Direct Payments Made By City Corporation Establishes Employer-Employee Relationship: Karnataka HC Regularizes 250 Pourakarmikas In Tumakuru

A single judge bench of Justice Suraj Govindaraj dismissed the appeal filed by the corporation against the tribunal order and said "Payments being made albeit on few occasions to the workmen directly by the Corporation would constitute employer-employee relationship."

It added,

"On the regular instructions being given by the Administrative Officers of the Corporation that the workmen have been working and discharging their duties. Even on this ground, the employer-employee relationship is established and it is only the subterfuge which has been used by the Corporation to engage the workmen on contract basis so as to make lesser payment."

It held,

"The subterfuge cannot be allowed to work and the same would be violative of Article 14 of the Constitution of India. The workmen engaged through contractors would have to be paid the same emoluments as that paid to the regular employees based on the concept of equal pay for equal work as held by the Tribunal."

The case relates to an Industrial Dispute between the workmen and Commissioner of the Town Municipal Council, Tumakur.

The court, while answering the issue whether the employment of the workmen is purely on a temporary adhoc basis or is there any permanency in such employment, referred to the agreement entered into between the petitioner Corporation and the service provider/Contractor. It observed,

"At least for a period of 20 years it appears that the Corporation is engaging the services of Contractors for the purpose of cleaning and/or handling Municipal Solid Waste (MSW) as detailed hereinabove. A period of 20 years in my considered opinion cannot be said to be a temporary period, but would have to be considered perennial in nature, since apparently Corporation would continue to engage such Contractors in future for providing similar services."

Court noted that the workmen did not change from time to time on the basis of the Contractor changing. Rather, irrespective of the Contractor changing, the same workmen continued to render services. Thus it held, "The members of the first respondent Union have been engaged by the Corporation through the Contractor for carrying out works which are perennial in nature and that they have been working for a sufficiently long period of time, which period cannot be said to be temporary, but would have to be considered to be permanent."

Answering the issue of whether the work carried out by the workmen is identical to that carried out by regular workmen of the petitioner Corporation, the bench said, "Reading of the entire agreement does not disclose any particular time period in which this said services are required to be rendered, nor does the agreement restrict the time period and state that no work should be carried out beyond a particular time period."

It then held,

"There being no such identification or demarcation of time period for the work and/or there is no restriction as to when the work can be carried out and fixing the same to the nature of services to be rendered, the workmen would be required to render services throughout the day and the services are not restricted to a particular time frame."

Court rejected the submission made by the counsels for the corporation and state government that in terms of notification issued by the Urban Development Authority the recruitment of Group-D employees and Pourakarmikas would be made by the Deputy Commissioner and as such, the Commissioner of the Corporation cannot be directed to regularise the Pourakarmikas. It said,

"The mere fact that it is the Deputy Commissioner who has been vested with the right to recruit cannot take away the right of regularisation and/or equal pay for equal work on account of the Commissioner of the Corporation entering into agreements with private contractors for contractual labour. If that be so, even those contracts would have been entered into by the Deputy Commissioner."

Following which it observed,

"The State cannot take up these kinds of technical objections to the detriment of the substantial rights of the citizens of the Country. The State cannot take umbrage under these technicalities to deny the benefit to the members of the first respondent Union or the like."

Considering that 507 Pourakarmikas are required, 254 posts are sanctioned, out of which only 117 are working, the bench remarked,

"This breakup would clearly give the reasons why the cities in our Country are not maintained in a clean manner. The 'Swachh Bharat Abhiyan' requires that a sufficient number of Pourakarmikas, who are involved in such cleaning activities are employed."

Observing that, "Merely because the persons of a particular category for whom the posts have been reserved do not apply despite repeated notifications, the said posts cannot be left vacant in perpetuity resulting in the present situation," the bench suggested that the Corporation write to the Government seeking for exemption, if any, available and permission to fill up the vacant posts with the persons who have applied and are qualified even though they may be of different category.

Accordingly it dismissed the petition and extended by 3 months further the time period set by the tribunal for compliance.

Case Title: Tumakuru City Corporation v. Tumkuru Poura karmikara Sangha & others

Case No: WP 28392 of 2018

Citation: 2022 LiveLaw (Kar) 512

Date of order: 06-12-2022

Appearance: Subramanya R, Advocate for petitioner; T. S. Anantharam, Advocate for R1; R Krishna Murthy, advocate for R2, R3; Arun Shyam, AAG for R4, R5.

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