Writ Petition No. 17282 of 2006. Case: Abdul Nasser Vs Bharat Heavy Electrical Limited. High Court of Andhra Pradesh (India)
| Case Number | Writ Petition No. 17282 of 2006 |
| Counsel | For Appellant: M.L. Ali, Adv. and For Respondents: P. Rajasekhar, Adv. |
| Judges | Dama Seshadri Naidu, J. |
| Issue | Constitution of India - Article 226; Contract Labour (Regulation and Abolition) Act, 1970 - Sections 10, 10(1) |
| Judgement Date | February 10, 2014 |
| Court | High Court of Andhra Pradesh (India) |
Order:
Dama Seshadri Naidu, J., (At Hyderabad)
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The petitioners, 11 in number, all of whom were said to be working as casual/contract labourers in the respondent company, filed the present writ petition seeking the regularisation of their services.
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The facts in brief are that the petitioners were said to have been appointed on compassionate grounds during the year 1985-86, that since the date of their initial appointment, they have been working continuously in their respective posts discharging their duties, that their nature of work is similar to that of the regular employees, and that though they have completed more than 21 years of service as on the date of filing of the writ petition, their services have not been regularised. On that count, assailing the inaction of the respondent company, the petitioners filed the present writ petition.
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Sri M.L. Ali, the learned counsel for the petitioners has submitted that all the 11 petitioners initially had their entry into the respondent company on compassionate grounds, since either of the parents of the petitioners died in harness.
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The learned counsel has stated that though there is a clear policy in existence with regard to providing employment to the dependent members of the family of the deceased workmen, in course of time, the respondent company took recourse to a device of establishing "BHEL Labour Cooperative Society Limited ('the Society', for brevity) under the provisions of the Andhra Pradesh Cooperative Societies Registration Act, 1964. Thus, despite the Recruitment Rules/Regulation 7.3, which provides for compassionate appointment, the respondent company converted the services of the petitioners, as if they were the members of the society and that their services had been engaged only through the said society. It is the specific contention of the learned counsel that only to avoid the regularisation, the respondent company came up with the device of the cooperative society, with which the petitioners have nothing to do and that even if they were engaged by the respondent company through the said society, they cannot be termed as contract labourers, more particularly when they had their initial appointment under a scheme of compassionate appointment. Accordingly, the learned counsel has stated that the action of the respondent company is grossly illegal and arbitrary.
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In furtherance of his submissions, the learned counsel has brought to the notice of this Court that earlier a few other workmen, who had also got their entry into the respondent company under the scheme of compassionate appointment around the same time as did the petitioners had their services regularised in 1994 itself. Thus, by treating similarly placed persons differently, the respondent company has, contends the learned counsel, exhibited patent discrimination.
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Subsequent to the filing of the counter affidavit on the part of the respondent company, the petitioners came up with reply affidavit placing on record additional information on the issue of the compassionate appointment, on the need of the regularisation of the petitioners' services and also with regard to the subsequent developments that have taken place. Thus, in tune with the reply affidavit filed by the petitioners, the learned counsel for the petitioners has contended that the 2nd and 8th petitioners died during the pendency of the writ petition. He has further submitted that to this day, for more than 27 years, the petitioners have been continuing as skilled workers on consolidated pay of Rs. 12,000/- per month, which includes P.F., BHEL quarters rent and water charges. It is also the specific contention of the learned counsel that the cooperative society is only a smoke screen, and in fact, it is practically managed by the respondent company itself.
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The learned counsel has also referred to some of the by-laws and has contended that the respondent company has all-pervasive control over the society and as such it is untenable on the part of the respondent company to contend that the petitioners are the members of the said society and that it is the said society which has engaged them in the respondent company. The learned counsel has also referred to the contents of the counter affidavit filed by the respondent company and has stated that there is a specific admission on their part that the labourers, who had been working with various contractors prior to the formation of the BLCCS, became the members of the said society voluntarily to reap the improved earnings and other benefits, wherein the middlemen are avoided. On this aspect, the learned counsel has stated that the respondent company has not specified who were the contractors, and who had been working under them prior to the formation of the said society.
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According to the learned counsel, the respondent company has maintained lists of dependents of the deceased employees and had in fact got the original policy of recruiting the dependants of those deceased employees as and when vacancies arose. The learned counsel has also maintained a list of those employees or workmen who in fact got their services regularised in course of time under the category of compassionate appointment. Thus, treating this as ample evidence concerning the policy adopted by the respondent company consistently all through, the learned counsel contends that it is inexplicable why the petitioners alone have been victimised without having been regularised under the category of compassionate appointment.
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Lastly, the learned counsel has stated that initially in the writ petition the petitioners listed out the names of eight workmen, who had their services regularised in 1994-95 under the category of compassionate appointment. Taking advantage of the wrong staff numbers provided to them in the pleadings, the respondent company, however, took advantage of that and went to the extent of denying the very existence of those employees. As a corrective step, the learned counsel has referred to the pleadings of the reply affidavit and stated that all those employees are in fact in the service of the respondent company and that now the list contains the names of those persons with their correct staff numbers.
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The learned counsel has eventually submitted that it is not a case of fresh appointments, but only that of regularising the services of the petitioners, treating them as having been appointed under the scheme of compassionate appointment.
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In support of his submissions, the learned counsel has placed reliance on the following precedents: 1. Bhawani Prasad Sonkar vs. Union of India and others (2011) 4 Supreme Court Cases 209, 2. Visakhapatnam Port Trust, Port Area, Visakhapatnam vs. Sanapala Govindu 2009 (2) ALD 329 (DB), 3. Food Corporation of India vs. F.C.I. Paribahan Thikadhari Karmachari Samity (2001) 10 Supreme Court Cases 560 and 4. R.K. Panda vs. Steel Authority of India Ltd. 1994 - II L.L.N. 378.
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Per contra, the learned Standing Counsel for the respondent company has strenuously opposed the claims and contentions of the petitioners. The learned Standing Counsel has laid heavy stress on the aspect that the petitioners have never been engaged by the respondent company directly and as such there is no employer and employee relationship. He has further contended that the petitioners are the members of the society, which is an independent legal entity having its own existence. As a matter of a procedural objection, the learned Standing Counsel has also stated that the petitioners ought to have impleaded the said society, which is a necessary party. It is also the further contention of the learned Standing Counsel that the writ involves disputed questions of fact and as such this Court under Article 226 of the Constitution of India cannot be an appropriate forum to resolve those disputed questions of fact.
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The learned Standing Counsel has further stated that the petitioners having voluntarily become members of the said society, it is the management of the society which determines the petitioners'...
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