Gujarat Mazdoor Sabha v. The Income Tax Department

C/SCA/4643/2019 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 4643 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MS JUSTICE SONIA GOKANI ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?NO2 To be referred to the Reporter or not ?NO3 Whether their Lordships wish to see the fair copy of the judgment ?NO4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any NOorder made thereunder ? ========================================================== GUJARAT MAZDOOR SABHA VersusTHE INCOME TAX DEPARTMENT ========================================================== Appearance: HARSH K RAVAL(9068) for the Petitioner(s) No. 1,2MR AMRESH N PATEL(2277) for the Petitioner(s) No. 1,2MRS MAUNA M BHATT(174) for the Respondent(s) No. 1NOTICE SERVED BY DS(5) for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 17/12/2019 ORAL JUDGMENT 1.By way of present petition preferred under Article 226 of the Constitution of India, the petitioner – Gujarat Mazdoor Sabha, a Registered Trade Union having membership of workmen in different industries in the State of Gujarat, is before this Court seeking to challenge the legality and validity of the action of the respondent no.1 who refused to allow the workmen to perform the duties from 05.02.2019 with the following prayers:- “(A)This Hon'ble Court may be pleased to direct the respondent No. 1 to absorb all the concerned workmen engaged with the respondent no.1 and declare them as direct and regular/permanent workmen of the Respondent No.1 and shall be paid the same pay scale, allowances, other allowances benefits, up-gradation, promotion, pay fixation, PF, Pension, Gratuity, Superannuation benefits etc. as per paid and has been paid to the regular and permanent workers/employees of the Group 'C' Posts of Respondent No.1 from their respective date of joining in their services i.e. with retrospective effect and interest at the rate of 12% per annum be paid on joining in their services i.e. with retrospective effect and interest at the rate of 12% per annum be paid on this payable arrears till the date of actual payment. (B)This Hon'ble Court may be pleased to direct the respondents to keep service conditions of all the concerned workmen uncharged and they shall be allowed to perform their regular duties and work and be paid regularly their wages allowances and other benefits as admissible to them and there shall not be any charge in their service condition which affects prejudicially and adversely to them. (C)This Hon'ble Court may be pleased to declare Contract system created by the Respondent No. 1 is the bogus, artificial and bogus paper arrangement of payment through contractor which is completely illegal, unconstitutional, discriminatory, unjust, improper, and unreasonable and payment system created by the Respondent No.1 is illegal and void-ab-initio. During the pendency and final disposal of the present petition, the Hon'ble Court be pleased to grant following interim-reliefs; (D)The petitioner prayers this Hon'ble Court be pleased to direct the respondent No.1 to take all workmen on their duty, previous work, place and direct them to pay their regular wages. (E)This Hon'ble Court may be pleased to direct respondent No. 1 to engage the concerned workmen (Anne-A) in case of replacement of new contractor without prejudice to their right to treat them as direct employees of the respondent no.1 and their right of regularization. During the pendency and final disposal of the present petition, the Hon'ble Court be pleased to grant following interim-reliefs; (D)The petitioner prayers this Hon'ble Court be pleased to direct the respondent No.1 to take all workmen on their duty, previous work, place and direct them to pay their regular wages. (E)This Hon'ble Court may be pleased to direct respondent No. 1 to engage the concerned workmen (Anne-A) in case of replacement of new contractor without prejudice to their right to treat them as direct employees of the respondent no.1 and their right of regularization. (F)This Hon'ble Court may be pleased to direct respondent No. 1 to pay regular wages in the minimum pay scale of Rs. 5200-20800 along with Dearness allowance and other allowances of the pay scale. (G)The Hon'ble Court may be pleased to award the cost of this petition. (H)This Hon'ble Court may be pleased to grant any other and further reliefs that may be deemed fit and proper in the interest of justice. ” 2.The facts in the capsulized form leading to the present petition are as follows:- 2.1.It is the case of the petitioner - Union that there are 145 workmen who continued to be engaged in Group-D post which is now reclassified as Group-C post in the Income Tax Department. There are about 47 workmen working from the year 2002 up to 2019, nearly 63 workmen working from the year 2009, 30 workmen working from the year 2014 onwards and 5 workmen working from the year 2017 and continued to work up to 2019. There was continuous and perennial nature of work in Group-C and those workmen continued to perform duties akin to the duties of newly introduced post of Multitasking Staff ('MTS' hereinafter) of Group-C post. The nature of their work and their responsibilities have been specified at paragraph 3 of the petition which are not being reproduced at this stage. Suffice to note that these people continued to work on the basis of the directions issued time and again and the responsibilities defined for the work performance. 2.2.It is their grievance that more than 270 workmen were appointed directly by the respondent no.1 who were paid regular wages by the voucher system and those workmen continued to be paid directly by respondent no.1. 2.3.It is further submitted that the permanent workmen who are working on the post of peons along with other workmen were also promoted time to time to the post of Notice Server and were paid the salary and other consequential benefits and allowances. This was done by the respondent no.1 and the workmen of the petitioner - Union continued to perform the similar nature of work, however, they are neither being paid the regular pay nor have they been regularized by the respondent no.1. They have been also denied the salary and unfair labour practice has continued. 2.4.It is further averred by the petitioner that in the year 2009, the contract system was unilaterally introduced without giving any notice under Section 9(A) of the Industrial Disputes Act, 1947 ('ID Act' hereinafter) and those workmen who were working regularly from the year 2000 in the Income Tax Department, by creating the paper arrangement through the contractors, without the consent of the workmen and without issuance of notice under Section 9(A), have been made to work under the contractor. This according to the petitioner – Union has been evasive policy, only with a view not to give benefit to the workmen, this arrangement had been worked out. 2.4.It is further averred by the petitioner that in the year 2009, the contract system was unilaterally introduced without giving any notice under Section 9(A) of the Industrial Disputes Act, 1947 ('ID Act' hereinafter) and those workmen who were working regularly from the year 2000 in the Income Tax Department, by creating the paper arrangement through the contractors, without the consent of the workmen and without issuance of notice under Section 9(A), have been made to work under the contractor. This according to the petitioner – Union has been evasive policy, only with a view not to give benefit to the workmen, this arrangement had been worked out. 2.5.It is further the say of the petitioner that in the year 2009, the contract namely Het Chint Hospitalities Private Limited was introduced as a contractor which continued from the year 2009 to 2012. Thereafter, another contractor was given the work namely Nirav Enterprise who worked for about a period from 2012 to 2016. Although, the contractors went on changing, but, the workmen of the petitioner continued to perform their duties under the directions of the concerned department of the respondent no.1. The work of these workmen was given by the officers of the respondent no.1 and they were reporting directly to the officer concerned without any role and interference of the contractors or its employees. It is reiteratively averred that the contract system was nothing but a paper arrangement only to deny the regular pay scale and other regularization benefits as made available to the permanent Group-D and Group-C post employees. 2.6.It is further the say of the petitioner that on 16.02.2016, the respondent no.2 – Rajdeep Enterprise replaced previous contractor Nirav Enterprise and all workmen had continue in the employment without any break in service. Initially there were 270 workmen, some of whose services came to be terminated and the total number of workmen continued to work is 145. It is lamented by the petitioner – Union that this was nothing but an act to deprive the workmen of right to 'equal pay for equal work'. 2.7.On 15.12.2018, according to the petitioner, the supervisor of the contractor orally instructed, in an arranged meeting at River Front that all workmen will be relieved from their services and work from 31.12.2018. The petitioner – Union went on strike against proposed action of removal of the workmen from 31.12.2018 and demanded to treat them as direct and regular employees of the respondent no.1. 2.8.The said representation has been rejected on the ground of public tranquility issue and the protest on the foot-path of Aykar Bhavan, Ashram Road was denied. 2.9.The Gujarat Contract Kamdar Union – an unregistered union of workmen had filed Special Criminal Application No. 26 of 2019 challenging the order of rejecting the application seeking permission to agitate and carry out the strike at foot-path. On 09.01.2019, five workmen were permitted to meet the Principal Chief Commissioner of respondent no.1 in their representative capacity. This meeting did not yield any fruitful result. 2.10. It is the say of the petitioner that they withdrew the strike and gave a report to the respondent no.1 and 2 to permit them to resume the work. All 145 workmen have not been allowed to resume the work which they were performing before the action of strike. The work being of perennial nature, the contractors continued to work and till the new contractor replaces the present contractor, he has continued to carry on the duties as a contractor. 2.11. It is the grievance, however, of the petitioner that on 23.01.2019, the respondent no.1 invited fresh tenders for hiring new unskilled men-power for miscellaneous work / contingent staff of approximately 90 personnel and two supervisors. This is 2.10. It is the say of the petitioner that they withdrew the strike and gave a report to the respondent no.1 and 2 to permit them to resume the work. All 145 workmen have not been allowed to resume the work which they were performing before the action of strike. The work being of perennial nature, the contractors continued to work and till the new contractor replaces the present contractor, he has continued to carry on the duties as a contractor. 2.11. It is the grievance, however, of the petitioner that on 23.01.2019, the respondent no.1 invited fresh tenders for hiring new unskilled men-power for miscellaneous work / contingent staff of approximately 90 personnel and two supervisors. This is indicative of the fact that respondent no.1 is in need of the workers for the work. The conduct of the respondent no.1, according to the petitioner is reflective of the fact that it is adopting the unjust and unfair practices. It is also contrary to the fundamental principles of the Constitution of India. 2.12. It is further averred that as per Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993 scheme, temporary status would be conferred on all casual labourers who are in employment on the date of issuance of scheme and who have rendered at least one year's service and those who had completed at least 240 days, the scheme would have an applicability of granting temporary status without any reference to the creation/ availability of the regular Grade-D posts. 2.13. This is a matter of engagement of casual employees in the Central Government Office. The respondent being the Central Government Department, this scheme would have a direct applicability in case of said respondents and the workmen being the direct beneficiaries of the scheme, the same will govern them. It is further the say of the petitioner that the MTS staff as well as the Group-D employees since perform the identical nature of work, non-grant of benefit of the scheme would violate Article 14 of the Constitution. 2.14. It is further the say of the petitioner that as per the Office Memorandum of Ministry of Personnel, Public Grievance and Pension (Department of Personnel and Training) dated 09.10.2015, the interviews for Group-D posts have been discontinued. They are reclassified as Group-C post and the respondent has not treated the petitioner as their employees and has eventually exploited the workmen. 2.15. A communication had been addressed on 03.04.2009 to the office of Chief Commissioner of Income Tax for regularization of daily wagers who are duly qualified in terms of Statutory Recruitment Rules for the post and who have worked for 10 years and more so, on duly sanctioned posts. 2.16. On 23.10.2018 one circular was issued by the Directorate of Income Tax, Human Resource Development Central Board of Direct Taxes. The circular was for granting benefit of 7[th] Pay Commission to the casual labourers. The Group-D posts are since reclassified, the present petitioner also shall need to be given the benefit of 7[th] Pay Commission. 2.17. In short, it is the say of the petitioners that the respondent no.1 being the State and the work of the respondent no.1 being continuous and perennial in nature, it requires permanent and regular staff. The work of respondent no.1 being crucial for the nation, for the benefit of economy of the country, the respondent cannot act arbitrarily against the present petitioner. The concept of 'equal pay for equal work' also have been denied as they have continued to work for number of years. 3.This has been replied to at length by the respondent, on issuance of notice, denying all averments except the issuance of tender notice on 07.02.2019. 2.17. In short, it is the say of the petitioners that the respondent no.1 being the State and the work of the respondent no.1 being continuous and perennial in nature, it requires permanent and regular staff. The work of respondent no.1 being crucial for the nation, for the benefit of economy of the country, the respondent cannot act arbitrarily against the present petitioner. The concept of 'equal pay for equal work' also have been denied as they have continued to work for number of years. 3.This has been replied to at length by the respondent, on issuance of notice, denying all averments except the issuance of tender notice on 07.02.2019. 3.1.An affidavit in reply filed by the Joint Commissioner of Income Tax defining the respondent no.1 as a Central Government Department under the Union of India and performing the sovereign function of collection of tax, and submitted that the department is not an “industry” within the meaning of Section 2(J) of the ID Act and therefore, the averments in relation to the provisions of ID Act would have no consequence. 3.2.According to the respondent, the allegations of the petitioner – Union that members of the petitioner union are appointed by the respondent no.2 contractor and the same is a bogus system to evade the legal requirement is incorrect. It is empathetically urged that the recruitment of Group 'C' and 'D' posts are governed by the Recruitment Rules. The respondent department is also not permitted to appoint anyone without following the due procedure and that is the work of the Staff Selection Committee. It has further denied that there exists any employer employee relationship between the petitioner and respondent no.1. The allegation of bogus paper work for denying the rights of the workmen and introduce the contract system has been empathetically refuted. 3.3.According to the respondent, it has invited sealed bids from registered firms/ agencies for hiring manpower for miscellaneous work at all offices of the Income Tax Department, Ahmedabad by publishing tenders. The contract for providing by outsourcing, manpower was awarded by respondent no.1 to Rajdeep Enterprise from 10.02.2016. It clearly mentioned that there is no master servant relationship or employer employee relationship between the respondent and the manpower provided by the contractor. The persons who are engaged shall not and cannot claim for engagement or employment or absorption with the department. It is emphasized that the contractor is the outsourcing manpower provider and there is no contract directly with any of the persons he chooses to hire. The engagement of the employer is purely between the person concerned and the contractor, the department does not figure anywhere in their relationship. 3.4.It is the say of the respondent that the petitioner since indulged in an illegal act by going on the strike to fulfill their demand which is started on 18.12.2018 and continued till 24.12.2018, with the help of the police authorities, they have removed the workmen who were demonstrating against the department. 3.5.The Special Criminal Application No. 26 of 2019 filed by the unregistered union was disposed of after giving them the opportunity of hearing as directed by the Court and they were given to understand that without following the due procedure of law, they cannot be called the employees of the respondent. They were never given any temporary status or any kind of status by the department. 4.An additional affidavit is also filed by the Joint Commissioner, where also, this had been denied and reliance is placed on the various authorities to substantiate the application. 5.This Court has, in detailed, heard learned advocate Mr. Amrish Patel appearing for Mr. Harsh Raval who has fervently 3.5.The Special Criminal Application No. 26 of 2019 filed by the unregistered union was disposed of after giving them the opportunity of hearing as directed by the Court and they were given to understand that without following the due procedure of law, they cannot be called the employees of the respondent. They were never given any temporary status or any kind of status by the department. 4.An additional affidavit is also filed by the Joint Commissioner, where also, this had been denied and reliance is placed on the various authorities to substantiate the application. 5.This Court has, in detailed, heard learned advocate Mr. Amrish Patel appearing for Mr. Harsh Raval who has fervently urged before this Court that many of the petitioners have been hired directly by the Income Tax Department from the year 2000 and it is only in the year 2009 for the first time they have introduced contract system. He has further urged that the claim is against the department which has adopted the unfair practices which is impermissible under the Labour Laws. Those who had been chosen by the Income Tax Department and were continued to work, were compelled to continue under the contract. He further has urged that the jurisdiction of the Central Administrative Tribunal would not be there since they are not directly engaged. He also has urged that Group-D posts which have been converted into Group-C posts have specific responsibilities and liabilities and the same have continued to be performed by the workmen of the petitioner union. 5.1.According to learned advocate Mr. Patel, the Central Government Department cannot be permitted to adopt such practices which are not accepted by the law. All the persons have been deployed for many years and the work had been continued and all of a sudden without any notice, their working conditions have been changed. 5.2.The contractor has also chosen not to file reply as a part of strategy. The right to work so far as workmen are concerned, has continued and yet their services came to be terminated. According to him, there are sufficient evidences to indicate that the petitioner – Union is directly working under the department and not under the contractor. It is only after they adjudicated their right to be continued and regularized, the contractor has discontinued their work at the behest of the Income Tax Department. He has further argued that, even if, one time settlement brought in the year 1993 is offered, the same can be considered as these petitioners have continued to work under the contractor and their services have been terminated. He has pointed out from some of the documentary evidences that those who had been engaged from the year 2000 have been hired by the department. 5.3.He has further urged that even if there is a delayed challenge according to the Court, the fact remains that the petitioners continued to discharge their duties from the year 2000 and also after 2009 and for the first time, when they raised the demand for regularization, their services came to be terminated. He emphasized that the Income Tax Department is the principal employer and would have the responsibility so far as the present petitioners are concerned. He has sought to rely on the following authorities to support his case:- (a)General Manager, Oil and Natural Gas Commission, Silchar vs. Oil and Natural Gas Commission Contractual Workers Union, reported in (2008) 12 SCC 275. (b)Narendra Kumar Tiwari and Others vs. State of Jharkhand and Others, reported in (2018) 8 SCC 238. (c)Biswa Nath Saha and Others vs. Union of India and Others, reported in (1998) 5 SCC 304. (d)Akalakunnam Village Service Cooperative Bank Limited vs. Binu N. and Others, reported in (2014) 9 SCC 294. (e)Chennai Port Trust vs. Chennai Port Trust Industrial Employees Canteen Workers Welfare Association and Others, reported in (2018) 6 SCC 202. (a)General Manager, Oil and Natural Gas Commission, Silchar vs. Oil and Natural Gas Commission Contractual Workers Union, reported in (2008) 12 SCC 275. (b)Narendra Kumar Tiwari and Others vs. State of Jharkhand and Others, reported in (2018) 8 SCC 238. (c)Biswa Nath Saha and Others vs. Union of India and Others, reported in (1998) 5 SCC 304. (d)Akalakunnam Village Service Cooperative Bank Limited vs. Binu N. and Others, reported in (2014) 9 SCC 294. (e)Chennai Port Trust vs. Chennai Port Trust Industrial Employees Canteen Workers Welfare Association and Others, reported in (2018) 6 SCC 202. (f)Workmen of the Food Corporation of India vs. Food Corporation of India, reported in (1985) 2 SCC 136. (g)Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazoor Manch vs. Union of India and others, reported in (1988) 1 SCC 122. (h)U.P. Income Tax Department Contingent Paid Staff Welfare Association vs. Union of India and Others, reported in 1987(Supp) SCC 658. (i)Mamta Nand Kishor vs. Government of NCT, rendered in OA No. 980 of 2014 CAT Delhi. (j)R.K.Panda and Others vs. Steel Authority of India and Others, reported in (1994) 5 SCC 304. (k)Bangalore Water Supply & Sewerage Board vs. A. Rajappa and Others, reported in (1978) 2 SCC 213. 6.Learned advocate Ms. Mauna Bhatt appearing for the Income Tax Department has strenuously urged that there is no direct employer employee relationship. There is no single document or a voucher which can indicate that these petitioners are hired by the Income Tax Department. According to her, after the 6[th] Pay Commission in the year 2009, the recruitment rules also were brought for Multitasking Staff and the contract system was introduced for hiring manpower for all sanctioned posts. The Staff Selection Committee is the recruiting agency for hiring the employees. The respondent no.1 has nothing to do with either the recruitment or to relax the recruitment rules. It is a belated approach on the part of the petitioner who never appeared in any of the recruitment process nor have they approached any other statutory authority ventilating their grievance and for the first time in the year 2018 they have questioned their relationship which otherwise is only through the contractor. She has empathetically refuted that there is any unfair labour practice adopted by the department as according to her, the department is not an industry and assuming that there is a dispute then also the writ petition would not allow. She has also argued empathetically and fervently that the reliance on the office memorandum dated 09.10.2015 is also misplaced as it only talks of discontinuous of interviews for various junior level posts. She substantiated her case by relying on the following authorities:- (a)Union Public Service Commission vs. Girish Jayantilal Vaghela and Others, reported in (2006) 2 SCC 482. (b)Balwant Rai Saluka and Another vs. Air India Limited and Others, reported in (2014) 9 SCC 407. (c)Union of India and Others vs. Mohan Pal and Others, reported in (2002) 4 SCC 573. (d)L. Chandra Kumar vs. Union of India and Others, reported in (1997) 3 SCC 261. (e)Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408. 7.Having thus heard both the sides and also on having considered in detail the submissions, at the outset, the law on the subject, particularly of the maintainability of the petition require to be considered. 8.The petitioners are before this Court with a challenge of the action of the respondents with a specific factual matrix of their (b)Balwant Rai Saluka and Another vs. Air India Limited and Others, reported in (2014) 9 SCC 407. (c)Union of India and Others vs. Mohan Pal and Others, reported in (2002) 4 SCC 573. (d)L. Chandra Kumar vs. Union of India and Others, reported in (1997) 3 SCC 261. (e)Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408. 7.Having thus heard both the sides and also on having considered in detail the submissions, at the outset, the law on the subject, particularly of the maintainability of the petition require to be considered. 8.The petitioners are before this Court with a challenge of the action of the respondents with a specific factual matrix of their having worked from the year 2000 till 2019, so far as 47 workmen are concerned. In relation to others, out of 145, 63 workmen were working from 2009, 30 workmen were working from 2014 and 5 workmen from 2017 till the date of their termination of services. They have also admitted to substantiate their application with certain documents, more particularly, while putting forth the case that the payment of wages had been made by the Income Tax Department initially when some of the petitioners who are engaged and hired from the year 2000. Although, the total number of persons before this Court according to the Registered Union is 147. Out of which, 47 workmen are claiming to be in service from 2000 onwards till their services had been terminated in February-2019. This has been strenuously disputed by the other side on the ground that there had been no direct recruitment of any of these persons either by the public advertisement or through the employment exchange. It is also questioned on the ground that the respondent is a Central Government Department which has no authority to recruit anyone without following the prescribed procedure of law. 9.The question that has arisen is as to whether in a petition under Article 226 of the Constitution of India, the disputes of the parties could be adjudicated or is it a case for the Court to relegate the parties to the alternative remedy. In case of Roshina T. vs. Abdul Azeez K.T. And Others, reported in 2019 (2) SCC 329, the dispute was between the private parties relating to property rights involving the question of facts. The High Court when went into all questions of fact arisen on the face of the factual pleadings in detail and recorded a factual finding that it was a respondent in possession of the flat and therefore, restoration with the possession of the flat was must to be directed. The Apex Court in a challenge made by the parties had quashed and set aside the said order by holding that the High Court exceeded the extra ordinary jurisdiction conferred under Article 226 of the Constitution of India. It also went to an extent of saying that the High Court in granting the relief had virtually converted the writ petition into a civil suit and itself into a civil court. The filing of the writ petition was wholly misconceived. It deserves dismissal in limine on the ground of availability of alternative remedy of filing a suit in the civil court.. The Court held that regular suit is the appropriate remedy for settlement of the dispute relating to the property rights between the private parties, such remedy under Article 226 of the Constitution will not be available except where violation of some statutory duty on the part of the statutory authority is alleged. The Court in such case would have a jurisdiction to issue appropriate directions to the authority concerned. The High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal law are available. 9.1. The Court while taking note of this aspect also needs to The Court in such case would have a jurisdiction to issue appropriate directions to the authority concerned. The High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal law are available. 9.1. The Court while taking note of this aspect also needs to bear in mind that the petitioner is before this Court pleading violation of the statutory duty on the part of this statutory authority alleging the same against Central Government Department, the Court can have a jurisdiction to issue appropriate directions to the authority in an appropriate case, however, the question that arises as to whether this is the case for directing the parties to be relegated to the alternative remedy or whether the Court should enter into the factual pleadings and decide the matter in accordance with law. 9.2.Before this Court answers this question, it is also conscious of the fact that whenever there are disputes of workman in relation to the industrial dispute under the labour laws, the workman shall have to take recourse to the labour laws. It is not in dispute that the workmen of the petitioner union fall under the definition of workman under Section 2(s) which defines the “workman” as any person employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward whether the terms of employment be express or implied and for the purpose of any proceedings under this Act in relation to an industrial disputes which includes any such person who has been dismissed, discharged or retrenched in connection with, or in consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute with certain exceptions as stipulated in the definition clause. 10. Relevant would be to refer to the definition of “Industry” under Section 2(j) which means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation or workmen. 10.1. Section 2(K) provides for “industrial dispute” which means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. 11.On the ground that the establishment if exercises inalienable government function, it can be taken out of the pale of industry. It is urged before this Court that the respondent no.1 cannot be included in the definition of the “Industry” as it discharges a sovereign function as stipulated under the constitution. Undoubtedly, the respondent no.1 is the Central Government Department under the Union of India and is discharging sovereign function for collection of the tax. It is the stand of the respondent no.1 that any grievance in relation to the service under the Union of India is governed by the Administrative Tribunal Act, 1995 and there is an efficacious remedy available therefore also, this petition is not maintainable, shall regard consideration as well. 12.Heavy reliance is placed on the decision of L. Chandra Kumar vs. Union of India and Others, reported in (1997) 3 SCC 261, where the Court held that power of judicial review is a basic and essential feature of the constitution and hence, the jurisdiction conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 is a part of the basic structure of the constitution. The component of power of judicial review had been examined at length by the Court. There is a need of securing independence of the judiciary for effective exercise of the power of judicial review. Since the 12.Heavy reliance is placed on the decision of L. Chandra Kumar vs. Union of India and Others, reported in (1997) 3 SCC 261, where the Court held that power of judicial review is a basic and essential feature of the constitution and hence, the jurisdiction conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 is a part of the basic structure of the constitution. The component of power of judicial review had been examined at length by the Court. There is a need of securing independence of the judiciary for effective exercise of the power of judicial review. Since the challenge was to Articles 323(A) and clause3(d) of the Article 323(B) to the extent they excluded the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the constitution respectively, the same were held as unconstitutional. Thus, the Apex Court emphasized the powers of the Supreme Court and High Court of judicial review under Articles 226/227 and 32 of the Constitution are parts of inviolable basic structure of constitution. The Court held and observed thus:- The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32of the Constitution is part of the inviolable basic structure of our Constitution. “99.In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323Aand Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional.Section 28of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article323Aand Article 323Bof the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. ” be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. ” 13.This decision, in fact, does not take away the powers of the judicial review of the Court. The Court has shown the desirability of the parties for ventilating his grievance in relation to the service and service conditions. It is to be noted that the respondent has empathetically refuted any relationship with the workmen of the petitioner's trade union on the ground that neither those 47 who claimed to have been working from the year 2000 nor those who substantially taken through the contractor who worked as its manpower and who essentially discharged the duties of Group-D which later on has been nomenclatured as Group-C for Multitasking Staff, the respondent has chosen to state that it has nothing to do with any of these persons. It also has refused any employer employee relationship or for that matter, any relationship which can be directly established under the law. 14.This Court notices that in the case of nearly 47 workmen, a specific claim has been put forth of their discharging the duties directly under the respondent no.1 and the payment also had been made directly by the said respondent. The document produced at Annexure-B for the months March-2006, August-2007, July-2008, December-2009 etc. speak of the vouchers of petty contingent expenditure raised by some of the workmen which has the signature of Chief Commissioner of Income Tax, Ahmedabad on the said vouchers which speak of having working for nearly three days in a particular month and the payment having been made of the wages of the particular day. This is given under the signature of Deputy Director of Income Tax, Ahmedabad. There are other vouchers also produced at Annexure-I (Collectively) of various months which also bears the signatures of Income Tax Officers of different boards and also of the Chief Commissioner of Income Tax, senior department representatives, ITAT. 15.These documents are prima facie indicative of some of the workmen having performed their continuous and regular duties with the respondent no.1. There appears to be a direct payment of wages to some of these persons from the documents which have been produced by the petitioner. It is the case of the petitioner union that some of these workmen have been performing the continuous and perennial duties till respondent no.1 introduced contract system in the department. They not only had been directly engaged by the department, but, also had continued to discharge the duties thereafter under the instructions of the senior officials in different offices at Ahmedabad. The vouchers which have been produced on record are reflective of the signatures of the different heads of different department which are prior to the year 2009. It is the case of the respondent no.1 in the affidavit-in-rejoinder and even orally that after the 6[th] Pay Commission was implemented, for any manpower recruitment, the service provider had been engaged and it was by a settled prescribed procedure that the hiring of the contractor was done. 16.It is urged by the respondent department that by publishing the tender, in sealed bids, the department invites the registered firms and agencies for hiring the manpower for all miscellaneous work of all offices of the Income Tax Department. For the first time, the contract system for providing outsourcing manpower was started in the year 2009 and thereafter, it has continued. Last such contractor was M/s. Rajdeep Enterprise. 17.As mentioned above, the Court finds prima facie some vouchers indicating the hiring of the staff of respondent no.2. It is not only difficult but impermissible to enter into the factual matrix and finalize as to how may number of workmen had been hired by the Income Tax Department and what was the relationship which had governed the parties. These being the disputed question of facts, shall need to be answered by the competent Trial Court. The Court is also conscious of the fact that from the year 2009, when the department had introduced the contractors by inviting the bids for hiring the manpower, the workmen of the petitioner – registered union accepted to work under such contractors and continued to perform the duties all throughout. For the first time in the year 2018, the challenge has been made by seeking to protest as they were aggrieved by the conduct and the action of the respondent no.1. It is a long 10 years that these petition has been preferred. 18.This delay is sought to be explained by the petitioner union stating that these workmen continued to work under the contractor as they belong to the socio economic strata which does not afford them a luxury of litigation at the cost of their family. They did not approach the Court till they found that their services came to be terminated at the instance of the respondent no.1 who never was ready to take the responsibilities as a principal employer. This delayed approach also can be examined this wise that on their own, the petitioners have not approached the department and the reason put forth is the collection of the details pursuant to the Office Memorandum dated 29.11.2013. According to these workmen, this Office Memorandum which collected the details of the casual labourers for granting them the temporary status or the regularization as per the scheme of 1993, Mr. J.A.Vaidyanathan, Director, Government of India Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) had called for the details from all the departments of the Ministry of the Government as it had not have the full details of casual labourers/ daily wagers who are to be engaged for work which is casual or seasonal or intermittent nature or for work which is not of full time nature. The government since received number of representations and the references of various ministries, this exercise has been undertaken. Apt would be to refer to the said Office Memorandum in its entirety. “No. 49011/31/2008- Estt ( c)Government of India Ministry of Personnel, Public Grievances & PensionsDepartment of Personnel & TrainingEstablishment C Section ** * **North Block, New Delhi Dated the 29 November, 2013 OFFICE MEMORANDUM Subject: Casual Labour (Grant of temporary status and regularization) Scheme of 1993- Assessment of present status of the scheme-regarding. “No. 49011/31/2008- Estt ( c)Government of India Ministry of Personnel, Public Grievances & PensionsDepartment of Personnel & TrainingEstablishment C Section ** * **North Block, New Delhi Dated the 29 November, 2013 OFFICE MEMORANDUM Subject: Casual Labour (Grant of temporary status and regularization) Scheme of 1993- Assessment of present status of the scheme-regarding. 1.The undersigned is directed to refer to this Department’s O.M. of even number dated 17th February, 2009 wherein all Ministries/Departments were reques