Full Text
HIGH COURT OF DELHI
Date of Decision: 11th August, 2021
HINDUSTAN ENGINEERING AND GENERAL MAJDOOR UNION THROUGH ITS GENERAL SECRETARY NARAYAN
SINGH ..... Petitioner
Through: Mr. Mahesh Srivastava and Mr. Vaibhav Manu Srivastava, Advocates.
Through: Mr. Anirudh Bakhru, Mr. Vierat K.
Anand, Ms. Srishty Kaul, Ms. Angna Dewan, Mr. Rishab Singh, Mr. Kumar Shashank and Mr. Harish Nadda, Advocates.
JUDGMENT
14 WITH + W.P.(C) 8145/2021 & CM APPL.25284/2021 HINDUSTAN ENGINEERING AND GENERAL MAJDOOR UNION THROUGH ITS GENERAL SECRETARY NARAYAN SINGH..... Petitioner Through: Mr. Mahesh Srivastava and Mr. Vaibhav Manu Srivastava, Advocates.
VERSUS
DELHI INTERNATIONAL AIRPORT PVT. LTD. & ORS...... Respondents Through: Mr. Anirudh Bakhru, Mr. Vierat K. Anand, Ms. Srishty Kaul, Ms. Angna Dewan, Mr. Rishab Singh, Mr. Kumar Shashank and Mr. Harish Nadda, Advocates. 15 AND + W.P.(C) 8160/2021 & CM APPL.25353/2021 HINDUSTAN ENGINEERING AND GENERAL MAJDOOR 2021:DHC:2438 W.P.(C) 8140/2021 & connected matters UNION THROUGH ITS GENERAL SECRETARY NARAYAN SINGH..... Petitioner Through: Mr. Mahesh Srivastava and Mr. Vaibhav Manu Srivastava, Advocates.
VERSUS
DELHI INTERNATIONAL AIRPORT PVT. LTD. & ORS...... Respondents Through: Mr. Anirudh Bakhru, Mr. Vierat K. Anand, Ms. Srishty Kaul, Ms. Angna Dewan, Mr. Rishab Singh, Mr. Kumar Shashank and Mr. Harish Nadda, Advocates. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J.(Oral)
1. This hearing has been done through video conferencing.
2. The present three petitions have been preferred by the Petitioner – Union, which represents various employees working as contractual workers at the Indira Gandhi International Airport, New Delhi. Respondent No.2 is the contractor through whom the employees were engaged. The contractual employees had approached the CGIT, seeking regularization and other reliefs. The said petitions are currently pending before the CGIT.
3. In the meantime, since the earlier contract was expiring, the Respondent No.1 i.e., M/s Delhi International Airport Private Ltd. (hereinafter, ‘DIAL’) called for a fresh tender during April, 2021, for housekeeping and other services. Respondent No.3 was the successful tenderer. When the fresh tender was issued and the new contractor, i.e., Respondent No.3 was awarded the tender, an application under Section 33A of the Industrial Disputes Act, 1947 came to be filed by the contractual employees seeking interim relief, before the CGIT, which was rejected by W.P.(C) 8140/2021 & connected matters the impugned orders dated 26th March, 2021.
4. The submission of Mr. Mahesh Srivastava, ld counsel for the Petitioners is two-fold. Firstly, that the CGIT does have the power under Section 33A to pass interim orders. Reliance is placed upon the judgment of the Supreme Court in Management of Hotel Imperial & Ors. v. Hotel Workers’ Union, AIR 1959 SC 1342. He further submits that this position has been reiterated in the judgment of the Supreme Court in Goa MRF Employees Union v. MRF Ltd., (2004) ILLJ 394 Bom, thus, the CGIT ought to have considered the prayer for interim relief and not held that this power does not exist. Secondly, he submits that in the judgment of the Supreme Court in Steel Authority of India Ltd. & Ors. v. National Union Water Front Workers & Ors., AIR 2001 SC 3527, the Supreme Court has held that even in the case of contractual employees, preference would have to be given to the erstwhile contractual employees even where the notification under Section 10(1) of the Contract Labour Regulation & Abolition) Act, 1970 has not been issued. Such preference would take care of contractual employees who have been working in the establishment for a long period.
5. On the other hand, Mr. Anirudh Bakhru, ld. Counsel for the Respondents, submits that insofar as the power of the CGIT is concerned, the same is now settled in various judgments of this Court, including the judgment in Airport Authority of India vs. Pyare Lal & Ors., [W.P.(C) 16649/2004, decided on 17th November, 2006] which has discussed the entire law on the subject. It is submitted that the said judgment clearly distinguishes between interim injunctions and interim awards. While the CGIT does have the power to pass interim awards, it cannot pass interim W.P.(C) 8140/2021 & connected matters injunctions, as is being sought for in the present case. Insofar as continuation of the contractual employees is concerned, he submits that since 1st April, 2021, the new contractor has already taken over and the manner in which the new contractor is engaging the contractual workers is not within the domain of Respondent No.1. So long as the new contractor complies with the tender conditions, Respondent No.1 does not interfere in the same.
6. Heard ld. counsels for the parties.
7. The first question that has been raised is in respect of the power of the CGIT. The CGIT, in the present case has held that there is no contravention of Section 33A and that no interim relief can be directed. The observations of the CGIT are as under: “At the outset it is necessary to mention that section 33 of the Act clearly provides that during the pendency of a proceeding either before the conciliation officer or labour court or industrial tribunal no employer shall alter or change the condition of service of the workmen without written permission/ approval from the authority before which such proceeding is pending. In case of contravention of the provision of section 33 by the employer the aggrieved employee has been given the right to make a complaint in writing u/s 33A of the Act before the authority before whom such proceeding is pending at the time of retrenchment/discharge etc of the workmen. Section 33A of the Act enjoins upon the Industrial adjudicator a twin duty-the fast is to find out whether the employer has contravened the provision of section 33 and whether the action taken is justified in law. As stated by the claimants they are employees of management No. 2 Nimbus Harbour Facilities management and the reference from the appropriate government was received to W.P.(C) 8140/2021 & connected matters adjudicate if non acceptance of the demand raised by the claimant Union by the said management Nimbus is just and proper. Neither anything to be adjudicated with reference to management No.1 DIAL or management No.3 Tenon Facility. There being no relief claimed against management No.1 and 3 in the pending industrial Dispute and there being no evidence on record to the effect that management No.1 has passed any order to terminate the services of these workmen w.e.f 01.04.2021 it cannot be held that the respondent have violated the conditions of section 33 of ID Act attracting liability u/s 33 A of the Id Act. The other prayer that management No. 3 be directed not to engage new persons w.e.f. 01.04.2021 cannot be granted since it will have the effect of an executable order since the said management has nothing to do with the service condition of the present claimants and his position nothing more than a contractor entering into a new contract with management No.1 i.e. DIAL.”
8. As is clear from the above order, the CGIT has noticed that the industrial dispute is pending before the CGIT and that the employer could not alter or change the conditions of service. However, in the present case, the employer is M/s Nimbus Harbor Facilities Management Pvt. Ltd. and not DIAL. Thus, there being no relief available against DIAL in the industrial dispute, the question of termination etc., does not arise.
9. A perusal of paragraph 12 of the judgment in Pyare Lal (supra) shows that the ld. Single Judge of this Court clearly distinguishes between interim awards and orders of injunction as contemplated in Order XXXIX CPC. The relevant portion of the said judgment is set out below:
10. More recently, the judgment in Pyare Lal (supra) has been relied upon by another ld. Single Judge of this Court in Indian Oil Corporation Ltd. v. UOI & Ors., 2012 SCC OnLine Del 4889, wherein it has been held as follows:
11. The question raised in Management of Hotel Imperial & Ors. (supra) i.e., ‘Does the Industrial Tribunal have the power to grant reliefs including in the nature of injunction in a complaint filed before it under Section 33A of the Industrial Disputes Act, 1947?’, has been referred to a larger Bench vide order dated 8th March, 2006 in Civil Appeal No.1007/2004 titled Goa MRF Employees Union v. M/s MRF Ltd. and the same is stated to be pending before the Supreme Court. This Court has, however, considered the present matter and is clearly bound by the opinion of the ld. Single Judge in Pyare Lal (supra) and Indian Oil Corporation (supra), where a distinction has clearly been drawn between interim injunctions and interim awards.
12. In these matters, the new contractor - M/s Tenon Facility Management India Pvt. Ltd. has already taken charge of the services. The concerned members of the Petitioner-Union are not working with the DIAL and were contractual employees. Their contracts having come to an end and W.P.(C) 8140/2021 & connected matters a new contractor having already taken charge of the services at DIAL, the passing of an order today giving any protection to the concerned members of the Petitioner-Union would, in effect, displace various employees who may now have been engaged on contract by Respondent No.3 and already working at the airport. Services rendered at the airport are `essential services’ and disruption in the same cannot be effected in any manner.
13. The impugned order is dated 26th March, 2021. However, the first listing before this Court has been on 10th August, 2021 i.e., yesterday. Several months have already passed since the concerned members of the Petitioner-Union have been out of employment. Thus, interim relief, at this stage, cannot be granted. However, if the new contractor i.e., M/s Tenon Facility Management India Pvt. Ltd. still requires services of these contractual workers, it may consider engaging them in view of their experience, if they are found eligible. This shall, however, not result in any disturbance to the contractual workers already engaged by Respondent No.3.
14. With these observations, the present petition, along with all pending applications, is disposed of. Needless to add that the observations herein shall not affect the case of the Petitioners before the CGIT.
PRATHIBA M. SINGH JUDGE AUGUST 11, 2021 dj/T (corrected and uploaded on 13th August, 2021)