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IN THE HIGH COURT OF DELHI
VIPIN SANGHI, J.
B.S.N.L. - Appellant
Versus
Attar Singh and others - Respondents
Writ Petition (C) 3150 of 2007
Decided On : 20-03-2013
Industrial Disputes Act, 1947 - Termination of Services - Contract Labour (Regulation and Abolition) Act, 1970 - The court set aside the common award passed by the Central Government Industrial Tribunal cum Labour Court II, Rajendra Place, Rajendra Bhawan, New Delhi (CGIT) in favor of the workmen, holding that the termination of services of the workmen without complying with the provisions of the Industrial Disputes Act, 1947, and in not conferring temporary status on them in accordance with the Department of Personnel Training (DoPT) Scheme of September 1993 and thereby not regularizing their services in terms of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 employed through security contractors was not just, fair, or legal. The court found that the contracts between the petitioner and the security agencies were not sham or a camouflage, and the workmen were engaged through security contractors. The court also observed that the workmen had been receiving wages under Section 17-B of the Act, and the effect of setting aside the award would require them to refund the difference between the amount of last drawn wages and the minimum wages, but the court declined to direct the same, treating the amount as adequate compensation payable to them in lieu of reinstatement and back wages.
Fact of the Case:
The writ petitions were filed by Bharat Sanchar Nagam Limited (BSNL) to challenge the common award passed by the Central Government Industrial Tribunal cum Labour Court II, Rajendra Place, Rajendra Bhawan, New Delhi (CGIT) in several references made in respect of the respondent workman. The CGIT had answered the reference in favor of the workmen by holding that the action of the petitioner management in terminating/disengaging services of the workman without complying with the provisions of Industrial Disputes Act, 1947 (the Act), and in not conferring temporary status on them in accordance with the Department of Personnel Training (DoPT) Scheme of September 1993 and thereby not regularizing their services in terms of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (the CLRA Act) employed through security contractors was not just or fair or legal. The management was directed to reinstate all the respondent workmen. The terms of reference made to the CGIT did not contain any reference for examination of the issue whether the contracts between the petitioner and the security agencies were sham or a camouflage. The workmen were engaged through security contractors, and the contracts were not sham or a camouflage.
Finding of the Court:
The court found that the contracts between the petitioner and the security agencies were not sham or a camouflage, and the workmen were engaged through security contractors. The court observed that the workmen had been receiving wages under Section 17-B of the Act, and the effect of setting aside the award would require them to refund the difference between the amount of last drawn wages and the minimum wages, but the court declined to direct the same, treating the amount as adequate compensation payable to them in lieu of reinstatement and back wages.
Issues: The termination/disengagement of the services of the workman with effect from 1.9.2002, whether the same was illegal on account of non-compliance of the provisions of the Act; Whether the non-conferring of temporary status on the workman in accordance with DoPT Scheme of September 1993 was fair just and legal; Whether the non-regularization of the services of the workman in terms of the provisions of the CLRA Act-employed through security contractors, was just fair and legal.
Ratio Decidendi: The contracts between the petitioner and the security agencies were not sham or a camouflage, and the workmen were engaged through security contractors. The workmen had been receiving wages under Section 17-B of the Act, and the court declined to direct them to refund the difference between the amount of last drawn wages and the minimum wages, treating the amount as adequate compensation payable to them in lieu of reinstatement and back wages.
Final Decision: The writ petitions were allowed, and the impugned common award dated 4.12.2006 was set aside, leaving the parties to bear their respective costs. All the pending applications stand disposed of.
Vipin Sangh, J.
1. This batch of writ petitions under Article 226 of the Constitution of India have been preferred by Bharat Sanchar Nagam Limited (BSNL) to assail the common award passed by the Central Government Industrial Tribunal cum Labour Court II, Rajendra Place, Rajendra Bhawan, New Delhi (CGIT), in several references made in respect of the respondent workman. The reference in respect of each of the workman is more or less identical. The same issues arise from the references and, consequently, have been dealt with in the common award passed by the CGIT. As an example, I am reproducing herein below the reference made in respect of Sh. Balbir Singh-the respondent in W.P. (C.) No. 3649 of 2007, which reads as follows:
Whether the action of the management of GMTD, BSNL, Faridabad in terminating/disengaging the services of Sh. Balbir Singh So Sh. Khajan Singh w.e.f. 1.9.2002 without complying with the provisions of the ID Act, 1947 and non-conferring of temporary status on him in accordance with the DOPTS Scheme of September 1993 and thereby non regularizing his services in terms of provisions of CL (R & A) Act, 1970 employed through security contractors viz. Luxman Security Agency, Keshav Security Services, Anuradha Security Services was just, fair and legal? If not, what relief he is entitled to and from which date?
2. The CGIT by the impugned award has answered the reference in favour of the workmen by holding that the action of the petitioner management in terminating/disengaging services of the workman without complying with the provisions of Industrial Disputes Act, 1947 (the Act), and in not conferring temporary status on them in accordance with the Department of Personnel Training (DoPT) Scheme of September 1993 and thereby not regularizing their services in terms of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (the CLRA Act) employed through security contractors namely, Luxman Security Agency, Keshav Security Services, Anuradha Security Services is not just or fair or legal. The management has been directed to reinstate all the respondent workmen. Some of the workman in respect of whom references were made had not led their evidence and, consequently, no such direction has been issued in respect of them. They are not before this Court. The CGIT has also awarded 50% back wages to the respondent workman w.e.f. 1.9.2002.
3. Ms. Birbal, learned counsel for the petitioner has submitted that the only three issues which were referred for determination by the CGIT were in relation to:
(i) The termination/disengagement of the services of the workman with effect from 1.9.2002-whether the same was illegal on account of non compliance of the provisions of Act;
(ii) Whether the non conferring of temporary status on the workman in accordance with DoPT Scheme of September 1993 was fair just and legal, and;
(iii) Whether the non regularization of the services of the workman in terms of the provisions of the CLRA Act-employed through security contractors, was just fair and legal.
4. Learned counsel submits that the terms of reference did not refer the issue with regard to the contracts between the petitioner and the contractors, namely, the three service security agencies mentioned in the terms of reference, being sham or a camouflage, for adjudication by the CGIT.
5. Learned counsel for the petitioner submits that in the BSNL there was a practice of appointing labour contractors for providing of security services. She submits that such contracts were legal, as there was no prohibition against the employment of contract labour for provision of security services-as no notification u/s 10 of the CLRA Act had been issued by the Central Government. She submits that earlier private security agencies-such as those mentioned in the terms of reference, were also being engaged. However, an office memorandum dated 1.2.1999 was issued by the Department of Public Enterprises, which was later followed by the Defen
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