M.P Prabhakaran Nambiar Vs. Bharat Sanchar Nigam Ltd, Represented by the Chairman and Managing Director, New Delhi and Others - Court Judgment

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CourtCentral Administrative Tribunal CAT Ernakulam
Decided OnJul-22-2011
Case NumberO.A.NO. 112 of 2011 & O.A 113 of 2011
JudgeTHE HONOURABLE DR. K.B.S. RAJAN, JUDICIAL MEMBER & THE HONOURABLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
AppellantM.P Prabhakaran Nambiar
RespondentBharat Sanchar Nigam Ltd, Represented by the Chairman and Managing Director, New Delhi and Others
Advocates:For the Applicant: R. Sreeraj, Advocate. For the Respondents: PMM Najeb Khan, Advocate.
Excerpt:
hon'ble mrs. k. noorjehan, administrative member1. as the legal issues involved in both these oas are identical, they were heard together and are being disposed of by this common order.2 oa no.112/2011: brief facts of the case as stated by the applicant are that he was engaged as daily wager in the year 1999 through employment exchange and worked till 2002 at bheemanadi exchange and cheruvathur. he submitted a representation to the concerned authority for his regularisation. thereafter he was engaged as lineman's assistant at cheruvathur on petty contract basis till 2006. thereafter he worked as such at badiyadukka till 2009. according to the applicant he was engaged continously for 10 years from 1999 to 2009 by the respondents. he was disengaged from badiyadukka on the pretext of want of work and asked to report at his original place of engagement at bheemanadi-cheruvathur. they too declined to engage him there on the excuse of his last engagement at badiyadukka. thus he was out of employment.3 oa no.113/2011: in this oa, the applicant averred that he was engaged as casual labour on 16.1.1990 and continuing as such even though there was a ban for such engagement. after litigation before this tribunal and before the hon'ble supreme court, the respondents have arbitrarily dispensed with the engagement of casual labours and alternatively treating him as petty contractor to avoid regularisation. according to the applicant he has put in 20 years service with the respondents and is entitled to regularisation in view of the order passed by this tribunal in oa 846/2009. he represented to the concerned authorities for regularising his service. he was served with the order dated 11.11.2009 (annx.a2) stating that he worked as petty contractor and not as a part-time mazdoor therefore his service cannot be regularised. he submits that whatever may be the designation, the respondents made him work as casual labour thus he is entitled to be regularised. it is also averred that the engagement on contract basis was against the provisions of pandt manual vol.ii.4 they raised the main ground that their claims were not considered by the respondents on par with other casual mazdoors as they are being treated as petty contractors to avoid their regularisation, such action adversely affects their service prospects and amounts to unfair labour practice. therefore they prayed for a direction to the respondents engage them, regularise their service and pay wages accordingly.5 counsel statement was filed by the learned counsel for the respondents. it is submitted that on verification of records shows that the applicants were doing petty contract works and they were never engaged as full time mazdoor on daily wages (annx.r1). their claim is not supported by any documents showing that they were engaged as mazdoor and hence they are not eligible for regularisation. they questioned jurisdiction of the tribunal to entertain such matters when the applicants are not casual labourers.6 the applicants filed rejoinder reiterating the facts as stated in the oas. it is further stated that the engagement of the applicants since 1999 was not denied by the respondents. it is also averred that the engagement of the applicants on contract basis was against the provisions of pandt manual vol.ii.7 we have heard learned counsel for the parties and perused the records.8 the main contention of the applicants is that their claim for regularisation was not considered and that they were left without being regularised, to face economic hardship.9 admittedly, the applicants rendered their service as petty contractor as per annx.r1. as such no relationship of employer and employee in law subsists between the principal employer and contractor. contractor labour is not prohibited for work of an occasional or seasonal nature. no notification was issued under sec.10(1) of the contract labour (abolition and regulation) act, 1970 (for brevity clra). section 10 clra act reads as under:"10. prohibition of employment of contract labour- 1) notwithstanding anything contained in this act, the appropriate govt may, after consultation with the central board or, as the case may be, a state board, prohibit, by notification in the official gazette, employment of contract labour in any process, operation or other work in any establishment; 2) before issuing any notification under sub-section (1) in relation to an establishment, the appropriate govt shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant facts, such as (a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufagture or occupation that is carried on in the establishment; (b) wheather it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; (c) whether it is done ordinarilly through regular workmen in that establishment or an establishment similar thereto; (d) whether it is sufficient to employ considerable number of wholetime workmen. explanation - if a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate government thereon shall be final."10 in the instant case, undisputedly, the applicants alongwith others worked as petty contractors. they received monthly payment from the principal employer. the applicant could not produce any documents to show employer - employee relationship between the parties. no industrial dispute appears to have been raised. no notification seems to have been issued for abolition of contract labour, under sec.10(1) of the clra act, 1970. the applicants failed to establish the fact that the work assigned to him was of perennial nature. bsnl having its own recruitment rules apparently follows the regular process of selection under the relevant rules. therefore, on the basis of settled legal position and facts before us, we are of the considered opinion that the applicants failed to establish any case for interference by this tribunal and this o.a devoid of any merit is liable to be dismissed.11 we therefore dismiss these oas. no costs.
Judgment:

HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER

1. As the legal issues involved in both these OAs are identical, they were heard together and are being disposed of by this common order.

2 OA No.112/2011: Brief facts of the case as stated by the applicant are that he was engaged as daily wager in the year 1999 through Employment Exchange and worked till 2002 at Bheemanadi Exchange and Cheruvathur. He submitted a representation to the concerned authority for his regularisation. Thereafter he was engaged as Lineman's Assistant at Cheruvathur on petty contract basis till 2006. Thereafter he worked as such at Badiyadukka till 2009. According to the applicant he was engaged continously for 10 years from 1999 to 2009 by the respondents. He was disengaged from Badiyadukka on the pretext of want of work and asked to report at his original place of engagement at Bheemanadi-Cheruvathur. They too declined to engage him there on the excuse of his last engagement at Badiyadukka. Thus he was out of employment.

3 OA No.113/2011: In this OA, the applicant averred that he was engaged as casual labour on 16.1.1990 and continuing as such even though there was a ban for such engagement. After litigation before this Tribunal and before the Hon'ble Supreme Court, the respondents have arbitrarily dispensed with the engagement of casual labours and alternatively treating him as petty contractor to avoid regularisation. According to the applicant he has put in 20 years service with the respondents and is entitled to regularisation in view of the order passed by this Tribunal in OA 846/2009. He represented to the concerned authorities for regularising his service. He was served with the order dated 11.11.2009 (Annx.A2) stating that he worked as petty contractor and not as a Part-time Mazdoor therefore his service cannot be regularised. He submits that whatever may be the designation, the respondents made him work as casual labour thus he is entitled to be regularised. It is also averred that the engagement on contract basis was against the provisions of PandT Manual Vol.II.

4 They raised the main ground that their claims were not considered by the respondents on par with other casual mazdoors as they are being treated as petty contractors to avoid their regularisation, such action adversely affects their service prospects and amounts to unfair labour practice. Therefore they prayed for a direction to the respondents engage them, regularise their service and pay wages accordingly.

5 Counsel statement was filed by the learned counsel for the respondents. It is submitted that on verification of records shows that the applicants were doing petty contract works and they were never engaged as full time mazdoor on daily wages (Annx.R1). Their claim is not supported by any documents showing that they were engaged as Mazdoor and hence they are not eligible for regularisation. They questioned jurisdiction of the Tribunal to entertain such matters when the applicants are not casual labourers.

6 The applicants filed rejoinder reiterating the facts as stated in the OAs. It is further stated that the engagement of the applicants since 1999 was not denied by the respondents. It is also averred that the engagement of the applicants on contract basis was against the provisions of PandT Manual Vol.II.

7 We have heard learned counsel for the parties and perused the records.

8 The main contention of the applicants is that their claim for regularisation was not considered and that they were left without being regularised, to face economic hardship.

9 Admittedly, the applicants rendered their service as petty contractor as per Annx.R1. As such no relationship of employer and employee in law subsists between the principal employer and contractor. Contractor labour is not prohibited for work of an occasional or seasonal nature. No notification was issued under Sec.10(1) of the Contract Labour (Abolition and Regulation) Act, 1970 (for brevity CLRA). Section 10 CLRA Act reads as under:

"10. Prohibition of employment of contract labour- 1) Notwithstanding anything contained in this Act, the appropriate Govt may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment; 2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Govt shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant facts, such as (a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufagture or occupation that is carried on in the establishment; (b) wheather it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; (c) whether it is done ordinarilly through regular workmen in that establishment or an establishment similar thereto; (d) whether it is sufficient to employ considerable number of wholetime workmen. Explanation - If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate government thereon shall be final."

10 In the instant case, undisputedly, the applicants alongwith others worked as petty contractors. They received monthly payment from the principal employer. The applicant could not produce any documents to show employer - employee relationship between the parties. No industrial dispute appears to have been raised. No notification seems to have been issued for abolition of Contract Labour, under Sec.10(1) of the CLRA Act, 1970. The applicants failed to establish the fact that the work assigned to him was of perennial nature. BSNL having its own recruitment rules apparently follows the regular process of selection under the relevant rules. Therefore, on the basis of settled legal position and facts before us, we are of the considered opinion that the applicants failed to establish any case for interference by this Tribunal and this O.A devoid of any merit is liable to be dismissed.

11 We therefore dismiss these OAs. No costs.