The distinction between 'regular' and 'regularisation' and the well-settled principles relating to regularisation and pay were central to the judgment.

1. The MysoreCity Corporation aggrieved by the award dated 30th Jan. 2009 in Ref. No.122/2004 of the Industrial Tribunal, Mysore, directing regularization of the services of respondents 4 to 26 w.e.f. 2.11.2006 has presented this petition.

2. The 3rd respondent Employees Association espoused the cause of respondents 4 to 26 for regularisation of their service on the premise that though appointed by the petitioner Corporation were denied regularization, by initiating conciliation proceeding under the Industrial Disputes Act, 1947 (for short ‘the I.D.Act’). The conciliation having ended in a failure report led to the Government Order dated 9.11.2004 referring the points of dispute for adjudication to the industrial Tribunal, Mysore. Suffice it to refer to point of dispute no.4 which reads thus”

3. Respondent no.3 filed the claim statement on 15.7.2005 interalia contending that the 23 workmen are rendering unblemished record fo service from the date of their joining service in the petitioner Corporation and having not been regularized, the petitioners actions are illegal and against all cannons of law and principles of natural justice and hence the relief of regularisation; other reliefs as deemed fit; and exemplary costs.

4. That petition was resisted by filing statement of objections of the petitioner arraigned as second party therein, interalia contending that the notification dated 29.1.2004 when floated inviting tenders for supply of manpower, undertaking different type of work relating to supply of water to Mysore city, one Venkatesh is said to have responded by a quotation for supply of manpower on daily wages at the rates approved by the PWD for the year 2003-04 which was accepted and manpower supplied from 1.6.2002 to 31.1.2004. Thereafterwards, for the period from 1.2.2004 to 5.8.2004 it is stated that one N.T. Dayananda was entrusted with supply of 213 workers, whence the said Venkatesh approached this Court and secured an order to cancel the agreement entered into with the contractor N.T. Dayananda, pursuant to which Venkatesh is said to have supplied 268 labourers from 6.8.2004 to 3.6.2005. In addition it was contended that there existed no jural relationship of employer and employees as between the parties and that the labourers supplied by the labour contractor are not entitled to any benefits in terms of the recruitment regulations or the conditions of service of employees in the Corporation. It was further contended that if a regular employee did not attend work on any given day, it was the duty of the contractor to ensure the presence of a contract employee to carry out and discharge the regular work. IT was lastly contended that the petitioner Corporation had no jurisdiction to regularize the services of daily wage employees under a contractor.

5. Before the Industrial Court, parties entered trial whence one Nagaraj (5th respondent herein), was examined as WW1 and documents W-1 to W-13 marked, while for the petitioner, the junior engineer of Vani Vilas Water Works was examined as MW-1 and documents were marked as M-1 to M-9.

6. The Industrial Tribunal having regard to the material on record, more particularly the admission of M.W.1 in cross-examination that respondents 4 to 26 were discharging duties of cleaning water tanks and leakage works from the dates of their respective engagements, on contract basis, concluded that the 23 workmen were engaged as labourers as labourers under the contractor by name V. Venkatesh. Since there was no material; placed to sustain the said plea, Industrial tribunal declined to accept the agreement dated 3.2.2004 – Ex. M-7, between the petitioner and one N.T. Dayananda s/o G.T. Gowda for supply of labourers and opined that the petitioner with an intention to circumvent the labour laws, by way of a fiction had created the contract and in the absence of the contractor by name Venkatesh being examined as well as proof of payment of wages through the contractor Venkate