P.K. Balasubramanyan, J. - (1.) CWJC No. 2356 of 1997R was initially filed challenging the order dated 23.6.1997 passed by the Regional Provident Fund Commissioner, Jamshedpur holding that the writ petitioner. M/s Tata Engineering and Locomotive Company Limited (TELCO) was liable to make contributions under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 in respect of convoy drivers who drive the vehicles manufactured by the petitioner company to different destinations for supply to the distributors. Though, this Court while admitting the writ petition stayed all further proceedings pursuant to that order, this Court subsequently modified that order and permitted the Provident Fund Commissioner to make a final order, but directed him not to enforce that order until further orders from this Court. Thereupon, the Provident Fund Commissioner passed another order dated 24.6.1999 quantifying the amount to be contributed by the petitioner company. Thereupon, the petitioner company amended CWJC No. 2356 of 1997 to include a challenge to the consequential order as well. The company also filed CWJC No. 3275 of 1999 challenging the final order dated 24.6.1999 and also challenging the constitutional validity of the definition of "employee" contained in Section 2(f) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the Act). Since the two writ petitions were intrinsically connected, they v/ere heard together. Ultimately, the main arguments were addressed in CWJC No. 2356 of 1997 which included a challenge to both the orders and nothing much was argued on the question of the constitutional validity of Section 2(f) of the Act which defines as 'employee' in respect of whom the contribution has to be made.
(2.) SOMETIME in the year 1981, the Provident; Fund Commissioner issued a notice to the petitioner company (hereinafter referred to as TELCO) under Section 7A of the Act calling upon TELCO to make contributions under the Act in respect of the convoy drivers. TELCO challenged that notice in the High Court of Patna in CWJC No. 1571 of 1981. By judgment dated 25.9.1987, a single Judge of the Patna High Court allowed the writ petition and quashed the notice issued by the Provident Fund Commissioner. The learned Judge held that there was no relationship of employer and employee between TELCO and the convoy drivers. The Provident Fund Commissioner filed an appeal under clause 10 of the Letters Patent, as LPA No. 53 of 1988, challenging that decision. Meanwhile, the TELCO Convoy Drivers Mazdoor Sangh, sought to raise an industrial dispute claiming that they are workmen employed by TELCO and are entitled to all the benefits as such. The appropriate Government, the Government of Bihar, refused to make a reference of the dispute raised by the Sangh to the Industrial Tribunal under Section 10 of the Industrial Disputes' Act, The Mazdoor Sangh filed a writ petition, CWJC No. 1852 of 1987 in the Patna High Court. That writ petition was dismissed by the Patna High Court by judgment dated 15.1.1988. The Mazdoor Sangh challenged the decision of the Patna High Court before the Supreme Court, The Supreme Court, by the decision reported as the TBLCO Convoy Drivers Mazdoor Sangh v. State of Bihar , allowed the appeal and directed the State of Bihar to make a reference to the appropriate Industrial Tribunal under Section 10(1) of the Industrial Disputes Act, of the dispute raised by the Mazdoor Sangh. The Supreme Court noticed the argument of TELCO that unless there was the relationship of employer and employees between the parties, or, in other words, unless those who are raising the dispute are workmen under the other party, there could not exist or arise any industrial dispute within the meaning of that term as defined in Section 2(k) of the Industrial Disputes Act and that the Government had to consider that question before making the reference. The Supreme Court observed that though the argument was attractive, the same could not be accepted in view of the settled position that while exercising power under Section 10(1) of the Act, the function of the appropriate Government was only an administrative function and not a judicial, or quasi -judicial function and in performing its administrative function, the Government could not delve into the merits of the dispute and take upon itself the determination of the ifs. It was thus that the dispute was directed to be referred to the Industrial Tribunal. Pursuant to this direction, the Government of Bihar made a reference of the following question to the Industrial Tribunal, Ranchi : - "Whether relationship of employer and employee exists between M/s. TELCO Limited, Jamshedpur, and the Convoy Drivers? if so, whether they are entitled to be made permanent employees of TELCO -
(3.) THE Industrial Tribunal. Ranchi, took that reference on its file as Reference Case No. 123 of 1989. By an award dated 31.7.1991, the Tribunal answered the question referred to it in favour of TELCO and against the Sangh. The Tribunal recorded its conclusion that the convoy drivers were not employees of TELCO and no relationship of employer and employee existed between TELCO and the convey drives and as such the convoy drivers were not entitled to be made permanent employees of TELCO. This award was challenged by the Mazdoor Sangh in CWJC No. 3392 of 1997. By judgment dated 11.5.2001. reported as TELCO Convoy Drivers Mazdoor Sangh v. Presiding Officer, Industrial Tribunal, Ranchi, 2001 (2) JCR 211 the writ petition was dismissed upholding the finding of the Tribunal that there existed no relationship of employer and employee between TELCO and convoy drivers. The Mazdoor Sangh challenged the said decision in LPA No. 373 of 2001. By judgment dated 6.7.2001, a Division Bench of this Court, dismissed the appeal. The said dismissal was sought to be challenged before the Supreme Court by the Sangh, by filing Petition for Special Leave to Appeal (C) No. 19936 of 2001. By order dated 10.12.2001. the Supreme Court dismissed the Petition for Special Leave to Appeal by stating that their Lordships were not inclined to interfere with the impugned order. Thus, the award of the Tribunal holding that there existed no relationship of employer and employees between TELCO and the convoy divers and that the convoy drives were not entitled to be treated as permanent employees of TELCO, became final.;