JUDGMENT :

1. Rule. Rule made returnable forthwith. The petition is heard finally by consent of the parties.

2. The petitioner in this petition is a Municipal Corporation established under the provisions of the Bombay Provincial Municipal Corporation Act, 1949. Respondent Nos.1 to 4 are labour contractors, who were engaged by the petitioner. Respondent No.5 is the Union of workers working as Safai Kamgars and Scavengers in petitioner-Corporation.

3. Challenge is raised to a judgment and order dated 26.09.2017 passed by the learned Industrial Tribunal, Jalgaon in Reference (IT) No.01 of 2007, wherein directions are given to the petitioner to treat 645 persons mentioned in Schedule “B” to Memorandum of Demand as direct employees of the Corporation and to give them all the benefits of a permanent employee from the date of Reference i.e. 24.10.2007. The learned Industrial Tribunal held that there is direct relationship as employer and employee between the petitioner and the sweepers as per list Exh. U-1. It is a case of the petitioner that the Corporation had engaged labour contractors to supply labours for various services in the Corporation. The alleged employees were engaged through the labour contractors and there is no direct relationship as employer and employee between the sweepers and the Corporation.

4. The facts as stated in the petition in short are that the Municipal Corporation published a notice on 06.05.2003 for supply of ‘ Safai Kamgars’, when there was an Administrator appointed on the Municipal Corporation. On 05.08.2003, the Administrator approved the tenders submitted by respondent No.1 for the year 2003. The work order was confirmed and necessary sanction was given towards finance. Thereafter, again notice for re-tendering for supply of workers was issued on 19.10.2003 by the Assistant Commissioner. On 29.04.2004 respondent No.1 gave an undertaking before the Commissioner and accepted conditions of work order for supply of workers. This document is termed as an agreement. Same was signed by the contractor and the Deputy Commissioner of the Corporation. On 18.05.2004 similar kind of agreement was executed by respondent No.2.

5. Since services were taken from the workers continuously and no benefits of permanency were granted, on 24.10.2007 the respondent Union submitted a charter of demand. It is contended that the contractors were merely mediators. In-fact the workers are directly employed by the Corporation and there is direct relationship between workers and Corporation. Though there were total 635 posts of Safai Kamgar, however, out of that 522 posts were lapsed as those were not filled-in in time.

6. The learned Industrial Tribunal on appreciating evidence held that the contractors were merely camouflage and were shown only to deprive the Safai Kamgars from their rights by its award dated 02.04.2015. The Corporation challenged the said judgment by filing petition in this Court. This Court by order dated 29.07.2016 had remanded the reference back to the Industrial Court by holding that the onus of proof was wrongly shifted on the Corporation by framing issue No.2 as under :-

“Does the second party Union prove that the Labour Contractors mentioned in the cause title (4 contractors) are a camouflage and whether the Municipal Corporation is the real employer of the 645 Safai Kamgar mentioned in the annexures?”

7. After the remand, the Industrial Tribunal passed fresh order vide its judgment and order dated 26.09.2017 and thus now the Corporation is before this Court.

8. The petitioner has approached this Court mainly contending that the labour contractors were given contract by inviting open tenders by publishing advertisement in the local newspaper. The State Government had taken a conscious decision to permit local self bodies to engage contract workers. The judgment of the Industrial Tribunal is against the law laid down in the case of State of Karnataka Vs. Uma Devi, reported in (2006) 4 SCC 1. The direction to gi