Bharat Sanchar Nigam Ltd. v. Bhagat Singh

5. l.,earlecl counsel sr,ibrnits that the terms of leference did irot r'efer: tlrc issurc with regarcl to lh. contracts between the petitioner ancl the contractors, narnely, thc thiee selvice security agencies mentioired in the tc'ns ol'rcl'ercncc, being rhum or a carlouflage, fol adjudication by the CCI'f.

6. I-ealned counsel fcir thc petitionor submits that in the BSNL there wars, praoticc of appointing laboul contlactols for plovicling of secr-rr-ity services. ' Slie sr-rbrnits thal such contracts wele legal, as thele was no q+ scclll-ity scr\/ices.- as no notification nncler section 10 of the CLP..A,Act hacl bccn issLrccl by thc Central iGovernrnent. She submits that ear'lier plirrate seclrily zigencies - such as ihose mentionecl in the terms of refet-eirce, vvere; also beir-rg erigagecl. HowQver, an office melnorandum dated 0L-02.1999 wls issr-rccl by thc l)cpartjLncnt of Pr-rblic Enterpriscs, which was latcr followecl by thc Defence iMinistly's circttlal datecl 26.04.200I' l'hey rcciLrirccl t6a[1] all IlsNL establishments should engage the security pelsonncl frorn the Director (ieneral RLsettlement (DGR).sponsor'ed agencies only. i

7. Slic subrnits that in the light of the aforesaid instructions, llSNJ, issurccl eI rllcrnoranclurn clateid 03.04.2002 incorporating thc saicl condition. Colseqyeptly, the contractsr with plivate security agencies wirich wete not slro*sorecl by thc DGR had to be discontinued. Learned counsel subrnits thert all thc rcsponclents w"t{ ernployed through the said seculity agcncies. i I 'tt. Learnccl counsel tbr the petitioner has drawn'the attention clf the Corrrt to tl-rc jr-rclgrnent of ith" I)ivision Bench of this Cor-ut in Kestrsat' Secttritlt Sen,ices I-tcl. t,. Uhion oJ Intlio & Ors.,2004Ii A.D' (Delhi) a69' 'l'he petitiorrer I(eshav Sebr-rrity Selvices Ltcl. had sought to assaii the ltr-cscription laicl clown by the Dcpar-tment of Enterprises, as aforesaid, that olly DGlL sponsorecl agenqy be engaged for providing security setvices to i tlic pctitioncr. I c). 'l'lrc Division Ilengh rejcctecl the said challenge by holding that it was n6t nccessary for the IISNL to adopt open.tender systern fol cngagc'rcnt of 'sccr-rrity sglvices, ancl the petitioners action of dr:awi1g qs nor clisclimiuatory, ancl the Same was.Jrelcl as not being violative of Arti.l,, lz[ oI'thc Constitution of Inclia.

10. I.ealned connsel foi tlie petitioner has subrnittecl that a perr:sal of L5c awarrcl shows that the salle is plirnarily prernised on a finding that the c6ntracts between the petitiQner and the security ageiicies were sharn and a oalrroLrflagc. She subrnits t(at the said issue dicl not arise fol ionsideration lrcforc tirc CGI'I' - either fiorrr.thc telms of refer"rr"., or cvcn fiorn thc pleaclilgs of thc parties. Shle has refen'ed to the following extract from the inpggpccl awarcl to subrnit t$at the discussion and finding of the CGII] to the ' ctl-ect thert tl-re contract betvr4ecl the petitionel and thc sccurity agcncics ale or-rflage liasiswung the dccision of the tribunal |n favor-r[1] of thc rvorlcmau. l['he relevant fxtract in the award reads as follows: i,,.1t becante qtite i,buior,, that the nxanctgerytent has nof filecl copy of even coniract agreenl.ent with the cOntractor and cl.octnnents regarlling paymbn.t to the contractors. The ),t,orlonen hcwe.filect attendance sheets to 'shovv their presence. The nriro.gn,nent ha.s not clenied the photocopies oJ' ctttenclctnce shqets filed by the worlatten. There is no enclorsentent o.f ilenial. The management vvitness has not s1atecl. i.n his crossi,examination that photocopies are not lrtLe copies oJ' the o,tgma.t altendcmce sheets. The ori.ginal allenclance sheets"are i.n the possession of the ntanagement' So the yvorlcmen tannot be expected to file the sam./. The yvorlunen have fitt)d attendance sheet from January, 1996 to.Ia.ntnry, l998. Tl,tese attenclance sheets are admissi'ble in etticl.ence aS the,,originals are n the possession a.i the managentent. Thii proves the fact that the worlcitten have yvorpicl in the pientises of the nxanagement as Secw'ity (]tnrc{s continttotls\, fr"om Jcmrnry, 1996 to Jaru'mr1t, 1998. 4s 1995, 1996, 1997,il998 and they have worked contiru'tot'tsly till 01.09.2002. The chart of the dau"ation of worlc of the yvctrlonen has b eenigiven. I The v,orlonen hav,e cleposed that they vvorlced tmder the stt.pervision ancl bontiol of the ntanagement. DtLty was trs,signed to the vr)rcrkmen by the Jt'tnior Engineer of the ntanagernent. It tvhs the burden of the managenxent to prove lhaf. the contractors have made p.qyment to the worlcm.en. No sttch pctper in prpof o;f the payntent being made by'the conlraclors to tpe worlotten has been filed by the nta.nagentent.; It..vvas ftrther s,t'tbtnittecl that there was no contract (tgreenxent befuveein the contractors and the tnanagernent. The vtorlcm.en tver'g talcen directlt by the managentent. The conlraclors werei, mere name lender. They got sonxe conttn.iss i.ott., I 'In ca^ee of real cpntract there zs agreement betuve'ett the ma.nagement and ihe contractor for supply of worloltett on cerl.a.i.n ternts and'conditions. 'lVages are to be paid $t the con.traclor. EPF' ii to be deposited by the contractot'. The yvc)rlcnten ctre enrdtled in ItgC. The m.anagemenl has not./'iled ctny paper to:,prove that EPI[7] vvas dedt'Lc.ted f'om the y)ages o.f the worldnen and their names were registered by the contrcrctors tLnder the ESIC Scheme. No such docmtent has been filect. Tl')is proves that there rvas no'contract in existence ancl the ri,orion"n worlcecl clirectly under the control ancl sttpervision oflth.e nxanagenxent. The worlanen cannot be expected to file slips of EPF and the Registration Card under listC. Tl,tese'are ntlaterial. docutnents -fo, o valid contract but no strch doctunenti, has been filed by the managentent. The y,orlctnen ha.ve filed photocopies of attendance sheets tte4rifiec{ by the iStib-Dtvtsional Engtneer, sDE and the Jtm.ior lingineer aytd these doctunents have not been denied cha.rt of teru.u,e of wbrlc of tl,te worlcnten. It also stands proved tha[1] the tlxanagement has beert ruaking payment directly. 'fhere is no contra1tor even as name lender. No EPIr has Iteen. clepositecl. The'7,vorlcmen. have not been registered under trflC Scl'tente. Thl,e managentent has cornmitted gr^)e violation o/'the provisions of the ID Act, 1947, Pl" Act and el)en Ii$C. Sttch p,ractice has been held as u{air la.bot'u":.' Pr"acli.ce ttnder ID A'ct, 1947 '" i I I l. L,earnecl counsel f-cir the petitioner subinits that the statemelrt of I clari'rs ti lecl by the respondent wolkmen is identical. In the saicl statement of clni'r, thcre is pot a whisper to snggest.that the security coritlacts entered ilto bctwcel the petitionel jand the contractols we e sham or camouflage. 't'he saicl slaternent o[ claim iis lather short ancl cryptic. The relevant pail of lhc samc reads as follows: " l. I.hat the claimtqnt/worlcmun was employed.by the cLbove tna.nagenxenl since'lieb. 1999 and at the relevant period was worlcing as a S. Gtlard and yvas drawing a monthly wa,ges of Its. 2650/-. i

2. Tha.t tlte worlc'i ancl conchrct of the vvorlcman vvas qttite s a t i s.fa. c t ct ryt dtu" i rt g'',t h e p er i o d ofemp I oym enl.

3. \'hat tlne DI\MAND NOTICE of claintant/tvorkmctn llxay ctlso be reacl as pa\l oJ'this claim statement. The photocopy of the l)enta.ncl Noficb is enclosed as Annex.A vvi.th this claint,sta.l.entent. i i

4. Thal. the cforesVtcl. I1'tanagem.9nt terntinated the servicds of the ctbotte namecl J,vorlcman with efect from 01.09.2002 by ver.bal orcler. This 'is a. case of refusal of duty and atnounts to tha't too vvithotLt

12. of mfair labattr piactice. After termination nxy services the iforisaid Managpn\ent appointed net'v other employee' ht nry plcrce which is violc(ion of the I.D. Act, 1947'

5. That the terntipation of services in the instant case is y,rongful, illegal, qgainst the principles of nah'Lral justice' nrololTcle ancl-a ca;e of vindictiveness and also unfa'ir labou' practice, the v,orlcryan is, therefore, entitled to re-insta.tement -tvith att conseqtintial benefits including wages for the intervening Period.i It is, therefore, prhyect that the Flon'ble Court be pleased to pass an ctutard in directing the Respondent/Managentent to reinstate the vtorlcnthn in their servtces vvith ft'Lll back'Yvages, ancl with contint'tity, of services and vvith all benefits" ' She sr"tbmits that a berusal of the demand notice which was annexed as Annexure-A to the state|ent of claim, also placed on recold, shows that the responclent worlanen did not allege the contracts between the petitioner ancl the security agencies tolbe sham or a camouflage' I

13. Learned counsel fb, tfr. petitioner subrnits that the CGIT liad no juriscliction to go into the issue as to whether or not the contracts enterecl i'to betweel the petitionfr and the security agencies lvefe sham or a canouflage, since no such clispute was raised by th.e respbnclents;' no reference was made by the appropriate government in that respect, and; thete were no pleadings ryade to that eft'ect by the respondent/claimants. Slre places reliance on the (Iecision of this Court in Ashok n{wrmcw & Ors..' v. TIte State &,4.nr. in W.P;(C.) Nos.9438-42/2004 decided on 2C'12.2006,. MANU/DEpB}712006. Irlthis case, the learned Single Judge observed that no dispute hacl been raised about the contract being slaam ol:.a camouflage. 'l'he claim of tlre worlclenl was I that they were direct employees of the I managetnent and clid not clajirn that they were ernployees of the contlactcjr'. f'he Cor-rrt obselvecl: i i "iIt i, notrt settl"d. kl, that where the worlcnten claitn that the contra.ct beh,veen principle employer and contractor vvas shant and camottfl,ctge, they. hcwe to raise an industrial clislttie to that "ffd[7], and it is in&,ntrial adjttdtcator who, after going throulh the evidence and the terms and conclition,t of the ctontract and othei circttmstances h.as to clecide ythether thetgontract betuveen principal employer and lhe conlractor was lrham and catnouflage". I 1tl. In pala 7 of the juclgirnent, this Courl further observed as follows: "Il. is obttiotts thatlthe worlcmen tn this case did not rarce corcect clispade o+rt dict not approach the appropriale Governm.ent tvith tl'i,e content.tons that the contract was shant and camottflogn or"'phat the contract labortr systetn shotLld be abol.ished. They gbt refefred a dispt'fte that they vvere the empl.oltees of th{ ntanagement and vvere npt being regrtlarizecl. This claint was.found false. The Labou' Cow"t hctcl no ctlternati.ve bzft to dismiss the claint. It is. settled lavv lhal lJte Laboru' Cltu't/TribrLnals cannol travel beyond.the ' l.erms oJ' reference.l A no reference had been ntade -to'the La.bolu" Corrt.for dd,termining t'vhether t'he contracl'was shatn and. camot"tflage, the Labow Court could not have entered into l.his tssue andldecided whether the contract was shant and cantot'tflage". I I I

15. Lcarned counsel fo[. the petitioner has dlawn the attention of the Clor-rrt to thc written statemefri filed by the petitioner before the CGIT. It is l^ suburittecl that in its writterl statemqnt,.the petitioner had stated that thele 5b I I I i i i I I i responclent worklnarl liacl freither been engaged nor recn-rited by th[9] I ' pctitionel' lxanagement and ihat the respondents were not members of the scrvicc. No appointment lellels have been issued to thetn, no1' we1'e their' scrvices temrinatecl by the pEtitioner rnanagetnent. Reference had also been' I nraclc to thc aforesaid judgm;nt of the Division Bench in thc case of /(eskeYv Secttritlt Sen,ices /-rrl (supll). It was pleaded by the petitioner that the I sccnrity personnel provideh by the security agencies.are in no,way conucctecl with the recrr-ritn\ent procedure of the petitioncr mairagetnent. Rather, thcy are ernployeer {f rl" agency und.er the terms of the employrnent scttlecl between the wotkmeri and the agency concerned. I

16. Learnecl counsel fo{ the petitionel has also refenecl to the alfidavit I by way of eviderice filed bl, the petitioner management of Sh. Netra Pal Sing, AGM, Lcgal workifre in the office of the Genelal Manager', Admirristlative Cornplex, irariclabad, whelein he hacl statecl that the urotkrncn were neithel e#lnloVecl by the management nor were they lcnrrinatcd/rctrenched and thiat tliele was no ernployer-employee relationship tretween [he wolkman and fh" to.ut ugement. It was also affinLecl that in I vicw of tlic judgrncnt in l{bshav Security Services (supra), all the BSNL I cstalrlishrleuts engage the wprknan fiom DGR sponsored agenc]i only. I li. Lcarncd counscl $L the petitionel has placed leliance on the.l clccisiorr of tlie Sr.rpreme Colrt in Indian.prugs and Fhqrmnceuticsts n.Jc[. v. y-lte Wprknton, trndian d1rig, antl Fharntaceuticals I'tt{., (.2007) I SCC

408. 'L'hc Sr-rprcmc Court afer referring to the judgment of the constitution

I. t siglrt of. No doubt, Article i+t provides for the right to work] but this has bccn dclibcrately kept by the founding fathers of the constitution in the clircctive principles ancl hende rnade unen.fiorceable in vie'uv of Aiticie 37 of I the Constitution, because th{ founding fathers in their wisdom realized'that I u,hilc it rvas their wish th{t evelyone should be given employrnent, the gror-rncl r-calities o.[ onr.o.r{V did not pennit the same. The Sttpreme Court I observecl that Arliclc2I of t[ie Constittttion cannot be str:etched so far as to mcan tl-rat everyone rnust b{ eiven a job. The number of available jobs is liniitecl ancl hence the Co.rds must take a realistic view of the matter and.l rnr-rst cxercise self restraint. I I I[8]. On the other franla, Mr. Nandrajog, learncd connscl for the rcsponclcnt workman has sr-jbrnitted that in the present case, the petitioner haci firilecl to leacl any "vid"t.. beforg the CGIT to establish ihat the u,orkman hacl been erigagecllthrough the contractors. They did not ploduce I any cioolrment ol other evildence to show that there wet:e any contracts cnterecl i6to between the pptitioner and the contractols/security agencies; I tliat tl're security agencies hafl, in turn, posted the worlcman atthe facilities of the petitioncr; that the sal{ries of the worktnan have bcen paid by the I contractors eind not by the nftitioner directly. It was not even disclosed as to which ol'the worlcman had $een cleployed through which of the contractors' A[1]:iir-t [r-om liling tl'rc affildavit' bv way of evidence, as aforesaid, no cloculrcntary cvidellce was j:laced on record by the pelitioner management. I [e sr-rbrnits that the case ojf the r'espondent worlcman was that they vvcre cl irecL appointees/employeesl of the B SNL' I isstrecl by thc responclent wlorkman categorically stated that the petitioner "only hctcl altpointed me ih this instittttion but had not given n1e arry trltltointntenl letter nor any ltttendance card nor even any tvages slip 1'vere gi.ven.'y'he a.mormt toyvaral ng ancl FF were being cleirh'tcred frottt ttty ntontl,tllt salarlt from the verj, beginning brtt neither I vvas given ESI cau"il or uryt pli',y14t. And on the preL,ext ofpension scheme, had got signed b1t nte on bla.nlc papers, blanlc t,ouchet'I, ancl bla.nlc vortchers." - I

20. I-Ie subrnits that in lheii written statement, the tnanagctnent clicl not specilicerlly clisclose as to bj which seculity agency, each of these wolkmen wcre clcployccl thror-rgh. fh! said position was not elabor:ated evcn in thcir- I affrc{avit by way of evidencel.