standing orders of the Company under the Industrial Employment (Standing Orders) Act as well as the provisions of the Act whereas the terms of the employment of the Service Engineers/Licensees are governed in terms of individual contracts entered into by the Company with them. Assuming without admitting that the Service Engineers are required to be absorbed by the Company, then the same also is practically impossible for the Company to implement, as the Company is the Central Government Undertaking, and it is governed by the directions of the Government. Regular employees are required to work for fixed and regular hours. The Service Engineers/Licensees were not required to adhere to follow any specific schedule or routine. The Service Engineers cannot claim any regularization or absorption in the Company and, hence they are not entitled to parity of wage scales and other benefits which are provided to the regular employees of the Company. The Service Engineers are required to work as per their convenience without any interference of whatsoever nature from the Company. It is quite evident that the nature of duties performed by the regular employees of the Company and Service Engineers are quite different and distinct and, the same cannot be compared. It is submitted that regular employees were totally at the disposal of the Company during their duty hours and they were under its direct supervision, control and management, whereas the Service Engineers/Licensees were not under any such supervision, control or management and, so also they were required to work as per their convenience and, their services were not available to the Company during any fixed or particular hours or as per its convenience.It is not in dispute that the claimants were retained for a very long period of time by the appellant on the basis of a contract entered into between them and the company. Dispute was raised in respect of permanency, absorption, regularization and pay scale only in 1992 and, therefore, appeared to be an after-thought and a highly belated claim. No reason was set out as to why such belated demand was raised. That itself was indicative of the fact that the concerned persons were of the view that they were retainers and did not have any master and servant relationship with the company. The agreements indicate that they were entered into for a period of few months. A minimum 250 sets in a year was allotted to each retainer. The agreement to appoint as Service Engineers/Licensees as retainer contains some clauses which throw considerable light.A very important conclusion of the Tribunal was that there are no regular posts like Service Engineers or Licensees or retainer in the company and such contracts are entered into by the Company to attend to additional work as and when required. It was further noted that there is a definite procedure for appointment of personnel of the appellant-Company. It was pointed out that the question of designating the claimants as Tradesmen or Technical Officer on permanent basis in the Company does not arise as they have neither requisite qualifications for holding any of the above posts nor were they employees of the Company and they have not been employed after following the procedure required for appointment of the personnel of the Company. Further, technical officers cannot claim to be workmen under the Act as they did mainly supervisory duties and drew wages exceeding Rs. 1,600/- p.m. The Company was entering into individual contracts with its retainers and there was no compulsion whatsoever to enter into the contract year after year. As a matter of fact, it was note that some of the workmen of the Corporation opted for working in terms of those individual contracts as they found the same to be more lucrative and paying rather than being regular employees. There is no denial of this position by learned Counsel for the respondent.With reference to the evidence of the witness examined by the claimants it is clear that even he (Mr. Kasbekar) agreed that the service engineers and the licensees were independent contractors. The agreement signed by them makes the position clear. He accepted that no appointment letter was ever given by the company. They have not enrolled their names with the Employment Exchange. The first agreement was signed in 1978. He joined the company along with others in view of the advertisement regarding retainership. He also accepted that seven persons as noted above were previously working in the company, but left the service and joined as retainers. They were aware at the time of signing the agreement about the service conditions, salary, benefits given to regular workers.16. It was fairly accepted and admitted that taking into consideration that retainership was more beneficial than the regular service employees, all the seven employees left the service of the company and accepted the retainership. It was also accepted that there were several retainers who were working in several places like Delhi, Calcutta, Lucknow. One significant admission was that complaints of T.V. sets were made by the customers to the appellant company. The retainers used to visit the company for collecting complaints, collecting components, for receiving payments and for repairing the calledback sets. Except for these reasons, they were not required to go to the company.17. A further significant admission was that there were several types of employees working in the company whose work cannot be compared with that of the retainers. Whenever the retainers went on leave they used to provide a substitute to the company. The Tribunal also noted that the witness has admitted that the scheme was for retainership and there was no question of his asking for absorption as regular employees. Till 1989-90 they were getting more income than the regular employees and, therefore, had not sought for regularization. But since 1989-90 they found the regular employees were getting more salary than their income, and, therefore, they claimed regularization. Further 2.24% deduction towards Income- tax was made from the bills of the retainers in view of the contract and that was not applicable to the case of salaries of the regular employees. He accepted that he did not know about the nature of work and working hours of the regular employees. Factually, it was found that the retainers were getting Rs. 90/- per set. The agreement was on job contract basis. In Clause 15 of the agreement, there was a provision for arbitration under the Indian Arbitration Act, 1940.