Bombay HC: Sweepers employed through contractors are “employees” eligible for permanency benefits
Title: Municipal Corporation of City of Jalgaon v. Miraj Mahila Audyogik Cooperative Society Ltd., & Ors.
Decided on: 22.08.2023
+ WRIT PETITION NO. 9740 OF 2018
CORAM: KISHORE C. SANT, J
Facts of the Case:
The petitioner in this petition is a Municipal Corporation established under the provisions of the Bombay Provincial Municipal Corporation Act, 1949. Respondent Nos.1 to 4 are labour contractors, who were engaged by the petitioner. Respondent No.5 is the Union of workers working as Safai Kamgars and Scavengers in petitioner-Corporation.
Challenge is raised to a judgment and order dated 26.09.2017 passed by the learned Industrial Tribunal, Jalgaon in which directions are given to the petitioner to treat 645 persons as direct employees of the Corporation and to give them all the benefits of a permanent employee.
The learned Industrial Tribunal held that there is direct relationship as employer and employee between the petitioner and the sweepers as per list. It is a case of the petitioner that the Corporation had engaged labour contractors to supply labours for various services in the Corporation and there is no direct relationship as employer and employee between the sweepers and the Corporation.
Issues:
Whether sweepers were the “employees” of the Corporation although they were employed through contractors?
Contentions:
The petitioner has approached this Court mainly contending that the labour contractors were given contract by inviting open tenders by publishing advertisement in the local newspaper. The State Government had taken a conscious decision to permit local self-bodies to engage contract workers. The direction to give equal pay for equal work as given to the regular workers is not justified. The finding of the learned Tribunal that since there was no signature of the Commissioner on the contract, said contract cannot be treated as a valid contract, is against the law. Condition No.11 of Contract Labour (Regulation and Abolition) Act, 1970 provides that the employees engaged through contractor will have no right to get regular service by absorption. The salary was paid through the contractor. The control over the labour was of the contractors and not of the Corporation. It is also contended that if the judgment is to be implemented there will be huge financial burden upon the Corporation.
On the other hand, the Respondents argued that so called contract does not bear signature of the Commissioner. The contract is signed by the Deputy Commissioner as an attesting witness. There is no order produced on record to show that the power to enter into contract on behalf of the Corporation was delegated to the Deputy Commissioner. The Contract is against the provisions of sections 73, 74 and Chapter 5 of the Schedule-D of the Maharashtra Municipal Corporation Act. The Corporation and the Contractors both do not have license under the CLRA Act. The work of the employees is supervised, controlled and monitored by the Corporation. The work is also assigned by the Corporation only. The muster of the employees is maintained by the Corporation. Even the wages are calculated and fixed by the Corporation. The work is of continuous nature. Respondents deposed that all the workers are entitled to get benefits of permanency.
Decision:
Court finds that the learned Tribunal has rightly come to a conclusion that the work was of permanent nature. There is no license held either by the Corporation or by the contractors as required under the CLRA Act. Supervision and entire control over these workers were with the petitioner Corporation. Though the contractors were changed, the labours/workers remained the same.
This Court finds that the learned Presiding Officer by way of the impugned order has rightly declared that the alleged Labour Contractors mentioned in cause title are a camouflage. There exists employer-employee relationship between the first party and the sweepers enlisted with the Memorandum of Demand Exh.U-1.
The petition is dismissed.
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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law