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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M. SATYANARAYANA MURTHY, J.
Gannina Srinivas – Petitioner
Versus
The Secretary to the Government – Respondent
Writ Petition No. 15008 of 2019
Decided On : 08-02-2022
Constitution of India, 1950 - Articles 226, 14, 16 and 21 - Industrial Disputes Act - Sections 2 (ra) and 25 T - Payment of Wages Act, 1936 - Section 2 (ii)(g) - Industrial Employment (Standing Orders) Act, 1949 - Sections 1(2) read with 2(e) - Companies Act - Section 8 - Terminated reinstatement - Unfair Labour Pratice - Electricity Department was a Government Department and after enactment of the Electricity Supply Act, 1948 the Andhra Pradesh State Electricity Board was constituted. The State Government initiated reforms in the electricity sector through the A.P. Electricity Reforms Act, 1988 - Separate companies for distribution of the electricity have been created in the year 2000 in the names of Eastern Power Distribution Company Limited (APEPDCL), AP Southern Power Distribution Company Limited (APSPDCL), AP Central Power Distribution Company Limited - staff working in A.P. State Electricity Board have been allotted to the companies by virtue of settlements under Industrial Disputes Act, 1947 - .P. Electricity Reforms Act, 1988. Till 1996, the 33/11 KV Sub-Stations which step-down the power received from the 220 KV sub-stations were manned by the regular staff of the electricity organization in the cadre of Linemen.
Finding of the Court:
Petitioners may approach competent labour Court or Industrial Tribunal for appropriate relief while holding that the petitioners are not entitled to claim absorption as there is no relationship of employee and employer between the petitioners and respondent Nos. 5 to 11. This finding is recorded for limited purpose for deciding the present issue while leaving it open to the petitioners to raise such contention before appropriate Labour Court or Industrial Tribunal and on raising such contentions, the competent Labour Court or Tribunal is under obligation to decide the issue notwithstanding the prima-facie finding recorded by the Court - Workers engaged by a contractor to work in the statutory canteen of a factory would be the workers of the said factory, but only for the purposes of the Act, 1948 and not for other purposes, and further for the said workers, to be called the employees of the factory for all purposes, they would need to satisfy the test of employer-employee relationship and it must be shown that the employer exercises absolute and effective control over the said workers.”
Result: Writ petition is dismissed.
ORDER :
1. One Gannina Srinivas and 20 others filed this petition under Article 226 of the Constitution of India to issue a Writ of Mandamus declaring the action of the respondents in continuing all the petitioners in the regular posts as daily wage employees and Contract Labour for long periods ranging from 11 years to 22 years which is an unfair labour Practice as wholly arbitrary, highly illegal, unjust and unconstitutional being violative of Articles 14, 16 and 21 of the Constitution of India and consequently direct the respondents to regularise the services of the petitioners by making them Permanent with all attendant benefits applicable for the regular post such as Scale of Pay and other service conditions.
2. It is the case of the petitioners that the Electricity Department was a Government Department and after enactment of the Electricity Supply Act, 1948 the Andhra Pradesh State Electricity Board was constituted. The State Government initiated reforms in the electricity sector through the A.P. Electricity Reforms Act, 1988 under which the AP State Electricity Board was divided into two companies viz. AP TRANSCO and APGENCO in the year 1999. Separate companies for distribution of the electricity have been created in the year 2000 in the names of Eastern Power Distribution Company Limited (APEPDCL), AP Southern Power Distribution Company Limited (APSPDCL), AP Central Power Distribution Company Limited (APCPDCL). The staff working in A.P. State Electricity Board have been allotted to the companies by virtue of settlements under Industrial Disputes Act, 1947 entered into with the employees unions as mentioned in Schedule-D of the A.P. Electricity Reforms Act, 1988. Till 1996, the 33/11 KV Sub-Stations which step-down the power received from the 220 KV sub-stations were manned by the regular staff of the electricity organization in the cadre of Linemen.
3. It is further contended that the electricity organization recruits Junior Lineman directly and promotes them to Assistant Lineman and thereafter to the Lineman cadre. The Linemen are being appointed for manning the 33/11 KV Sub-Stations and they are called Shift Linemen. As per Operational Subordinate Service Rules, the qualification for appointment as Lineman is pass in 4th Form (present day 9th class). The rules also allow temporary appointments in case of urgency and in the circumstances stated therein.
4. Each Sub Station is manned by 4 Operators i.e. 3 Operators in 8 Hours Shift and the 4th Operator to work in holiday/leave vacancy or in General Shift. The present qualification for Junior Lineman is also pass in SSC and ITI (Electrical). The electricity organization i.e. APSEB started employing substation operators on contract basis by entering into L2 agreement with one of the 4 workers since 1997 in few Sub Stations and petitioner No. 1 is appointed on the same basis.
5. After creation of DISCOMS, tenders have been called for and contractors have been asked to supply the sub-station operators for maintenance of the sub-station. The duties assigned to the outsourcing Sub Station Operators as well as permanent Shift Linemen are the same. Despite change of contractors, the petitioners continued to work uninterruptedly since the date of their appointment till date. All the 21 petitioners have put in total service of more than 15 years (12 Petitioners); more than 12 years (7 Petitioners) and more than 11 years (2 Petitioners). Thus all the petitioners have completed more than 10 years of uninterrupted service.
6. It is contended that since 1997, till today the electricity organization is manning 33/11 KV Sub-Stations by allotting some sub-stations to the permanent staff (by deploying Shift Lineman) appointed under Operational Subordinate Service Rules and the remaining sub-stations through Outsourcing Sub Station Operators (for short ‘OSSOs’) employed through contractors. There are 252 33/11 KV sub-stations in West Godavari District out of which 43 are manned by permanent s
it is difficult to extend minimum time scale to the petitioners as they were not engaged by respondent Nos. 4 to 11 either on contract basis or outsourcing basis.
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Establishing an employer-employee relationship is essential for regularization claims; contract-based employment does not create inherent rights to permanent status.
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The court established that without clear evidence of direct employment, claims of an employer-employee relationship under contract labour provisions cannot succeed.
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