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CASE NO.: Appeal (civil)  4264 of 2007

PETITIONER: Brijbhushan Yadav & Ors

RESPONDENT: Union of India & Anr

DATE OF JUDGMENT: 14/09/2007

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NO.        4264    OF 2007 (Arising out of SLP (C) No. 6174 OF 2006)

P. Sathasivam, J.

1)      Leave granted.  2)      The workmen who secured an award for reinstatement  with full back-wages at the hands of the Central Government  Industrial Tribunal-cum-Labour Court, Lucknow (in short  "Tribunal-cum-Labour Court") and lost before the High Court  of Judicature at Allahabad are the appellants before this  Court.   3)      The above appeal is directed against the order dated  08.08.2005 whereby the High Court of Judicature at  Allahabad allowed the batch of writ petitions filed by the  Union of India - Ministry of Telecommunication, Bharat  Sanchar Nigam Limited and quashed the award passed by the  Tribunal-cum-Labour Court.  4)      Though the Tribunal-cum-Labour Court passed a  separate but identical order holding that the termination of  services of the workmen concerned are void and ordered  reinstatement with full back-wages, the Union of India and  Bharat Sanchar Nigam Limited challenged the same before the  High Court by filing separate writ petitions. 5)      The High Court, by adverting to the facts in I.D. No. 39 of  2001, namely, Shri Brijbhushan Yadav vs. The General  Manager, Telecom Department, accepted the stand of the  department and quashed the award therein.  Similar orders  have been passed in all other connected writ petitions. 6)      We heard Mr. Amit Kumar, learned counsel for the  appellants and Mr. R.D. Agrawala, learned senior counsel for  the respondents.

7)      In view of the order to be passed hereunder, we are of the  view that it is unnecessary to refer all the factual matrix as  stated by the parties.  On the basis of the request made by the  workman, the Central Government, in exercise of powers  conferred by Clause (d) of sub-section (1) of Section 10 of the  Industrial Disputes Act, 1947, referred the industrial dispute  between Shri Brijbhushan Yadav  and the General Manager,  Telecom Department, Varanasi for adjudication.  The reference  referred for adjudication is as under: "Whether the action of the Management of Telecom  Department in terminating the services of Shri Brijbhushan  Yadav w.e.f. 1.6.1999 is justified?  If not, to what relief the

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workman is entitled?"

According to the workman, he was initially appointed as  Security Guard with the Telecom Department, Varanasi(East),  Varanasi w.e.f. 1.10.1996  and he was performing his duties  till his services were terminated w.e.f. 1.6.1999.  There was no  genuine contract labour system in vogue with the  Telecommunication Department to engage security guards.   The so-called security agency i.e. M/s Security and Protection  Services was a mere name lender and almost a broker or agent  of Telecommunication Department for procuring labour and    was not a registered licensee contractor.  He worked for more  than 240 days in preceding twelve calendar months prior to  his termination.  His termination without notice or  retrenchment compensation is contrary to provisions of  Section 25-F of the Industrial Disputes Act, 1947 and he is  entitled to reinstatement with back-wages.

8)      According to the employer \026 Telecommunication  Department, there was temporary need of security guards for  safety of its assets, hence, an agreement was signed between  M/s Security and Protection Services, Varanasi and the  General Manager(East), Varanasi on 10.9.1996.  Under the  terms of the contract, the workman was supplied by the said  security services, to perform work of security guard and he  was performing duties of security guard since 1.10.1996.  In  order to protect the articles and equipments of telecom  department, the Telecom Department had entered into a  contract with M/s Security and Protection Services on the  terms and conditions mutually agreed upon.  The same was  duly registered by the Labour Commissioner.  The agreement  was for fixed term, which expired.  The workman was not  taken as an employee of the Telecom Department nor had  worked for more than 240 days and so, the notice or  retrenchment compensation as provided under Section 25-F of  the Industrial Disputes Act, 1947 is not applicable.

9)      The Tribunal-cum-Labour Court, after considering the  materials, held that since after expiry of the agreement i.e. on   31.10.1997, all the workmen including Shri Brijbhushan  Yadav were provided work by the Telecommunication  Department till 31.05.1999, there was direct master and  servant relationship between the Department and the  Workman during the said period and observed that the  workman rendered continuous service of security guard for  570 days directly under the Department which is more than  240 days and is covered by the definition of "continuous  service"  as defined under Section 25-B of the Industrial  Disputes Act, 1947.  The Tribunal-cum-Labour Court,  by  applying the benefits of provisions of Section 25-F of the  Industrial Disputes Act, 1947 accepted the case of the  workman and passed the award granting reinstatement with  full back- wages.  Similar awards have been passed in respect  of others.       

10)     In the writ petitions filed by the Union of India and BSNL,  the High Court mainly relying on the assertion of the  Department that contract with Security Agency \026 M/s Security  and Protection Services, Varanasi was extended from time to  time till 31.5.1999 and finding that the workmen concerned  were not employees of the Telecommunication Department  quashed the award of the Tribunal.   

11)     Before us, learned counsel appearing for the Workman,  vehemently contended that after expiry of the agreement i.e.

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from 1.11.1997 although the workmen were employed by the  Telecom Department up to 31.5.1999, the High Court ought  not to have interfered with the finding of fact arrived at by the  Tribunal-cum-Labour Court.  On the other hand, learned  counsel appearing for the Department, by pointing out that  contract was extended up to 31.5.1999 with the Security  Agency, the High Court was right in accepting the stand of the  Department that these workmen were not employees of the  Department, hence, there is no ground for interference.

12)     We have carefully considered the relevant materials and  rival contentions.  Though the High Court passed a lengthy  order adverting to various factual aspects as well the decisions  of this Court, as rightly pointed out, various orders said to  have been executed extending the contract up to 31.05.1999  by the Department with the security agency have not been  fully highlighted by the High Court.  If it is established that  after 30.10.1997, there was no valid contract between the  security agency and the Department, the stand of the  workmen that they were continued as security guards by the  Telecom Department is to be accepted.  As observed earlier,  perusal of the order of the High Court does not show that any  specific reference and discussion was made to the  order/orders extending their contract with security agency up  to 31.05.1999.   

13)     In fact, before this Court, respondents-Department have  filed an application for permission to file additional documents  as Annexures R-3 to R-8 in support of their stand that all the  workmen were employed by the security agency and not by the  Department.  Inasmuch as the agreement or contract up to  31.5.1999 with the security agency are relevant materials for  consideration of the issue raised in the reference and in the  absence of any specific discussion and finding by the High  Court, we are of the view that ends of justice would be met by  remitting the matter to the High Court for fresh disposal with  reference to the said aspect.  Though we adverted to certain  factual details of both the parties, it is made clear that we have  not expressed any opinion on merits.  

14)     In the light of what is stated above, we set aside the  impugned order passed by the High Court in all these matters  and remit the same to the High Court for fresh disposal after  rendering a specific finding as to the subsistence/existence of  agreement or contract with the security agency up to  31.05.1999 and pass appropriate orders. Both the Department  as well as the workmen are permitted to place all the relevant  material before the High Court in support of their respective  claim and it is for the High Court to decide the issue on merits  as mentioned above as early as possible.

15)     The appeal is disposed of on the above terms.  No costs.