Judgment:
ORDER
H.N. Nagamohan Das, J.
1. In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the award dated 22.04.2003 in reference No. 13/1996 passed by the Industrial Tribunal at Mysore declaring that respondent workmen are entitled for regularisation, pay scale and other benefits.
2. Petitioner is a company engaged in various activities including running sugar mill, hereinafter called as the Management. The respondent is a trade union representing 144 workmen working in the petitioner Management, hereinafter called the workmen.
3. It is the case of workmen that the Management appointed 144 workmen on daily wages in the following five departments.
a. Industrial Canteen
b. Sanitary department
c. Pulp feeding
d. Horticulture
e. Guest House
4. These workmen were appointed during the period from 1984 to 1990 on daily wages of Rs. 32. Subsequently the dairy wages was enhanced to Rs. 82. The work of these workmen is of permanent and perennial in nature and they are directly employed by the management. Despite repeated requests and demands, the management refused to regularise the services of these workmen. Having no other alternative the workmen formed a registered trade union called Mysore Paper Mills Workers Association (for short 'the Union'). On 31.07.1995 the union submitted charter of demands for regularisation of services of workmen and for payment of pay and allowances on par with permanent workers of the management. Thereafter the matter was taken up for conciliation. Before the conciliation officer the Management contended that the workmen are not appointed by them and that they are contract labourers governed under the provisions of Contract Labour (Regulation and Abolition) Act 1970. Since the conciliation proceedings ended in failure, the appropriate government referred the dispute between the parties for adjudication to the Industrial Tribunal at Mysore, vide order dated 23.02.1996 in reference No. 13/1996. The points of dispute referred for adjudication are as under:
a. Whether the MPM workers' association (work order) Bhadravathi is justified in demanding from the Management of Mysore Paper Mill, Bhadravathi regularisation of service of workmen working on work order basis and payment of salary on par with the regular workmen belonging to Grade IV?
b. If not, then to what relief the said workmen are entitled to?
5. Before the Tribunal both the parties filed their statements. On the basis of pleadings, the Tribunal by its order dated 07.02.1997 framed the following additional issues.
a. Whether the second party proves that the reference is not maintainable in view of the facts pleaded in paras 1 to 5 of its objections?
b. What order?
6. Before the Tribunal the Management examined three witnesses as M.W.1 to M.W.3 and got marked Ex.M.1 to Ex.M.23. The workmen examined two witnesses as W.W.1 to W.W.3 and got marked Ex.W.1 to Ex.W.44. The Tribunal after hearing arguments and on appreciation of the pleadings, oral and documentary evidence held that the workmen are not contract labourers and the theory advanced by the Management was only a camouflage to hide the reality regarding the true nature of employment. The Tribunal further held that the workmen are entitled for regularisation, pay scale and other benefits in par with permanent employees doing similar work in Grade IV. It is further held that in case the workmen are not found suitable for fitment in grade VI, they shall be given appropriate fitment in other grade or category of employees doing similar works. The Tribunal awarded 50% of arrears of difference in salaries. Aggrieved by this award of the Tribunal, the management is before this Court in this writ petition.
7. Heard arguments on both the side and perused the entire writ papers.
8. Sri. M.R.C. Ravi, learned Counsel for the Management firstly contends, that the workmen in question are contract labourers and therefore the Tribunal has no jurisdiction to try and pass the impugned award. This contention of the learned Counsel for the Management is unacceptable to me. In this case the Management contends that they have not directly appointed the workmen and that they are contract labourers. On the other hand the workmen contend that they are directly appointed by the Management and the theory of contract labour system was only sham or camouflage to hide the reality of true nature of relationship between the management and workmen. Merely because the management had taken the plea that the workmen are contract labourers it cannot be said that the Tribunal has no jurisdiction to try and adjudicate the dispute between the parties. In identical circumstances the Supreme Court in the case of G.M., ONGC, Shilchar v. O.N.G.C. Contractual workers Union 2008 Lab.I.C. 2665 held as under:
The pleadings in the present matter would show that the core issue before the Tribunal was with regard to the status of employees as employees of the ONGC or of contractor and that it was this issue impliciter on which the parties went to trial. Mr. Dave's argument with regard to the decision of the Tribunal being beyond the reference, is to our mind, and in the circumstances, hyper technical. In this background, we feel that the judgements cited by Mr. Dave pertaining to regularization of contract labour are not applicable to the facts of the case.
9. Again the Supreme Court in the case of Gujarat Electricity Board Thermal Power Station, Gujarat v. Hindh Mazdoor Sabha : 1995 (2) LLJ 790 held that if the contract is not genuine, the workman of the contractor themselves can raise such a dispute, since in raising such dispute the workmen concerned would be proceeding on the basis that they are in fact the workmen of the principal employer and not of the contractor. It is further held that in the event of workmen establishing that the labour contractor was sham and was only a camouflage, then they cannot be denied their legitimate rights. Therefore the dispute between the parties squarely falls within the definition of Industrial Tribunal under Section 2(k) of the Industrial Disputes Act.
10. The Tribunal, in the facts and circumstances of this case and by following the law laid down by the Apex Court rightly held that it is having jurisdiction to try and adjudicate the dispute between the parties. I find no justifiable ground to interfere with this reasoning of the Tribunal. There is no substance and merit in the contention of the management that the Tribunal has no jurisdiction to try and adjudicate the dispute between the parties.
11. Secondly it is contended that the workmen on an earlier occasion pleaded that they are contract labourers and therefore they are now estopped from contending that they are direct employees under the Management. In support of this contention learned Counsel for the petitioners relied on Annexure B - copy of the order dated 14.08.1997 in W.P. No. 28282/1996, Annexure C dated 25.05.1999 a report submitted by the sub-committee on the possibility of abolition of contract system in Mysore Paper Mills, Bhadravathi and Annexure E dated 02.01.1998 the letter addressed by the President, MPM Workers Association (Work Order), Bhadravathi. I decline to accept this contention of the learned Counsel for the petitioner. Firstly the doctrine of estoppel is not applicable to labour jurisprudence. Secondly, Annexures B, C and E are not produced before the Tribunal and there was no opportunity to the workmen to give their version on these three documents. Thirdly Annexure B is the order passed by this Court in W.P. No. 28282/1996 on 14.08.1997, that is, subsequent to the order of reference in question dated 23.02.1996. Further the petitioner in W.P. No. 28282/1996 is the Mysore Paper Mills Contract Workers Union. But the workmen in the instant case are represented by Mysore Paper Mills Workers Association (Work Oder). Therefore the Union in question is not a party in W.P. No. 28282/1996 and therefore the same is not binding on them. Further in Annexure E - the representation dated 02.01.1998 given to the Chairman and Managing Director of Mysore Paper Mills Limited by the Union in question. In this representation an alternative plea is put forth by the workmen stating that they are also entitled for regularisation and other benefits in view of the notification dated 11.04.1997 issued by the Government of Karnataka, Labour Department That apart, the management witness in his evidence admitted that MPM Workers Association (Work Order) do not move for regularisation of contract labourers. Therefore there is no substance and merit in the contention of the learned Counsel for the Management that the workmen are estopped from contending that they are not contract labourers. Annexure-C is a report submitted by a sub-committee and the same will not operate as estoppel on the rights of workmen in question.
12. Thirdly it is contended that in view of the decision in the case of State of Karnataka v. Uma Devi 2006 AIR SCW 1991, the workmen are not entitled for regularisation. In identical circumstances the Supreme Court in the case of G.M, O.N.G.C., Shilcha v. O.N.G.C. Contractual Workers Union 2008 Lab.I.C. 2665 held, that the ratio of the judgment in Umadevi's case would not be applicable and the facts of Pandey's case 2007 AIR SCW 6904 are on the contrary more acen to the facts of the present case. Therefore the ratio in Umadevi's case has no application to the facts in the present case. On the other hand the ration in Pandey's case is applicable to the present case. The Tribunal rightly concluded that the workmen are entitled for regularisation and also pay and other benefits in par with the permanent employees.
13. Lastly it is contended that the Tribunal committed an error in not considering the evidence of M.W.3 - a Labour Contractor and the licence produced by him as per Ex.M.19. The Tribunal on careful appreciation of the oral and documentary evidence on record noticed the fact that the management picked up few of the workmen W.W.1 and W.W.2 for being designated as contractors. It is also noticed that the management witness M.W.1 admitted in his evidence that the alleged contractors do not possess the licence as required under the Act. The material on record discloses that the workmen always worked under the supervision and active administration, control of the principal employer. It is also seen that the management interposed M.W.3 at a later stage as labour contractor to defeat the legitimate claim of workmen. There is no evidence on record to show that the workmen in question are appointed by M.W.3. The management has given the identity cards, medical facilities, exercised disciplinary action, paid wages, controlled hike in the wages, the pattern of work was also as per the directions of foreman of the management and there was functional integrity between the various departments where the workmen are working. The Tribunal on careful appreciation of the entire evidence on record including the evidence of M.W.3 and the documents produced by him rightly concluded that the workmen in question are the employees of the management and they are not contract labours as falsely contended by the management. This reasoning of the Tribunal is supported by evidence on record and I find no justifiable ground to interfere with the same.
14. The management is a public sector undertaking. It is brought to my notice that the management is facing financial stringent conditions. As per the impugned award the Tribunal granted 50% of the arrears of difference in salaries etc., from the date of reference till the date of award. The award is dated 22.04.2003 and now we are in May, 2009. Grant of full wages from the date of award till disposal of this writ petition will be huge financial burden on the management. In order to balance the interest of both the parties, I am of the view that grant of 50% backwages from the date of reference till the date of disposal of the writ petition will meet the ends of justice.
15. For the reasons stated above, the following;