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2012 Supreme(Mad) 2080
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
Madras Refineries Limited, Now Known as Chennai Petroleum Corporation, Rep.by its Company Secretary & Others
Versus
The Chief Commissioner for persons with Disabilities, Sarojini House & Others
W.P.Nos.4368 of 2009, 26724 of 2010, 6371 of 2011 & Connected Miscellaneous Petitions
Decided On: 26-04-2012
For the Petitioners:Sanjay Mohan for M/s. Ramasubramaniam & Associates, S. Jayaraman, Advocates. For the Respondents:B. Vijayakumar, V. Prakash, Sr. Counsel for Ms. Ramapriya Gopalakrishnan, Advocates.
The determination of the jural relationship of employer and employee requires consideration of various factors, including supervision and control, nature of work, and the burden of proof. The judgment also emphasizes the binding nature of settlements under Section 12(3) of the Industrial Disputes Act and the process for seeking abolition of contract labour under the Contract Labour (Regulation and Abolition) Act, 1971.
Headnote:
Sham and Nominal - Industrial Dispute - Contract Labour (Regulation and Abolition) Act, 1971, Industrial Disputes Act, 1947 - The judgment discusses the legal framework surrounding the determination of the employer-employee relationship in the context of contract labour. It emphasizes the factors to be considered in determining the jural relationship of employer and employee, including supervision and control, nature of work, and the burden of proof. The judgment also highlights the binding nature of settlements under Section 12(3) of the Industrial Disputes Act and the process for seeking abolition of contract labour under the Contract Labour (Regulation and Abolition) Act, 1971.
Fact of the Case:
The case involves three writ petitions filed by the Management of Madras Refineries Limited, now known as Chennai Petroleum Corporation Limited (CPCL), and the Madras Refineries Limited INDCO Serve Society Limited, challenging an order of the Chief Commissioner for Persons with Disabilities, New Delhi, and an Award of the Central Government Industrial Tribunal (CGIT) in an industrial dispute. The dispute concerns the absorption of workmen from INDCO Serve into CPCL.
Finding of the Court:
The court set aside the Award of the CGIT, finding that the arrangement between CPCL and INDCO Serve was not sham and nominal. It held that the demand for absorption of employees was misconceived and not legally sustainable. The court also emphasized the binding nature of settlements under Section 12(3) of the Industrial Disputes Act and the process for seeking abolition of contract labour under the Contract Labour (Regulation and Abolition) Act, 1971.
Issues: The main issue was whether the arrangement between CPCL and INDCO Serve was sham and nominal, and whether the demand for absorption of employees was legally sustainable.
Ratio Decidendi: The court emphasized that the determination of the jural relationship of employer and employee requires consideration of various factors, including supervision and control, nature of work, and the burden of proof. It also highlighted the binding nature of settlements under Section 12(3) of the Industrial Disputes Act and the process for seeking abolition of contract labour under the Contract Labour (Regulation and Abolition) Act, 1971.
Final Decision: The court set aside the Award of the CGIT and allowed the writ petitions filed by the Management of CPCL and INDCO Serve. It also provided directions regarding the consideration of the complainants' cases for future recruitment by CPCL.
Common Order
1. W.P.No.4368 of 2009 is filed by the Management of Madras Refineries Limited, now known as Chennai Petroleum Corporation Limited (for short CPCL), seeking to challenge an order of the Chief Commissioner for Persons with Disabilities, New Delhi, dated 30.01.2009.
2. In that case, the Commissioner, on an complaint made by two workmen M/s.E.Seshadri and C.Vijayakumar found that they were party to the industrial dispute before the Central Government Industrial Tribunal (for short CGIT) in I.D.No.128 of 2001 and an Award was passed on 30.08.2010 by the CGIT. It also observed that CGIT will take care of the general issues relating to absorption of employees including the two complainants. But with reference to the compliance of the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is concerned, it is for the Commissioner to go into the issue to ensure that the complainants get their entitlement guaranteed to them under the provisions of the Act. Therefore, the Commissioner gave a direction to CPCL to calculate reservation for persons with disabilities as against the vacancies filled since 1996 in Group 'A', 'B', 'C' and 'D' based on separate 100 points rosters in which points number 1, 34 and 67 were earmarked for persons with disabilities and absorb the complainants against any Group 'D', 'C' posts like Handyman / Yardman, Office Assistant, Chair Recaner, Plumber, etc., against the backlog reservation within 45 days from the date of receipt of the order. It was further directed that the concerned Liaison Officer nominated by the CPCL shall ensure correctness of calculation of reservation and maintenance of rosters for Persons with Disabilities and prepare a plan of action to conduct a Special Recruitment Drive to fill backlog reservation for persons with different disabilities in accordance with the provisions of the Act.
3. That writ petition was admitted on 25.03.2009. Pending the writ petition, notice was ordered in the interim stay application. Subsequently, this Court by a detailed order dated 18.11.2009 dismissed the stay application. When that writ petition came up on 14.07.2011, and the matter being mentioned by the learned counsel for the Management, other connected matters were directed to be posted along with this writ petition.
4. W.P.No.26724 of 2010 is filed by the Management of CPCL, seeking to challenge an Award of the CGIT made in I.D.No.128 of 2001 dated 30.08.2010 and seeks to set aside the same. By the impugned Award, the CGIT answered the reference in favour of the workmen represented by the second respondent Trade Union.
5. That writ petition was admitted on 26.11.2010. Pending the writ petition, an interim stay was granted for a period of four weeks. Subsequently, it was extended on three more occasions. On 20.01.2011, this Court observed that when specific assurance was made by the Management of CPCL that interest would be paid, if they lose in the writ petition, and taking into consideration the financial constraint and implication of deposit of a huge sum of money by a public sector undertaking, the interim stay was made absolute without any condition. It also recorded the undertaking given by the third respondent viz.,Madras Refineries Limited INDCO Service Society Limited that they would continue to grant benefits whatever granted earlier till the disposal of the writ petition.
6. W.P.No.6371 of 2011 is filed by the Madras Refineries Limited INDCO Serve Society Limited, (for short INDCO Serve) challenging the very same Award in I.D.NO.128 of 2001 dated 30.08.2010. That writ petition was admitted on 15.03.2011 and it was directed to be posted along with the writ petition filed by the Management of CPCL.
7. Since all the three writ petitions are interconnected, they were grouped together and at the consent of parties, they were heard together and a common order is passed.
8. For the sake of convenience, Manageme
