High Court · 2005

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:14..03..2005CORAMTHE HON’BLE MR.MARKANDEY KATJU, CHIEF JUSTICEandTHE HON’BLE MRS.JUSTICE PRABHA SRIDEVANW.A.Nos.1048 to 1052 and 1092 to 1094 of 19981. The Airport Officer, Salem Airport, Salem.2. Airport Authority of India, rep. by its Regional Executive Director, Meenampakkam,Chennai-27...Appellants in all the Writ Appeals.Vs. M.Kalaikovan ..Respondent in W.A.1048 of 1998M.Thanga Raj ..Respondent in W.A.1049 of 1998 Kumar (alias) Ammachi ..Respondent in W.A.1050 of 1998 Perumalsamy ..Respondent in W.A.1051 of 1998 Annamalai ..Respondent in W.A.1052 of 1998 Arumugham ..Respondent in W.A.1092 of 1998 S.A.Palanisamy ..Respondent in W.A.1093 of 1998 R.Ravi ..Respondent in W.A.1094 of 1998 PRAYER: Writ Appeals filed against the common order of thelearned single Judge dated 19.06.1998, passed in W.P.Nos.2719and 3407 to 3413 of 1998, as stated therein. For Appellants:: Mr.C.GodwinFor Respondents:: Mr.T.VelumaniJ U D G M E N TTHE HON’BLE THE CHIEF JUSTICE These writ appeals have been filed against the commonorder of the learned single Judge dated 19.06.1998. 2. We have heard the learned counsel for the parties andperused the record.3. In Writ Petition No.3412 of 1998 (which we are takingas leading case) the petitioner has alleged that the 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent in the writ petition (2nd appellant herein) is a quasi-governmental organization having control over all airports inIndia, and in charge of maintenance, operation and administrationof airports. The respondent –1 (1st appellant herein) is the AirportOfficer in charge of Salem Airport.4. The airport authority recruited contract labourers forwatch and ward and conservancy services in the Salem Airportthrough a contractor viz., M/s.New Everest Security Services in theyear 1994. It is alleged that the airport authority has notrecruited any employees of their own for sweeping, dusting andwatching of the buildings, even though these are works said to beof a perennial nature. The writ petitioner in W.P.No.3412 of 1998was recruited by the 1st respondent (1st appellant herein) assecurity personnel to guard the building of the airport in August1995 through a contractor M/s.New Everest Security Services on amonthly salary of Rs.600/-, which was further increased to Rs.700/-per month later on. It is alleged that the writ petitioner inW.P.No.3412 of 1998 was rendering his services at Salem Air Port tothe satisfaction of the 1st respondent (1st appellant herein). It isalleged that he had to report for duty before the first respondent,and perform his duties as per the instructions and directions ofthe 1st respondent. In paragraph – 8 of the petitioner’s affidavitit is alleged that the principal employer (Airport Authority) hasnot provided any facilities like Medical Facilities, ProvidentFund, Gratuity, Over Time allowances, etc., to the contractlabourers, and the working conditions provided by the employer tothem was very poor. The facilities and allowances of the regularservice personnel were not extended to the contract labourers likethe petitioner therein. Hence, it is alleged that there wasdiscrimination and violation of Article 14 of the Constitution ofIndia. 5. It is alleged that petitioner’s services as security wereutilised by the 1st respondent continuously for more than 950 days.It is alleged that the period of contract was being extendedperiodically every year. However, the contractor M/s.New EverestSecurity Services has informed that the contract will not befurther extended, and the petitioner’s services will be terminatedafter the expiry of the contractual period. The contract awarded toM/s.New Everest Security Services lapsed on 16.03.1993. Accordingto the oral information given to the writ petitioner by thecontractor, he will be losing his job on 16.03.1998. Hence, thepetitioner filed the Writ Petition No.3412 of 1998 praying forcontinuity of service and regularisation. The petitioner relied onthe notification dated 09.12.1976 issued under Sections 19(1) and(2) of the Contract Labour (Regulation and Abolition) Act, 1970. Hehas also alleged that in pursuance of this notification therecruitment of contract labour for the posts of sweeping, dustingand watching of buildings have been abolished and no principalemployer is permitted to recruit contract labourers thereafter forthe above services. However, despite this notification, therespondents have been recruiting contract labourers. Hence, it was https://hcservices.ecourts.gov.in/hcservices/ prayed that the contract labourers should be deemed to be theemployees of the principal employer and their services should beregularised. The petitioner relied on the decision of the SupremeCourt in Air India Statutory Corporation Vs. United Labour Union,1997 (9) SCC 377.6. A counter affidavit has been filed in the aforesaid writpetition and we have perused the same. In paragraph – 4 of the sameit is alleged that the 2nd respondent is a statutory authoritycreated under the Airports Authority of India Act, 1994 by mergingthe National Airports Authroity with the International AirportsAuthority of India. The National Airports Authority came intoexistence in the year 1986 by Act 64 of 1985. 7. In paragraph – 5 of the counter it is alleged that theSalem Airport is not an establishment within the meaning of Section2(e) of the Contract Labour (Regulation and Abolition) Act, 1970,since it had employed only 13 contract labourers, whereas as perSection 1(4) of the Contract Labour (Regulation and Abolition) Act,1970, the Act will only apply to establishments in which 20 or moreworkmen are employed or were employed on any day of the preceding12 months as contract labour. Hence, it is alleged that the Act hasno application to the Salem Airport.8. In paragraph – 6 of the Counter it is alleged that thecontract for watch and ward and conservancy at Salem Airport wasoriginally awarded by the then National Airports Authority on17.03.1994. The said contract was being extended from time to timeand the first respondent has been making payment to the contractorevery month towards the cost of his services. The terms andconditions are governed by the specific contract entered intobetween the Airport Authority and the contractor. 9. As regards the notification dated 09.12.1976 issued by theCentral Government under Section 19 of the Contract Labour (Regularand Abolition) Act, 1970 it is alleged in paragraph – 8 of thecounter affidavit that the said notification has got no applicationto the respondent-establishment, since the respondent-establishmentis totally different entity functioning under the AirportAuthorities of India Act, 1994. The competent authority has notissued any notification under Section 10 of the Act prohibitingcontract labour in the respondent-establishment. 10. In paragraph – 9 of the counter affidavit it was deniedthat the employment of the petitioner is deemed to be in theregular service of the respondent – establishment. In paragraph –10 it was alleged that the proper remedy for the petitioner as heldby the Supreme Court and this Court is that the petitioner has toraise an industrial dispute under the Industrial Disputes Act, 1947for adjudicating the controversy. It was further alleged that thepetitioner was not sponsored through the Employment Exchange andregularisation of his service would violate the provisions ofEmployment Exchange (Compulsory Notification of Vacancies) Act, https://hcservices.ecourts.gov.in/hcservices/

1959. It was further alleged that the petition is liable to bedismissed for non-joinder of necessary party viz., the contractor. 11. The learned single Judge has based his order on thedecision of the Supreme Court in Air India Statutory CorporationVs. United Labour Union, 1997 (9) SCC 377 (supra). However, thatdecision has been subsequently overruled by a Constitution Benchdecision of the Supreme Court in Steel Authority of India Vs.National Union Waterfront Workers, JT 2001 (7) SC 268 = 2001 (7)SCC 1. In the said Constitution Bench decision the Supreme Courthas held that the contract labourers are not entitled to getautomatic absorption and these employees have to approach theappropriate authority for adjudication of their claim forabsorption as regular employees. Thus, the very base of thedecision of the learned single Judge has now disappeared, and hencethe impugned order of the learned single Judge cannot be sustained,and the writ appeals have to be allowed. The respondents in thewrit appeals had to approach the appropriate authority forestablishing their claim for absorption as regular employees. 12. Apart from that, it is alleged by the appellants thatthere are no aircraft operations in the Salem Airport, since manyyears, but still the contract employees are continuing to get theirsalaries, in view of the interim orders of this Court passed on16.09.1998 in C.M.P.Nos.11645, 11650 to 11653 and 12090 to 12092 of1998 in W.A.Nos.1048 to 1052 and 1092 to 1094 of 1998, pending writappeals, though there is no work for them. The appellants havefiled affidavits on 07.03.2005 in the pending appeals stating thatthere are no aircraft operation in Salem Airport, and the employeesare getting salaries without doing any work, and in view of thatthe appellants are incurring heavy expenditure every month forpaying salaries to these contract labourers, although there is nowork for them. These allegations have not been refuted. We fullyagree with the submission of the learned counsel for the appellantsthat the respondents cannot be paid money for doing nothing. Afterall payment of salary, etc., is made for work done, and not forlying idle. 13. In view of the above, these writ appeals are allowed, andthe impugned judgment of the learned single Judge is set aside. Theinterim orders of this Court passed on 16.09.1998 inC.M.P.Nos.11645, 11650 to 11653 and 12090 to 12092 of 1998 inW.A.Nos.1048 to 1052 and 1092 to 1094 of 1998, pending writ appealsare vacated. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sm To1.The Airport Officer,Salem Airport, Salem.2.The Regional Executive Director,Airport Authority of India,Meenambakkam, chennai-27.One cc to Mr.C.Godwin, advocate (SR.No.12027) W.A.Nos.1048 to 1052 & 1092 to 1094 of 1998. sky