The
intention of the respondent was not honest as he found that the
respondent was trying to sell the property in dispute to some other party
at a much higher price. Having found that the respondent was not interested to
execute the sale deed as agreed upon, he approached the respondent on 21st of
June, 2006 to execute the sale deed. When he also intimated the respondent that
he was ready and willing to perform his part of the contract to execute the
sale deed, the respondent refused to perform its part of the contract and
informed100 that they would
not execute the sale deed until and unless the appellant
agreed to pay a higher sale consideration120
/// over and above what was
agreed to between the parties. Having found that the respondent was
trying to sell the property in dispute to a third party at a
higher price, the appellant filed an application under Section 9 of the Act on
23rd of June 2006 before the City Civil Judge, Bangalore for injunction
restraining the respondent from alienating, altering or creating any third-party
interest in respect of the property in dispute. With the application,200 the appellant also filed an application
under Order 39 Rule 1 and 2 read with Section 151 CPC for temporary
injunction restraining the respondent from transferring, alienating or
creating any third-party interest in the240
/// same.
The
respondent entered appearance and denied the material allegations made in the
application for injunction. It was the specific case of the respondent
that since time was the essence of the contract and the appellant having failed
to perform his part of the obligation of the contract, the respondent was not
bound to execute the sale deed and, therefore,300
the agreement for sale was cancelled by the respondent. The Addl. City Civil
Judge, Bangalore by his order dated 23rd of September 2006 allowed the
application filed by the appellant, inter alia, on a finding that there are
serious issues to be tried before the arbitrator and that the appellant
has successfully made out a prima facie360
/// case for grant of injunction in
the manner prayed for in the application. The learned Addl. City Civil
Judge, Bangalore while disposing of the application for injunction, came to finding
prima facie that the respondent intended to sell the property400 in dispute to some other persons at a
higher price as it was found that the intending purchasers were frequently
visiting for the purpose of purchasing the property in dispute. The Addl. City
Civil Judge, Bangalore, therefore, held prima facie that the respondent was
likely to sell the property in dispute and if it was sold, it would make
the award of the learned Arbitrator infructuous for which the
appellant shall suffer irreparable loss and injury. Accordingly, upon the
aforesaid480 /// findings, the Addl. City Civil Judge,
Bangalore disposed of the application for injunction directing the parties to
maintain status quo500 in
the matter of transferring, alienating and creating any third-party
interest in respect of the property in dispute. On an examination of the
pleadings of two writ petitions, we find that the issues for consideration were
all different in the petitions. In the first petition, relief was sought under
the Contract Labour Act, 1970 for abolition of contract labour system in the operation of canteen in
the marketing establishment of IOC and for absorbing the canteen workers as
employees of IOC. In the second petition, relief was sought under the Industrial
Disputes Act, 1947600 /// for making a reference under Section 10(1)
to the Industrial Tribunal to decide whether the contract between IOC and the
canteen contractor was sham, nominal and a mere camouflage to avoid
extension of labour law benefits to the workers in question and whether the
canteen workers were the direct employees of IOC.
The
assumption that the appellant had taken inconsistent stands in the two
writ petitions is not correct. Even in the first writ petition, the appellant
had contended that though the contractors changed from time to time, the
workers in the canteen remained the same700
with continuity of service; that IOC had mala fide and illegally kept the
workers as contract labour in720
/// order to keep them in a permanent
state of insecurity and to deny them the wages and privileges available to
permanent workers; that IOC was actually controlling and supervising the
canteen and that only as a camouflage, the contractor was shown as running the
canteen to create a pretence that the workmen of IOC were the workers of
the contractor, when in fact they were the employees of lOC. In short,
the appellant had contended that800
the contract was sham and nominal in the first petition. Even in the second
writ petition, the contention was that the contract was sham and a camouflage
to avoid extending benefits of regular employees to the canteen workers.
Therefore, the840 /// High Court committed a serious error in
assuming that in the first writ petition, the appellant had conceded that the
contract between the IOC and the canteen contractor was valid and genuine and
that in the second writ petition the appellant had taken a contrary stand that
the contract was sham and a camouflage.
The
stand of the900 appellant and
the workers was always consistent. But before the decision of a Constitution
Bench of this Court in Steel Authority of India Ltd. v. National
Union Waterfront Workers, 2001 (7) SCC 1, it was thought that the appropriate
relief available was to seek an investigation and abolition of contract
labour and consequently seek960
/// absorption. Therefore, the
prayer was made in the first petition. This Court held that even if there was
an order under Section 10 of the Act prohibiting contract labour in any process
or operation, there would be no automatic absorption1000 of the contract labour by the principal
employer. It was also held that it is always open to the contract
labour to urge that the contract was sham and nominal by raising an industrial
dispute and such dispute will have to be decided by the industrial adjudicator
and not by the High Court.1053
