IMPORTANT POINT
Tests which are determinative for ascertaining the relationship of Employer and Employee are viz. functional test or control test or organisational test etc. and separate test may have to be applied having regard to factual matrix involved in each case.

Headnote:SERVICE LAW - Scheme for Rehabilitation of the disabled people introduced by Union of India - Pilot projects were started and centres were established in several States - Community Health Workers and Anganwari Workers were employed and selected by Project Coordinators of Rehabilitation Centres who were officers of the State Govts. - Employees were offered salary of Rs. 660/- in the scale of Rs. 660-60-1100-50-5600 and they were working for a long time - Terms and conditions of service including pay scales of employees were governed by rules applicable to employees of State Govts. - Employees filed O.A. before Central Administrative Tribunal claiming terms and conditions of service applicable to Central Govt. as they being employee of Central Govt. - Tribunal allowed the application - High Court upheld the order in writ - Appeal - Project was wound up from 1-4-2006 - Tests determinative for ascertaining the relationship of Employer and Employee viz, functional test or control test or organisational test - Tribunal assigned no reason for its conclusion - Findings could not be affirmed - In the facts and circumstances, jurisdiction under Article 142 of Constitution of India invoked and order passed accordingly.
       Held : The employees do not become the employees of the Central Government only because the project was conceived by it or it used to give directions from time to time. The tests which are determinative for ascertaining the relationship of `Employer and Employee are well known viz. functional test or control test or organisational test etc. For determination of relationship of the employer and the employees, separate tests may have to be applied having regard to the factual matrix involved in each case. The parties did not adduce any oral evidence before the Central Administrative Tribunal. The Central Administrative Tribunal although referred to some of the decisions of this Court, but without applying them, opined that Respondents are the employees of the Central Government. No reason has been assigned therefor. No analysis of the available materials was made.(Para 12)
       The question has been considered by this Court in Workmen of Nilgiri Coop. Mkt. Society v. State of T.N. and Others [(2004) 3 SCC 514], wherein it has been held:-
       "Determination of the vexed questions as to whether a contract is a contract of service or contract for service and whether the employees concerned are employees of the contractors has never been an easy task. No decision of this Court has laid down any hard and fast rule nor is it possible to do so. The question in each case has to be answered having regard to the fact involved therein. No single test – be it control test, be it organization or any other test – has been held to be the determinative factor for determining the jural relationship of employer and employee." (Para 13)
       We, therefore, with respect, are unable to agree with the findings of the Central Administrative Tribunal as also the Division Bench of the High Court. (Para 16)
       A question has arisen as to whether the employees are the employees of the State of West Bengal or the District Rehabilitation Centres. In view of the order proposed to be passed by us, it may not be adverted to at this state as we are of the opinion that the projects should be continued by the State of West Bengal and the State of Karnataka as the case may be. Even if the States think it fit to close down the project, the services of the employees working in the rehabilitation centres should be continued.(Para 17)
       In a case of this nature, however, we think it expedient to invoke our jurisdiction under Article 142 of the Constitution of India. The Central Government has categorically stated that those employees who would opt for employment under the Central Government may be accommodated in its ongoing projects. Pursuant thereto or in furtherance thereof, the concerned employees who have affirmed affidavits showing inclination to serve any project under the Central Government, may be absorbed by it. Services of those employees may be utilized by the Central Government in any of its project. They would, however, be continued to be paid salaries on the same scale of pay. Their experience may also be considered for the purpose of determination of their seniority, subject of course to any rule which is in operation in the field. All other financial benefits including those of superannuatory benefits should be protected. It is, however, clarified that such employment under the Central Government would be temporary and personal posts which would come to an end with the retirement of the concerned employees. (Para 18)
       Similarly those Respondents who have opted for their employment with the State of West Bengal or the State of Karnataka, as the case may be would be absorbed by the States of West Bengal and Karnataka, as the case may be, on the same terms and conditions as referred to hereinbefore.(Para 19)
       Keeping in view the nature of order passed by us, it is clarified that the same shall not be treated as a precedent. We also make it clear that these orders have been passed by us keeping the stand taken by the parties. These appeals are disposed of with the aforementioned directions.(Para 20)

JUDGMENT

S.B. Sinha, J. - Union of India filed a Scheme for Rehabilitation of the disabled people. The project started with financial assistance of Central Government/Union of India. The full financial assistance was extended till 1993, whereafter only 50% of financial assistance was provided for by the Central Government. The Union of India, however, took up the entire financial burden for the project with effect from 31.1.1998.

2. Pilot projects were started under which centres were established in several States of the country with a view to identify the services required by the disabled population, to assist the man power required for delivering those services to them or to work out the modalities for the types of man power etc. One of such centres was established in Kharagpur in the State of West Bengal and another in the district of Mysore in the State of Karnataka. For the purpose of execution of the said projects, a Project Coordination Committee was constituted. A set of detailed guidelines were circulated. The Project Coordinator would be the main agency to implement the Project and would function through Member Secretary of the State Level Advisory Committee. The Scheme dated 3.1.1983 was circulated with the concerned State Governments by the Joint Secretary of the Union of India. The total package of services for the disabled starting with awareness in the community and ending with their economic rehabilitation was to contain with the following elements:-

"1)Creation of community awareness about the disabled population in order to seek community participation in the measures for the welfare of the disabled.

2)parent counseling about the home care and management of the disabled child.

3)promote dissemination of information on prevention, early detection and possibilities of treatment of the disabled.

4)arrangements for screening of disabilities and early referrals.

5)arrangements for physical rehabilitation including medical or surgical intervention.

6)integration of disabled children in normal schools schedule and establishment or special schools wherever necessary.

7)provision of vocational training for the disabled.

8)employment guidance and placement services both in integrated as well as sheltered conditions of the disabled."

3. The category of employees found suitable for recruitment for the project were: (i) Community Health Workers; and (2) Anganwari Workers. The Scheme envisaged that the Pilot Scheme with the infrastructure provided should be utilized by the State Governments with an intent to continue the project. The infrastructures created for these pilot projects was expected to prove to be useful for training the required manpower for future pilot projects and similar centres which the State Governments may like to establish. The Project Coordinators of the Rehabilitation Centres were the officers of the State Governments of States of West Bengal and Karnataka. They selected the employees for the said Rehabilitation Centres. The employees were offered a salary of Rs. 660/- in the scale of Rs.660-60-1100-50-5600. Indisputably they have been working for a long time. Initially as noticed hereinbefore, although funds were provided by an outside agency, the same have been taken over by the Central Government. Terms and conditions of service of the employees appointed were governed by the rules applicable to the employees of the State Governments. The pay-scales applicable to employees of the State Government were also applied to their case. The employees, however, filed Original Applications before the Central Administrative Tribunal, Calcutta as also Karnataka at Bangalore, inter alia, contending that they being the employees of the Central Government, the terms and conditions of services applicable to the Central Government should apply in their case also. A preliminary objection was taken as regards of the jurisdiction of the Tribunal on the premise that the applicants were the employees of the State Governm

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2006 Supreme(SC) 1097

IMPORTANT POINT Tests which are determinative for ascertaining the relationship of Employer and Employee are viz. functional test or control test or organisational test etc. and separate test may have to be applied having regard to factual matrix involved in each case.

Cases Referred (3)

IMPORTANT POINT
Tests which are determinative for ascertaining the relationship of Employer and Employee are viz. functional test or control test or organisational test etc. and separate test may have to be applied having regard to factual matrix involved in each case.