2006 Supreme(SC) 1057

2007(2) Supreme 12
SUPREME COURT OF INDIA
Arijit Pasayat and S.H. Kapadia, JJ.
Bharat Heavy Electricals Ltd.—Appellant
versus
Anil & Ors.—Respondents
Civil Appeal No. 6348 of 2005
Decided on 7-11-2006

Headnote:LABOUR LAW—Uttar Pradesh Industrial Disputes Act, 1947—Section 2-A—Respondents were working as contract labour under a contractor as malis required to clean parks and land owned by appellant—Industrial dispute alleging termination of their service as illegal—Appellant contested dispute on plea that respondents were engaged by contractor, they were never paid wages by appellant and were never under their control and supervision—Labour Court held that respondents had worked for more than 240 days and termination of their service in violation of Section 6-N was illegal—Court held that appellant had retained its control over workers and held appellant to be the principal employer and contractor to be immediate employer—Court directed appellant to re-employ respondents or get them employed under contractor—High Court upheld the award—SLP against judgment was dismissed—In execution of award Assistant Labour Commissioner passed order directing appellant to re-engage respondents through contractors—Respondents moved High Court in writ jurisdiction for direction that appellant should be directed to give employment to respondents and not through intermediary i.e. contractor—High Court allowed the writ—Appeal—Whether High Court was right in allowing writ? No.

       Held : As stated above, the central question which we have to answer concerns the subject of the dispute decided by the Labour Court vide award dated 5.7.1996. The right to employment on setting aside of the earlier order of termination, the right to wages and the right to obtain work from BHEL is different from the right to status as employees of BHEL. Under the said award respondents 1 to 14 were entitled to obtain work from BHEL through its contractor. They were entitled to wages under the said award. However, under the said award of the Labour Court there is no abolition of contract labour. The Labour Court has not conferred the status of a workman qua BHEL. The Labour Court has not granted permanency to them. Per contra, after holding that the work of mali was supervised and controlled by BHEL, the award makes an enabling provision by directing BHEL to re-employ the said workmen in their service or employ them through the contractor. In fact, the operative part of the award further states that it is the contractors who had failed to retain the workmen and terminated their services in breach of Section 6-N of the said 1947 Act. This enabling direction is given on the footing that the work carried out by these workmen was under control and supervision of BHEL. The observations made in the judgment of the High Court as well as in the judgment of this Court in Bharat Heavy Electricals Ltd., (2003) 6 SCC 528 have to be read in the context of the operative part of the award. It is true that, observations have been made by this Court in the above judgment in agreement with the views expressed by the High Court that BHEL had resorted to a camouflage to get the work done through contractor. However, since the work was obtained under supervision and control of BHEL, the award directed these workmen to be employed directly or through the contractor. Therefore, the observations of the High Court and this Court have to be read in the light of the operative part of the award. (Para 16)

       The Labour Court has not granted a status of direct employment per se because BHEL has its own recognized union and that union was not made a party respondent. Respondents 1 to 14 herein were not recruited directly in BHEL; they had never applied for job in BHEL; the appointment letters appear to have been given by the contractor; BHEL has its own waiting list of workmen, who claimed permanency/ regularization; and they were not before the Labour Court. In the circumstances, the Labour Court has enabled BHEL either to directly employ respondents 1 to 14 or employ them through the contractor. The contractor before us states that respondents 1 to 14 are being given work by him, they were paid wages by the contractor. In the circumstances, the ALC was right in directing BHEL to re-employ respondents 1 to 14 either directly or through the contractor. This order was passed by the ALC on 1.12.2003. The ALC was an execution court. The said order is in terms of the award given by the Labour Court on 5.7.1996.(Para 19)

       Accordingly, we set aside the impugned judgment of the High Court by directing BHEL to re-employ respondents 1 to 14 directly or through its contractor. This order will, however, not preclude the workmen from raising an industrial dispute claiming status of direct workmen of the company after joining the recognized union/ concerned union in the said Reference. This order will not prevent the respondents herein from seeking abolition of contract labour in accordance with law.(Para 20)