P.R. GOKULAKRISHNAN

(1) Twelve petitioners in this Special Civil Application have filed this Special Civil Application for declaring that the petitioners are entitled to be treated as direct employees of the respondent-Corporation and directing the respondent-authorities to treat the petitioners as such with retrospective effect for all purposes including salary seniority and all consequential allowances and benefits from the respective dates of their first appointment. It is not necessary to refer to the various other prayers because they all depend upon the first prayer mentioned above except the prayer with regard to quashing and setting aside the order of the Employment Officer dated 20-5-1987 and further directing the Employment Officer to forward the petitioners names to respondent No. 1 Corporation for consideration of their candidature as Assistants.

(2) The main contentions raised by Mr. N. J. Mehta the learned Counsel appearing for the petitioners for the purpose of admission are: (1) that the petitioners are direct employees of the Gujarat State Civil Supplies Corporation Limited; (2) that the Chartered Accountant in whose employment the petitioners have to be put in if at all they are the employees of the Chartered Accountant he has not obtained a licence as required under the Contract Labour (Regulation and Abolition) Act 1970 and hence the petitioners must be construed as direct employees of the Corporation; and (3) that the Employment Exchange in not having sent the Dames of the petitioners has violated Arts. 14 and 16 of the Constitution.

(3) It is clear from the facts of the case that an advertisement was given in Gujarati to the effect that:

"For our reputed clients at Gandhinagar for completion of Accounts Accountants are required on temporary basis in the pay-scale upto Rs. 800.00 she Applicants should be B. Com. and having experience in accounts line should meet personally in between 9 to 11 am on 31 1985 with the application written in his own handwriting."

(4) This advertisement was given on behalf of B. J. Shah and Brothers Chartered Accountants 214 Spectrum Building Behind Relief Cinema Ahmedabad. It is the say of Mr. N. J. Mehta that now Mr. B. J. Shah who was the Chartered Accountant is no more the Chartered Accountant of the Corporation and instead one Mr. M. M. Shah is the Chartered Accountant. In spite of the change in the Chartered Accountants for the Corporation the persons recruited are serving in the Department. In order to substantiate his contention Mr. N. J. Mehta pointed out that the place of work is within the premises of respondent No. 1 Corporation the nature of work is accounting of the respondent No. 1 that the control and supervision of these petitioners are by the Deputy Manager of the respondent No. 1 Corporation that the mode of appointment and selection was made by the Corporation that the Corporation alone is paying the salary and that the Corporation alone supplies paper register and other stationery etc. for performing the work. In short it is the argument of Mr. N. J. Mehta that these petitioners are the direct employees of the Corporation and as such the prayer made in paragraph 12(a) has to be granted.

(5) To substantiate his contention Mr. N. J. Mehta the learned Counsel appearing for the petitioners cited the decision reported in AIR 1974 SC page 37 in the case of Silver Jubilee Tailoring House and Others v. Chief Inspector of Shops and Establishment and Another. In this case the question arose as to whether the workers working on the tailoring machines of an establishment is a person employed and as to whether the Andhra Pradesh (Telingana Area) Shops and Establishment Act will apply. In considering the question person employed the Inspector of Shops and Establishment and the High Court came to the conclusion that the employer and the employee relationships existed between the parties and that the Act was therefore applicable. The appellant before the Supreme Court who is the Silver Jubilee Tailoring House contended that the persons who were doing the tailoring work on their machines are not the persons employed by them. The Supreme Court observed:

" The fact that a worker supplies his own tools has some evidence that he is not a servant. On the other hand if the worker is using employers tools or instrument especially if they are of substantial value it is normally understood that be will follow the directions of the owner in their use and this indicates that the owner is the master. This fact is however only of an evidential value. It might be that little weight can today be put upon the provisions of tools of minor character as opposed to plant and equipment on a large scale but so far as tailoring is concerned I think the fact that sewing machines on which the workers do the work generally belong to the employer is an important consideration for deciding that the relationship is that of master and servant."

By so observing the Supreme Court upheld that lending of the High Court and the Chief Inspector of Shops and Establishment. Pressing this decision into service Mr. N. J. Mehta contended that inasmuch as the work is being done in the premises of the Corporation; that the nature of the work is scrutinising the account for the respondent No. 1 Corporation; that the control and supervision being done by the Deputy Manager of the respondent No. 1 Corporation; and that the mode of payment of salary supply of paper register and other stationery being by the Corporation it has to be construed that the petitioners herein are employees of the Corporation that is respondent No. 1.

(6) We are afraid we are not able to appreciate this argument. In this case the Chartered Accountant put up the advertisement for recruitment of accounts on temporary basis in the pay-scale of Rs. 800.00 stating that they are required for the completion of accounts for the Chartered Accountants reputed client at Gandhinagar. It is but necessary that the persons so recruited have to work only in the respondents premises where the accounts are available. Such services rendered by the accountants recruited temporarily as per the advertisement referred above cannot be equated with the tailors who were doing tailoring work on the machines supplied by the owner of such machines. On the facts and circumstances of the case dealt with in the above said Supreme Court decision the Supreme Court came to the conclusion that there existed the employer and employee relationship in that case. In our opinion it is too much to presume or to draw any analogy from that decision in order to spell out that there is an employer and employee relationship between the petitioners and the respondent No. 1 Corporation.

(7) Thus the question as to whether these employees are the direct employees of the Corporation or that of the Chartered Accountants who were carrying out their work in view of the obligation they have to discharge for the purpose of checking the accounts of the Corporation is a disputed question of fact which cannot be decided by way of this Special Civil Application under Art. 225 of the Constitution. From the facts it appears that the petitioners were working only under the Chartered Accountants.

(8) Mr. N. J. Mehta alternatively contended that the Chartered Accountants in this case are in the nature of a contractor coming under the definition of the Contract Labour (Regulation and Abolition) Act 1970 and inasmuch as he has not obtained registration of the same the person employed through him in the respondent No. 1 Corporation should be considered as the direct recruit of the respondent No. 1 Corporation. Section 2(2)(b) and (c) of the Contract Labour (Regulation and Abolition) Act 1970 reads as follows:

"2. In this Act unless the context otherwise requires

(2) in relation to any other establishment the Government of the State in which that other establishment is situated;

(b) a workman shall be deemed to be employed as contract labour in or in connection wish she work of an establishment when he is hired in or in connection with such work by or through a contractor with or without the knowledge of the principal employer

(c) contractor in relation to an establishment means a person who undertakes to produce a given result for the establishment other than a mere supply of goods or articles of manufacture to such establishment through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractors

(9) We are not able to appreciate such a contention putforth by Mr. N. J. Mehta. To call the services rendered by the Chartered Accountant through his accountant for a Corporation or a Firm as coming under the definition of the Contract Labour cannot be appreciated at all. As we have observed in paragraph (supra) the petitioners are employees under the Chartered Accountants and cannot be construed as employees of the respondent No. 1 Corporation.

(10) Mr. N. J. Mehta then stated that petitioners fundamental right under Arts. 14 and 16 is affected owing to the fact that the Employment Exchange has not sent the names of the petitioners also along with the other candidates for being considered for the appointment in the respondent No. 1 Corporation. It is his case that the Employment Exchange is duty bound to send all those qualified irrespective of the number of candidates to be sent for the available posts in the respondent No. 1 Corporation. To substantiate his contention Mr. N. J. Mehta cited the decision reported in AIR 196) Supreme Court page 602 in the case of Krishan Chander Nayar v. The Chairman Central Tractor Organisation and Others. This is a case in which the petitioner in that case was terminated from service by reason of antecedents in accordance with Rule 5 of the Central Civil Services (Temporary Service) Rules 1949 After his services were terminated a ban was imposed by the Government against him in the matter of his employment under the Government. In those circumstances the petitioner prayed under Art. 32 for a direction to remove the ban. The affidavit filed on behalf of the Government did not indicate the nature of the ban and justification therefore. In those circumstances the Supreme Court holding that the petitioner had been deprived of his constitutional right contained in Art. 16(1) of the Constitution observed:

" A person who has once been employed under the Government and whose services have been terminated by reason of his antecedents may or may not stand on an equal footing with other candidates not under such a ban. Of course the ban imposed by Government should have a reasonable basis and must have some relation to his suitability for employment or appointment to an office But an arbitrary imposition of a ban against the employment of a certain reason under the Government amounts to denial of right of equal opportunity of employment guaranteed under Art. 16(1) of the Constitution."

(11) On these facts the Supreme Court held that the petitioner therein was not fairly treated. As far as the present case is concerned the policy and the recruitment procedure of the Corporation is by calling for the candidates from the Employment Exchange with which the candidates have registered their names. The criteria followed by the Employment Exchange for sending the names of such of those qualified candidates is according to their date of registration in the Employment Exchange keeping in mind the number of vacancies available at the establishment. This procedure cannot be said to be arbitrary or irrational. Hence the decision cited by Mr. N. J. Mehta reported in AIR 1962 SC page 60) cannot have any application to the facts of the present case. We make it clear that the Employment Exchange has sent the names on the basis of the date of registration. Which we think is not irrelevant criteria nor violates any principles of natural justice or fundamental rights guaranteed under the constitution. The available material before us makes it clear that none of the contentions raised by the petitioners have any substance for entertaining the Special Civil Application. Even if the petitioners feel that they have enough materials the issues raised are disputed questions of fact and such questions be decided by the forum established under the Industrial Disputes Act. When such an effective and efficacious remedy is available for the petitioners to agitate we cannot appreciate the petitioners moving this Court under Art. 226 of the Constitution to decide such disputed questions of fact. For all these reasons the Special Civil Application is dismissed. Notice discharged. Interim orders stand vacated. Mr. N. J. Mehta also not presses his prayer for the amendment.

(12) At this stage Mr. N. J. Mehta wants this Court to continue the petitioners herein in the job for a further period of 4 weeks for enabling him to take appropriate proceedings. This is vehemently opposed by Mr. V. B. Patel the learned counsel appearing for the respondent No. 1 Corporation. Mr. V. B. Patel states that the petitioners were continued in service only owing to the order passed by this Court even though there are no work for the petitioners to discharge in the Food Corporation as at present. No doubt Mr. N. J. Mehta states that work is being given to the petitioners even as on date. Mr. V. B. Patel states that there is absolutely no work for these petitioners and as a matter of fact the Corporation is not able to provide job for all the candidates selected by it even as on date. In this Special Civil Application we have found that the petitioners are employed as accountants for doing the work under the Chartered Accountant and not under the respondent No. 1 Corporation. Hence we do not find any ground made out for us to grant the prayer made by Mr. N. J. Mehta to continue the petitioners in their service for a further period of 4 weeks. For all these reasons the prayer of Mr. N. J. Mehta is rejected. Rule discharged.