Full Judgment
The Rajasthan State Electricity Board in its 266 meeting held on 20.7.78 decided that all the officers of the Board in its various branches with status/rank and in the pay-scale of Assistant Engineer and equivalent, Executive Engineer and equivalent, Superintending Engineer and equivalent, and for all posts above that of Superintending Engineer and equivalent be allowed one Orderly at their residence. However, it may be clarified that if under any of the existing order a separate Orderly has been already provided with the officers of the Board of such categories and classification, no additional Orderly will be allowed in terms of the said decision taken on 20.7.78.
It was decided that appointment of Orderlies is to be made by the concerned officer, as per his discretion a consolidated pay of Rs. 240/- p.m. The Board desired that since there are a large number of daily rated, workcharged Muster-roll, employee or casual workmen, the officers with facility, should made all possible efforts to recruit Orderlies as far as possible from such category or employee who are not in the regular pay-scale or have not become eligible to the fixed as regular employees in terms of the Arbitration award dt. 31.5.78, where such recruitment is not possible the officer enable for such facility can make appointment which initially should be for a period of three months to satisfactory performance, much appointment to the post of Orderly can be extended on quarterly basis. However, on satisfactory performance/completion of continuous service of two years, such persons recruited as Orderlies will become eligible and are to be considered for absorption on regular basis against the requirement of sanction strength of Class IV servants. In terms of the above decision, posts stand created w.e.f. 1.1.79 the date from which his scheme arrangement has been decided to come into force, creation of post is out of course, subject to the stipulations made above and that this sanction does not include such posts of orderlies as already stand created/covered by any previous order/approved by the Board.
All the officers, covered by the above order, are hereby advised that they must immediately on recruitment/appointment of such Orderly furnish all necessary details and particulars of the person to his controlling officer as well to the concerned Accounts Officer. Detailed instructions as to how to prepare the bill and process to same should be issued expeditiously by the Financial Advisor and Controller of Accounts.
By order,
(Harish Nayyar)
Secretary
(49). That order records after Board has decided that all the officers of the Board in its various branches with status and rank and in the pay-scale of Assistant Engineer and equivalent, Executive Engineer and equivalent, Superintending Engineer and equivalent and for all post above that of Superintending Engineer and equivalent be allowed one Orderly at their residence. It was also decided that appointment of Orderly could be made by the concerned officer as per his discretion at consolidated pay of Rs. 240/- p.m. However, the Board also indicated sources from which Orderlys are to be recruited. It has said that appointment of such Orderlys at the residence of the Officers, who were extended the facility of having Orderly at their residence should make all possible efforts to recruit Orderlys as far as possible from such category of employee who are now employed with the Board as daily rated, workcharged master-roll employee or casual workmen, and who are not in the regular pay-scale or have not become eligible to be fixed as regular employees with the Board. Thus, primarily the Orderlys were to be appointed from persons already employed by the Board, albeit not on regular basis. Such appointments were to be in addition to Orderlys already employed by the Board. This suggests that Board already has with categories of its employees persons engaged as Orderlys.
(50). It also lays down the terms of appointment. Appointment of such Orderlys were envisaged to be made in the first instance for a period of three months subject to satisfactory performance, which could be extended on quarterly basis. Not only thus, on satisfactory performance on completion of continuous service of two years, such persons recruited as Orderlies were to become eligible to be considered for absorption on regular basis against the requirement of sanctioned strength of class IV servants.
(51). From the aforesaid circular it is apparent that facility of having Orderly at the residence of offices of the rank and status of Assistant Engineer and above were extended as a part of terms and conditions of appointment of such officers of the Board by way of perquisites or emoluments as part of terms of their employment and Orderlys were to be employed by such officers of the Board only as part of fulfilling obligations of the Board towards terms of employment of its superior Officers. The employment was only al terms and conditions of service laid by the Board in the circular dt. 6.1.79 which not only provided primary source of recruitment but also terms on which they were to be engaged. Payment was to be made to such Orderlys as per the terms laid in the circular by the Board directly by preparing salary bill on certificate of satisfactory discharge of work by them. It was also laid by the Board, the place where such Orderlys were to discharge their assigned duties, viz. at the residence of officers of the Board, for whom it was undertaken to provide with one/two Orderlys. Significantly the payment of salary on satisfactory discharge of service and extention or renewal of appointment for each quarter on satisfactory discharge of duties by the Orderlys at a place for which they were to discharge their duties, to the satisfaction of officer in whose subordination he is to work betrays the control assigning that was exercisable by the Board on the appointment, place of working and payment and continued employment of such Orderlys. Stipulation of extension of employment on satisfactory discharge of duties, and ultimately regularisation on completion of two years such service, not only speaks about probationary nature of employment by the Board, but inheres right to remove such workman. In fact it is admitted case of the respondents that services of petitioner were terminated only as per the instruction of the Board. Para 9 of the reply to claim referred and reproduced above.
(52). Not only this a very significant condition of this employment was making them eligible for absorption as regular employee of the Board on two years satisfactory working as Orderlys at residence of concerned officer/officers. If the employment of Orderlies were not as a result of employer-employee relations between the Board and they Orderly, albeit on temporary basis (more akin to a probation period of two years satisfactory conduct, on completion of which, a person may be confirmed in service),the concept of making them eligible for consideration for absorption on regular establishment of the Board, would not have found place in the scheme at all.
(53). The whole scheme betrays that the employment of the Orderlies was under the terms and conditions laid by the Board for appointment of Orderlies to work at the residence of its officers, for remuneration to be paid by the Board directly, in the first instance temporary for three months, which was to be renewed quarterly until the completing two years of satisfactory working. At the end of two years of satisfactory working, to the absorbed as regular employee on certificate of satisfactory working during that period. The periodical renewal of quarterly employment on satisfactory functioning and ultimately at the close of two years satisfactory work, to be evalued at the end of each quarter. This condition inheres in it right of the Board to refuse extension: His emoluments were to be paid at all times by the Board, through the procedure of preparing the salary bill and disbursing the payment by withdrawing authority. For convenient of administrator and looking to purpose and nature of work for which such Orderlys were to be appointed by the Officer at whose residence the Board has undertaken to provide an Orderly, was authorised to appoint a suitable person. However, the terms and conditions including duration of employment was fixed by the Board and not by such Officer. This only reflects that Officer concern was only designated as an appointing authority by the Board. On unsatisfactory working the services of such Orderlies were liable to be terminated. In fact it is admitted by the respondents that services of the petitioner were terminated only because of the instruction of the Board. Attention may be invited to Para 9 of the reply to claim before the Labour Court. Extension of this right of termination an admitted fact, establishes the necessary amount of control and supervision exercisable by the Board, to establish master-servant relationship through an engagement of a person's services on hire subject to control and supervision of the engager of such person as an employer on principle laid by Mathew J. in Silver Jubilee Tailoring House case and Shining Tailors case referred to above.
(54). These conditions establish a firm link of master and employee between the Board and the Orderly, who has been engaged to the services for reward. If employer-employee relationship was not intended to be established under the control of the Board, and only payment of an allowance for a domestic help at residence was envisaged, laying at such terms and conditions by the Board, does not make any sense. Because in that event, Board would have no concern with it, nor will make it consider giving any appointment to such employees on regular basis, on completion of any amount of service, if such Orderlys were not to be treated in the employment of the Board during his engagement at residence of its Officers.
(55). We therefore, hold that appointment of Orderlies by said Officers at their residence at the instance of the Board on the conditions spelt out by the Board in its circular dated 6th January, 1979 for a period of three months, in the first instance and to be extended quarterly, and further stipulation of their absorption in regular cadre only suggests that employment on behalf of Board though not of regular nature but for two years at fixed remuneration in the stipulated period with stipulation of evaluation of work every quarterly and ultimately to be regularised on completion of two years service and if his work is found unsatisfactory liable to be terminated, resulted; in master and employee relationship between the Board and the Orderlys appointed by the Officer concerned as an appointing authority authorised by the Board, on a consolidated pay of Rs. 240/- p.m., under the control of the Board.
(56). It is further relevant to find that entire financial burden of engaging Orderlys to work at the residences of its Officers was of the Board, inasmuch as not only the emoluments were fixed by the Board in its order dt. 6.1.79 but emoluments were also directly payment by the treasury of the Board to the persons so employed as Orderlys at the residence of the respective Officers.
(57). In this connection attention of the Court has been invited to the decision of the Supreme Court in Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Anr. (16). It was a case where at the Central Office of Indian Overseas Bank (IOB) at Madras, canteen facilities were to be provided to the staff in the Bank's premises. Initially, the contractor engaged by the management of the Bank. But subsequently on the representation of the employee's union, the IOB agreed for floating a co-operative society to run the canteen. The Central Government agreed to provide all infrastructural facilities other than the cost of fuel subject to certain limits of the furniture, utensils, electricity. All the promoters of the co-operative canteen were actually the serving members of the staff of the Bank. The staffs required for canteen were employed by the promoters who were administering the canteen. The canteen was being run only with the funds provided exclusively by the Central Office and the amounts realised from day-do-day receipts. Some of the canteen workers services were terminated and an industrial dispute was raised against their termination contending IOB to be employer of the canteen employees. A question, as has been raised before us, was also raised before the Supreme Court that workers employed at the canteen were employed by the co-operative society and were not employed by the Bank, therefore no employer-employee relationship existed between the Bank and the employees working at the canteen.
(58). The Court in the totality of circumstances took the view the nature and extent of assistance, financial and otherwise in kind provided would go to establish inevitably that the Bank has unmistakably and for reasons obvious always undertaken the obligation to provide the canteen services, though there may not be any statutory obligation and it will be too late to contend that the provision of canteen had not become a part of the service conditions of the employees.
(59). The Court also observed that the materials placed on record also highlight the position that the Bank was always conscious of the fact that provision and availing of canteen services by the staff are not only essential but would help to contribute to the efficiency of service by the employees of the Bank. The cumulative effect of all such facts provided sufficient basis for recording of the findings by the Tribunal as well as the Division Bench of the High Court and by the Supreme Court to sustain the claim of the worker as an employee of the Bank.
(60). The position of the present case is no different. Here the petitioner employed by the authority of the Board for the purpose of extending facility of additional Orderly to its officers which became part of the service conditions of such Officers of the Board. The office orders have been issued for appointment quarterly from time to time. The total financial burden of employing the Orderly was on the Board and remuneration was directly payable by the Board to such Orderlys working at the residence of respective Officers. By dint of making the service of Orderly liable to be continued at the close of each quarter on satisfactory conduct of the incumbent and ultimately to be considered for regular absorption at the end of the two years service on aforesaid conditions, shows sufficient amount of control exercisable by the Board on discharge of their functions.
(61). Merely because the terms and conditions are found to be different from regular employee, it cannot be said that their employment was not for and no behalf of Board. There is no escape from the conclusion that in the present case relationship of employer and employee between the Board and the petitioner came into existence when he was appointed as an Orderly in terms of the scheme envisaged under Board's resolution dt. 29th April, 1979, by the Executive Engineer and continued by subsequent orders. It makes no difference whether a person is appointed on regular basis or no casual, temporary adhoc or probation basis. In any event master and servant relationship comes into existence.
(62). This conclusion in further fortified with later resolution by the Board before services of the petitioner were terminated, resolution dated 9.5.89 (Annexure-R4) reads as under:
RAJASTHAN STATE ELECTRICITY BOARD
No. RSEB/Rules/F/57(6)D.31 Jaipur Dt. 9.5.89
The Board in its 86 meeting held on 29th April, 1989 revised the existing scheme of Orderlies introduced by the Board vide order No. RSEB/Rules/F57(6)/D.44 dt. 6.1.79 and decided that:
1. The order No. RSEB/Rules/F.57(6)/D.44 dt. 6.1.79 is hereby withdrawn with immediate effect thereby discontinuing the existing scheme of engagement of Orderlies by Board's Officers. Henceforth no new appointment of Orderlies in pursuance to the aforesaid scheme will be made at any level.
2. The services of those Orderlies who are at present working with the officers on the date of issue of this order would be dispursed with immediately on the issue of this order except of those who are covered by Clause (3) below.
3. For those Orderlies who have completed one year's of continuous services or more on the date of the issue of this order and still continuing with the officer, the existing scheme would remain operative till the required action is taken as per the instructions/orders being issued separately.
4. Henceforth, the reimbursement of the amount spent by the officers for maintaining office/official decorum at their residence according to their official status by utilising the services of person/persons will be admissible on submission of prescribed certificate and subject to the financial limits as under:-
(i) Superintending Engineer and equivalent and above (For utilising the services of one/or more persons)
Rs. 500/- p.m.
(ii) Assistant Engineer and Executive Engineer and equivalent (For utilising the services of a person
Rs. 350/- p.m.
5. The Members of the Board who are at present allowed a regular class IV employee to work as Orderly for attending the telephone, etc. at their residence may also have the option of keeping a class VI employee of claiming reimbursement under the new scheme at the rate allowed to officers of the rank of Superintending Engineer and above.
Detailed administrative instructions/guidelines to implement this scheme of reimbursement are being issued separately.
This order would come into force with immediate effect.
Sd/-
(Rajendra Jain)
Secretary
(63). It refers to the Board resolution dated 29th April, 1989 by which the Board has decided to withdraw with immediate effect and discontinue the existing scheme of engagement of Orderlies by Board's Officers. It was resolved that the Orderlys who are at present working with the officers on the date of issue of this order would be dispursed with immediately on the issue of said order except class of workers saved from the operation of new scheme. The class of workers, excluded from the ignonimity of termination of their services, were those, who had become eligible for regularisation. Instead the Board decided to give fixed allowance to the rank of SuperintendingEngineer and above for utilising the services of one or more persons at the rate of Rs. 500/- p.m. and allowance of Rs. 350/- p.m. was envisaged in the case on Assistant Engineers and Executive Engineers and equivalent for utilising the services of one person. Thus, the term of providing with an Orderly at residence of such officers by the Board, was substituted by scheme of reimbursing a fixed sum to the respective Officer, on certifying that such allowance has been utilised by him at a fixed rate. By this resolution the circular dated 6.1.79 was withdrawn to which we have referred to above. This circular conclusively establishes that while under existing Scheme of 6.1.79 the Board provided at the residence of the officers, services of an Orderly, who was to be an employee of the Board, initially temporary but to be made regular on completion of two years satisfactory employment. Had it been not so, there was no reason to exclude these persons who as such temporary employees had become eligible to be regularised from the purview of sword of terminating the services of all the existing Orderlys on the withdrawal of the scheme under circular dt. 6.1.79. If there was no master-employee relationship existed between the Board and the Orderlies employed under scheme of 6.1.79, mere change in reimbursable allowance would not require termination of services of existing Orderlys, nor any amount of service, not under the Board, could give right to such workman of officer to claim regularisation of service by the Board. It also does not stand to reason that if no master and servant relation was intended to be established under control of the Board between the Board and the Orderly employed under scheme dt. 6.1.79, why the Board, would at all care to lay down the source of recruitment, limit of emoluments, procedure of payment through salary bill, reporting of satisfactory conduct of the Orderly to the Board, periodical renewal of service and would undertake to regularise services of such Orderlys. Regularisation of services of any person is envisaged only when he is in employment of a person, though not as a regular employer, but in other capacity.
(64). Coming to the decision of the Division Bench of this Court in Ashok Lal's case, it was a case in which writ petition has been filed by the petitioner seeking prayer for regularisation of his services and to increase his salary from Rs. 240/- p.m. to regular pay-scale.
(65). In the order of Division Bench, we find no reference to circular dt. 6th January, 1979 nor it is very clear what has been contended before the Court, about the nature of employment given at the first instance. It appears that in the light of submissions made before the Court, the Court took the view that the petitioner was engaged as a domestic servant vide order dated 15.6.82 by the Assistant Engineer, there was no master and servants relationship between the Board and the petitioner and on this finding the Court rejected the prayer for regularisation of services by the Board. In the absence of any reason, it can only be said that the Court found as a fact in that case, on the basis of contention before it that no master and servant relationship was established. However, it cannot be read as a ratio laying down any preposition of law, to be applied in all cases of appointment of Orderlys at the residence of Officers irrespective of the material that comes before the Court. It is also well established that in each case the question, which is a question of fact, has to be decided on the basis of material before it.
(66). Further, as discussed above having considered the circular dt. 6.1.79 and admitted facts we have come to conclusion that appointment was made by the Board itself under the terms' laid by it. No other view is possible to take than that relationship of master and employee was established between the petitioner and the Board when the was appointed as Orderly by the concerned Officer as an appointing authority so authorised under order dt. 6.1.79 by the Board in this behalf, for fixed remuneration payable by the Board for services to be rendered by such person at the place fixed by the Board viz. the residence of the Officer, who too is an employee of the Board, and providing such services of supportive staff at his residence is part of terms and conditions of employment of such officer. Such appointment of a person to work atthe residence of officers employed in the industry, as part of terms and conditions of their employment, which is incidental to the purpose of industry, it is well settled is employment in relation to industry run by the employers. Relationship of employee and employer would come into existence, there being a functional nexus between the employment of the respondent as workman for discharging work for reward at the residence of Officers employed by the Board as per orders of the Board itself.
(67). Another Division Bench judgment relied on by the learned counsel for the respondent is in D.B. Civil Special Appeal (Writ) No. 523/91 decided on 8th May, 1992. This was a case in which reference to circular dated 6.1.79 has been made. However, the conclusion reached by the Division Bench that no employer- employee relationship, by intending that payment of fixed Rs. 240/- p.m. was only by way of reimbursement of expenses to the officer, with respect, cannot be accepted as correctly reached.
(68). As discussed above, the payment of Rs. 240/- was not to be made to the officers by way of allowance which has been erroneously assumed to be so by the Division Bench for finding its conclusion. As basic assumptions on which the judgment proceeded was erroneous, the said judgment with respect, cannot be said to be laying down the law correctly on the true interpretation of circular dated 6.1.79 and the same is overruled.
(69). As a result, earlier decision of Division Bench in D.B. Civil Special Appeal (Writ) No. 523/91 decided on 8th May, 1992 and in D.B. Civil Special Appeal No. 559/91 decided on 28th January, 1992 are overruled and we hold that on the true interpretation of terms and conditions envisaged in the circular dated 6.1.79 on this engagement since 1985, relationship between the petitioner and the Board as the servant and master was established. The Labour Court was patently in error in holding that no master and servants relationship existed between the claimant on the basis of Ashok Lal's case.
(70). The special appeal is allowed and the order of the learned Single Judge as well as the Labour Court is set aside and the matter shall now be before the Labour Court for deciding the industrial dispute referred to it in accordance with law on merits.
(71). Before parting with this case, we may observe that we have noticed that in one of the appointment order dt. 8th January, 1988, the mention of age of the petitioner shows that he was born in 1969 and was 18 yrs. of age. However, earlier appointment letters showing the age of the petitioner on such employment are not before us. It shall be open for the Labour Court to consider the correctness of such fact after affording opportunity to the petitioner as well as respondents to explain the same and also to consider the effect of such engagement, if found to be under age, on the reliefs claimed by the petitioner, in accordance with law, while considering the question of the period of continuous employment and the relief for regularisation on that basis.
(72). There shall be no order as to costs.