jkti=] fgekpy izns'k

fgekpy izns'k jkT; 'kklu }kjk izdkf'kr

eaxyokj] 06 Qjojh] 2018@17 ek?k] 1939

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 27^th October, 2017

No.Shram (A) 6-4/2017 (Awards).—In exercise of the powers vested under section 17 (1)

of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to order the

231&jkti=@2017&06&02&2018

¼10367½

10368

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

publication of awards of the following cases announced by the Presiding Officer, Labour Court

Shimla on the website of the Department of Labour & Employment Government of Himachal

Pradesh:—

Sr.

Reference/

Application

Title

Section

Ref.182/2002

Sh. Virender V/S Sh. Anju Arora & Anr.

Ref.97/2009

Gaberiel Employees Union V/S M/S Gabriel

India Ltd. Parwanoo.

Ref.34/2017

Sh.

Rajeev

Thakur

V/S

M/S

Sun

Pharmaceuticals Industries.

Ref.66/2017

Sh.Parkash Bhardwaj V/S M/S Danik Bhaskar

D.B. Corp. Ltd.

Ref.86/2017

Sh. Sandeep V/S M/S J.H.S. Laboratories Kala-

Amb.

Ref.34/2016

Sh. Deep Ram V/S The XEN, IPH, Sunni.

Ref.51/2016

Sh.Raghuvir Singh V/s The D.F.O Chopal.

By order,

R. D. DHIMAN, IAS

Pr. Secretary ( Lab. & Emp.).

____________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA.

Ref no. 182 of 2002.

Instituted on 21.6.2002.

Decided on. 13.9.2017.

Virender S/o Shri Surjeet Singh R/o V.P.O Taksal, Tehsil Kasauli, District Solan, HP.

. .Petitioner.

Anuj Arora, Contractor M/s Eicher Demn, Plot no. 29-30, Sector-2, Parwanoo,

District Solan, HP.

M/s Tafe Motors & Tractor, Pvt. Ltd., Plot no. 29-30, Sector-2, Parwanoo, District

Solan, HP.

. .Respondents.

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner

: Shri B.R Kashyap, Advocate.

For respondent no.1

: Ms. Sneh Negi, Advocate.

For respondent no.2

: Shri Janesh Mahajan, Advocate.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:—

"Whether the termination of services of Shri Virender S/o Shri Shri Surjeet Singh

by the 1. Anuj Arora, Contractor M/s Eicher Demn, Plot no. 29-30, Sector-2,

10369

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

Parwanoo, District Solan, HP 2. The General Manager, M/s Eicher Demn, Pvt. Ltd.,

Plot no. 29- 30, Sector-2, Parwanoo, District Solan w.e.f. 11.9.2000 without

complying the provisions of the Industrial disputes Act, 1947 is proper and justified?

If not, to what relief of seniority, back wages, service benefits and amount of

compensation, Shri Virender is entitled to?”

Briefly, the case of the petitioner is that, he had been engaged as Gardner by the

respondents in the year 1990 and he worked continuously without any interruption till

10.9.2000. On 11.9.2000, his services were terminated without assigning any reason and at that

time, he was drawing salary @ Rs. 1890/- per month. It is further averred that the work being

performed by him is of permanent nature and is still continuing. However, without giving any

notice or paying retrenchment compensation, his services were terminated, and he deserves to be

reinstated with all consequential service benefits.

By filing separate reply, the respondent no.1 contested the claim of the petitioner

wherein preliminary objections have been taken qua maintainability that the replying respondent

was not the employer of the petitioner and his actual employer i.e M/s Eicher Demn Parwanoo

had been substituted by Tafe Motors as respondent no.2 and that in the year 2003 due to the

completion of the work as per the contract/agreement between replying respondent and Eicher

Demn, the replying respondent resumed work elsewhere and the replying respondent at no point of

time was responsible for the alleged termination of the services of the petitioner in 2000. On

merits it has been asserted that the petitioner has alleged his employment as Gardner since 1990

whereas the contract of the replying respondent with Eicher Demn was executed in the year, 1992

and as such the petitioner was already working under Eicher Demn before the contract was

awarded to the replying respondent. Against this back-drop a prayer has been made that claim

petition against respondent no.1 be dismissed.

By filing separate reply, the respondent no.2 i.e Tafe Motors and Tractors Limited

contested the claim of the petitioner on having raised various preliminary objections including

that the respondent no.2 is neither proper nor necessary party as the dispute relates to the period

when Eicher Demn was running the unit and vide business purchase agreement entered between

replying respondent and Eicher Demn it was clearly mentioned that any litigation initiated prior to

purchase of the unit will be the responsibility of Eicher Demn, that initially the reference was

initiated against Eicher Demn and on the application filed by Eicher Demn, the replying

respondent was added as party by misleading this Court and that by impleading replying

respondent as party, it had been dragged into unnecessary litigation. On merits, it has been asserted

that the present dispute arose prior to taking over the unit by replying respondent and as per BPA,

it is the liability of Eicher Demn. The respondent no2 also prayed for dismissal of the claim.

Rejoinder filed. Pleadings of the parties, gave rise to the following issues, which

were framed by this Court on 10.8.2007, 26.7.2017 and 2.8.2017.

Whether the services of the petitioner have been illegally terminated by respondent

without complying with the provisions of I.D Act, 1947? If so, its effect? . .OPP.

If issue no.1 is proved in affirmative, to what relief, the petitioner is entitled to?

. .OPP.

Whether the petition in the present form is not maintainable?

. .OPR.

Whether the respondent no.2 is neither the proper nor the necessary party as alleged?

. .OPR-2.

10370

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

Whether the petitioner is not an employee of respondent no.1 as alleged?

. .OPR-1.

Relief.

I have heard the learned counsel for the parties and have also gone through the

record of the case carefully.

For the reasons to be recorded hereinafter while discussing issues for

determination my findings on the aforesaid issues are as under.

Issue no.1

No.

Issue no.2 Becomes redundant.

Issue no.3 No.

Issue no.4 Yes.

Issue no.5 Yes.

Relief.

Reference answered in favour of the respondents and against the

petitioner per operative part of award.

Before, I proceed further, it is important to mention here that earlier the aforesaid

reference was decided by this Court vide award dated 31.5.2010 which was assailed before the

Hon’ble High Court and the Hon’ble High Court vide order dated 7.11.2016 passed in CWP no.

6625/2010 has quashed and set aside the award passed by this Court and remanded the matter back

to this Court with the direction to decide the same afresh. The order passed by the Hon’ble High

Court is as under:

“Consequently, in view of aforesaid, petition is allowed to the extent that impugned

award dated 31.5.2010 passed by Industrial Tribunal-cum-Labour Court, Shimla in Reference No.

182/2002 is quashed and set aside and matter is remanded back to the Industrial Tribunal-cum-

Labour Court, Shimla to decide the matter afresh, after affording opportunity of hearing to both

the parties. Needless to say that the petitioner, M/s Tafe Motors and Tractors Ltd. would be

given opportunity to file reply and to lead evidence, if any, in support of its claim and also afford

opportunity to the other side to rebut the said evidence.

Reasons for findings

Issued no.1, 4 & 5.

Being interlinked and correlated all these issues are taken up together for discussion

and decision.

10. The petitioner appeared into the witness box as PW-1 to depose that he was engaged

as Mali in the year, 1990 by the Eicher Tractor on the monthly salary of ` 700/- and he worked till

September, 2000. He further deposed that his services were terminated in September, 2000 and

no notice was issued to him prior to his termination and that during his service his EPF

amount and ESI amount used to be deducted by M/s Eicher Tractors. In cross- examination, he

stated that no appointment letter was issued to him at the time of his appointment with Eicher

Tractor. He admitted that he never remained the employee of respondent no.1 contractor

and that he was working along-with other workers namely KV Thapa, Sant Ram, Bahadur

10371

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

Bal, Bhim Singh, Gian, Baldev, Bir Bahadur and Pratap before the year, 1992. He denied that the

contractor Anuj Arora is not liable to give him any service benefits. When cross-examined on

behalf of respondent no.2 he stated that his salary used to be paid by M/s Eicher Tractor. He

admitted that he never raised any demand notice against Tafe Motors and that he does not have

any dispute with M/s Tafe Motors.

11. On the other hand the respondent no.2 examined Shri Pradeep Saxena, Divisional

Manager who stated that vide business purchase agreement dated 27.5.2005 Ex. RW- 1/A the

respondent no.2 had taken over the unit in the year, 2005 from Eicher Motors and as per clause

6.10 (IV) (a) of Ex. RW-1/A, the liability of any nature prior to the transfer date will be of Eicher

Motors. In cross-examination on behalf of petitioner he admitted that they had taken over the unit

along-with assets, liability and all the employees of Eicher Motors and that they had not intimated

the petitioner about the taking over of the unit. He deposed that in the list of the employees,

name of the petitioner was not mentioned. He denied that it is their liability to settle the present

dispute with the petitioner. He admitted that the petitioner was not a party in reference no. 266 of

2002.

12. Shri Anuj Arora, respondent no.1 appeared into the witness box as RW-2 to depose

that they have entered into a contract with the then Eicher Tractors in the year 1992 for

landscaping and gardening and prior to the year, 1992, there was team of workers/gardeners

headed by K.B Thapa in which the petitioner was the employee of Eicher Tractors and his salary

was also being deducted by Eicher Tractors. He further deposed that their contract with Eicher

Tractors came to an end in the year, 2003. In cross-examination on behalf of respondent no.2 he

admitted that the petitioner was working under his supervision w.e.f. 1992 till the year, 2000.

When cross-examined on behalf of petitioner he admitted that the petitioner was never engaged by

him and that the salary was being paid to the petitioner by Eicher Tractors and he used to disburse

the same.

13. I have closely scrutinized the entire evidence on record and from the closer

scrutiny thereof, it has become clear that the petitioner was engaged as a Gardener in the year,

1990 by Eicher Tractors and thereafter the name of the company was changed to M/s Eicher Demn

and he worked till 10.9.2000. In his deposition before this Court the petitioner has stated that he

was engaged as mali in the year 1990 by Eicher Demn on the monthly salary of ` 700/- and he had

worked till September, 2000 and his last drawn salary was ` 1890/- per month. He also admitted

in cross-examination that he never remained the employee of respondent no.1 contractor and he

was never engaged by him. He further admitted that his salary was used to be paid by M/s Eicher

Tractors. He also admitted that he had never raised any demand notice against respondent no.2

Tafe Motors and he had got no dispute with it. It has also become clear that the respondent no.1

contractor had entered into a contract with Eicher Demn in the year, 1992 for landscaping and

gardening and the petitioner was engaged prior to the year, 1992. RW-2, the contractor

categorically deposed before this Court that the petitioner was the employee of Eicher Tractors and

his salary was being paid by it and the amount of ESI and EPF was also being deposited by Eicher

Tractors and his contract with Eicher Tractors came to an end in the year, 2003. Therefore, the

perusal of entire evidence on record shows that the petitioner was the employee of M/s Eicher

Demn and as per the admission of petitioner himself he was not the employee of contractor i.e

respondent no.1.

14. From the evidence on record, it has also become clear that the respondent no.2 had

taken over the unit in the year, 2005 from Eicher Demn vide business purchase agreement dated

27.5.2005 Ex. RW-1/A. As per clause 6.10(IV) (a) of business purchase agreement Ex. RW-1/A

all the pending litigation before taking over of the unit would be the liability of M/s Eicher

Demn. The relevant extract of the aforesaid clause of business purchase agreement reads as

under:

10372

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

“(iv) Without prejudice to the generality of the foregoing relation to the litigation

proceedings, which pertain to a period prior to the Transfer date the following

principles shall apply:

(a) If pursuant to any such litigation proceeding, any costs, expenses,

penalties, interest or monetary liability of any nature whatsoever is

required to be paid the Seller shall bear all such monetary liabilities to the

extent they pertain to a period prior to the Transfer Date and are directly

attributable of the actions of the Seller. For the avoidance of doubt it is

clarified that if after the closing date, the default previously committed by

the Seller or the issue involved in the litigation proceedings is continued by

the Buyer on its violation, any costs, expenses or liabilities, imposed for

continuance of such default or issue after the closing date, shall be borne

by and discharged by the Buyer.”

Moreover, in another reference i.e reference no. 266/2002, M/s Eicher Demn Parwanoo had

entered into a settlement with the workman to pay him a sum of ` 4.70 lakhs as full & final

settlement vide order dated 20.9.2012 which reads as under:

“Today, the petitioner and respondent no.2 i.e. M/s Eicher Demn, Parwanoo entered into a

settlement in this reference vide which respondent no.2 (M/s Eicher Demn, Parwanoo)

agreed to pay lump-sum amount of Rs. 4.70 lakhs (Rs. Four Lakhs Seventy Thousand

only), to the petitioner as full & final settlement between the parties. This offer is

accepted by the petitioner. Statements of Ld. Counsel for respondent no.2 and petitioner

to this effect were recorded. Petitioner has also stated that in view of said settlement he

has got no claim left towards the respondents in any manner whatsoever.

In the light of aforesaid settlement this claim petition is decided and the reference

is answered accordingly. It is made clear that the respondent no.2 (M/s Eicher Demn,

Parwanoo) shall make the payment of aforesaid amount of Rs. 4.70 lakhs (Rs. Four Lakhs

Seventy Thousand only) to the petitioner on or before 31/10/2012 failing which petitioner

shall be entitled to the interest @ 9% per annum. Let a copy of this award be sent to

the appropriate government for publication in the official gazette. File, after completion, be

consigned to records.

Sd/-

Presiding Judge,

Labour court, Shimla.

______________

Therefore, from the perusal of the entire evidence on record it has become clear that prior to

taking over of the unit i.e 1.6.2005, the liability was of M/s Eicher Demn regarding all the

pending litigations as such the reference no. 266 of 2002 which was already pending adjudication

before this Court was settled by M/s Eicher Demn before this Court vide aforesaid order dated

20.9.2012. Had it not been the liability of M/s Eicher Demn, it would have not settled the claim in

reference no. 266/2002. Since, in the present case also the petitioner was engaged by Eicher

Demn and his services were terminated by Eicher Demn before taking over of the unit,

therefore, as per the business purchase agreement Ex. RW-1/A, the respondent no.2 cannot be

held liable for the termination of the services of the petitioner. Hence, it can safely be held that the

respondent no.2 is neither the proper nor the necessary party in the present case.

10373

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

15. From the perusal of the record it has become clear that in the present reference

sent by the appropriate government, M/s Eicher Demn was a party. However, an application was

filed by M/s Eicher Demn for deleting its name and for impleading M/s Tafe Motors as one of

the respondents which application was allowed vide order dated 18.12.2006 passed by this

Court and the learned counsel for the petitioner has not raised any objection for allowing of that

application. The order dated 18.12.2006 is reproduced as under:

“Reply of application not filed. Otherwise also the counsel for the petitioner has no

objection if the present application is allowed and the name of the M/s Tafe Motors and Tractor

Ltd. impleaded as one of the respondent subject to payment of cost. The application is allowed

and M/s Tafe Motors and Tractors Ltd. is ordered to be impleaded as one of the respondent in

place of respondent no.2 subject to payment of Rs. 300/-. Now to come up on 19.2.2007 for

rejoinder if any, and issues.”

Therefore, the perusal of the aforesaid order shows that M/s Tafe Motors was ordered

to be impleaded as respondent in place of Eicher Demn on the “no objection” given by the

learned counsel for the petitioner. As observed earlier, since the services of the petitioner were

engaged and thereafter terminated by Eicher Demn in the year, 2000, Eicher Demn was a necessary

party in the present reference as such in the absence of Eicher Demn, no order can be passed

against M/s Eicher Demn and therefore, it cannot be said that the services of the petitioner have

been illegally terminated by Eicher Demn without complying with the provisions of the Act.

Hence, all these issues are decided accordingly.

Issue no.2.

16. Since, the petitioner has failed to prove issue no.1 above, this issue becomes

redundant.

Issue no.3.

17. In support of this issue, no evidence has been led by the respondents. However,

the petitioner has filed this claim petition pursuant to the reference made by the appropriate

government to this Court for adjudication and I find nothing wrong with this petition which is

perfectly maintainable. Accordingly, this issue is decided in favour of the petitioner and against

the respondents.

Relief.

As a sequel to my findings on the aforesaid issues, the claim of the petitioner fails

and is hereby dismissed. Consequently, the reference stands answered against the petitioner and

in favour of the respondents. Let a copy of this award be sent to the appropriate government for

publication in official gazette. File, after completion be consigned to records.

Announced in the open Court today on this 13^thDay of September, 2017.

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

10374

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA.

Ref. No. 97 of 2009

Instituted on 18.11.2009.

Decided on 20.9.2017.

Gabriel

Employees

Union,

INTUC,

Parwanoo,

District

Solan,

through

President/General Secretary.

VERSUS.

. .Petitioner.

Madan Lal Contractor, C/o M/s Federal Mogul Bearings India Ltd. Sector-II,

Parwanoo, District Solan, HP.

M/s Federal Mogul Bearings India Ltd. Sector-II, Parwanoo, District Solan, HP,

through its Managing Director.

. .Respondents.

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner : Shri R.K Khidta, Advocate.

For respondent no.1 : Shri Vishal Panwar, Advocate.

For respondent no.2 : Shri Rahul Mahajan, Advocate.

AWARD

The following reference has been received from appropriate government for adjudication:

“Whether the financial demands raised by the President/General Secretary, Gabriel

Employees Union, INTUC, Parwanoo, District Solan, HP vide demand notice dated

7.11.2006 (copy enclosed), before the management of M/s Gabriel India Ltd. Plot

No. 5, Sector-2, Parwano and Shri MadanLal Contractor of M/s Federal Mogul

Bearings India Ltd., Sector-II, Parwanoo, District Solan, HP. are legal, reasonable

and justified? If yes, what financial benefits the canteen workmen are entitled to as

per said demand notice, if not, what are its legal effects?”

Facts in brief as averred by the petitioner are that the workers of the petitioner union

working with the respondent company have formed union known as Gabriel Employees Union

which is duly registered and its registration number is 258 and Shri DwarkaNath is the duly

elected President of the union and that he has been authorized to file the claim petition on behalf of

the workers union. It is further said that workers namely S/Shri Hari Ram, Parshotam, Bheem

Bahadur, Mohinder Singh, Ganga Ram, Shiv Dass, Bhisham Singh, NarenderRana, NeterBahadur,

Sheer Singh, JagdishCander and Bhag Chand, are working in the canteen and kitchen garden of

the respondents and that they are the members of the Union. Initially, all the workers had been

employed by respondent no.2, which is clear from the ESI Card, issued by the competent

authority. However, later on, they have been shown to have been engaged through respondent

10375

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

no.1. Thus, at present, all the workers have been working with respondent no.2 through respondent

no.1. It is further averred that even, respondent no.1, himself is the employee of respondent no.2

and is getting monthly salary. Just to frustrate the rightful claim of the workers and in order to save

themselves from their liability, the company has shown him (respondent no.1) as contractor.

Earlier, the parties used to settle their respective claims including increase in salary of the

workers, by way of long term settlements either for three years or five years. Settlement,

Annexure P-3, was made for three years and the later on, settlement Annexure P-4, for five years.

After the expiry of every settlement, new settlement used to be executed between the parties by

increasing their salaries as well as other benefits. The workers also used to perform their duties, as

agreed in the settlement. The last long term settlement between the workers union and respondents

had been executed for the period w.e.f. 1.10.2001 to 30.9.2006, as per Annexure P-4. Ultimately,

after the expiry of this settlement, the workers, through its union, approached the respondents for

the settlement of demands but due to their (respondents) adamant attitude, no settlement could

be arrived at between the parties. In this way, the workers had been forced to file demand

notice through Union. Even, during conciliation proceedings, the needful could not be done due

to adamant attitude of the respondents. It is further said that the demands, raised by the workers,

through its union, are genuine and the same deserve to be allowed because due to heavy

inflation, their salaries deserve to be increased. It is further asserted that the respondents are

bound to settle their demands as their wages and other benefits, used to be increased only by

way of settlement. Since, the respondents are not settling their demands, it amounts to unfair

labour practice for which they (respondents) deserve to be punished and the demands of the

workers, raised through its demand notice dated 7.6.2006, deserve to be allowed and the

respondents are required to be directed to pay the same from the date of expiry of earlier settlement

i.e w.e.f. 30.9.2006. It is further said that the work load of the workers has also got increased as

initially, there had been 150 workers who used to take meals and now, at present, there are

350 workers and staff members who are taking food/meals, in the canteen. As far as the strength

of the workers, working in the canteen, is concerned, it has remained same. It is further

maintained that despite the expiry of the earlier settlement, salary and other benefits of the

workers have not been increased by the respondents. Further, both the respondents are liable to

accept their financial demands as they (workers) have been doing work in the canteen which is

owned and possessed by the respondent no.2 and shown to have been employed through

respondent no.1. Thus, they (respondents) become jointly and severely liable to accept their

demands and to pay the benefits as raised in the demand notice. Against this back-drop, a prayer

has been made to accept all the demands, raised in demand notice dated 7.11.2006.

By filing separate reply, the respondent no.1 (MadanLal, Contractor), contested the

claim filed by the petitioner wherein preliminary objections have been raised qua

maintainability and that the petitioner has concealed true and material facts from the Court. On

merits, it has been asserted that the canteen is being run by the replying respondent and that the

workers are his employees. As far as M/s Federal Mogul Bearings India Ltd., (respondent no.2), is

concerned, it has nothing to do with the workers, as per their names mentioned by the petitioner.

It is further clarified that the replying respondent has been running the canteen since the time

of Gabriel India Ltd., and subsequently M/s Anand Engine Components Ltd. The workers of

the replying respondent are not the members of Gabriel Employees Union having registration

no. 258 and that Shri DwarkaNath has not been authorized to raise the demand notice and to

file the claim petition. Under the Contract Labour (Regulation and Abolition) Act, 1970

(hereinafter referred as Contract Labour Act) the replying respondent has got licence and

M/s Federal Mogul Bearings India Ltd., (respondent no.2) is also registered under the

Contract Labour Act. It has been denied that the workers have been performing their duties as per

the settlement. In fact, they have flouted the settlement many times. The names of Hari Ram and

Bhag Chand are in respect of the employees of replying respondent, as per ESI Card. The benefits

to the workers are being paid by the replying respondent but the additional benefits could not be

10376

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

paid for want of financial viability. The demand notice, as raised, is false and frivolous. It is

further averred that, at present, the wages and other benefits, which have been paid to the

workers, are far above than what the similar workers are getting while being employed in other

canteens, in different establishments. At no point of time, there had been more than 170 to 190

workers and staff members to take food/meals in the canteen. It is further averred that the

replying respondent cannot accept the unjustified demands raised by the petitioner. The respondent

no.1 prayed for the dismissal of the claim petition.

M/s Federal Mogul Bearings India Ltd., (respondent no.2), has also contested the

claim of the petitioner on having raised preliminary objections qua maintainability and that the

petitioner has concealed true and material facts. It has further been clarified that there had been

no relationship of the employer and the employees between the replying respondent and that of

the workers, employed by MadanLal, Contractor. In fact, the workers employed by canteen

contractor are the employees of MadanLal, who is responsible for the payments of ESI, EPF etc.

and that the replying respondent has been unnecessarily arrayed as party in the claim petition.

On merits, it has been asserted that the Gabriel India Ltd., had been set-up in 1979, in Parwanoo,

District Solan H.P and in the month of March, 2007, it was demerged in to a separate company i.e

M/s Anand Engine Components Ltd. In Feb., 2008, Federal Mogul Components took control of

M/s Anand Engine Components and renamed it as Federal Mogul Bearings India Ltd. As far as

MadanLal, Contractor, is concerned, he has got licence for providing contract labour to

respondent no.2 under the Contract Labour Act and the replying respondent has also the

registration to employee contract labour under the Contract Labour Act. Thus, at no point of time,

the said workers, employed by MadanLal Contractor, were the employees of replying

respondent. Their ESI Cards only reflect the name of Gabriel India Ltd., in the address column

and do not specify that Hari Ram and Bhag Chand are the employees of Gabriel India Ltd. When,

demand notice dated 7.11.2006, was raised, Gabriel India Ltd., had filed a reply during

conciliation proceedings and subsequently, a reply was also filed by M/s Anand Engine

Components Ltd., whereby it had been specifically stated that the workers, working in the

canteen, were not their employees and that the union had no legitimate right to raise any

demand or dispute. It is also averred that whenever, settlements had been entered into between

Madan Lal, Contractor/canteen workers and Gabriel Employees Union, the replying respondent

had not been party to the same. Even, in the reply, filed to the demand notice, before Labour-

cum- Conciliation Officer, MadanLal Contractor had submitted that the canteen workers had been

employed by him and that they were getting more than the minimum wages. Apart from this,

they had also been getting other benefits/allowances. The respondent no.2 also prayed for the

dismissal of the claim petition.

By filing rejoinders to the replies filed by respondent no.1 & 2, the petitioner has

reaffirmed its allegations by denying those of the respondents.

Pleadings of the parties gave rise to the following issues which were framed on

21.4.2011.

Whether the demands having been raised by the petitioner union are reasonable and

justifiable as alleged?

. .OPP.

If issue no.1 is proved in affirmative, whether the petitioner union is entitled for

financial benefits as prayed?

. .OPP.

Whether this petition is not maintainable as alleged?

. .OPR.

Relief.

10377

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

I have heard the learned counsel for the parties and have also gone through the record

of the case carefully.

For the reasons to be recorded hereinafter while discussing issues for

determination, my findings on the aforesaid issues are as under.

Issue no.1 Decided accordingly.

Issue no.2 Decided accordingly.

Issue no.3 Not pressed.

Relief.

Reference partly answered in favour of the petitioner union

and against the respondent no.1 contractor, per operative part of award.

Before, I proceed further, it is important to mention here that vide award dated

3.3.2014, the reference was answered in favour of the petitioner union and against respondent

no.2 which was assailed before the Hon’ble High Court by filing CWP no. 3276 of 2014

which was decided on 3.5.2017 and the Hon’ble High Court has remitted the case back to this

Court for fresh adjudication. The relevant portion of the order of Hon’ble High Court passed in

CWP no. 3276 of 2014 reads as under:

“In view of the aforesaid discussion, this Court has no option but to remit back the

award to the Labour Court for fresh adjudication. The parties, through their counsel, are

directed to appear before the Labour Court on 29.5.2017. The learned Labour Court will

afford an opportunity to the parties to place on record any additional material, if so desired.

As the industrial dispute is nearly a decade old, therefore, it is expected that the same

would be disposed of as expeditiously as possible and in no event later than 30.9.2017”.

10. In terms of the aforesaid orders of the Hon’ble High Court, the petitioner as well as the

respondents had placed on record the additional material.

Reasons for findings

Issue no.1& 2.

11. Being interlinked, both these issues are taken up together for discussion and

decision.

12. To prove its case, the petitioner union examined two PWs. PW-1 Shri Dwarka

Nath has tendered in evidence his affidavit wherein he reiterated almost all the averments as

stated in the claim petition. He also tendered in evidence the original resolution, settlements

dated 20.1.2005, 12.9.1995, 1.3.2005, demand notice dated 28.9.2011 and 7.11.2006, minutes

of the canteen committee dated 20.6.1996, canteen menu dated 30.3.1990 and receipts of the

membership of the workers in the union Ex. P-1 to Ex. P-35. In the cross- examination, he denied

that the workers of Madan Lal, Contractor, had never been the members of their union. He

admitted that in the ESI Card, the name of the employer is not mentioned. He denied that the

company had no concern with Ex. P- 4 and Ex. P-7, (minutes of the canteen committee meeting,

held on 10.6.1986). He expressed his lack of knowledge that ESI, EPF & other benefits, on

behalf of canteen workers, are being paid by Madan Lal Contractor. He also feigned ignorance

to the suggestion that the workers are getting free food, other benefits and more than minimum

wages. He also expressed his ignorance that the contractor had provided interest free loan to the

10378

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

workers. He admitted that every worker has different ESI number. He denied that the petitioners

are the workers of Madan Lal, contractor only.

13. PW-2 Shri Mahender Singh, tendered in evidence his affidavit by way of examination–

in-chief. In cross-examination on behalf of respondent no.1 he denied that he was the worker of the

contractor and he was being paid wages by the contractor. He also denied that the workers were

being paid all the benefits by the contractor. He admitted that the settlement was entered into

between the contractor and the workers. In cross-examination on behalf of respondent no.2 he

admitted that he was not given any appointment letter by M/s Anand Engine Components,

Gabriel India Ltd. and Federal Mogul India Ltd. He expressed his ignorance to the suggestion

that the settlement has not been signed on behalf of the company by anybody. He admitted that

ESI and EPF and other benefits are being given to them by Madan Lal Contractor. He also

admitted that Madan Lal is the canteen contractor of the company.

14. RW-1 Madan Lal, canteen contractor, appeared into the witness box as RW-1 and

tendered his affidavit Ex. RW-1/A wherein he reiterated almost all the averments as made in the

reply filed on his behalf. He also tendered in evidence copy of licence Ex. R-2, wage sheet Ex. R-

3, workmen registration Ex. R-4, bonus paid Ex. R-5 and attendance register Ex. R-6. When, cross-

examined on behalf of respondent no.2, he admitted that one worker namely Bhim Bahadur has

expired. He admitted that he maintains the record under labour laws including EPF, attendance

workers and HP-5475-A, is his EPF code number. He has not got independent ESI Code number

but the contribution in this regard is being made by him. He had an agreement with Gabriel

Employees Union, in which respondent no.1, was not party. When, cross-examined on behalf of

the petitioner, he stated that the licence of the contractor was taken by him in the year, 1988. Prior

to that, he had been working with M/s Gabriel India Ltd. and till date, he has been doing work

there. From the company, he does not get any salary. Further explained that, he gets commission to

the tune of Rs. 5,000/- to 7,000/-, from the company. With the company, he has agreement to

run the canteen, as per Ex. RA. He admitted that in the year, 1981, he had no licence of

contractor-ship. At that time, he was territorial subedar manager. He admitted that the canteen is of

the company and it is also situated in its premises. The bills Ex. RA-1 to Ex. RA-4, have been

issued in the name of the company regarding the articles/goods which were supplied to it. The

company has constituted a canteen committee as per Ex. RA-5. His name does not figure in that

list as per Ex. RA-5. In the canteen, the workers get food on subsidized rates. The money, on

subsidy, is paid by the company. He denied that some workers were already employed in Gabriel

India Ltd., before his joining the same. He denied that S/Shri Mahender Singh, Bhim Bahadur,

Hari Singh and Jagdish had been employed in the year, 1980. He volunteered that they had been

employed in the year, 1983-84. He further stated that he cannot increase the wages of the

workers till the management increases his amount. Regarding payment of salaries, bonus etc., to

the workers, he raises bills, the amount of which is paid by the company. He admitted that HP-

5475 is the code of the company. He further stated that Sub Code HP 5475-A is his code. The

ESI code is that of the company. He denied that the workers are the employees of the company.

15. Shri Balvinder Singh, Manager HR appeared into the witness box as RW-2 and

tendered in evidence his affidavit EX. RW-1/A, wherein he reiterated almost all the averments

as made in the reply filed by respondent no.2. He also tendered in evidence appointment letter

Ex. RW-2/B, registration certificate Ex. RW-2/C, reply dated 4.4.2008 Ex. RW-2/D, copy of

order dated 23.12.2011 Ex. RW-2/E, copy of writ petition mark DX and letter dated 15.2.2010

mark DY. In the cross-examination by the petitioner, he has stated that since 6.9.1982, he has

been working in the company. He stated that before his joining, the company (Gabriel India

Ltd.), was already in existence and he had got appointment in Gabriel India Ltd. and at that time,

the canteen was being run in the company. He denied that the canteen was being run by the

10379

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

company. He admitted that the licnece of Madan Lal, Contractor, was issued on 19.2.1987. He

stated that he was working as Manager, HR, in the company. He expressed his ignorance that the

contractor Shri Madan Lal was not registered in the year, 1981. He admitted that the canteen

was being run in the premises of the company and the company was not charging any rent from

the contractor. He stated that the payment to the workers is being made by the company through

contractor. He further stated that in the year, 1981, they had given the contract of canteen to Madan

Lal, contractor. He clarified that the payments are being made through Madan Lal. He admitted

that bills Ex. RA-1 to Ex. RA-4, have been issued in the name of the company. The company

has constituted a canteen committee. He denied that all the settlements till date have been signed

by the company. He also denied that the company was giving monthly salary to Madan Lal

Contractor. He denied that when the workers had raised the demand notice the company had

pressurized them that their services would be terminated. He further denied that all the workers of

the canteen are the workers of respondent no.2.

16. I have closely scrutinized the entire evidence on record and the first question which

arises for consideration before this Court is as to who is the employer of the canteen workers.

Though, in the terms of reference this question has not been referred to this Court for

adjudication, however, in the opinion of this Court the adjudication of the aforesaid question is

necessary to decide the real question in controversy between the parties and the same is the

matter incidental to the dispute referred by the appropriate government under the present

reference because this Court has to gave its findings as to which of the respondents is liable to

accept the demands raised by the petitioner union. It is settled law that the jurisdiction of the

Industrial Court to decide the industrial dispute is determined by the terms of reference and the

matter incidental thereto as per section 10(1) of the Act. Moreover, in the order dated

23.12.2011 Ex. RW-2/E passed in CWP No. 11448/2011-E, it has been observed by the

Hon’ble High Court that it would be open to the respondent no.2 company to take all available

contention before the Labour Court and it is for the Labour Court to enter a finding as to

whether the respondent no.2 company is principle employer or not. The relevant potion of the

aforesaid order is reproduced as under:

“2. According to the petitioner, he is unnecessary party since the employer contractor is

already there on the party array. The Labour Commissioner rejected the request for amendment

of the Reference stating also that the petitioner management is the principal employer and hence

is a necessary party. That question is yet to be decided. While adjudicating the Reference

already made, it will be open to the petitioner to take all available contentions before the

Labour Court and it is for the Labour Court to enter a finding as to whether the petitioner is

principal employer or not. Therefore, we vacate the findings entered into by the Labour

Commissioner in Annexure P-9 and dispose of the writ petition declining to otherwise

interfere with Annexure P-9, but reserving liberty to the petitioner to take all available contentions

before the Labour Court.”

Therefore, this Court proceeds to decide the question as to who is the employer of the

canteen workers. The learned counsel for the petitioner contended that the workers who are

working in the canteen were initially employed by respondent no.2 company, however, later

on they have been shown engaged through respondent no.1 contractor just to frustrate the

rightful claim of the petitioner. Therefore, it was for the petitioner to prove by leading

cogent and satisfactory evidence on record that the canteen workers were the employees of

respondent no.2 company. To prove its case the petitioner union examined Shri Dwarka Nath

as PW-1 who deposed that all the canteen workers were employed by respondent no.2 company

but later on they have been shown engaged through respondent no.1 contractor. In this respect

he has tendered in evidence the photocopies of ESI slips mark A and mark B. However, the

perusal of the aforesaid ESI slips mark A and mark B shows that the name of employer has not

10380

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

been mentioned in the same and the name of respondent no.2 company has been shown

against the column of address. PW-1 also admitted in cross-examination that the name of the

employer has not been mentioned in ESI card. Therefore, no benefit can be derived by the

petitioner from the ESI slips mark A and mark B. To take this view I am supported with the

judgment of our own Hon’ble High Court reported in 2016 LLR 580 Manoj Kumar Vs. M/s

Sintex Industries Pvt. Ltd. wherein it has been held that only on the basis of ESI card having

address of the principal employer, employer- employee relationship between principal employer

and the employee would not come into existence.

17. The learned counsel for the petitioner further contended that since the ESI code is

of the respondent no.2 company under which the contributions are being deposited, therefore

also it has been proved that the canteen workers are the employees of respondent no.2 company

and in this respect he had also invited my reference to the cross-examination of RW-1 wherein

he admitted that the ESI code is of the respondent no.2 company. However, this contention of the

learned counsel for the petitioner is devoid of any force as in the aforesaid judgment of our

own Hon’ble High Court in Manoj Kumar’s case (supra), it has been held that mere depositing

of ESI contribution of the contractors employees by the principle employer would not make the

workmen an employee of the principal employer since it is a mandatory responsibility of the

principal employer to ensure that workman is registered member under the scheme of ESI Act and

contributions are deposited subject to realization of the same from the contractor as the ESI Act

does not prescribe that a contractor has to possess his own code number. PW-1 further

deposed in his affidavit that the petitioner union and the respondents used to settle their demands

as per the settlements dated 12.9.1995 Ex. P-3 and dated 1.3.2005 Ex. P-4. However, the

perusal of these settlements shows that the same has been entered into between the respondent

no.1 contractor and the workers union and the respondent no.2 company is not a party to the

aforesaid settlements. PW-2 also admitted in cross-examination that the settlements were

entered into between Madan Lal contractor and workers union.

18. While appearing into the witness box as RW-1, the contractor Shri Madan Lal in his

evidence by way of affidavit deposed that the workers have been employed by him in the canteen

which is being run by him and he is paying wages to the workers besides giving them washing

allowance, conveyance allowance etc. He further deposed that the contribution under ESI Act,

1948, EPF and all other statutory compliance under the Labour Law and Industrial Law is

being done by him. In cross-examination on behalf of petitioner he categorically stated that he

was not getting any salary from the company rather he was getting commission. He further

deposed that he entered into a contract with the company to run the canteen, the copy of which is

Ex. RA. RW-2 Shri Balwinder Singh also deposed in his evidence by way of affidavit Ex. RW-

2/A that the contractor Shri Madan Lal is the employer of the canteen workers and he is

making all the compliance under the Labour Law. He further deposed that the company exercises

no supervision and control over the workers employed by the canteen contractor.

19. From the perusal of the contract Ex. RA, it has become clear that M/s Gabriel India

Ltd. had entered into a contract with respondent no.1 contractor on 8.3.1981 for running the

canteen. It has also become clear from the record that M/s Gabriel India Ltd. was demerged into

a separate company i.e M/s Anand Engine Components Ltd. and in Feb., 2008 M/s Federal Mogul

Corporation took control of M/s Anand Engine Components and renamed as M/s Federal Mogul

bearing Ltd i.e the respondent no.2 company which has the certificate of registration from the

prescribed authority Ex. RW-2/C under the Contract Labour Act to employ the contract labour.

The respondent no.1 contractor has stated in cross examination that he had obtained the licence

under the Contract Labour Act in the year, 1988. The learned counsel for the petitioner

contended that since the contractor had obtained the licence only in the year 1988, therefore, it

cannot be said that the canteen workers are the employees of contractor. However, this contention

10381

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

of the learned counsel for the petitioner deserves to be rejected because non-possession of the

licence under section 12 of the Contract Labour Act would only result in prosecution under

sections 23/25 of the Contract Labour Act. To take this view I am fortified with the judgment of

Hon’ble Supre me Court in AIR 1992 SC 457, titled as Dena Nath & Ors Vs. National

Fertilizers Ltd. And others wherein it was held as under:

“20……………..The Act as can be seen from the scheme of the Act merely regulates the

employment of contract labour in certain establishment and provides for its abolition in certain

circumstances. The Act does not provide for total abolition of contract labour but it provides for

abolition by the appropriate Government in appropriate cases under Section 10 of the Act.

22……………….The only consequences provided in the Act where either the principal

employer or the labour contractor violates the provision of Sections 9 and 12 respectively is the

penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25

of the Act………………...”

The aforesaid judgment was considered by the Constitutional Bench of Hon’ble

Supreme Court in Steal Authority of India Vs. National Union Water Front 2000 (7) SCC-

1 in which it was observed as under:

“96. In Dena Naths case (supra), a two-Judge Bench of this Court considered the

question, whether as a consequence of noncompliance with Sections 7 and 12 of the CLRA Act

by the principal employer and the licensee respectively, the contract labour employed by the

principal employer would become the employees of the principal employer. Having noticed

the observation of the three-Judge Bench of this Court in The Standard-Vacuums case (supra)

and having pointed out that the guidelines enumerated in sub-section (2) of Section 10 of the Act

are practically based on the guidelines given by the Tribunal in the said case, it was held that the

only consequence was the penal provisions under Sections 23 and 25 as envisaged under the

CLRA Act and that merely because the contractor or the employer had violated any provision of

the Act or the Rules, the High Court in proceedings under Article 226 of the Constitution could

not issue any mandamus for deeming the contract labour as having become the employees of the

principal employer. This Court thus resolved the conflict of opinions on the said question among

various High Courts. It was further held that neither the Act nor the Rules framed by the

Central Government or by any appropriate Government provided that upon abolition of the

contract labour, the labourers would be directly absorbed by the principal employer”.

20. Hence, the perusal of the aforesaid judgments of the Hon’ble Apex Court shows that

the consequence of violation of the Contract Labour Act i.e non registration of the establishment

under section 7 and non-possession of the licence under section 12 of the Act would only result

in prosecution under sections 23/25 of the Contract Labour Act. Therefore, in view of the

aforesaid legal position, there is no force in the contention of the learned counsel for the petitioner

that since respondent no.2 contractor was not having any licence under section 12 of the Contract

Labour Act, the workers of petitioner union would be deemed to be the direct employees of the

respondent no.2 company. Moreover, Contract Labour Act only applies to an establishment or

contractor who employees 20 or more workmen. However, in the present case it has been

established on record that the respondent no.1 contractor had employed less than 20 workmen as

such the Contract Labour Act is not applicable in the present case. Therefore also, due to the non-

possession of the licence under section 12 of the Act by the respondent no.1 contractor prior to

the year 1988, it cannot be said that the canteen workers are the employees of respondent no.2

company.

21. It is by now well settled that if the industrial adjudicator finds the contract between

the principal employer and the contractor to be a sham, nominal and a camouflage to deny

10382

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

employment benefits to the employee, it can grant relief to the employee by holding that the

workman is the direct employee of the principal employer. In (2009) 13 SCC titled as

International Airport Authority of India Vs. International Air Cargo Workers Union and

Anr., it has been held by the Hon’ble Apex Court as under:

“36. But where there is no abolition of contract labour under section 10 of CLRA Act,

but the contract labour contend that the contract between principal employer and contractor is

sham and nominal, the remedy is purely under the ID Act. The principles in Gujarat Electricity

Board continue to govern the issue. The remedy of the workmen is to approach the industrial

adjudicator for an adjudication of their dispute that they are the direct employees of the

principle employer and the agreement is sham, nominal and merely a camouflage, even when

there is no order under section 10(1) of CLRA Act.

37. The industrial adjudicator can grant the relief sought if it finds that contract between

principal employer and the contractor is sham, nominal and merely a camouflage to deny

employment benefits to the employer and that there is in fact a direct employment, by applying

tests like: who pays the salary; who has the power to remove/dismiss from service or initiate

disciplinary action; who can tell the employee the way in which the work should be done, in short

who has direction and control over the employee. But where there is no notification under

section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the

contract was sham/nominal and camouflage, then the question of directing the principal

employer to absorb or regularize the services of the contract labour does not arise.

37. However, in the present case neither the petitioner union had specifically pleaded

nor led any evidence to show that the contract between the respondent no.2 company and

respondent no.1 contractor is a sham, nominal and camouflage. The learned counsel for the

respondent no.2 contended that since there are more than 250 workers employed in the unit of

respondent no.2 company and it was statutory obligation cast upon the respondent no.2 company

under section 46 of the Factories Act, 1948, the canteen has been provided by the respondent

no.2 company in its premises which is being run by respondent no.1 contractor under the contract

Ex. RA, therefore, it cannot be said that the canteen workers are the employees of

respondent no.1 company and in this respect he has placed reliance upon the judgment of

Hon’ble Supreme Court reported in (2014) 9 SCC 407 Balwant Rai Saluja and another Vs.

Air India Ltd. and others. At this juncture it would be beneficial to reproduce the relevant

portion of the aforesaid judgment which reads as under:

“30. The question before us is “when the company is admittedly required to run the

canteen in compliance with the statutory obligation under Section 46 of the 1948 Act,

whether the canteen employees employed by the contractor are to be treated as the employees of

the company only for the purpose of the 1948 Act or for all the other purposes.”

31……………………………………

32……………………………………

“41. We conclude that the question as regards the status of workmen hired by a contractor

to work in a statutory canteen established under the provisions of the 1948 Act has been well

settled by a catena of decisions of this Court. This Court is in agreement with the principle laid

down in Indian Petrochemicals case wherein it was held: (SCC p. 499, para 22)

“22…the workmen of a statutory canteen would be the workmen of the establishment for

the purpose of the 1948 Act only and not for all purposes.”

10383

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

We add that the statutory obligation created under Section 46 of the 1948 Act, although

establishes certain liability of the principal employer towards the workers employed in the given

canteen facility, this must be restricted only to the 1948 Act and it does not govern the rights of

employees with reference to appointment, seniority, promotion, dismissal, disciplinary actions,

retirement benefits, etc., which are the subject matter of various other legislations, polices, etc.

Therefore, we cannot accept the submission of Shri Jayant Bhusan, learned counsel that the

employees of the statutory canteen ipso facto become the employees of the principal employer.

42……………………

43………………………

“ 76. It has been noticed above that workmen hired by a contractor to work in a statutory

canteen established under the provisions of the 1948 Act would be the said workmen of the

given factory or corporation, but for the purpose of the 1948 Act only and not for all other

purposes. Therefore, the appellant workmen, in the present case, in light of the settled

principles of law, would be workmen of Air India, but only for the purposes of the 1948 Act.

Solely by virtue of this deemed status under the 1948 Act, the said workers would not be able to

claim regularization in their employment from Air India. As has been observed in Indian

Petrochemicals case, the 1948 Act does not govern the rights of employees with reference to

recruitment, seniority, promotion, retirement benefits, etc. These are governed by other statures,

rules, contracts of policies.

77……………………………………

78…………………………………

“90. In terms of the above, the reference is answered as follows:

the workers engaged by a contractor to work in the statutory canteen of a factory would

be the workers of the said factory, but only for the purposes of the 1948 Act, and not for other

purposes, and further for the said workers, to be called the employees of factory for all

purposes, they would need to satisfy the test of employer-employee relationship and it must be

shown that the employer exercise absolute and effective control over the said workers. ”

23. In the present case also from the perusal of entire evidence on record it has become

clear that there are more than 250 workers working/employed by respondent no.2 company, hence,

under section 46 of the Factories Act, 1948, it is the statutory obligation of the respondent no.2

company to provide a canteen as such the canteen has been provided in the premises of the

respondent no.2 company which is being run by respondent no.1 contractor under contract Ex. RA.

Therefore the workers of the petitioner union who had been engaged by respondent no.1

contractor would be the workers of the respondent no.2 company only for the purpose of

1948 Act and not for any other purpose. From the perusal of the entire evidence on record it has

become clear that the canteen workers have failed to satisfy the test of employer-employee

relationship with respondent no.2 company. In Inter national Air port Authority of India’s

case (supra) , the Hon’ble Supreme Court also explained the terms “control” and “supervision”

which reads as under:

“38.The tests that are applied to find out whether a person is an employee or an

independent contractor may not automatically apply in finding out whether the contract labour

agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply

of labour, necessarily, the labour supplied by the contractor will work under the directions,

10384

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

supervision and control of the principal employer but that would not make the worker a direct

employee of the principal employer, if the salary is paid by contractor, if the right to regulate

employment is with the contractor, and the ultimate supervision and control lies with the contractor.

39. The principal employer only controls and directs the work to be done by a contract

labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who

chooses whether the worker is to be assigned/allotted to the principal employer or used

otherwise. In short worker being the employee of the contractor, the ultimate supervision and

control lies with the contractor as he decides where the employee will work and how long he will

work and subject to what conditions. Only when the contractor assigns/sends the worker to

work under the principal employer, the worker works under the supervision and control of the

principal employer but that is secondary control. The primary control is with the contractor.”

53.13……………… Merely because the contract labour work is under the supervision of

the officers of the principal employer, it cannot be taken as evidence of direct employment

under the principal employer.

54. …………………..Exercise of some control over the activities of contract labour while

they discharge their duties as labourers, is inevitable and such exercise is not sufficient to hold

that the contract labour will become the direct employees of the principle employer.”

24. In Balw ant Rai Saluj a’s case (supra) it has been held in para 65 that the relevant

factors to be taken into consideration to establish an employer- employee relationship would

include, inter alia:

"(i) who appoints the workers;

(ii) who pays the salary/remuneration;

(iii) who has the authority to dismiss;

(iv) who can take disciplinary action;

(v) whether there is continuity of service; and

(vi) extent of control and supervision i.e. whether there exists complete control and

supervision.

As regards extent of control and supervision, we have already taken note of the

observations in Bengal Nagpur Cotton Mills case, International Airport Authority of India case

and Nalco case.

In the present case, as observed earlier the wages are being paid to the canteen workers

by respondent no.1 contractor and the contribution under ESI Act, 1948, EPF and all other

statutory compliance under the Labour Law and Industrial Law is also being done by him. The

respondent no.2 has also placed on record the settlement arrived at between respondent no.1

contractor and one of the workers of petitioner union Shri Bhag Chand wherein due to his

resignation from service vide resignation letter dated 24.6.2013, a settlement was arrived at

between the workman Bhag Chand and respondent no.1 contractor Madan Lal and as per the

terms of settlement all the service benefits including gratuity was paid to the worker by

respondent no.1 contractor which also shows that the respondent no.1 contractor had the

authority to appoint and dismiss the workers. Merely because the bills Ex. RA-1 to Ex. RA-4 which

10385

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

are in the name of respondent no.2 company will not make the workers, the employees of the

respondent no.2 company. In view of the judgment of International Air Port cited supra, the

principal employer only controls and directs the works to be done by a contract labour and

merely because the contract labour work is under the supervision of the officers of the principal

employer, it cannot be taken as evidence of direct employment under the principal employer. No

satisfactory evidence has been led by the petitioner that the canteen workers are doing the work

under the direct supervision of respondent no.2 company and the contract between respondent

no.1 contractor and respondent no.2 company is a sham, nominal and camouflage. Rather PW-

2 admitted in cross- examination that respondent no.1 is a canteen contractor of the company

and the settlement was entered into between respondent no.1 contractor and the workers of

petitioner union. He also admitted in cross-examination that at present he was being paid wages by

Madan Lal contractor. No appointment letter/document has been produced in evidence by the

petitioner union regarding the fact that they have been employed by respondent no.2 company.

Hence, in view of the evidence led by the parties, it cannot be said that the workers of the

petitioner union are the employees of respondent no.2 company and the contract between

respondent no.2 and respondent no.1 is a sham and nominal as such it has been established that

there has been no relationship of employer and employee between the workers of petitioner union

and the respondent no.2 company. From the evidence on record it has been clearly established

that the canteen workers of the petitioner union are the employees of respondent no.1 contractor.

25. Now, the next question which arises for consideration before this Court is as to

whether the demands raised by the petitioner union vide demand charter dated 7.11.2006 Ex. P-6

are reasonable and justifiable. It is not in dispute that the workers of the petitioner union and

respondent no.1 had entered into a settlement dated 12.9.1995 Ex. P-3 which was valid for a

period of three years and thereafter they entered into another settlement dated 1.3.2005 Ex. P-4

which was valid for a period of five years w.e.f. 1.10.2001 to 30.9.2006. The case of the

petitioner union is that after the expiry of the settlement Ex. P-4 on 30.9.2006 the workers

approached the respondents for the settlement of their demands but due to adamant attitude of

respondents, no settlement had arrived at between the parties and ultimately the workers were

forced to file the demand notice through union. PW-1 had tendered in evidence the copy of the

demand notice dated 7.11.2006 Ex. P-6, the perusal of which goes to show that the workers

through its union had demanded increase in basic pay to the tune of Rs. 2500/-, D.A to Rs.

2000/- , washing allowance to Rs. 300/-, Education allowance to Rs. 500/- heating allowance to

Rs. 200/-. There is also a demand to increase LTA by Rs. 1000/- and also to increase loan of all

kinds by Rs. 25000/-, the annual allowance to be fixed at Rs. 200/- and bonus be given to the

extent of 30%. From the statement of Madan Lal (RW-1), it has become clear that the workers

are being paid the same salary/wages which they were getting in the year, 2006. He admitted that

demand notice Ex. P-6, had been served upon him by the workers union. From the evidence,

which has been referred to above, it is quite clear that there has been no increase in the wages of

the workers since, 2006 and the Memorandum of settlement dated 1.3.2005, Ex. P-4, which had

come in to operation w.e.f. 1.10.2001 to 30.9.2006, has come to an end.

26. In the order dated 3.5.2017 passed by the Hon’ble High Court in CWP no. 3276 of

2014 it has been held that in the fixation of wages and dearness allowance, the legal position

is well established that it has to be done on an industrial-cum region basis having due regard to

the financial capacity of the unit under consideration. The relevant portion of the aforesaid

judgment is reproduced herein under:

5. It would be clearly evident from the aforesaid that the reasons as given by the learned

Labour Court are not legally sound. In the fixation of wages and dearness allowance, the legal

position is well established that it has to be done on an industrial-cum region basis having due

10386

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

regard to the financial capacity of the unit under consideration (Express Newspaper Private

Limited Vs Union Of India, AIR 1958 SC 578, Greaves Cotton And Co Ltd Vs Workmen, AIR

1964 SC 689 and Bengal Chemical And Pharmaceutical Works Ltd Vs Workmen, AIR 1969 SC

360).

In (1972) 3 SCC 552 M/s Unicam Laboratory Ltd., Vs. The workmen it has been

held as under:

"70. In the fixation of wages and dearness allowance the legal position is well-

established that it has to be done on an industry- cum-region basis having due regard to the

financial capacity of the unit under consideration-vide Express Newspapers (Private) Ltd., and

Another v. The Union of India and others, Greaves Cotton and Co. and others v. Their

Workmen and Bengal Chemical & Pharmaceutical Works Ltd. v. Its Workmen.”

“76. From the decisions, referred to above, it follows that two principal factors

which must weigh while fixing or revising wage scales and grades are: (1) How the

wages prevailing in the establishment in question compare with those given to the

workmen of similar grade and scale by similar establishments in the same industry or in

their absence in similar establishments in other industries in the region; and (2) What

wage scales the establishment in question can pay without any undue strain on its financial

resources. The same principles substantially apply when fixing or revising the dearness allowance.”

27. Therefore, in the light of the aforesaid principles laid down by the Hon’ble Apex

Court, it was incumbent upon the petitioner union to lead evidence to show that as to what

were the wages prevailing in the establishment in question compare with those given to the

workmen of similar grade and scale by similar establishments in the same industry or in

their absence in similar establishments in other industries in the region; and also to show as

to what wage scales the establishment in question can pay without any undue strain on its

financial resources. However, no evidence and material has been placed on record by the petitioner

union in order to show as to what were the wages of the canteen workers prevailing in the

region or in the similar establishments of the other industries. No evidence has been placed on

record by the petitioner union to show the financial capacity of respondent no.1 contractor to pay

the wages to the workers without any undue strain on his financial resources. Be that as it

may, having regard to the inflation and in the interest of social justice coupled with the object of

securing peace and harmony between the employees and employer the wage structure of the

canteen workers has to be revised. While deciding about the principles to be followed for fixation

of wage structure, the Hon’ble Supreme Court in AIR 1967 SCC 1175, The Kamani Metals and

Alloys Ltd. Vs. The workmen has held as under:

“7. Fixation of a wage-structure is always a delicate task because a balance has to be

struck between the demands of social justice which requires that the workmen should

receive their proper share of the national income which they help to produce with a view to

improving their standard of living, and the depletion which every increase in wages makes in

the profits as this tends to divert capital from industry into other channels thought to be

more profitable. The task is not rendered any the easier because conditions vary from region to

region, industry to industry and establishment to establishment. To cope with these

differences certain principles on which wages are fixed have been stated from time to time by

this Court. Broadly speaking the first principle is that there is a minimum wage which, in any

event, must be paid, irrespective of the extent of profits, the financial condition of the

establishment or the availability of workmen on lower wages. This minimum wage is

independent of the kind of industry and applies to all alike big or small. It sets the lowest limit

10387

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

below which wages cannot be allowed to sink in all humanity. The second principle is that

wages must be fair, that is to say, sufficiently high to provide a standard family with food,

shelter, clothing, medical care and education of children appropriate to the workman but not at a

rate exceeding his wage earning capacity in the class of establishment to which he belongs. A fair

wage is thus related to the earning capacity and the workload. It’ must, however, be realised that

’fair wage’ is not ’living wage’ by which is meant a wage which is sufficient to provide not only

the essentials above-mentioned but a fair measure of frugal comfort with an ability to provide

for old age and evil days. Fair wage lies between the minimum wage, which must be paid in any

event, and the living wage, which is the goal. As time passes and prices rise, even the fair wage

fixed for the time being tends to sag downwards and then a revision is necessary. To a

certain extent the disparity is made up by the additional payment of dearness allowance. This

allowance is given to compensate for the rise in the cost of living. But as it is not advisable to

have a 100%. neutralisation test it lead to inflation, the dearness allowance is often a little less

than 100% neutralisation. In course of time even the addition of the dearness allowance does

not sufficiently make up the gap between wages and cost of living and a revision of wages

and/or dearness allowance then becomes necessary. This revision is done on certain principles. "

Therefore, in the present case also having regard to the inflation and in view of the

judgment of the Hon’ble Apex Court (supra) the demand of the workers to increase the basic salary

and dearness allowance is justified. The petitioner has placed on record the memorandum of

settlement dated 2.6.2007 arrived at between M/s Gabriel India Ltd., and workmen of Gabriel

India Ltd. Hence, in the absence of any other evidence on record, the aforesaid memorandum of

settlement dated 2.6.2007 arrived at between the management and the workmen of Gabriel India

Ltd. can be taken into consideration to increase the basic salary and dearness allowance of the

canteen workers for a period of three years. As observed earlier, the memorandum of settlement

dated 1.3.2005 Ex. P-4 has come to an end on 30.9.2006. As per the memorandum of settlement

dated 2.6.2007, the basic salary and dearness allowance of the industrial workers of Gabriel India

Ltd. has been revised as under:

Settlement benefits: Basic pay will be increased as follows:

W.e.f. 1.10.2005 Rs. 200/- (Two hundred) per month.

W.e.f. 1.1.2006 Rs. 200/- (Two hundred) per month.

W.e.f. 1.6.2007 Rs. 600/- (Six hundred) per month.

W.e.f. 1.6.2008

Rs. 280/- (Two hundred and eighty) per month.

W.e.f. 1.6.2009

Rs. 120/- (One hundred twenty) per month.

Fixed Dearness Allowance (DA).

Increase w.e.f. 1.10.2005 Rs. 150/- (one hundred fifty) per month.

Increase w.e.f. 1.1.2006 Rs. 150/- (one hundred fifty) per month.

Increase w.e.f. 1.6.2007 Rs. 450/- (Four hundred fifty) per month.

Increase w.e.f. 1.6.2008 Rs. 210/- (Two hundred ten) per month.

Increase w.e.f. 1.6.2009 Rs. 90/- (Ninety) per month.

10388

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

28. Therefore, on the lines of the aforesaid settlement dated 2.6.2007, the basic salary

and DA of the canteen workers is also increased for a period of three years w.e.f. 1.10.2006 in

the following manner:

Basic pay will be increased as follows:

W.e.f. 1.10.2006 Rs. 200/- (Two hundred) per month.

W.e.f. 1.10.2007 Rs. 600/- (six hundred) per month.

W.e.f. 1.10.2008 Rs. 280/- (Two hundred Eighty) per month.

Fixed Dearness Allowance (DA).

Increase w.e.f. 1.10.2006 Rs. 150/- (One hundred fifty) per month

Increase w.e.f. 1.10.2007 Rs. 450/- (Four hundred Fifty) per month.

Increase w.e.f. 1.10.2008 Rs. 210/- ((Two hundred ten) per month.

In the opinion of this Court the demands for increase in washing allowance, study

allowance and heat allowance are also reasonable and justified besides the demands of the workers

regarding the increase in the annual leaves which are also justified. Therefore, the workers of

petitioner union are held entitled to increase in washing allowance w.e.f. 1.10.2006 at Rs. 80

per year, increase in Education allowance w.e.f. 1.10.2006 at Rs. 100 per year and increase in

heat allowance w.e.f. 1.10.2006 at Rs. 25 per year for a period of three years. The workers are also

held entitled to increase in annual leaves at par with the instructions/notifications issued by the

State Government from time to time, regarding the workers, working in the various establishments.

So far as the other demands are concerned no satisfactory and cogent evidence has been led by

the petitioner union to justify the same as such the canteen workers of the petitioner union are not

entitled for the other demands as per the demand notice Ex. P-6. Hence, both these issues are

decided accordingly.

Issue no.3

29. During the course of arguments, this issue was not pressed. Therefore, the same is

decided in favour of the petitioner and against the respondents.

Relief.

As a sequel to my findings on issues no.1 and 2 above, the claim filed by the petitioner union

succeeds and is partly allowed with the result the workers of the petitioner union are held entitled for

the following relief:

Basic pay will be increased as follows:

W.e.f. 1.10.2006 Rs. 200/- (Two hundred) per month.

W.e.f. 1.10.2007 Rs. 600/- (six hundred) per month.

W.e.f. 1.10.2008 Rs. 280/- (Two hundred Eighty) per month.

10389

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

Fixed Dearness Allowance (DA).

Increase w.e.f. 1.10.2006 Rs. 150/- (One hundred fifty) per month.

Increase w.e.f. 1.10.2007 Rs. 450/- (Four hundred Fifty) per month.

Increase w.e.f. 1.10.2008 Rs. 210/- ((Two hundred ten) per month.

The workers of petitioner union are also held entitled for increase in washing

allowance w.e.f. 1.10.2006 at Rs. 80 per year, increase in Education allowance w.e.f.

1.10.2006 at Rs. 100 per year and increase in heat allowance w.e.f. 1.10.2006 at Rs. 25 per year for

a period of three years. The workers are also held entitled to increase in annual leaves at par

with the instructions/notifications issued by the State Government from time to time, regarding

the workers, working in the various establishments. The reference stands answered in the aforesaid

terms. Let a copy of this award be sent to the appropriate government for publication in the

official gazette. File, after completion, be consigned to records.

Announced in the open Court today on this 29^th Day of September, 2017.

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum- Labour Court, Shimla.

_____________

4.9.2017.

Present: None for petitioner.

Ms. Kiran Negi, Advocate vice Shri Rahul Mahajan, Advocate for respondent.

Case called twice but none appeared for petitioner. It is 10:50 AM. Be awaited.

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

______________

Case called again.

Present: None for petitioner.

Ms. Kiran Negi, Advocate vice Shri Rahul Mahajan, Advocate for respondent.

It is 12:45 PM. Case called again but none appeared on behalf of petitioner. Be called after

lunch.

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

Case called after lunch.

10390

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

Present: None for petitioner.

Ms. Kiran Negi, Advocate vice Shri Rahul Mahajan, Advocate for respondent.

It is 3:20 PM. Case called repeatedly in pre and post lunch sessions but none appeared on

behalf of the petitioner before this Court despite the fact that as per Track Consignment report, the

notice issued through registered post for the service of the petitioner had been delivered at the

addresses given in the reference itself which clearly shows that the petitioner is not interested to

pursue his case. Hence, this Court is left with no other alternative but to decide the case on the

basis of material whichever is available on file. For, today, the case has been listed for the service

of petitioner but despite having been served, the petitioner has failed to appear before this Court.

The following reference has been sent by the appropriate government for adjudication to this Court:

“Whether termination of services of Shri Rajeev Thakur S/o Shri Balbeer Singh R/o

Village Banad, P.O Gagal Shikore Tehsil Pachhad District Sirmour, HP 173025 by the

employer/management of Sun Pharmaceuticals Industries, Village Bata Mandi, Paonta Sahib,

District Sirmour, HP w.e.f. 28.9.2015 without complying with the provisions of the Industrial

Disputes Act, 1947 is legal and justified>? If not, what amount of back wages, reinstatement,

seniority, past service benefits and compensation the above ex-worker is entitled to from the above

employer?”

As per the reference, the petitioner has alleged his termination w.e.f. 28.9.2015 to be

illegal and unjustified. But, despite having been served none appeared on behalf of petitioner

before this Court. Therefore, for the failure of the petitioner to appear before this Court and to

pursue the case arising out of reference, it cannot be said that the termination of the services of

the petitioner w.e.f. 28.9.2015 is illegal and unjustified. Hence, the reference sent by the

appropriate government for adjudication to this Court is answered against the petitioner. Let a

copy of this order/award be sent the appropriate government for publication in the official gazette.

File, after completion, be consigned to records.

Announced: 4.9.2017.

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

6.9.2017

Present:

Shri Raman Parashar, Advocate for petitioner.

Ms. Sneh Negi, Advocate for respondent.

At this stage, it has been stated by the petitioner that he does not want to pursue the present

reference petition bearing number 66 of 2017 and wants to withdraw the same.

Therefore, in view of the aforesaid statement of the petitioner, the reference is

answered to be dismissed as withdrawn. Let a copy of this order be sent to the appropriate

government for publication in the official gazette. File, after completion, be consigned to

records.

Announced: 6.9.2017.

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

10391

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

7.9.2017

Present: Petitioner in person with Shri Sanjeev Sharma, Advocate.

Shri Joginder Singh, AR for respondent.

At this stage, it has been stated by the petitioner that he had entered into a compromise

with the respondent and he is ready and willing to accept ` 55000/- in lieu of full & final

settlement of his claim arising out of present reference bearing no. 86 of 2017 and thereafter he

shall have no claim against the respondent with respect to his service benefits. To this effect his

statement recorded separately.

Vide separate statement, it has been stated by Shri Joginder Singh, AR for the respondent

that the company has entered into a compromise with the petitioner and had agreed to pay him a

sum of ` 55000/- only in lieu of full & final settlement of his claim. He further stated that he has

also handed over three self cheques dated 6.9.2017 drawn on Punjab National Bank, Kala Amb

Branch bearing numbers 548718 amounting to ` 5,000, cheque no. 439639 and 439640 both

amounting to ` 25000/- each to the petitioner in the Court today in lieu of the aforesaid settlement.

Therefore, in view of the aforesaid statements, I am satisfied that a lawful compromise has been

effected between the parties. Hence, the reference sent by the appropriate government for

adjudication is answered in terms of the aforesaid statements of the parties which shall form a

part of this order/award. Let a copy of this award/order be sent to the appropriate government

for publication in the official gazette. File, after, completion, be consigned to records.

Announced: 7.9.2017.

(SUSHIL KUKREJA),

Presiding Judge,

H.P.Industrial Tribunal-cum- Labour Court, Shimla.

_______________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA.

Ref no. 34 of 2016.

Instituted on 12.4.2016.

Decided on 19.9.2017.

Deep Ram alias Duli Chand s/o Sh. Khem Chand, R/o Village Rodi, P.O. Ghaini, Tehsil

Sunni, Distt. Shimla, H.P.

. .Petitioner.

VS.

Executive Engineer, I & PH Division Sunni, Tehsil Sunni, District Shimla, H.P.

Assistant Engineer, I & PH Sub Division Gumma, Tehsil and District Shimla, H.P.

. .Respondents.

Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner :

Shri Rajesh Verma, Advocate

10392

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

For respondents : Ms. Reena Chauhan, Dy. DA.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:

“Whether the alleged termination of the services of Shri Deep Ram alias Duli Chand S/o

Sh. Khem Chand, r/o Village Rodi, P.O. Ghaini, Tehsil Sunni, Distt. Shimla, H.P. by the

Executive Engineer, I & PH Division, Sunni, Distt. Shimla, (H.P.) w.e.f. 01.01.1997 without

complying the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, keeping

in view the delay of more than 10 years in raising the industrial dispute and working period of

only 37 ½ days and 7 days during the years 1995 & 1996 respectively, what amount of back

wages, seniority, past service benefits and compensation the above aggrieved workman is

entitled to from the above employer? ”

Briefly, the case of the petitioner is that on 1.1.1994, he was appointed as beldar on

daily wages and posted at IPH section Jubber under Sub Division Gumma and he discharged

his duties sincerely to the full satisfaction of his employer and completed more than 240 days in

each calendar year but his services were orally terminated on 31.12.1996 without assigning any

reason and that the other persons who were working with the petitioner and his juniors were

allowed to continue in the service in violation of sections 25-G, 25-H and 25-N of the Industrial

Disputes Act, 1947 (hereinafter referred as to Act). It is further stated that after the termination

of the services of the petitioner, the respondents engaged 80 persons junior to him and the request

of petitioner was not heeded to by the respondents and thereafter the petitioner raised demand

notice but the Labour Commissioner had declined to make the reference and then he

(petitioner) filed CWP no. 4469/2015 before the Hon’ble High Court in which the Labour

Commissioner was directed to refer the case of petitioner for adjudication before this Court. It is

also stated that the services of the petitioner have been terminated without giving any notice is in

violation of the provisions of section 25-F of the Act. Against this back drop it has been prayed

that he be reinstated in service will all the consequential benefits including full back-wages by

quashing and setting aside the verbal and illegal termination order of the petitioner.

By filing reply, the respondents contested the claim of the petitioner wherein

preliminary objections have been taken qua maintainability and that the claim petition is time

barred. On merits, it has been admitted that the petitioner was engaged as daily wages beldar under

IPH section Durgapur w.e.f. 16.2.1995 to 31.12.1996. It is denied that the petitioner was

appointed on 1.1.1994 in Jubber section. It is asserted that the petitioner had never completed 240

days in a calendar year and his services were never terminated by the department and he left the

job at his own will and that as and when there was work available with the respondents, he was

duly informed vide office letters dated 16.9.1997 and 7.10.1997 vide which he was asked to report

for duty but he did not report which clearly shows that he was not interested to work with the

department. It is further asserted that during the entire service period of the petitioner, he had

worked for 122 ½ days and he had filed the present claim petition after a gap of more than 13

years without mentioning any cogent reason for the delay. It is also asserted that no junior person

to the petitioner had been engaged in Durgapur section and as such the department had not

violated the provisions of section 25-H, 25-G, 25-N and 25-F of the Act. The respondents prayed

for the dismissal of the claim petition.

By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the

respondent.

On the pleadings of the parties, the following issues were framed on 3.3.2017.

10393

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

Whether the termination of the services of the petitioner by the respondents w.e.f.

1.1.1997 without complying with the provisions of Industrial Disputes Act, 1947 is illegal and

unjustified as alleged?

. .OPP.

If issue no.1 is proved in affirmative, to what relief of service benefits the

petitioner is entitled?

. .OPP.

Whether the claim petition is not maintainable as alleged?

. .OPR.

Whether the petitioner is not a workman?

. .OPR.

Whether the claim petition is time barred?

. .OPR.

Relief.

I have heard the learned counsel for the parties and have also gone through the

record of the case.

For the reasons to be recorded hereinafter while discussing issues for

determination my findings on the aforesaid issues are as under.

Issue no.1

No.

Issue no.2

Becomes redundant.

Issue no.3

No.

Issue no.4

Not pressed.

Issue no.5

Yes.

Relief.

Reference answered in favour of the respondents and against the

petitioner per operative part of award.

Reasons for findings

Issues no.1 & 5 .

Being interlinked and correlated, both these issues are taken up together for decision.

The learned counsel for the petitioner contended that the services of the petitioner

had been terminated by the respondents illegally without serving him any notice as required

under section 25-F of the Act especially when he had completed more than 240 days in each

calendar year. He further contended that the junior persons to the petitioner are still working with

the respondent and fresh workers have been engaged in violation of the provisions of section 25-G

and 25-H of the Act.

10. On the other hand, Ld. Dy. DA for the respondents contended that the claim of the

petitioner is highly belated and stale. She further contended that the services of the petitioner had

never been terminated by the respondents who had left the job at his own and even he had not

completed 240 days in any calendar year. She also contended that no junior to the petitioner

had been retained and no fresh hands had been engaged by the respondents, hence, he is not

entitled to any relief.

10394

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

11. To prove issue no.1, the petitioner stepped into the witness box as PW-1 and

tendered in evidence his affidavit Ex. PW-1/A wherein he reiterated almost all the averments as

stated in the claim petition. He also tendered in evidence the information Ex. PW-1/B obtained

under RTI Act from the office of Executive Engineer IPH Sunni and demand notice Ex. PW-1/C.

In cross-examination, he denied that he was engaged in the year, 1995 and that he had worked for

only 122 days. He further denied that he had left the job at his own and that the department had

written the letters to him for resumption of his duties but despite that he had not turned up. He also

denied that his services were not orally terminated by the respondents and that he had never

approached the respondents for his re-engagement. He denied that no junior was retained in

Durgapur section of IPH. He admitted that he had raised industrial dispute after 13 years.

12. PW-2 Shri Narinder Kumar, Senior Assistant has brought the detail of persons

engaged as beldars in IPH Division Sunni on and after 1.1.1994 to 31.12.2007 Ex. PW- 2/A. In

cross-examination he admitted that Sub Divisions Kumarsain, Kotgarh, Gumma and Sunni falls

under Sunni Division and Durgapur section falls under Sub Division Gumma and the detail Ex.

PW-2/A has not been prepared sub division wise.

13. On the other hand, the respondents examined one Shri Dinesh Bhardwaj, Assistant

Engineer as RW-1 who tendered in evidence his affidavit Ex. RW-1/A wherein he reiterated

almost all the averments as made in the reply. He also tendered in evidence the copy of mandays

chart of petitioner Ex. RW-1/B, letter dated 7.10.1997 Ex. RW-1/D and copy of order passed by

the Hon’ble High Court in CWP no. 4382 of 2015 Ex. Rw-1/E. In cross-examination, he admitted

that the petitioner was engaged as beldar. He denied that the cadre of beldar is divisional. He

further denied that the services of the petitioner were illegally terminated. He admitted that six

persons have been engaged after 31.12.1996 but volunteered that they have been engaged on

compassionate ground.

14. I have closely scrutinized the entire evidence, on record, and from the closer

scrutiny thereof, it has become clear that the petitioner had worked only for 122 ½ days as daily

waged beldar with the respondents during the entire period w.e.f. 16.2.1995 till 28.2.1995 as per

the mandays chart Ex. RW-1/B. Now, the question which arises for consideration before this

Court is as to whether the reference is stale and highly belated. The learned counsel for the

petitioner contended that under the Industrial Disputes, no limitation is prescribed and the

provision of Article 137 of the Limitation Act 1963 is not applicable to the proceedings under the

Act and the relief under the Industrial Disputes Act cannot be denied to the workman merely on

the ground of delay.

15. Undisputedly, the petitioner had raised his industrial dispute after a period of more

than 10 years. According to the petitioner his services were terminated w.e.f. 1.1.1997. It is also

clear from the reference itself that the petitioner had raised the industrial dispute after more than 10

years. Therefore, the position of law in respect of a stale claim is required to be seen.

16. In (2013) 14 SCC 543, titled as Assistant Engineer Rajasthan State Agriculture

Marketing Board, Sub Division Kota Vs. Mohan Lal, it has been held by the Hon’ble Apex

Court that though the Limitation Act is not applicable to the reference made under the I.D Act but

delay in raising industrial Dispute is an important circumstance for exercise of judicial

discretion in determining relief that is to be granted. The relevant portion of aforesaid judgment

is reproduced as under:

“19. We are clearly of the view that though the Limitation Act, 1963 is not applicable to

the reference made under the ID Act but delay in raising industrial dispute is definitely an

important circumstance which the Labour Court must keep in view at the time of exercise of

10395

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

discretion irrespective of whether or not such objection has been raised by the other side. The

legal position laid down by this Court in Gitam Singh that before exercising its judicial discretion,

the Labour Court has to keep in view all relevant factors including the mode and manner of

appointment, nature of employment, length of service, the ground on which termination has been

set aside and the delay in raising industrial dispute before grant of relief in an industrial dispute,

must be invariably followed.”

17. In Assistant Executive Engineer, Karnataka Vs. Shivalinga reported in (2002) 10

SCC 167, the services of the employee were terminated on 25.5.1985 and he approached the

Labour Officer on 17.3.1995 and then the reference was made by the Government to the Labour

Court. There was a delay of more than nine years in approaching the Labour Officer. In para 6 of

the aforesaid judgment, the Hon’ble Apex Court has held as under:

“Learned counsel for the appellant strongly relied on the reasoning of the Labour Court

and contended that the view of the High Court would not advance the cause of justice. Learned

counsel for the respondent relied upon two decisions of this Court in Ajaib Singh vs. Sirhind

Coop. Marketing-cum- Processing Service Society Ltd. (1999) 6 SCC 82 and Sapan Kumar Pandit

vs. U.P. SEB (2001) 6 SCC 222 to contend that there is no period of limitation prescribed

under the Industrial Disputes Act to raise the dispute and it is open to a party to approach

the Court even belatedly and the Labour Court or the Industrial Tribunal can properly mould

the relief by refusing or awarding part-payment of back wages. It is no doubt true that in

appropriate cases, as held by this Court in the aforesaid two decisions, such steps could be taken

by the Labour Court or the Industrial Tribunal, as the case may be, where there is no such

dispute to relationship between the parties as employer and employee. In cases where there is a

serious dispute, or doubt in such relationship and records of the employer become relevant, the

long delay would come in the way of maintenance of the same. In such circumstances to make

them available to a Labour Court or the Industrial Tribunal to adjudicate the dispute

appropriately will be impossible. A situation of that nature would render the claim to have become

stale. That is exactly the situation arising in this case. In that view of the matter, we think the two

decisions relied upon by the learned counsel have no application to the case on hand.”

Thus, it has been held that in case there is a serious dispute or doubt in such relationship

and the records of the employer become relevant, the long delay would come in the way of

maintenance of the same.

18. In Haryana State Coop. Land Development Bank Vs. Neelam reported in (2005)

5 SCC 91, the employee was discontinued from service w.e.f. 30.5.1986 and he raised the

demand notice on 30.9.1993 and thereafter the reference was sent to the Labour court by the

appropriate government. The Labour Court passed an order answering the reference against the

employee holding that the claim was belated. Thereafter, a writ petition was filed before the

Hon’ble High Court which was allowed and the employee was directed to be reinstated in service

with continuity of service but without back-wages. The Hon’ble Supreme Court set aside the

judgment of the High Court and restored the judgment of the Labour Court as a result the

reference stood answered against the workman. The relevant portion of the aforesaid judgment is

reproduced as under:

13. “In Ajaib Singh (supra), the management did not raise any plea of delay. The Court

observed that had such plea been raised, the workman would have been in a position to show the

circumstances which prevented him in approaching the Court at an earlier stage or even to

satisfy the Court that such a plea was not sustainable after the reference was made by the

Government. In that case, the Labour Court granted the relief, but the same was denied to the

workman only by the High Court. The Court referred to the purport and object of enacting

10396

jkti=] fgekpy izns'k] 06 Qjojh] 2018@17 ek?k] 1939

Industrial Disputes Act only with a view to find out as to whether the provisions of the Article 137

of the Schedule appended to the Limitation Act, 1963 are applicable or not. Although, the Court

cannot import a period of limitation when the statute does not prescribe the same, as was observed

in Ajaib Singh (supra), but it does not mean that irrespective of facts and circumstances of each

case, a stale claim must be entertained by the appropriate Government while making a reference

or in a case where such reference is made the workman would be entitled to the relief at the hands

of the Labour Court.”

14. “The decision of Ajaib Singh (supra) must be held to have been rendered in the

fact situation obtaining therein and no ratio of universal application can be culled out therefrom.

A decision, as is well-known, is an authority of what it decides and not what can logically be

deduced therefrom Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, JT 2005 (1) SC 303], and

Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anr. para 42.”

15” In Balbir Singh vs. Punjab Roadways and Another [(2001) 1 SCC 133], as regard

Ajaib Singh (supra), this Court observed :

5.” The learned counsel for the petitioner strenuously urged that the Tribunal committed

error in denying relief to the workman merely on the ground of delay. The learned counsel

submitted that in industrial dispute delay should not be taken as a ground for denying relief to

the workman if the order/orders under challenge are found to be unsustainable in law. He placed

reliance on the decision of this Court in the case of Ajaib Singh v. Sirhind Coop. Marketing-cum-

Processing Service Society Ltd. ((1999) 6 SCC 82 : 1999 SCC (L&S) 1054 : JT (1999) 3 SC 38).

6. “We have carefully considered the contentions raised by the learned counsel for the

petitioner. We have also perused the aforementioned decision. We do not find that any general

principle as contended by the learned counsel for the petitioner has been laid down in that

decision. The decision was rendered on the facts and circumstances of the case, particularly the

fact that the plea of delay was not taken by the management in the proceeding before the

Tribunal. In the case on hand the plea of delay was raised and was accepted by the Tribunal.

Therefore, the decision cited is of little help in the present case. Whether relief to the workman

should be denied on the ground of delay or it should be appropriately moulded is at the discretion

of the Tribunal depending on the facts and circumstances of the case. No doubt the discretion is

to be exercised judicially."

16. “Yet again in Assistant Executive Engineer, Karnataka vs. Shivalinga [(2002) 10 SCC

167], a Bench of this Court observed :

“6. Learned counsel for the appellant strongly relied on the reasoning of the Labour Court