Punjab-Haryana High Court
Charanjit Kaur vs State Of Punjab And Others on 19 April, 2021CWP-8661-2019 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-8661-2019
Date of decision: – 19.04.2021
Charanjit Kaur
….Petitioner
Versus
State of Punjab and others
…..Respondents
CORAM : HON’BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present:- Ms. Riti Aggarwal, Advocate
for the petitioner.
Ms. Sunint Kaur, AAG, Punjab.
(keeping in view the advance copy given).
( Through Video Conferencing )
****
HARSIMRAN SINGH SETHI, J. (ORAL)
In the present writ petition, the claim of the petitioner is that
the petitioner is entitled for the regularization of her services as ETT
Teacher and the rejection of the said claim by the respondents be declared
as arbitrary and illegal.
As per the petitioner, she is working as S.S. Mistress in
Government Senior Secondary School, Bareh, District Mansa from
01.04.2012 on temporary basis.
Learned counsel for the petitioner submits that petitioner is
entitled for the regularization of her services keeping in view the
instructions which have been issued by Government of Punjab dated
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15.12.2006 (Annexure P-5).
Learned counsel for the petitioner further submits that the
claim of the petitioner was not considered by the respondents in respect of
the posts of ETT Teacher, which were advertised in the years 2015-2016
though she is entitled to be considered for appointment by way of Direct
Recruitment.
Upon notice of motion, a reply has been filed by the
respondents-State, wherein, the averments made in the present writ
petition have been controverted.
Learned counsel for the respondents submits that there is no
master & servant relationship between the petitioner and the respondents-
State as the petitioner was engaged to teach the students by the Self Help
Group, formed by Gram Panchayat where the Government Senior
Secondary School, Bareh, District Mansa is situated. Learned counsel for
the respondents further submits that there is no order issued by the State
of Punjab appointing the petitioner as ETT Teacher even on temporary
basis and no salary is being paid to the petitioner from the State
exchequer and hence, she cannot be treated as an employee of the
respondents-State working on temporary basis so as to raise a claim for
the regularization of her services.
The respondents-State has clearly stated in the written
statement that the petitioner was not eligible for consideration to be
appointed as ETT Teacher by way of direct recruitment as petitioner did
not fulfill the requirement as envisaged in the advertisement as per the
qualifications prescribed as she was over-age and the writ petition filed
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by her before this Court was withdrawn.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
In order to raise a claim for the regularization of the
services, the petitioner has to cross hurdle of objection raised by the
respondents-State, wherein, the master and servant relationship between
petitioner and State is being disputed. Nothing has been placed on record
to show that the petitioner was ever appointed by the State of Punjab as
ETT Teacher. In the absence of any order passed by State appointing the
petitioner as ETT Teacher, petitioner cannot claim that she is an employee
of Government of Punjab. Further, nothing has been brought on record to
satisfy this Court that the petitioner was being paid by the State of Punjab
out of the State exchequer. Rather, the averments made in the written
statement that the petitioner was appointed by the Gram Panchayat on its
own to teach the students, have not been controverted. That being so, it
cannot be said that the petitioner is an employee of the State of Punjab so
as to raise a claim for the regularization of services in view of a
scheme/policy issued by the Government of Punjab giving the benefit of
regularization of service to the employees working with the State of
Punjab.
This Court had an occasion to consider somewhat similar
claim of the contractual employees employed through service provider,
wherein also claim was raised that contractual employees working
through Contractor by way of outsourcing, are to be treated as
Government employees so as to consider their claim for regularization of
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their services in view of the policy issued by the State of Punjab. A
Co-ordinate Bench of this Court considered this aspect while deciding
CWP-18619-2011 titled as ‘Nishan Singh and others Vs. State of
Punjab’, along with other connected cases, vide judgment dated
28.02.2013 rejected the said claim and decided as under: –
“A perusal of this policy would show that it is applicable to
the employees, who were working as daily
wagers/workcharge/contract basis on permanent posts and were
appointed by the State of Punjab after fulfilling eligibility criteria
as per the proper procedure. Policy dated 18.3.2011 dealt with
regularization of the services of not only contractual employees,
but the daily wagers/workcharge employees working in different
departments of the Government. By this policy dated 17.11.2011,
the benefit of regularization of services was extended to the daily
wagers/workcharge employees and employees working on contact
basis in different departments, i.e.
Boards/Corporations/Cooperative Societies/other Societies and
other autonomous bodies. A perusal of both the above policies
would clearly spell out that the petitioners who are employees of
the Service Providers in the Departments of Revenue and Excise
and Taxation, Punjab, in pursuance to the contract entered into
between their employer and respondent departments. There is no
relationship of employer and employee between the petitioners and
respondent-department. In the absence of such a relationship,
petitioners cannot claim any right against the respondents. Even the
policies of regularization do not contemplate or provide for benefit
of regularization of services of the employees who have been
deputed by the Service Providers.
xxx xxx xxx xxx xxx xxx xxx xxx
It has been asserted by the petitioners that as a matter of
fact, the petitioners are for all intents and purposes employees of
the respondent-department and the services providers have been
used as a camouflage to deny the petitioners of their right of
regularization and others statutory benefits, especially when the
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petitioners fulfil all the other mandated conditions for
regularization of their services except that the petitioners have been
appointed directly on contract basis by the respondents. It has
further been asserted that in the case of some of the petitioners,
their initial appointment was with the principal employer and later
on shown through contractor which was with an intention to cover
up the claim of the petitioners of they being contract employee of
the department. It has further been asserted that the so called
service provider/contractor is an unregistered contractor who has
not obtained any license under Section 12 of the Contract Labour
(Regulation and Abolition Act) 1970 and, therefore, the petitioners
will be for all intents and purposes treated to be the employees of
the principal employer, i.e. department concerned, entitling them to
the claim of regularization as per the policies of the Government of
Punjab and, therefore, a direction to that effect be issued. This
contention of the counsel for the petitioners cannot be accepted in
the light of the latest Full Bench judgment of this Court in CWP
No. 13619 of 2012 titled as Union of India and another Versus
Ram Pal and others, decided on 22.2.2013, wherein apart from
referring to two conflicting judgments passed by the Division
Benches of this Court and to resolve the dispute therein, reliance
was placed upon the judgment of the Hon’ble Supreme Court in
Steel Authority of India Limited’s case (supra) to assert that the
question of policy of contract labour could neither be decided by
the Labour Court nor the Writ Court and as a fortiorari by the
Tribunal as held in the said case. It was within the exclusive
domain of the appropriate Government under the Labour Contract
Prohibition Act. While dealing with this question, this Court held
as follows :-
“11. On going through the judgment in SAIL (supra), we
are of the view that decision of the Division Bench in Ramesh
Singh (supra) is correct view and that of Kiran Pal (supra) would
not hold the field, as it is directly opposed to the judgment of the
Supreme Court in SAIL (supra). Detailed reasons given by the
Division Bench in Ramesh Singh (supra), taking note of all the
relevant cases, are reproduced below, as we agree with the said
reasoning :-
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“The issue whether a workman engaged by the Contractor
can deemed to be an employee of the principal employer in the
event of prohibition of engagement of Contract Labour in terms of
Contract Labour (Regulation and Abolition) Act, 1970 or where
there is no notification prohibiting engagement of contract labour
was subject matter of consideration before the Hon’ble Supreme
Court in Steel Authority of India’s case (supra). The Supreme
Court has reversed its earlier judgment in Air India Statutory Corp.
Versus United Labour Union (1997) 9 SCC 377 prospectively. It
was held that the provisions of the Contract Labour (Regulation
and Abolition) Act, 1970 neither expressly or by necessary
implication provide for automatic absorption of contract labour on
issuing a notification by the appropriate Government prohibiting
engagement of contract labour.
In Municipal Corporation of Grater Mumbai Versus K.V.
Shramik Sangh and others (2002) 4 SCC 609, it was held by
Hon’ble Supreme Court that absorption of contract labour cannot
be automatic and is not for the Court to give such direction and the
appropriate forum is, to seek remedy before an industrial
adjudicator. In A.P. SRTC and others Versus G. Srinivas Reddy
and others (2006) 3 SCC 674, there was a dispute whether there
was no notification prohibiting engagement of contract labour. The
Supreme Court considered its earlier judgment in Air India’s case
(surpa) and Secretary, Haryana SEB Versus Suresh (1999) 3 SCC
601 and held to the following effect:-
11. In this case, there was no notification under Section
10(1) of the CLRA Act, prohibiting contract labour. There was
also neither a contention nor a finding that the contract with the
contractor was sham and nominal and the contract labour working
in the establishment were, in fact, employees of the principal
employer himself. In view of the principles laid down in Steel
Authority the High Court could not have directed absorption of the
respondents who were held to be contract labour, by assuming that
the contract labour system was only a camouflage and that there
was a direct relationship of employer and employee between the
Corporation and the respondents. If the respondents want the relief
of absorption, they will have to approach the Industrial
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Tribunal/Court and establish that the contract labour system was
only ruse/camouflage to avoid labour law benefits to them. The
High Court could not, in exercise of its jurisdiction under Article
226, direct absorption of the respondents, on the ground that work
for which the respondents were engaged as contract labour, was
perennial in nature.
Later on in Steel Authority of India Ltd. Versus Union of
India and others (2006) 12 SCC 233, it was reiterated that neither
the Labour Court nor the writ Court could determine the question
as to whether the contract labour should be abolished or not. The
same is within the exclusive domain of the appropriate
Government. It was held to the following effect :-
24. When, however, a contention is raised that the contract
entered into by and between the management and the contractor is
a sham one, in view of the decision of this Court in Steel Authority
of India Ltd. an industrial adjudicator would be entitled to
determine the said issue. The industrial adjudicator would have
jurisdiction to determine the said issue as in the event if it be held
that the contract (sic) purportedly awarded by the Management in
favour of the contractor was really a camouflage or a sham one, the
employees appointed by the contractor would, in effect and
substance, be held to be direct employees of the management.”
12. No doubt at the time when the judgment in Ramesh
Singh (supra) was rendered, the SLP of the Union of India in Kiran
Pal (supra) was pending in the Supreme Court and that fact was not
taken note of. However, ultimately, the said SLP was dismissed in
limine without passing any reasoned order. Therefore, the
dismissal of the said SLP is not necessarily affirmation of the view
taken in Kiran Pal (supra).”
That apart, in the absence of a notification by the Central
Government, prohibiting the employment of contract labour,
persons so employed would remain the employees of the contractor
and not of the department, i.e. the principal employer. Relevant
para-16 of the judgment in the case of Gian Singh and others
Versus Senior Regional Manager, Food Corporation of India,
Punjab Region, Chandigarh, 1991 (1) PLR 1 reads as follows :-
“16. Now let us examine the contentions of the learned
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counsel for the appellants that if there is violation of the provisions
of the Act, to the effect that the principal employer does not get
registration as required under Section 7 of the Act and or the
contractor does not get the licence under Section 12 of the Act, the
persons so appointed by the principal employer through the
contractor would be deemed to be the direct employees of the
principal employer. We see no such inference deducible from the
violation of the provisions of the Act. Section 9 of the Act
prohibits the employment through the contractor in case of non-
registration. But if a principal employer does employ persons
through the contractor in spite of non-registration, the only penal
provisions are Sections 23 and 24 of the Act i.e the principal
employer can be proceeded against under these sections but the Act
nowhere provides that such employees employed through the
contractor would become the employees of the principal employer.
If such was the interpretation then the Supreme Court in cases of
Food Corporation of India Workers’ Union’s and B.H.E.L.
Workers’ Association (supra), would have straightaway granted the
relief and would have held that the employees employed through
the contract labour had become the employees of the principal
employer and were entitled to all the benefits which were available
to the regular employees, but as seen above the Supreme Court
never granted such a prayer. Moreover, it would be seen from the
title of the Act that it is to provide for the abolition of the contract
labour and for providing certain facilities to such contract labour.
As far as the abolition is concerned, as to whether in a particular
establishment such contract labour should be abolished or not, the
power has been given to the appropriate Government under Section
10 of the Act. The facilities which are to be provided to such
contract labour by the principal employer have been provided
under the Act and if such facilities are not provided, the remedies
are also provided; but by no stretch of imagination it can be said
that the contract labour would become the employees of the
principal employer under the provisions of the Act. As far as the
Division Bench judgment of this Court in Food Corporation of
India, Haryana Region, Sector-17, Chandigarh Versus The
Presiding Officer, Central Government Industrial Tribunal,
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Chandigarh and another, is concerned, it may be noticed that the
above mentioned two authorities of the Supreme Court were not
noticed by the Division Bench. Otherwise also one of the Judges
who was a member of that Division Bench has dismissed the writ
petitions against which the present Letters Patent Appeals have
been filed and while dealing with the said Division Bench
judgment, the learned Single Judge has observed as under :-
“This being the position in law, the facts pleaded by the
Corporation in their written statement assume importance, as it has
been specifically pleaded that throughout the State of Punjab there
is not a single establishment where the labour employed by the
contractors has exceeded ten in number. On that basis, the
possession of licence by the contractors becomes immaterial under
Section 12 of the Act of 1970, as persons engaged by the
contractors and deployed by them on food storage as Security
Guards shall remain the contract labour of the respective
contractors. This precisely is the ratio of the Division Bench
judgment of this Court in Food Corporation of India, Haryana
Region Versus The Presiding Officer, Central Government
Industrial Tribunal, Chandigarh and another.”
The Hon’ble Supreme Court in Dena Nath’s case (supra) in
para22 of the said judgment held as follows (which has been
approved by Five Judges Bench of the Hon’ble Supreme Court in
Steel Authority of India Limited’s case (supra) in para 96 thereof):-
“22. It is not for the High Court to inquire into the question
and decide whether the employment of contract labour in any
process, operation or in any other work in any establishment should
be abolished or not. It is a matter for the decision of the
government after considering the matter, as required to be
considered under Section 10 of the Act. The only consequences
provided in the Act where either the principal employer or the
labour contractor violates the provision of Sections 9 (sic 7) and 12
respectively is the penal provision, as envisaged under the Act for
which reference may be made to Sections 23 and 25 of the Act. We
are thus of the firm view that in proceedings under Article 226 of
the Constitution merely because contractor or the employer had
violated any provision of the Act or the rules, the Court could not
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issue any mandamus for deeming the contract labour as having
become the employees of the principal employer. We would not
like to express any view on the decision of the Karnataka High
Court or of the Gujarat High Court (supra) since these decisions
are under challenge in this Court, but we would place on record
that we do not agree with the aforequoted observations of the
Madras High Court about the effect of non-registration of the
principal employer or the non-licensing of the labour contractor
nor with the view of Bombay High Court in the aforesaid case. We
are of the view that the decisions of the Kerala High Court and
Delhi High Court are correct and we approve the same.”
In the light of the above, petitioners cannot be granted any
benefit in the present writ petition as none of the grounds pressed
into service by the petitioners carry any weight. The writ petitions
being devoid of merit stands dismissed. ”
Thereafter, an appeal was preferred against the said judgment
and the Division Bench upheld the judgment of the learned Single Judge,
while deciding LPA No.469 of 2013 alongwith other connected appeals
and held as under: –
“15. Reverting to the facts of the present case, the question
for determination is whether the policy decisions of the
Government dated 18.03.2011 and 17.11.2012 cover the case of
the appellants for regularization? The learned Single Judge after
elaborate discussion of the law on the point has rightly reached the
conclusion that `the above policy do not apply to the appellants
claim and, therefore, right of regularisation pressed by the
petitioners (the appellants) cannot be accepted’. Learned counsel
for the appellants could not advance any meaningful arguments to
impress us to reach a different conclusion. The submissions that the
appellants are employees engaged by the respondent Departments
and the service provider has been used as a camouflage to deny the
appellants their status as Government employees or consequent at
regularisation under the Government Policy and other statutory
benefit has no substance or legal basis. Learned Single Judge has
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expansively dealt with the facts and law on this point and we find
no cogent or convincing reason to take a contrary view.
16. The State has taken a policy decision for regularisation
of services of the contractual employees who were appointed after
fulfilling eligibility criteria as per `proper procedure’. In the case of
appellants neither they were selected under the Service Rules
applicable to the regular employees of the Punjab State nor there
was any advertisement issued by the State under which they
applied for their engagement as regular or contractual employee of
the State. It was the service provider who entered into an
agreement with the State agency to provide work force on certain
terms and conditions. The service provider selected the candidates
and supplied the same to the Government Department. A service
provider is not an agency of the State to make the recruitment
against the civil posts. The selection made by the service provider,
if taken as appointment made by the State, will have serious
repercussions and violates the rights of thousands of more
meritorious candidates who might not have applied for engagement
by a Service Provider but would definitely be keen to seek `public
employment’ under the State. The acceptance of claim of the
appellants shall thus amount to back door entry to public
employment in total disregard to the mandate of Articles 14 and 16
of the Constitution.”
Thereafter, this Court while deciding CWP-12274-2020
titled as ‘Kumar Saurabh and others Vs. State of Haryana and
others’, decided on 30.09.2020, after considering law mentioned
hereinbefore, held that the petitioner, who is employee of outsourcing
agency, has no master-servant relationship with the State, cannot
approach this Court for the redressal of his grievance.
In view of the law cited hereinbefore, it is clear that there
has to be a direct master & servant relationship between the
claimant and State so as to raise a claim for regularization of service
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under a policy issued by State, which fact is missing in the present case.
Even otherwise, the petitioner has stated in the writ petition
that she was appointed in April, 2012 and a reliance is being placed upon
a policy (Annexure P-5), which was issued in December, 2006, seeking
regularization of her services. Nothing has been pointed out as to how a
policy, which was issued as a one time measure in the year 2006, will be
applicable upon an employee, who was appointed in the 2012. Not only
this, one of the conditions in the policy (Annexure P-5) is that an
employee should not have less than 10 years of service up to the year
2005 to his/her credit to be eligible for consideration for regularization of
services, which condition is admittedly not fulfilled by the petitioner.
That being so, the claim which is being raised by the petitioner is totally
misplaced and hence, cannot be accepted.
As far as the plea of the petitioner that she is entitled for
consideration to be appointed against one of the posts of 4500 of ETT
Teachers, which were advertised in the years 2015-2016, learned counsel
for the petitioner conceded that for the said relief, the petitioner had
approached this Court by filing CWP-23486-2017, which writ petition
was withdrawn by the petitioner. That being so, the said claim cannot be
agitated once again by the petitioner before this Court in the present
proceedings. In case the petitioner was aggrieved in any manner against
non-consideration of her case for direct appointment in respect of 4500
posts of ETT Teachers advertised in the years 2015-2016, she should
have contested the said writ petition rather than withdrawing the same.
The withdrawal of the writ petition means that the petitioner had no
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grievance in respect of non-consideration of her case against the
advertised posts of ETT being over-age. Therefore, the petitioner is
estopped from canvassing the said question of law once again in the
present proceedings and that too at this belated stage when the selection
in respect of 4500 posts of ETT has already been finalized and the
selected candidates have already been appointed and the candidates, who
are likely to be affected in case the said plea of the petitioner is to be
accepted, are not party to the present proceedings.
In view of the above, no ground is made out to entertain the
present writ petition and the same is accordingly dismissed.
April 19, 2021 ( HARSIMRAN SINGH SETHI )
naresh.k JUDGE
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
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