Engagement by a private contractor cannot be a source for permanent absorption in a Government sector, as it would violate the Constitutional scheme of recruitments and the principles of equal opportunity in public employment.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, forebearing the respondents from terminating the service of the petitioners and further direct the respondents to consider the petitioners representation of 01.09.2014.)

1. The writ on hand is filed to forebear the respondents from terminating the services of the petitioners and further direct the respondents to consider the petitioners representation dated 01.09.2014.

2. The petitioners state that the 1st respondent is a Company owned by the Government of India and is a “State” within the meaning of Article 12 of the Constitution of India. The 1st respondent is an integrated power plant equipment manufacturer and one of the largest engineering and manufacturing company. The petitioners were employed in the North Chennai Thermal Power Station at Athipet Pudhu Nagar Stage II, Chennai. The 1st respondent awarded the contract for erection of the plant, including turbines, boilers etc. Phase II installation project commenced in the year 2008. The petitioners had been recruited and employed by the 1st respondent Company. The petitioners were working continuously without any break.

3. The petitioners state that the 1st respondent-Company utilised the services of the petitioners and further, utilised by the private contractors for the purpose of payment of wages to the petitioners. However, the petitioners were supervised by the officials of the 1st respondent/Management and contractors were engaged only for the purpose of payment of wages. The 1st respondent entered into a contract with the 2nd respondent for the purpose of erection of North Chennai Thermal Power Station Stage-II, Athipet, Chennai and executed the work through its own Engineers and supervised the aforesaid workers.

4. The petitioners submitted a representation on 01.09.2014, seeking for permanent absorption in North Chennai Thermal Power Station Stage-II. The said representation was not considered and the respondents have initiated action to stop the services of the writ petitioners. Thus, they were constrained to move the present writ petition.

5. The learned Senior counsel appearing on behalf of the petitioners mainly contended that the petitioners though made to work under certain private contractors, they were effectively supervised by the officials of the 1st respondent/Company. They were engaged continuously without any break in service and therefore, they are entitled to be absorbed in the permanent vacancies. The 2nd respondent entered into a contract with the 1st respondent for completion of Thermal Power Station project works and the petitioners have served in the said project for a considerable length of time and therefore, they are to be absorbed in the permanent vacancy.

6. The learned Senior counsel drew the attention of this Court with reference to the judgment of the Constitution Bench of the Hon'ble Supreme Court of India in the case of Steel Authority of India Limited and Others Vs. National Union Waterfront Workers reported in [(2001) 7 SCC 1], in paragraph 125 (6) of the judgment made an observation that:

“125......

(5) .................

(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibition employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.”

Relying on