B.S.N.L. v. Nittai Singh & Ors.

5. Lear-necl counsel submits that the terms of refelencc did hot r-efer t6c issr-rc with legalcl to the contracts betwden the petitioncr ancl the contrarctors, namcly, thc three service security agencies mentioned in the tcrms o['rcfercnce, being sharn or a carlouflage, fol adjr"rdicalion by the C]GT'I"

6. Lcarned counsel for thc petitioner submits that in the BSNL thele w4s a practice of appointing labout contractors for providing of security services. She subrnits that such contracts were legal, as thele was no iii) \ \ sccllrity services.- as no notification ttndel section 10 of the CLP'.A,r-\ct had Sccn issLrecl. by thc Central Govetnment. She submits that earliet.ptirrate scctrrity agencies - such as th.ose mentioned in the tenns of reference, vvere also bcing erigagecl. Flowever, an office rlemorandum datcd 0I.02.1999 wuls issLrccl by thc l)epartrncnt of Public linterpliscs,. whicl, wers latcr tbllowccl by the I)efence Ministry's cit'cttlar dated 26.04.2001. 1'hey rcciLrirccl. t6at all llsNl establishments should engage the security pelsorurcl l.rorn the Director'(ieneral Resettlernent (DGR).sponsorecl agencies only'

7. Shc sr-rbrnits that in the light o.f the aforesaid instrr-rctions, I3SM, issr:cd uI mculorandurn clatecl 03.04.2002 incorpolating thc saicl condition. Oonscquently, the contracts with private security agencies which wele not s[1]:o'sorecl by tlic DGR hacl to be discontinued. Learned cottnsel subrnits Lhat alIthc rcsponclents wcre ernployecl through the said secr-rrity agencies. tj, l,calrcd counsel 'fol the petitioner has drawn'the atte.ntion r:f the Cor-rrt to thc jr-rdgment of the l)ivision Bench of this Coutt tn l(estreav securitjt services Ltd. v. (Jnion oJ'India & ors.,2004II A.D. (Delhi) a69..l.he 'etitioler- I(eshav Security Services Ltd. had sought to assail the 'r.csoriptio[6] laicl clown by the Dcpartment of Enterplises, as afolesaid, that only DCI{ sponsorecl agency be engaged for providing security set'vices to t.lrc pctitioncr'.

9. 'l'hc Division Ilench rejcctecl tlre said challenge by holding that it was not lecessary for the IISNL to adopt open.tender systern for' ctlgagcltlcnt of 'sccr-rr-ity services, ancl the petitioners action of drzrwing I,[1] \t[2].\ \ por cliscrirlinatory, ancl the safiIe was "held as not being violative of Articic I zt o I thc Constitution of India.

10. Leaned counsel fol the petitioner has submitted that a perusai of Llic nwarcl shows thal the sanle is prirnarily premised on a finding that the cgntracts between the petitioncr and the seculity ageircies were sham and a caurouflagc. She submits that the saicl issue dicl not alise for consideration bclbrc tlic CGI f - either frorn thc telms of reference, or evcn fi'orn the pleaclilgs of thc parties. She has refelred to the following extract fi'om the irrrpggnecl awarct to subrnit that the discr-rssion and finding of the CGIT to the cftbct thzit thc contract betwecn the petitioner and thc scct-tr:ity agcncics are shzin apcl a camouflage has swung the dccision of the tribr"rnal in favolll of Lhc rvor-lcman. The relevant extract in the awarcl reacls as follows: ' (.(.1t. became qtite obvior,ts that the management has not.filed cop)) of even conlt act agreenxent with the contractoi and c{ocrrntents regarcling payment to the contractors. The v,orlotten have,filect attendance sheets to shotv their presence. The,rinogu*ent has not cleniecl the pholocopies oJ' a.ttendance sheets fiIed by the yvorlatten. There is no enclorsement of clental. The managetnent vvitness laas not statecl in his cross examination that photocopies are nol' trtte Copies o,f' the origina.L attendance sheets. The ori.gi,nal a.llenclance sheets are in l.:he possession of the mancLgentent' so the yvorlcmen cannol be expected to fite the same. The yvorlcnten have filed attendance sheet front January, 1996 to.IantLarlt, I9gB. These attendance sheets are admissible in etticlence as the originals are n the possession af the ntanagentent. This proves the fact that the worlattett have worlcecl in the prentises of the management as Secw"ity (ittarcls conti.ru,totrc\tfrom Jcmuary, 1996 to Januarlt, I99B' {o Igg[5], 1996, 1997, 1998 and they have yvorlced contiru,totnly tilt 01.09.2002. The chart of the dtu"ation of worlc of the yvorlmten. has been given. The yvorlalen have cleposed that they vvorlced under. the st4tervision and control of the management. DtLty l,vcts cti,signecl to the yvorkmen by the Junior Engineer of the tnanagement. It yvas the burden of the management to prol)e that the contractors hcwe made payment to the worlcnten' No strch paper in proof of the payntent being made by tlne conlraclors tct the yvorlotten has been filed by the ntanagentent. It was ftu.ther subtnitted that there was no contract agreenxent between the contractors and the management. T1eyvor|cnlenweretakendirectlybythemanagenxent'The contrctcl'ors were nxere name lender. They got sonxe conunissi.on. [n case- of real contract there zs agreement betvvdett the ma.nagetnent ancl the contractor for sttpply of t'vorlotten on cerlai.n terms a.ncl conclitions. lVages are to be paid by the conlrctclor. ]iPF is to be cleposited by the contracl:or. The yt,orlcnten cre enrolled in ItgC. The m'anagen'tenl has not.filecl a.ny pa]2er to prove that EPI| yvas deducted from the "14)ages of the worlcm.en and their. names were registered b1t the contractors tLncler the ESIC Scheme. No such docwnent ' ";';r-;";" fil"d This proves that there yvas no'conlrctct in exislence ancl the yvorlcmen vvorlced directly under the control ancl srpervision of the nxanagenxent. The workmen cannot be expectecl, to./ile slips of EPF and the Registration Card under tisrc. These are itaterial doa,ments for a valid contrcLct but no strch clocttment has been fited by the managentenl. The tttorlctnen have filed photocopies of attendance sheets tte4rifiecl by the Sub-Divisional Engineer, SDE and the Jzmior lingineer ancl these cloctrments have not been clenied vvor/otten \} a\ (1 cl,tarl of lentu,e of worlc of the yvorlcrnen. It also stands proved thal tl'te nxcmagement has been making payntent directly. There is no contractor even as nanle lender. No EPI' has been cleposited. The yvorkmen have not been r€gistered utder ESIC Schente. The management has committed grave violation o/'the provisi.ons of the ID Act, 1947, Pl Act and ' et,en I|SIC. Sttch practice l'tas been held as unfait; la,bom" pra.ctice und.er ID Act, 1947." I l. l,earnecl connsel.fiol t]re petitioner submits that the staternent of clailrs tilecl by thc respondent worlcrnen is identical. In the said staternent of clai'r, there is not a whisper to suggest.that the security contracts enterecJ ilto bctwcen the petitioner and the contlactors were sham o[ cairlouflage. 'flie saicl staternent of claim is rather short and cryptic. The relevant pail of thc samc reacls as follows: " I. |'hat lhe Claimant/Worlcman was employed by the a'bot'e: tilanagemenl since l;eb. 1999 and at the relevant periodwa.s y,orlcing as a S. Gttarcl and was drawing a monthly wcLges 'of Ils. 2650/-

2. That the yvorlc and condttct of the yvorlcman lvas qtdte satisfactrtryt dtLrtng the period of employment.

3. That lhe DILA/IAND NOT"ICE of claimanth,vorlctncLn' nxay ctlso lte reacl as part oJ this claim statement. The photocopy of the Dem.ancl Notice is enclosed as Annex.A wi.tlt tlt.is claitn,stal.entent.

4. That tl'te ctforesaicl rttanagem.ent terminated the services of the a.bove namecl'tvorlcman with effect from 01.09.2002 by ver.bal orcler. This is a. case of refi.Lsal of dttty and a'tnoLtnts to of services and retrenchment and that too vvithout //7 J) ofunfairlabou"practice.Afterterminationnxyservicesthe iforisaicl Managentent appointed new other employee. In nty.. ptorn,,vhich is ttiolation' of the I'D' Act, 1947'

5. That the terndnation of services in the instctttt case is tvrongfril, illegal, against the principles _of natLu'al iustice, nroplpde orio casi of t inclictiveness and also unfair lcLbow" practice, the utorlcntan is, therefore, entitled to re-insta'tentent "tvith all conseEtential benefits including wages for the intervening Period. It is, therefore, prayecl that the Hon'ble court be pleased to pass an ayuard in clirecting the Respondent/Managentent to reinstate the worlcntan in their services vvith ft'il| ba'clc wctges, ancl tvith continttity of services and with all benefits" '

12. She submits that a perusal of the demand notice which was an:rexed as AnnexLlre-A to the statement of claim,.also placed on record, shows that the respondelt worlanen clicl not allege the contracts between the petitioner and the security ug"rr"i"s to be sham or a calnouflage'

13. Learned counsel for the petitioner submits that the CGIT lrad no jurisdiction,to go into the issue as to whether or not the contracts entered into between the petitioner ancl the security agencies \'vere sham or a camonllage, since no such dispute was raised by the respondents;. no reference was made by the appropriate govelnment i[1] that respect, and; there wefe no pleaclings rnade to that eftbct by the respondent/claimants' Sl.re places reliance on the decision of this court inAshok nfuirnm' & ors..v' The stnte & Anr. in w.p.(c.) Nos.9438-4212004 decided on 20.12.2006, MANU/D ElgBLl12006. In this case, the learned Single Judge observed that no dispute hacl been raised about the contract being sham or a camouflage' {e \ 'l'he clairri of.tlre workrnen was that they were direct employees of the managetrient and did not clairn that they were ernployees of the contractor. f'he Cor-rrt observed: "Il. is notv settled. layv that where the worlcmen claint that the contracl beh,veen principle employer and contractor was sham a.nd camottflage, they have to raise an. industrial clisptie to that "ff"gt and it is indtrstrial adjudicator who, after goiug throttgh the evidence and the ternts and concli.tion,s of the contr.act and other circwnstances has to clecicle ythether t'he contract bettveen principal ernployer and lh.e contractor was sham and camonflogr". I tl. In parra 7 of the judgment, this Court further observeci as follor,vs: I "It i.s obvious that the v,orlcmen in this case clicl not raise correct disprLte and did not approach t'he appropriate Governntent with the contentions that the contract was shant ancl cantozLfl.age or that the contract labortr system should be abol.ishecl. They got referyred a dtsptie that they were the ernploStees of the management and lvere not being regrtlarized. Th.ts clatnt was.found false. The Labow cow"t hctcl. no ctlternative bttt to disnciss the claint. It is settled law thcrt the Labotu, Cottrt/Tribrmals cannot travel beyond the " Ierms oJ'reference. If no reference had been ntade to the Laborn^ Cotrt for determining whether the contract was sham ancl catlxotLflage, the Labotr Cotrt cottld not have entered into thts isstrc and decid.ed yvhether the contract vvas shant and. cantottflage".

15. Lcarned collnsel for the petitioner has dlawn the attention of the Clolrt to t6c written statement filecl by the petitioner before the CGIT. It is sllbmittecl that in its written statemEnt,.the petitioner had stated that thele t- {4 responclepl. workman hacl neither been engaged nor recruited by the;rctitioner n'lanagen'tent and that the respondents were not members of the scrvicc. No appointment letters have been issued to them, nor were their' sc1vices tellinatecl by the petitioner management. Reference hact also been rnacf e to tlrc aforcsaicl judgrnent of the Division Bench in thc case of Keslaav Secttritlt Sen,ices /.trl (supra). It was pleaded by the petitionel that the secr.rrity personnel provided by the security agencies are in no way colgcctecl with the recruitrnent procedure of the petitioncr management. Ratlier, they are ernployees of the agency under the terms of the employmenl scttlecl between the workmel and the agency concerned.

16. Learnecl counsel for the petitioner has also referrecl to the affidavit by way of eviclence filecl by the petitioner management of Sh. Netra Pal Si1g, AGM, I',egal working in the office of the (ienclal Manager' Acluri6istrative Cornplex, Faridabad, wherein he had statecl that the workrncn were neither employed by the management nor were they Lcrrlinatccl/r'ctrenchecl and that thele was no ernployer-employee relationship bctweel the wolkman ancl the rnanagement. It was also affirined that in vicw of the judgrncnt in l{eshav Security Services (supra), all the BSNL cstablislirlents engage the worlanan from DGR sponsored agency only.

17. Lcarncd counscl for the'petitioner has placed leliance on the cf ccision of tlie Snpreme Coufl in Indiun Drugs and Fknrrnsceuticals nid. t,. The Workman, fndian Drugs and Pharntaceuticals nJd., (2007) I SCC 40g. 'l'lic Sr-rprcmc Court afler referring to lhe judgment of thc constitution {a sight of. No doubt, Article 41 provides for the right to wolk, but this has bcen dcliberateiy kept by the founding fathers of the constitution. in the clirective principles ancl hence made unenforceable in view of Ailicle 37 of the Co'stitntion, because the founcling fathers in their wisdom realized'that u,liilc it was their wish that evelyone should be given employrnent, the grorurc[ r-ealities of onr country did not pennit the same. l'he Supi'eme Coult observecl that Arlicle 2l of the Constitution cannot be stletched so far as to r1cal thart everyone must be given a job. TIle number of available jobs is li'ritecl ancl hence the courls must take a realistic view of the matter and murst cxet'cise seif restraint. It]. ()1 the other hancl, Mr. Nandrajog, learned counscl for- the rcsponclc't worknr.an has subrnitted that in the present case, the petitioner hacl lailcd to leacl any eviclence beforg the cGIT to esterbiish that the r,r,orkmarn hacl been engagecl thlough the contractoLs. Thqy did not pfodr-ice erny clocument or othel eviclence to show that there wel'e any contracts c'terccl ilto belween the petitioner and the contractors/security agencies; t6at tlre security agencies had, in turn, posted the worlcman at the facilities of tlre pctitioner'; that the salaries of the workman have bcen paid by, the contractols and not by the petitioner directly. It was not even disclosed as to which of the wo1kman hacl been cleployed through which of the contractbrs. Apa't f'om lililg thc affidavit by way of eviclence, as afot'esaid, no clocr-uncntary cvideucc was placcd on t'ecord by the petitioner management' lle sr-rbmits that the case of the r'espondent workman was that they \'vcfe ciirect appointees/employees of the BS.NL' I I {r isstrecl by thc respondent workman categorically stated that the petitioner "onl1t ha.cl ctltpointed nte in this institt'ttion but had'not given me any ctltpoin1ntenf. Ietter nor cmy attendance card nor even any vvages slip vvel"e piven. \'he a.mottnl toyvarcts ESI ancl PF were being cle:clarctecl front tny,tontl,tllt sctlarlt f,ont. the very beginning btft neither I vvas given ESI ccu"cl or,n1t !:li',r1in. An.cl on the pretext ofpension scheme, had gol sigttecl b1t nte on lt lanlc papers, blanlc vouchers ancl blanlc vot'rchers" '

20. l-Ie sr-rbmits that in their written statement, the managctlent clic[1] nbt speciliczrlly disclose as to by which secur-ity agency, each of these wolkmen. wcre clcployccl thror-rgh. 'fhe said position was not elaboratecl cven in thcir' affidavit by waY of evidence.