2021 Supreme(AP) 75

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M. SATYANARAYANA MURTHY, J.
Perumalla Madhusudhan Rao - Petitioner
Versus
The AP TRANSCO - Respondent
Writ Petition No. 25757 of 2020
Decided On : 26-02-2021

Point of law: There are two types of contract workers. First one is engaging the services of employee by the employer on contract basis obtaining necessary documents. Second one is engaging the services by an independent contractor for any specific purpose. In the first case, there is a relationship of employee and employer, but on the contract basis. In the second case, there was absolutely no relationship of employee and employer. In the present case, the petitioners cannot be deemed to be workmen within the definition of workmen

Headnote:

Industrial Disputes Act, 1947 – Section 12 – Termination of Services – Constitution of India, 1950 – Article 226 – Petitioners, who were working under the contractor – M/s.Sterling and Wilson Private Limited, filed this petition under Article 226 of the Constitution of India against the AP TRANSCO and its officials to declare the action of respondent No.3 in orally terminating the services of the petitioners from Electrical High Tension 132/33 KV Sub-Station, Vinjamuru and not allowing petitioners for duties with effect from 23.11.2020 on the ground that the contract of the then contractor of Electrical High Tension 132/33 KV Sub-Station, Vinjamuru vide letter dated 20.11.2020 of respondent No.3 as illegal, arbitrary, discriminative, contrary to the ratio laid down by the Apex Court in para 46 at page 151 in “State of Haryana v. Piara Singh, (1992) 4 SCC 118” and also in para-18 of the judgment in “K. Ravinder v. A.P. Generation Corporation Limited, Hyderabad, (2000) 6 ALD 56” and contrary to the letter and spirit of the Memo No. CGM (HRD/ DS/ AS.III/ PO.VII /Adm/D.No.3596/04, dated 27.12.2004 besides violative of Article 14, 16 and 21 of the Constitution of India and consequently, direct the respondents to allow the petitioners to discharge their usual daily duties just like before 23.11.2020 in their respective capacities irrespective of the fact of change of contractors from time to time.

Finding of court: Imposition of such condition to engage the workers being engaged by other contractor is made mandatory in the judgment, but the concept of contract is totally different as there is bargain with the employees by the independent contractor and if such direction is given to the respondents herein, there is no possibility of engaging highly skilled, skilled or unskilled workers by the independent contractor of his choice settling the bargain regarding salaries etc., it impedes the very purpose of maintenance contract of 132/33 KV Sub-Station, Vinjamuru – One of the reliefs claimed by the petitioners is to permit them to discharge their duties as usual. – Unless, maintenance work is entrusted to another independent contractor and the said contractor engages the services of the petitioner, they cannot be allowed to discharge their duties. – Another contention of the petitioners is that as per memo all Superintending Engineers/Operation are informed to advice the contractors not to change the labour who were already working with the respective contractors. – No doubt, in view of the instructions issued in memo, respondent No.3 is bound to adhere to the memo referred above in the event of change of contractor and it is for respondent No.3 to incorporate such condition keeping in view the law laid down by the learned Single Judge of the High Court of Andhra Pradesh at Hyderabad in “K. Ravinder v. A.P. Generation Corporation Limited, Hyderabad” (referred supra) and in the memo, at least the interest of the petitioners shall be protected to some extent. – Even if, the services of the petitioners are engaged by the Contractor, they are not entitled for regularisation or absorption in the department in the absence of any rules for their absorption or regularisation. – Petitioners contended that they were orally terminated by the respondents. – The question of termination of petitioners does not arise as there was no relationship of employee and employer between the petitioners and the respondents and their services were engaged by independent contractor, who is not a party to this petition. – As soon as the contract is terminated, the petitioners are not entitled to work in 132/33 KV Sub-Station, Vinjamuru. – Hence, the alleged termination is neither true nor correct and this Court cannot declare the alleged oral termination of the services of the petitioner as illegal and arbitrary. – Court find that it is a fit case to issue a direction to respondent No.3 to advice the contractors not to change the labour who were already working with the respective contractors.

Result: Writ Petition Dismissed