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LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 9th March, 2018

No. Shram (A) 6-1/2018 (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

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:—

38&jkti=@2018&22&05&2018

¼1669½

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Sl.

No.

Reference/

Application

Title

Section

Ref. 74/2013

Sh. Vijay Kumar V/s M/s GVK EMRI, JP Motors

Building, Village Anji, Solan, Distt. Solan & Ors.

Ref. 52/2014

Sh. Prem Singh V/s M/s GVK Emergency Management

Research Institute, Kumarhatti, Near J.P. Motor, Village

Samlesh, Distt Solan, H.P. & Anr.

Ref. 73/2013

Ms. Sarika Patiyal V/s M/s GVK EMRI, J.P. Motors

Building, Village Anji, Solan, Distt. Solan & Ors..

Ref. 31/2015

Sh. Raj Kumar V/s M/s Indo Farm Equipment Limited,

EPIP, Phase-II, Village Thana, P.O. Baddi, Distt. Solan

H.P.

Ref. 128/2016 Sh. Daya Nand V/s The XEN, IPH, Kasumpti, Distt

Shimla, H.P.

Ref. 57/2016

Sh. Roshan Lal V/s

The Executive Engineer, Forest,

Forest Department, Talland, Shimla, H.P.

Ref. 56/2016

Sh. Sunil Kumar V/s The CEO

(SEHB), M.C. Shimla,

H.P.

Ref. 43/2016

Sh. Ravinder Kumar V/s M/s Innova Captab, 81-B-EPIP,

Phase-I, Jharmajri, Baddi, Distt. Solan, H.P.

Ref. 164/2017 Sh.Shree Dev V/s The XEN, IPH, Pooh, Distt. Kinnaur, H.P.

10.

Ref. 96/2017

Sh. Jai Dev V/s M/s Akron India Pvt. Limited, Poanta

Sahib, Distt. Sirmaur, H.P.

By order,

NISHA SINGH, IAS

Addl. Chief Secretary (Lab. & Emp.).

___________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref. No. 74 of 2013

Instituted on 6.10.2013

Decided on 9.1.2018

Vijay Kumar s/o Sh. Mast Ram Sharma, V.P.O. Kangra, Tehsil Ward No. 1, Tehsil and

Distt. Kangra, through: J.C. Bhardwaj, President: HP-AITUC, H.Q: Saproon, Solan, H.P.

..Petitioner

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Versus

M/s GVK EMRI, J.P. Motors Building, Village Anji, Barog Bye-Pass Solan, Distt. Solan,

H.P. (Work Office).

M/s Adecco Flexione Workforce Solution Pvt. Ltd., C-127, Basement Level, Satguru

Infotech Phase-VIII Industrial Area Mohali - 160071 (Area Office).

M/s Adecco, India Pvt. Ltd. No. 2, NAL Wind Tunnel Road, Murugeshpalya, Bangolore

(Corporate Office).

..Respondents

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

For petitioner

Shri J.C Bhardwaj, AR

For respondent No. 1

Shri Rajat Sahotra, Advocate

For respondents No. 2 & 3

Shri C.M. Sharma, Advocate

AWARD

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

“Whether termination of the services of Shri Vijay Kumar, s/o Shri Mast Ram Sharma, r/o

VPO Kangra, Ward No. 1, Tehsil & District Kangra, H.P. who was employed as Emergency

Medical Technician w.e.f. 20.10.2012 by the Employer, (i) M/s GVK EMRI, J.P. Motors

Building, Village Anji, Barog Bye-Pass Solan, District Solan, H.P. (Work Office), (ii) M/s

Adecco India Private Limited, C-127, Basement Level, Satguru Infotech, Phase VIII,

Industrial Area Mohali (Area Office) and (iii) M/s Adecco India Private Limited, No. 2,

NAL Wind Tunnel Road, Murugeshpalya, Bangalore (Corporate Office) without complying

the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, what

amount of back wages, seniority, past service benefits and from which date the above

worker is entitled to from the above employer?”

Briefly, the case of the petitioner is that on 22.12.2010, he was directly appointed by

respondent No. 2 and thereafter his services were transferred on the roll of respondent No. 1 and he

continued as such till 20.10.2012 when his services were illegally terminated. It is further stated

that the respondents being employers of the respondent constituted under the Companies Act are

working in the project for the state of Himachal Pradesh under National Rural Health Mission

Program (hereinafter referred as to NRHM), hence, the department of Health Services of Himachal

Pradesh is providing services to the people through the said companies by employing various

skilled workers such as pharmacists, drivers and other requisites supporting staff on contract basis

as per the memorandum of understanding between the management of respondents and the State of

Himachal Pradesh under the department of Health Services by adopting the aforesaid scheme and

operating vehicles popularly known as 108 Ambulance to facilitate and to shift the patients to the

hospital in emergency. It is further stated that the petitioner was appointed as Emergency Medical

Technician (EMT) and was deputed with respondent No. 1 by respondent No. 2 while practicing

unfair labour practices had tried to evade the liabilities which directly rest upon respondent No. 2 as

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well as on the department of Health Services. That the petitioner who is a qualified pharmacist by

occupation and has undergone two years D. Pharmacy in Ayurvedic from Shiksha Bharti Samoor

Kurd, Una was appointed by respondent No. 2 for operating the 108 Ambulance Services of

Department of Health and remain posted at PHC Ronhat in District Sirmaur from 22.12.2010 to

18.2.2011 and thereafter his services were transferred to Civil Hospital Kangra and again his

services were transferred on 24.9.2012 from Civil Hospital Kangra to Regional Civil Hospital

Solan and he remained as such till 20.10.2012 when his services were illegally terminated. That

since the petitioner was elected as general secretary of the union and as such the respondents

terminated his services on 20.10.2012 to teach him a lesson for the formation of the union. It is also

stated that the work performed by the petitioner is similar being performed by the directly

employed employees in the department of Health and Services, hence, the workers employed

through contractor be treated directly employed workmen for the wage/salary and for other

benefits. That the work and conduct of the workman shown on the roll of the name lender

contractor has been excellent throughout and the workers union made number of representations/

demands but the respondents did not consider those representations/demands of the workmen for

making payments at par with directly employed employees. That the petitioner had worked as EMT

continuously with 108 Ambulance without any break and had completed 240 days in each calendar

year and also in twelve calendar months preceding his termination. The petitioner was working

atleast 15 to 18 hours daily since the date of his appointment without payment of any over

time as applicable under the law. It is stated that initially the petitioner was appointed for one year

w.e.f. 22.12.2010 to 21.12.2011 but considering his honesty and sincerity towards the work, his

services were extended from time to time by the respondents but immediately after the formation of

the union, his services were illegally terminated without affording any opportunity to explain his

position and without the compliance of the set procedure for retrenchment under the Industrial

Disputes Act, 1947 (hereinafter referred as to Act) as neither any notice was served upon him nor

any compensation was paid. It is further stated that the respondents have not closed their

establishments and still are operating under the Department of Health Services and the services of

the petitioner were terminated in violation of sections 25-G and 25-H of the Act. Against this back-

drop a prayer has been made that the respondents be directed to reinstate the petitioner in service

and regularize him as Emergency Medical Technician at the place from where he was wrongly and

illegally terminated on 20.10.2012. It is further prayed that the petitioner be ordered to be reinstated

with full back-wages, seniority, continuity along-with other incidental and consequential service

benefits.

By filing separate reply, the respondent No. 1 contested the claim filed by the

petitioner wherein preliminary objections have been raised qua maintainability, that there exists no

cause of action in favour of the petitioner, suppression of material facts and that the petition is bad

for non-joinder of necessary party. On merits, it has been denied that the petitioner was transferred

on the rolls of respondent No. 1 from the roles of respondent No. 2. It is asserted that the petitioner

remained on the rolls of respondent No. 2 from the date of his appointment to the date of his

termination on 20.10.2012. The respondent No. 1 employed various skilled workers such as

pharmacists, drivers and other requisite supporting staff on contract basis as per memorandum of

understanding between the State of H.P. and the management of the respondent No. 1 and the

aforesaid skilled workers were supplied by respondent No. 2 to respondent No. 1, hence, these

workers are on the roles of respondent No. 2 and as such any liability directly rest upon the

respondent No. 2 who had employed the petitioner on his roles and it is the respondent No. 2 who

is evading the liabilities without any legal and just reason. It is also asserted that any Trade Union

formed by the workers union is not recognized by the management of the respondent No. 1 and no

such intimation regarding the formation of any Trade Union was with the respondent No. 1. It is

denied that since the petitioner was elected as General Secretary of the union, hence his services

were terminated. It is asserted that the services of the petitioner were terminated by respondent No.

2. It is denied that the financial position of respondents is sound enough and can afford a little

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burden in case the workmen shown on the roll of the name lender contractor’s are paid the similar

pay and allowances being paid to the direct employees. It is asserted that the respondent No. 1 is

working with the Government under a public and private partnership scheme for providing health

services and the Government is completely funding the respondent No. 1 and no funds are being

put into by respondent No. 2 for providing the services and the respondent No. 2 is only managing

the infrastructure and manpower to provide these facilities to the people of Himachal Pradesh.

Moreover, the petitioner was found guilty of misconduct on the job on various times and has been

given show cause notice and in his reply he had admitted his guilt and promised not to repeat the

same. It is denied that the union made number of representations/demands but the respondents did

not consider those representations/demands for making payments at par with the directly employed

employees. It is further denied that the petitioner had completed 240 days in each calendar year and

that he was working for 15 to 18 hours in a day. It is asserted that full and final settlement was done

with the petitioner which was duly received by him. The respondent No. 1 prayed for the dismissal

of the claim petition.

By filing separate reply, the respondents No. 2 and 3 have contested the claim filed by

the petitioner wherein preliminary objections have been taken qua maintainability that the

replying respondents had provide d about 555 workers to respondent No. 1 and out of them about

535 workers are still working with GVK EMRI and the services of the petitioner were terminated

as per decision of respondent No. 1 and the respondents No. 2 & 3 have no objection if the

petitioner is reinstated by respondent No. 1, that the agreement for services executed between

respondent No. 1 and respondents No. 2 & 3 was valid upto 9.8.2013 and thereafter the respondent

No. 1 refused to renew this agreement, hence, the respondents No. 2 & 3 are unable to reinstate the

services of the petitioner and to regularize him. On merits, it has been asserted that the petitioner

was engaged with respondent No. 1 through respondents No. 2 & 3 only as per specific

requirements of respondents No. 1 by executing an agreement which was not renewed by

respondent No. 1 after 9.8.2013 and as per terms and conditions of letter of employment issued to

the petitioner by the respondents No. 2 & 3, it was specifically mentioned that the services of the

petitioner were engaged only for respondent No. 1 for operation/plying 108 Ambulance service in

State of H.P. and as such the respondent No. 1 is responsible for the termination of the services of

the petitioner. It is further asserted that the respondent No. 1 is still operating under department of

Health Services of State of H.P. but there are no contractual relations between respondent No. 1

and respondents No. 2 & 3 after 9.8.2013 and the respondent No. 1 is the sole authority to remove

or retain a worker and the respondents No. 2 & 3 cannot force the respondent No. 1 to remove or

retain a particular worker. The respondents No. 2 & 3 also prayed for the dismissal of the claim

petition.

By filing separate rejoinders to the replies filed by the respondents, the petitioner

reiterated his allegations by denying those of the respondents.

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

4.1.2016.

Whether the termination of the services of the petitioner w.e.f. 20.10.2012 by the

respondents without complying with the provisions of the 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 to?

... OPP

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Whether the petition is not maintainable as alleged?

...OPR-1

Whether the petition is bad for non-joinder of necessary party as alleged?

…OPR-1

Relief.

I have heard the AR for the petitioner and learned counsel for the respondents and have

also gone through the record of the case carefully including the written arguments filed on behalf of

respondent No. 1.

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

Entitled to salary w.e.f. 20.10.2012 to 21.12.2012.

Issue No. 3

Yes.

Issue No. 4

Yes.

Relief

Reference partly answered in favour of the petitioner and against

respondents No. 2 & 3 per operative part of award.

REASONS FOR FINDINGS

Issues No. 1 to 4 :

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

and decision.

10. In support of his case, the petitioner stepped into the witness box as PW-1 to depose

that vide appointment letter Ex. P-1, he was appointed as Emergency Medical Technician by the

respondent No. 2 on 22.12.2010. He also tendered in evidence the identity card Ex. P-2, wage slip

mark A, appreciation letter Ex. P-3, letter dated 17.1.2012 for extension of contract Ex. P-4,

termination letter mark B. He further stated that his contract was upto 22.12.2012 but his services

were terminated on 20.10.2012 due to his trade union activities as he was the General Secretary of

H.P. 108 contract workers union. He also stated that no notice and compensation was given to him

before terminating his services. Neither any chargesheet was issued to him nor any enquiry was

conducted against him. In cross-examination on behalf of respondent No. 1, he admitted that the

appointment letter Ex. P-1 and Identity card Ex. P-2 have been issued by respondent No. 2. He

further admitted that his contract was renewed vide letter Ex. P-4 by respondents No. 2 & 3. He

also admitted that his services were terminated by respondents No. 2 & 3 vide letter dated

20.10.2012 mark B. He denied that the respondent No. 1 had no knowledge about the formation of

union. He further denied that his conduct and behavior was not proper. He also denied that the

respondent No. 1 had no control over the workers and that he was not the employee of respondent

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No. 1. When cross-examined on behalf of respondents No. 2 &3, he admitted that the respondents

No. 2 & 3 had supplied 555 workers to the respondent No. 1 out of which 535 workers are still

working. He further admitted that the attendance register was being maintained by respondent No.

1. He also admitted that the workers were under the control and supervision of respondent No. 1.

He admitted that an agreement was entered by respondents No. 2 & 3 with respondent No. 1 for

supply of the contract labour which expired on 9.8.2013. He further admitted that his services were

terminated by respondent No. 1 and the workers are engaged and terminated by respondent No. 1.

11. On the other hand, the respondent No. 1 examined one Shri Daya Ram, Associate HR

of respondent No. 1 company 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 filed by respondent No. 1. He

also tendered in evidence the copy of authority letter Ex. RW-1/B, memorandum of understanding

dated 9.7.2010 Ex. RW-1/C and agreement for service dated 10.8.2010 Ex. RW-1/D. In cross-

examination on behalf of respondents No. 2 & 3, he admitted that their company had entered into

an agreement dated 10.8.2010 Ex. RW-1/D, with respondent No. 2 vide which the respondent No.

2 had recruited 555 workers and supplied to respondent No. 1. He denied that out of them 535

workers are still working with respondent No. 1 but volunteered that out of them 50 workers are

working with the respondent No. 1. He admitted that all the workers are under the supervision of

respondent No. 1. He further admitted that their company used to disburse the salary to the

petitioner. When cross- examined on behalf of petitioner he admitted that the respondent No. 2 had

recruited the workers to supply the same to respondent No. 1. He further admitted that those

workers have become the workers of respondent No. 1. He denied that the respondent No. 1 used to

mark the attendance of the petitioner. He admitted that MOU was executed with the State

Government and respondent No. 1 only and there was no reference of respondent No. 2. He further

admitted that neither any chargesheet was issued to the petitioner nor any enquiry was conducted

against him regarding his alleged misconduct. He also admitted that the log book of the vehicle is

maintained by respondent No. 1. He admitted that respondent No. 1 company used to issue identity

cards. He further admitted that after the termination of the services of the petitioner 55 new

workers were engaged by the respondent No. 1 company directly. He also admitted that vide

information received under RTI Act Ex. PX, the selection, hiring, appraisal, termination and

dismissal of staff is with respondent No. 1.

12. The respondents No. 2 & 3 have examined one Shri Raj Wadhwa Senior Executive

Compliances, who stepped into the witness box as RW-2 and tendered in evidence his affidavit Ex.

RW-2/A. In cross-examination on behalf of respondent No. 1, he admitted that vide agreement

dated 10.8.2010 Ex. RW-1/D, the workers were employed on contract basis with respondent No. 1

by respondents No. 2 & 3. He further admitted that appointment letter Ex. P-1 was issued to the

petitioner by respondents No. 2 & 3. He also admitted that vide Ex. P-4, the contract period of the

petitioner was extended by respondents No. 2 & 3. He admitted that the salary and other allowances

used to be paid through them. He denied that the respondent No. 1 had no role to play in

termination of the petitioner. When cross-examined on behalf of petitioner he admitted that

respondents No. 2 & 3 are liable for all the benefits to the workers. He further admitted that the

workers were used to be engaged as per the requirement of respondent No. 1. He also admitted that

the respondent No. 1 had informed them regarding the termination of petitioner. He admitted that

no enquiry was conducted against the petitioner by the respondents No. 2 & 3 prior to his

termination. He further admitted that no retrenchment compensation was given to the petitioner and

that many juniors to the petitioner are still working with the respondent No. 1.

13. By way of additional evidence, the respondent No. 1 examined RW-3 Shri Daya Ram,

Associate (HR) GVK EMRI Dharampur who tendered in evidence the certified copy of certificate

of registration under Contract Labour Act mark RY-1. In cross-examination on behalf of

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respondent No. 2, he denied that the workers were under the control of respondent No. 1. He

further denied that the attendance registers, salary registers, etc., were being maintained by

respondent No. 1. He also denied that Adecco (P) Ltd., only used to deploy the labour with

respondent No. 1. When cross-examined on behalf of petitioner he denied that the Principal

employer is the Director health Services. He further denied that the workers are under the control

and supervision of respondent No.1. He admitted that the contract with Adecco has come to an end

in the year, 2013.

14. I have closely scrutinized the entire evidence on record, and from the closer scrutiny

thereof it has become clear that the respondent No. 1 had signed a memorandum of understanding

Ex. RW-1/C with the State of H.P. on 9.7.2010 and as per the same, the respondent No. 1 was

allowed to take skilled man power from a third agency. It has also become clear that in pursuance

of the aforesaid memorandum of understanding, the respondent No. 1 entered into an agreement

dated 10.8.2010 Ex. RW-1/D with respondent No. 2 and as per the same the man power was

supplied to the respondent No. 1 by respondent No. 2. From the perusal of letter of appointment Ex.

P-1, it has become clear that the same has been issued to the petitioner by the respondent No. 2 on

its letter head. The AR for the petitioner contended that since the respondents No. 2 & 3 were not

having any licence under section 12 of the Contract Labour (Abolition and Regulation) Act

(hereinafter referred to as Contract Labour Act the petitioner would be deemed to be the direct

employee of respondent No. 1. At this stage, it would be appropriate to reproduce sections 7 & 12

of the Contract Labour Act.

7. Registration of certain establishments.—(1) Every principal employer of an

establishment to which this Act applies shall, within such period as the appropriate

Government may, by notification in the Official Gazette, fix in this behalf with respect

to establishments generally or with respect to any class of them, make an application to

the registering officer in the prescribed manner for registration of the

establishment…………

12. Licensing of contractors.—(1) With effect from such date as the appropriate

Government may, by notification in the Official Gazette, appoint, no contractor

to whom this Act applies, shall undertake or execute any work through contract labour

except under and in accordance with a licence issued in that behalf by the licensing

officer…………………

As per the provisions of Section 7 & 12 of the aforesaid Act, the principal employer

i.e respondent No. 1 should have a certificate of registration from the prescribed

authority and secondly the contractor i.e respondent No. 2 should have a licence issued

by competent authority i.e the Labour Department. On perusal of the record, it is clear

that the principal employer i.e respondent No. 1 had the certificate of registration from

the prescribed authority mark RY-1. However, the respondents No. 2 & 3 have failed

to produce on record any licence issued by the competent authority.

15. Now, the question which arises for consideration before this Court is as to whether the

petitioner would be deemed to be direct employee of the respondent No. 1 because his

engagement as contract labour was in violation of Section 12 of the Contract Labour Act as

on the date of engagement of the petitioner, the respondents No. 2 & 3 were not holding a

licence under Section 12 of the Contract Labour Act? This question was considered by the

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

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

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

employment of contract labour in certain establishment and provide s for its abolition in

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

provide s 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 Author ity 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”.

16. 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 not result in the absorption of concerned workman by the principal employer rather it

would result in prosecution under section 23/25 of the Act. Therefore, in view of the

aforesaid legal position, there is no force in the contention of the AR for the petitioner that

in view of the fact that respondent No. 2 & 3 were not having any licence under section 12

of the Contract Labour Act, the petitioner would be deemed to be the direct employee of the

respondent No. 1.

17. Now the question which arises for consideration before this Court is as to whether the

petitioner was the employee of respondent No. 1 or the employee of respondents No. No. 2

& 3. In (2004) 3 SCC 514, Workmen of Nilgiri Coop. MKT. Society Ltd., Vs. State of

T.N and others, it has been held by the Hon’ble Supreme Court that where a person asserts

that he was a workmen of the Company, and it is denied by the Company, it is for him to

prove the fact. The relevant portion of the aforesaid judgment is reproduced as under:

“49. In Swapan Das Gupta and Others Vs. The First Labour Court of West Bengal and

Others [1975 Lab. I.C. 202] it has been held:

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"Where a person asserts that he was a workmen of the Company, and it is denied by the

Company, it is for him to prove the fact. It is not for the Company to prove that he was not

an employee of the Company but of some other person."

50. The question whether the relationship between the parties is one of the employer and

employee is a pure question of fact and ordinarily the High Court while exercising its power

of judicial review shall not interfere therewith unless the finding is manifestly or obviously

erroneous or perverse.”

18. Therefore, in view of the aforesaid decision of the Hon’ble Supreme Court, the onus

was upon the petitioner to prove employer and employee relationship between himself and

respondent No. 1. However, no documentary evidence has been produced by the petitioner to show

that he was the employee of respondent No. 1. Rather, the petitioner himself pleaded in claim

petition that the respondent No. 2 initially appointed him directly as EMT on 22.12.2010 and was

deputed with respondent No. 1 for 108 Ambulance service. The respondents No. 2 & 3 also pleaded

in their reply to the claim petition that the petitioner was employed as EMT by the respondents No.

2 & 3 and thereafter was deputed with respondent No. 1. It has also been pleaded by respondents

No. 2 & 3 that the services of petitioner were taken for a fixed period and the petitioner was

selected and employed by respondents No. 2 & 3 on their rolls. The petitioner while appearing in

the witness box as PW-1 also deposed before the Court that he was appointed by the respondents

No. 2 and 3 on 22.12.2010 vide appointment letter Ex. P-1 and thereafter he was deployed with

respondent No. 1. In cross-examination he admitted that the appointment letter Ex. P-1 and identity

card Ex. P-2 have been issued by the respondents No. 2 & 3. He further admitted that his contract

was renewed vide letter Ex. P-4 by the respondents No. 2 & 3. It has also been admitted by the

petitioner as PW-1 that his services were terminated by the respondents No. 2 & 3 vide letter

dated 20.10.2012 mark B. Therefore, the aforesaid admission made on the part of the petitioner

clearly proves the fact that he was appointed by respondents No. 2 & 3 and his services were also

terminated by the respondents No. 2 & 3. RW-1 Daya Ram has specifically stated that the

petitioner was never on the pay rolls of respondent No. 1 neither he was ever taken on the pay rolls

by respondent No. 1 from the pay rolls of respondent No. 2 and he remained on the pay rolls of

respondent No. 2 from the date of his appointment till the date of his termination by respondent No.

2. He further stated that as per the service agreement Ex. RW-1/C, the manpower was deployed by

the respondent No. 2 with respondent No. 1 and the petitioner was appointed by the respondent No.

2 and further deputed with respondent No. 1 to provide emergency services. He stated that due to

the misconduct on duty by the petitioner, the respondent No. 2 might have terminated the services

of the petitioner and the termination of the petitioner has been effected by respondent No. 2 at his

own. RW-2 in his affidavit by way of evidence specifically stated that the petitioner was employed

as casual temporary employee for a fixed period of employment and his services were terminated

by giving statutory notice/letter. He also admitted in cross-examination that the appointment letter

Ex. P-1 had been issued to the petitioner by respondents No. 2 & 3 and vide letter Ex. P-4, the

contract period of petitioner was extended by respondents No. 2 & 3.

19. Furthermore, the perusal of the appointment letter dated 22.12.2010 Ex. P-1 shows that

the same had been issued by the respondent No. 2 on its own letter head and the said letter of

appointment has been duly accepted by the petitioner by putting his signatures on the same on

24.12.2010. The letter dated 17.1.2012 Ex. P-4 regarding the extension of the contract period has

also been issued by respondent No. 2 on its letter head and the same has also been duly accepted

by the petitioner by signing the same. The termination letter dated 20.10.2012 Mark B has also

been issued by respondents No. 2 on its letter head which shows that the services of the petitioner

were terminated by the respondent No. 2. Hence, the aforesaid documents, brought on record,

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clearly proves the fact that the petitioner was appointed and terminated by respondents No. 2 & 3

and not by respondent No. 1.

20. The AR for the petitioner contended that since in the identity card Ex. P-2, the name

of the respondent No. 1 has been mentioned as such there is relationship of employer and employee

between the petitioner and respondent No. 1. However, merely because of the fact that in the

identity card Ex. P-2, the name of respondent No. 1 has been mentioned that does not mean that the

petitioner was the employee of respondent No. 1. Moreover, the identity card Ex. P-1 has been

issued by respondents No. 2 & 3 and this fact has been admitted by petitioner in his cross-

examination. In 2016 (1) Mh. LJ 892, Chanderkala w/o Lalaji

Misal

and

others

Vs.

Marathwada Medical Research and Rural Development Institution Ltd. and others, it has

been held by the Hon’ble Bombay High Court that the identity cards cannot be indicative of such a

relationship since an identity card is not the decisive/determinative piece of evidence of an

employer-employee relationship.

21. The AR for the petitioner further contended that since the petitioner was under the

direct control and supervision of respondent No. 1, therefore, he would be deemed to be direct

employee of respondents No. 1. In (2009) 13 SCC titled as International Airport Authority of

India Vs. International Air Cargo Workers Union and Anr., the Hon’ble Supreme Court

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, 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.”

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In Agya Ram Vs. State of HP 2016 (4) LLJ 631, it has been held by our own Hon’ble

High Court that the petitioners have to prove by leading evidence to demonstrate that the

respondents had the control and supervision over them while discharging official duties. The

relevant portion of the aforesaid judgment reads as under:

“26. Careful perusal of aforesaid law passed by Hon’ble Apex Court clearly suggests that

Court while examining the question of employer and employee relationship is required to

consider several factors as have been culled hereinabove by the Hon’ble Apex Court.

Perusal of facts and circumstances of the case as well as evidence adduced on record,

nowhere suggests that petitioners herein were able to prove aforesaid factors while claiming

employer and employees relationship between them and respondents No. 2 and 3. As has

been discussed in detail, petitioners have not placed on record appointment letters, if any,

issued either by respondent No. 2 or respondent No. 3. Since, petitioners herein were

unable to prove on record that they were appointed by respondents No. 2 and 3, several

other factors as have been indicated hereinabove may not have much relevance as far as

present cases are concerned. But otherwise also, perusal of impugned award nowhere

suggests that petitioners were able to prove that they were being paid salary/remuneration

by respondents herein. Similarly, petitioners have not led on record any evidence to

demonstrate that respondents No. 2 and 3 had control and supervision over them while

discharging official duties.

(Emphasis supplied)

27. Hence, in view of the above, this Court finds no force in the contention put-forth on

behalf of counsel representing petitioners that Learned Tribunal below has fallen in error

while rendering the findings that petitioners do not fall under definition of Section 2(s) of

Industrial Disputes Act. Admittedly, in the present case petitioners were not able to prove

on record relationship of employees and employer between them and respondents and, as

such, it cannot be said that impugned award passed by Learned Tribunal deserves to be

quashed and set aside being perverse.”

In Manoj Kumar Vs. M/s Sintex Industries Pvt., Ltd., CWP No. 4675 of 2015,

decided on 22.3.2016, our own Hon’ble High Court has relied upon the decision of Hon’ble

Apex Court in Balwant Rai Saluja and another Vs. AIR India Limited and others

(2014) 9 SCC 407 wherein it has been held as under:

“65.Thus, it can be concluded 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 (supra), the International Airport Authority of India case

(supra) and the NALCO case.”

(emphasis supplied).

22. Therefore, in view of the aforesaid legal position, the facts in the present case are

required to be seen. Though, the petitioner has denied in cross-examination that he was working

under the supervision of respondents No. 2 & 3 and his attendance was marked by respondents No.

2 & 3. However, to prove this fact the petitioner has failed to produce any cogent and satisfactory

evidence on record. The burden was upon the petitioner to prove by leading cogent and satisfactory

evidence on record that he was working under the direct control and supervision of respondent

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No. 1. It has been admitted by the petitioner in his cross-examination that an agreement was entered

by respondents No. 2 & 3 with respondent No. 1 for the supply of contract labour which expired

on 9.8.2013. The petitioner has failed to prove on record that his services were transferred to the

rolls of respondent No. 1. On the other hand, RW-1 categorically deposed in his evidence by way

of affidavit that the petitioner was never transferred on the roll of respondent No. 1 from the rolls of

respondents No. 2 & 3 and he remained on the rolls of respondents No. 2 & 3 from the date of

his appointment till the date of his termination, In cross- examination RW-1 has categorically stated

that the respondents No. 2 & 3 were providing skilled labour to the respondent No. 1. In cross-

examination by the petitioner, RW-1 admitted that the respondent No. 2 had recruited the workers

for supplying the same to respondent No. 1. RW-1 denied that they have become the workers of

respondent No. 1. He further denied that the attendance of the workers used to be marked by

respondent No. 1. He stated that there was supervisory staff of respondent No. 2 for marking the

presence of the workers. Moreover, RW-2 in his affidavit by way of evidence specifically stated

that the petitioner was employed as casual temporary employee for a fixed period of employment

and his services were terminated by giving statutory notice/letter. He admitted in cross-examination

that the salary and other allowances used to be paid through them. He also admitted that the letter

of termination mark B was issued to the petitioner by respondents No. 2 & 3. Though, RW-2

admitted in cross- examination that the attendance of the workers used to be marked by respondent

No. 1 and they were under the control and supervision of respondent No. 1 but no sufficient

evidence has been brought on record by the respondents No. 2 & 3 to this effect. Moreover, RW-2

admitted that the respondents No. 2 & 3 are liable for all the benefits to the workers.

23. Therefore, in view of the entire evidence on record led by the parties, it cannot be said

that the petitioner was under the direct control and supervision of respondent No. 1. As observed

earlier, the appointment letter Ex. P-1 has been issued to the petitioner by respondents No. 2 & 3

and termination letter mark B have also been issued by the respondents No. 2 & 3. The petitioner

has failed to prove on record that his services were transferred to the rolls of respondent No. 1. The

perusal of the record reveals that the salary was also being paid to the petitioner by respondents No.

2 & 3. Therefore, from the perusal of entire evidence on record it has become clear that the

petitioner was working under the control and supervision of respondents No. 2 & 3. Hence, in

view of the entire evidence led by the parties, it can be safely held that the petitioner was not the

employee of respondent No. 1 rather he was the employee of respondents No. 2 & 3. Therefore, it

can safely be held that the petition is bad for non-joinder of respondent No. 1 and the same is not

maintainable against respondent No. 1.

24. The AR for the petitioner next contended that the services of the petitioner had been

terminated 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 respondents and fresh workers

have been engaged in violation of the provisions of Section 25-G and 25-H of the Act. The perusal

of the appointment letter dated 22.12.2010 Ex. P-1 shows that the petitioner was initially appointed

for a period of 12 months from 22.12.2010 to 21.12.2011 and his contract was further extended

vide letter dated 17.1.2012 for another one year w.e.f. 22.12.2011. The conjoint reading of both the

aforesaid letters Ex. P-1 and Ex. P-4 categorically stipulates that the appointment of the petitioner

with the respondents No. 2 & 3 was purely contractual for a fixed period. The terms of both the

aforesaid letters i.e appointment letter Ex. P-1 as well as the letter extending the contract Ex. P-4

have been duly accepted by the petitioner by appending his signatures on the same. Therefore, it

can safely be held that the petitioner was fully aware about the terms of his employment which he

accepted without any demur. The petitioner was aware that his employment was contractual and

would come to an end on 21.12.2012. Since, the appointment of the petitioner was contractual for a

fixed period as such his termination w.e.f. 20.10.2012 cannot be termed as retrenchment within

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the meaning of section 2(oo) of the Act and his case falls within the exception as prescribed under

Section 2(oo)(bb) of the Act. In AIR 2007, SC 631, M.D Karnatka Handloom Dev.

Corporation Ltd. Vs. Mahadeva Laxman Raval, the respondent was engaged on contract basis

and in the appointment letters issued by the petitioners, the respondent’s appointment with the

corporation was purely contractual for a fixed period and soon after the expiry of specified period,

the respondent’s services were discontinued. The Hon’ble Supreme Court had clearly held that the

termination of his contract does not amount to retrenchment and therefore it does not attract section

25-F of the Act at all. The relevant portion of the aforesaid judgment reads as under:

“18. We have perused all the appointment letters dated 14.01.1991, 24.02.1992,

10.02.1993, 03.03.1993 and 30.11.1993 produced by the respondent as annexures which

consistently and categorically state that the respondent’s appointment with the Corporation

was purely contractual for a fixed period. The respondent was engaged only under the

Vishwa Programme Scheme which is not in existence. Now the scheme came to an end

during August, 1994 the respondent was also not governed by any service rules of the

Corporation. The Corporation put an end to the contract w.e.f. 31.08.1993 which, in our

opinion, cannot be termed as dismissal from service. Even assuming that the respondent had

worked 240 days continuously he, in our opinion, cannot claim that his services should be

continued because the number of 240 days does not apply to the respondent inasmuch as his

services were purely contractual. The termination of his contract, in our view, does not

amount to retrenchment and, therefore, it does not attract compliance of Section 25 F of the

I.D. Act at all”.

In the present case also, since the petitioner was engaged for a specific period, the

termination of the petitioner would not amount to retrenchment within the meaning of Section

2(oo) of the Act and his case falls within the exception as prescribed under section 2(oo)(bb) of the

Act and therefore the compliance of Sections 25-F, 25-G and 25-H of the Act by the respondents

No. 2 & 3 was not necessary at all.

25. The AR for the petitioner lastly contended that since the contract of the petitioner was

extended for a period of one year w.e.f. 22.12.2011, his services could not have been terminated

before the expiry of the contract period i.e 21.12.2012. In the letter of extension of contract Ex. P-4,

it has been clearly stipulated that all the other terms and conditions of the employment shall remain

the same as mentioned in the appointment letter dated 22.12.2010 Ex. P-1. As per clause-4 of the

appointment letter Ex. P-1, the contract was terminable by either party giving 15 days notice in

writing or salary in lieu of the notice to the other party. However, the perusal of record reveals that

the services for the petitioner were terminated on 20.10.2012 and while terminating the services of

the petitioner, the respondents No. 2 & 3 have failed to give 15 days’ notice in writing or salary in

lieu of notice to the petitioner. Thus, the termination of the contract of employment of the petitioner

by the respondents No. 2 &3 before the expiry of the stipulated duration amounted to breach of

terms of the contract. Hence, the termination of the services of the petitioner w.e.f. 20.10.2012 by

the respondents No. 2 &3 before the expiry of the stipulated period is illegal and unjustified. Now,

the question which arises for consideration before this Court as to what relief/service benefits the

petitioner is entitled to. In S.S. Shetty Vs. Bharat Nidhi Ltd., 1958 SCR 442, the Hon’ble

Supreme Court observed as under :

“If the contract of employment is for a specific term, the servant would in that event be

entitled to damages the amount of which would be measured primafacie and subject to rule

of mitigation in the salary of which the master had deprived him. (vide Collier V. Surday

Reference Publishing Co. Ltd., [1940] 4 All E.R 2371). The servant would then be entitled

to the whole of the salary, benefits etc., which he would have earned had he continued in the

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employment of the master for the full term of the contract, subject of course to mitigation of

damages by way of seeking alternative employment.

Therefore, in view of the aforesaid judgment of the Hon’ble Apex Court and also in view of

the facts and circumstances of the present case, this Court is of the considered view that the

petitioner is entitled to the salary upto the period he was entitled to remain in service i.e with effect

from the date of his termination i.e 20.10.2012 till the date of the expiry of the contract i.e

21.12.2012. All the aforesaid issues are decided accordingly.

Relief :

As a sequel to my above discussion and findings on issues No. 1 to 4, the claim of the

petitioner succeeds and is hereby partly allowed with the result the respondents No. 2 & 3 are

directed to pay the salary for the period w.e.f. 20.10.2012 to 21.12.2012 to petitioner within a

period of three months from today failing which the same shall carry interest @ 9% per annum

from the date of award till its realization. The reference is answered accordingly. 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 9thDay of Jan., 2018.

Sd/-

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

__________

IN THE COURT OF SH. SUSHIL KUKREJA, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref No. 52 of 2014

Instituted on 30.7.2014

Decided on 9.1.2018

Prem Singh s/o Shri Hasri Ram c/o Atma Ram, r/o Dhani Ram Building, New Sabzi Mandi

Nerwa, Chopal, District Shimla, H.P.

..Petitioners.

VS.

M/s GVK Emergency Management Research Institute, NH-22, Kumarhatti, Bye Pass near

J.P Motor, Village Samlesh, P.O Barog, District Solan, H.P.

Adecco India Pvt., Ltd., C-127 Basement Level, Satguru Infotech, Phase-VIII, Industrial

Area Mohali-160071.

..Respondents.

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Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner

Shri R.K Khidtta, Advocate

For respondent No. 1

Shri Rajat Sahotra, Advocate

For respondent No. 2

Shri C.M Sharma, Advocate

AWARD

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

“Whether the termination of services of Shri Prem Singh Manglate s/o Shri Hari Ram, c/o

Atma Ram Dhani Ram Building, New Subzi Mandi, Nerwa, Chopal, District Shimla, H.P.,

who was employed as Driver during year, 2010 by the employer (i) GVK Emergency

Management Research Institute, NH-22, Kumarhatti, Bye-Pass Near J.P. Motor, Village

Samlesh, P.O. Barog, District Solan, H.P. (work office) employed through M/s Adecco

India Private Limited, C-127 Basement Level, Satguru Infotech, Phase-VIII, Industrial

Area, Mohali-160017 (Area Office) w.e.f. 13.6.2013 without complying with the provisions

of the Industrial Disputes Act, 1947 is legal and justified? If not, what amount of back

wages, seniority, past service benefits the above Ex-driver is entitled to from the above

employer?”

In nutshell, the case of the petitioner is that he was engaged as pilot/driver by the

respondents w.e.f. 23.12.2010 and worked as such in Tehsil Chopal area till 13.6.2013 continuously

and he also completed special training regarding which certificate was issued to him and that due to

some ill will, he was transferred from Nerwa location to Theog location vide letter dated

27.11.2012 which was far away from the house of the petitioner and his wife was under treatment

for long time and was residing at Nerwa in a rented accommodation and as such due to family

problem, he requested the respondent for his adjustment in Nerwa location and w.e.f. 13.6.2013, the

services of the petitioner were terminated without considering his genuine family problem and that

too without serving any notice and retrenchment compensation and without conducting any enquiry

and without following the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as

Act). It is further stated that the petitioner had completed 240 days in each calendar year and the

respondents used to pay the salary of ` 5704/- only in place of ` 8000/- and even no over time was

paid to him as the respondents used to take the work from the petitioner for more than 12 hours and

some times for 24 hours in a day. That the petitioner requested the respondents for his

reengagement but of no avail and then he filed the demand notice and due to adamant attitude of

the respondents the conciliation proceedings failed and the matter was referred to this Court. It is

also stated that the junior persons to the petitioner are working with the respondents in violation of

the provisions of “last come first go” and that the work which the petitioner was performing is still

available with the respondents and that the petitioner is a workman as defined in the Act as he used

to work manually with the respondents and while terminating the services of the petitioner, the

respondents have violated the provisions of sections 25-F, 25-G and 25-H of the Act. Against this

back-drop a prayer has been made that the termination order of the petitioner w.e.f. 13.6.2013 be

quashed and set aside and the respondents be directed to reinstate the petitioner in service on the

same post with all consequential service benefits including back- wages.

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

wherein preliminary objections have been taken regarding maintainability, that there exists no

cause of action in favour of the petitioner, locus standi and that the claim petition is bad for non

joinder of necessary party. On merits, it has been denied that the petitioner was on the rolls of the

respondent No. 2. It is admitted that the employers are working in the project for the State of

Himachal Pradesh under NRHM and as such the department of Health Services of Himachal

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Pradesh is providing service to the people through the said employers. It is asserted that respondent

No. 1 employed various skilled workers such as pharmacist, drivers and other requisite supporting

staff on contract basis as per the memorandum of understanding between the State of H.P and the

management of the respondent No. 1 and the skilled workers were not directly employed by

respondent No. 1 but were supplied by respondent No. 2 and they are on the rolls of respondent No.

2 under the Contract Labour Act. It is denied that the petitioner was deputed on the rolls with

respondent No. 1 by respondent No. 2. It is asserted that the on the request of the petitioner, he was

allowed to transfer at Theog through respondent No. 2 and to render his services at his will at

Theog. It is denied that the respondent No. 1 terminated the services of the petitioner without

considering his genuine problem w.e.f 13.6.2013. It is asserted that the petitioner had left the job on

his own will by remaining absent from his duties for several days without any prior intimation or

approval of the leaves from the respondent No. 1 and respondent No. 2. That he was negligent in

serving his duties in service and was also found creating mischief in the other employees and also

misbehaved with the clients and customers when he used to drop them in the hospital and from the

hospital to their homes. It is denied that the petitioner had completed 240 days in each calendar

year. Since the petitioner was on the rolls of respondent No. 2, hence, the respondent No. 1 is not

responsible for his termination. The respondent No. 1 prayed for the dismissal of the claim petition.

Respondent No. 2 also filed separate reply wherein various preliminary objections

have been taken that the respondent No. 2 being a registered company under the Companies Act,

1956 engaged in the business of providing services in the area of Human resource Management and

Consultancy Servicing etc., to various organization/clients and as such respondent No. 2 entered

into an agreement with respondent No. 1 on 10.8.2010 and provide d its service to engage the

petitioner alongwith 555 other workers to provide 108 Emergency Response Services and Pre-

Hospital Care in the State of Himachal Pradesh in partnership with Government of HP and both the

respondents have mutually decided to engage the services, otherwise the respondent No. 2 had no

independent authority to re-instate the petitioner and regularize his services and even his services

have been terminated as per the decision of respondent No. 1, that as per agreement for services,

executed between respondents, the same was valid upto 9.8.2013 and thereafter the respondent No.

1 refused to renew this agreement, hence, respondent No. 2 is unable to re-instate the petitioner. On

merits, it has been asserted that the transfer orders of the petitioner were issued only as per the

requirement of respondent No. 1 and the services of the petitioner were engaged with respondent

No. 1 through respondent No. 2. The respondent No. 2 prayed for the dismissal of the claim

petition.

By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the

respondents.

On the pleadings of the parties, the following issues were framed on 19.1.2016.

Whether the termination of the services of the petitioner w.e.f. 13.6.2013 by the

respondents without complying with the provisions of the 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 to?

..OPP

Whether the petition is not maintainable as alleged?

..OPR

Whether the petition is bad for nonjoinder of necessary party as alleged?

..OPR

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Relief.

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

of the case carefully including the written arguments filed on behalf of petitioner and respondent

No. 1.

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

Entitled to lump sum compensation of ` 50,000/-

(` Fifty Thousand only)

Issue No. 3

Decided accordingly

Issue No. 4

Yes

Relief

Reference partly answered in favour of the petitioner and against

respondent No. 2 per operative part of award.

REASONS FOR FINDINGS

Issues No. 1 and 4:

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

and decision.

10. The learned counsel for the petitioner contended that the petitioner was engaged as

Driver by the respondents and he worked continuously w.e.f. 23.12.2010 till 13.6.2013 on which

date his services were orally terminated without following the mandatory provisions of the Act as

such the petitioner is entitled to be reinstated in service by the respondents on the same post with all

service benefits including full back-wages.

11. On the other hand learned counsel for the respondent No. 1 contended that the

petitioner was not its employee and there is no relationship of employee and employer between the

petitioner and respondent No. 1. He further contended that the petitioner was the employee of

respondent No. 2 and was deployed with respondent No. 1 under the Contract Labour (Regulation

and Abolition) Act, 1970 and his services were never terminated by the respondent No. 1 as such

the respondent No. 1 is not liable to reinstate the petitioner in service.

12. The learned counsel for the respondent No. 2 contended that the respondent No. 2 is

engaged in the business of providing services in the area of Human resource Management and

Consultancy Servicing etc., to various organizations and it had entered into an agreement with

respondent No. 1 and provided its service to respondent No. 1 by engaging the petitioner along-

with 555 other workers. He further contended that the services of the petitioner were terminated as

per the decision of respondent No. 1 and respondent No. 2 had no independent authority to reinstate

the petitioner.

13. 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 made in the

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claim petition. He also tendered in evidence the copy of appointment letter Ex. PW-1/B, copy of

appreciation certificate Ex. PW-1/C, copy of salary statement Ex. PW-1/D, copy of appreciation

letter issued by Shri Mehul Sukumaran Ex. PW-1/E, discharge slips mark PX and mark PX-1,

prescription slips mark PX-2, to mark PX-4, letter written by him to HR Head Ex. PW-1/F and

copy of identity card Ex. PW-1/G. In cross- examination on behalf of respondent No. 1, he denied

that his interview was conducted by respondent No. 2. He admitted that letter of appointment Ex.

PW-1/B was issued by respondent No. 2. He denied that he was working under the control of

respondent No. 2. He further denied that he had given request letter for his transfer to respondent

No. 2. He also denied that after his transfer to Theog, he had not joined his duties. He denied that

he left the job at his own. When cross- examined on behalf of respondent No. 2, he admitted that he

had also signed the letter Ex. PW-1/B. He further admitted that appreciation letter Ex. PW-1/C had

been issued by respondent No. 1. He denied that he was under the control of respondent No. 1. He

further denied that his services had been terminated by respondent No. 1 but volunteered that both

the respondents have terminated his services.

14. On the other hand, the respondent No. 1 examined one Shri Daya Ram, Associate HR

with respondent No. 1 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 authority

letter Ex. RW-1/B, memorandum of understanding dated 9.7.2010 Ex. RW-1/C and agreement of

service Ex. RW-1/D. In cross-examination on behalf of respondent No. 2, he admitted that

respondent No. 2 is engaged in the business of providing services in the area of Human Resource

Management and Consultancy Service to various organization/clients. He further admitted that

vide agreement Ex. RW-1/D dated 10.8.2010, their company entered into an agreement with the

respondent No. 2 vide which the respondent No. 2 had recruited 555 workers and supplied to

respondent No. 1 and out of them 50 workers are still working with respondent No. 1. He also

admitted that all the workers are under the supervision of respondent No. 1. He denied that the

services of the petitioner were terminated on the decision taken by respondent No. 1. When cross-

examined on behalf of petitioner he admitted that the respondent No. 1 had taken the work of

National Rural Health Mission from the state of H.P. w.e.f. the year, 2010 for which an MOU had

also been executed as per which all the recruitments, promotions, actions and supervision of the

workers was to be done by respondent No. 1 and the National Rural Health Mission is still going

on. He denied that the petitioner was recruited by respondent No. 1 under NHRM. He admitted that

he had worked under respondent No. 1 from 23.12.2010 till 13.6.2013 at Chopal and Nerwa

location. He denied that on 27.11.2012, the petitioner was transferred from Chopal to Theog by

respondent No. 1 and that his services were terminated by respondent No. 1 orally on 13.6.2013. It

is correct that no letter/notice was issued to the petitioner for resumption of his duties. He denied

that the vehicles are owned by the respondent No. 1. He admitted that record and log book of the

vehicles are maintained by respondent No. 1. He further admitted that they have not issued any

letter to any authority or respondent No. 2 regarding the alleged absenteeism of petitioner. He

denied that the petitioner was being paid the salary of ` 5704/- per month. He admitted that the

services of respondent No. 1 are available 24 hours and that the vehicle i.e 108 Ambulance was

handed over to the petitioner for Nerwa Chopal location and they have not received any complaint

from Nerwa Chopal location regarding the non-availability of 108 ambulance at any time. He

also admitted that after the termination of the petitioner, the respondent No. 1 had recruited 55

new workers and they have not issued any letter to the petitioner before engaging new persons.

15. RW-2 Shri Raj Wadhwa appeared into the witness box on behalf of respondent No. 2

and tendered his affidavit Ex. RW-2/A wherein he reiterated almost all the averments stated in the

reply. In cross-examination on behalf of respondent No. 1 he admitted that a contract Ex. RW-1/D

was entered between GVK and Adecco for supplying the man power and the persons were engaged

by their company on the basis of requirement of GVK. He denied that the attendance of the workers

used to be marked by them but admitted that the salary of the workers used to be paid by them after

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deducting EPF and ESI. He denied that their company was informed by GVK regarding the

misconduct of the petitioner. The services of the petitioner were terminated by them on the

recommendations of GVK. When cross-examined on behalf of petitioner he admitted that the

petitioner was engaged as driver on 23.12.2010 and he worked till 13.6.2013 continuously and that

he was posted at Nerwa Chopal location. He admitted that the petitioner was transferred to Theog

on 27.12.2012 but volunteered that he was transferred by GVK. He denied that the petitioner was

illegally terminated by them on 13.6.2013 but volunteered that GVK had requested them to remove

the petitioner immediately from service. He admitted that neither any notice was issued to the

petitioner nor any compensation was paid to him and enquiry was also not held by them prior to the

termination of the services of the petitioner. He further admitted that the petitioner had completed

240 days in each calendar year. He stated that the gross salary of the petitioner was ` 6400/- per

month and he was being paid ` 5704/- per month. He also admitted that the project of 108

ambulance service is still going on in the State of H.P. and that their company is providing the

service even today. He denied that they have engaged fresh persons. He admitted that the petitioner

had worked for 12 to 18 hours in a day during his service.

16. By way of additional evidence, the respondent No. 1 examined RW-3 Shri Daya Ram,

Associate (HR) GVK EMRI Dharampur who tendered in evidence the certified copy of certificate

of registration under Contract Labour Act mark RY-1. In cross-examination on behalf of

respondent No. 2, he denied that the workers were under the control of respondent No. 1. He

further denied that the attendance registers, salary registers, etc., were being maintained by

respondent No. 1. He also denied that Adecco (P) Ltd., only used to deploy the labour with

respondent No. 1. When cross-examined on behalf of petitioner he admitted that their company is

still providing service. He further denied that the workers are under the control and supervision of

respondent No. 1. He admitted that the contract with Adecco has come to an end in the year, 2013.

17. I have closely scrutinized the entire evidence on record, and from the closer scrutiny

thereof it has become clear that the respondent No. 1 had signed a memorandum of understanding

Ex. RW-1/C with the State of H.P. on 9.7.2010 and as per the same, the respondent No. 1 was

allowed to take skilled man power from a third agency. It has also become clear that in pursuance

of the aforesaid memorandum of understanding, the respondent No. 1 entered into an agreement

dated 10.8.2010 Ex. RW-1/D with respondent No. 2 and as per the same the man power was

supplied to the respondent No. 1 by respondent No. 2.

18. Now, the question which arises for consideration before this Court is as to whether the

petitioner was the employee of respondent No. 1 or the employee of respondent No. 2. In (2004) 3

SCC 514, Workmen of Nilgiri Coop. MKT. Society Ltd., Vs. State of T.N and others, it has

been held by the Hon’ble Supreme Court that where a person asserts that he was a workman of the

Company, and it is denied by the Company, it is for him to prove the fact. The relevant portion of

the aforesaid judgment is reproduced as under:

“49. In Swapan Das Gupta and Others Vs. The First Labour Court of West Bengal and

Others [1975 Lab. I.C. 202] it has been held:

"Where a person asserts that he was a workmen of the Company, and it is denied by the

Company, it is for him to prove the fact. It is not for the Company to prove that he was not

an employee of the Company but of some other person."

50. The question whether the relationship between the parties is one of the employer and

employee is a pure question of fact and ordinarily the High Court while exercising its power

of judicial review shall not interfere therewith unless the finding is manifestly or obviously

erroneous or perverse.”

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19. Therefore, in view of the aforesaid decision of the Hon’ble Supreme Court, the onus

was upon the petitioner to prove employer and employee relationship between himself and

respondent No. 1. However, no documentary evidence has been produced by the petitioner to show

that he was the employee of respondent No. 1. Rather, the petitioner himself tendered in evidence

the letter of appointment Ex. PW-1/B which shows that the respondent No. 2 initially appointed

him directly as Driver on 23.12.2010. The respondent No. 2 also pleaded in its reply to the claim

petition that the services of the petitioner were engaged for respondent No. 1 through respondent

No. 2. It has further been pleaded by the respondent No. 2 that the services of the petitioner were

terminated as per the decision of respondent No. 1 and the transfer order of the petitioner was

issued as per the requirement of respondent No. 1. The petitioner while appearing in the witness

box as PW-1 also admitted in cross-examination that the appointment letter Ex. PW-1/B has been

issued by the respondent No. 2. Therefore, the aforesaid admission made on the part of the

petitioner clearly proves the fact that he was appointed by respondent No. 2. The salary statement

Ex. PW-1/D clearly shows that the salary to the petitioner was being disbursed by the respondent

No. 2. RW-1 Daya Ram has specifically stated that the petitioner was never on the pay rolls of

respondent No. 1 neither he was ever taken on the pay rolls by respondent No. 1 from the pay rolls

of respondent No. 2 and he remained on the pay rolls of respondent No. 2 from the date of his

appointment till the date of his termination by respondent No. 2. He further stated that as per the

service agreement Ex. RW-1/C, the manpower was deployed by the respondent No. 2 with

respondent No. 1 and the petitioner was appointed by the respondent No. 2 and further deputed

with respondent No. 1 to provide emergency services. He stated that due to the misconduct on

duty by the petitioner, the respondent No. 2 might have terminated the services of the petitioner and

the termination of the petitioner has been effected by respondent No. 2 at his own. RW-2 in his

affidavit by way of evidence specifically stated that the petitioner was employed as casual

temporary employee for a fixed period of employment and his services were terminated by giving

statutory notice/letter. He also admitted in cross-examination that the salary to the workers was

being paid by them. He further admitted that the salary to the workers was being paid after

deducting the payment of EPF and ESI. He also admitted in cross- examination that the petitioner

was transferred to Theog on 27.11.2012. He admitted that the respondent No. 1 GVK has requested

them to remove the petitioner immediately from service.

20. Furthermore, the perusal of the appointment letter dated 22.12.2010 Ex. PW-1/B

shows that the same had been issued by the respondent No. 2 on its own letter head and the said

letter of appointment has been duly accepted by the petitioner by putting his signatures on the

same. Hence, the entire evidence brought on record, clearly proves the fact that the petitioner was

appointed, transferred and terminated by respondent No. 2 and not by respondent No. 1.

21. The learned counsel for the petitioner contended that since in the identity card Ex. PW-

1/G, the name of the respondent No. 1 has been mentioned as such there is a relationship of

employer and employee between the petitioner and respondent No. 1. However, merely because of

the fact that in the identity card Ex. PW-1/G, the name of respondent No. 1 has been mentioned that

does not mean that the petitioner was the employee of respondent No. 1. In 2016 (1) Mh. LJ 892,

Chanderkala w/o Lalaji Misal and others Vs. Marathwada Medical Research and Rural

Development Institution Ltd. and others, it has been held by the Hon’ble Bombay High Court

that the identity cards cannot be indicative of such a relationship since an identity card is not the

decisive/determinative piece of evidence of an employer-employee relationship.

22. The learned counsel for the petitioner further contended that since the petitioner was

under the direct control and supervision of respondent No. 1, therefore, he would be deemed to be

direct employee of respondents No. 1. In (2009) 13 SCC titled as International Airport

Authority of India Vs. International Air Cargo Workers Union and Anr., the Hon’ble

Supreme Court explained the terms “control” and “supervision” which reads as under:

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“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, 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 evide nce 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.”

In Agya Ram Vs. State of HP 2016 (4) LLJ 631, it has been held by our own Hon’ble

High Court that the petitioners have to prove by leading evidence to demonstrate that the

respondents had the control and supervision over them while discharging official duties.

The relevant portion of the aforesaid judgment reads as under:

“26. Careful perusal of aforesaid law passed by Hon’ble Apex Court clearly suggests that

Court while examining the question of employer and employee relationship is required to

consider several factors as have been culled hereinabove by the Hon’ble Apex Court.

Perusal of facts and circumstances of the case as well as evidence adduced on record,

nowhere suggests that petitioners herein were able to prove aforesaid factors while claiming

employer and employees relationship between them and respondents No. 2 and 3. As has

been discussed in detail, petitioners have not placed on record appointment letters, if any,

issued either by respondent No. 2 or respondent No. 3. Since, petitioners herein were unable

to prove on record that they were appointed by respondents No. 2 and 3, several other

factors as have been indicated hereinabove may not have much relevance as far as present

cases are concerned. But otherwise also, perusal of impugned award nowhere suggests that

petitioners were able to prove that they were being paid salary/remuneration by respondents

herein. Similarly, petitioners have not led on record any evidence to demonstrate that

respondents No. 2 and 3 had control and supervision over them while discharging official

duties.

(Emphasis supplied)

27. Hence, in view of the above, this Court finds no force in the contention put-forth on

behalf of counsel representing petitioners that learned Tribunal below has fallen in error

while rendering the findings that petitioners do not fall under definition of Section 2(s) of

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Industrial Disputes Act. Admittedly, in the present case petitioners were not able to prove

on record relationship of employees and employer between them and respondents and, as

such, it cannot be said that impugned award passed by learned Tribunal deserves to be

quashed and set aside being perverse.”

In Manoj Kumar Vs. M/s Sintex Industries Pvt., Ltd., CWP No. 4675 of 2015,

decided on 22.3.2016, our own Hon’ble High Court has relied upon the decision of Hon’ble

Apex Court in Balwant Rai Saluja and another Vs. AIR India Limited and others

(2014) 9 SCC 407 wherein it has been held as under:

“65.Thus, it can be concluded that the relevant factors to be taken into

consideration

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 (supra), the International Airport Authority of India case

(supra) and the NALCO case.” (emphasis supplied).

23. Therefore, in view of the aforesaid legal position, the facts in the present case are

required to be seen. Though, the petitioner has denied in cross-examination that he was working

under the control of respondent No. 2. However, to prove this fact the petitioner has failed to

produce any cogent and satisfactory evidence on record. The burden was upon the petitioner to

prove by leading cogent and satisfactory evidence on record that he was not working under the

direct control and supervision of respondent No. 2. On the other hand, RW-1 categorically deposed

in his evidence by way of affidavit that the petitioner was never taken on the payrolls of respondent

No. 1 from the payrolls of respondent No. 2 and he remained on the payrolls of respondent

No. 2 from the date of his appointment till the date of his termination. In cross-examination, RW-1

categorically admitted that the respondent No. 2 was engaged in the business of providing service

in the area of Human Resource Management and Consultancy service to various

organizations/clients. He further admitted that their company had entered into an agreement dated

10.8.2010 Ex. RW-1/D, with the respondent No. 2 vide which the respondent No. 2 had recruited

555 workers and supplied to the respondent No. 1. He denied that out of them 535 workers are still

working with the respondent No. 1. Moreover, RW-2 in his affidavit by way of evidence

specifically stated that the petitioner was employed as casual temporary employee for a fixed

period of employment and his services were terminated by giving statutory notice/letter. He

admitted in cross-examination that the salary and other allowances to the workers was being paid

by them. He further admitted that the salary to the workers was being paid after deducting the

payment of EPF and ESI. He also admitted n cross-examination that the petitioner was transferred

to Theog on 27.11.2012. He admitted that GVK has requested them to remove the petitioner

immediately from service.

24. Therefore, in view of the entire evidence on record led by the parties, it cannot be said

that the petitioner was under the direct control and supervision of respondent No. 1. As observed

earlier, the appointment letter Ex. PW-1/B has been issued to the petitioner by respondent No. 2

and the petitioner was transferred by respondent No. 2 and his services were also terminated by

respondent No. 2. The perusal of the record further reveals that the salary was also being paid to the

petitioner by respondent No. 2. Therefore, from the perusal of entire evidence on record it has

become clear that the petitioner was working under the control and supervision of respondent No.

2. Hence, in view of the entire evidence led by the parties, it can be safely held that the petitioner

was not the employee of respondent No. 1 rather he was the employee of respondent No. 2.

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Therefore, it can safely be held that the petition is bad for non-joinder of respondent No. 1 and the

same is not maintainable against respondent No. 1.

25. Though, the case of the respondent No. 1 is that the petitioner was negligent in serving

his duties in service and was also found creating mischief with the other employees and also

misbehaved with the client’s and customers when he used to drop them to the hospital and from the

hospital to their home and as such the petitioner has committed misconduct which was conveyed to

the respondent No. 2 by respondent No. 1 many times. However, to prove the aforesaid misconduct

against the petitioner no evidence was led by the respondent No. 1. Therefore, in the absence

of any evidence on record, it cannot be said that the petitioner was guilty of misconduct while

discharging his duties.

26. The further case of the respondent No. 1 is that the petitioner had left the job at his

own by remaining absent from his duties for several days without any intimation or approval of the

leaves. However, there is no iota of evidence on record which could go to show that the petitioner

had left the job at his own as no notice or letter regarding abandonment of the job by the petitioner

is placed on record by the respondents. Therefore, in the absence of any evidence on record,

inference cannot be drawn that the petitioner had abandoned the job. Reliance is placed on decision

reported in AIR 1979 SC 582 case titled as G.T Lad and others Vs. Chemicals and Fibers India

Ltd. where it has been held that:

“From the connotations reproduced above it clearly follows that to constitute abandonment,

there must be total or complete giving up of duties so as to indicate an intention not to

resume the same. In Buckingham Co. v. Venkatiah (1964) 4 SC R 265: (AIR 1964 SC

1272), it was observed by this Court that under common law an inference that an employee

has abandoned or relinquished service is not easily drawn unless from the length of absence

and from other surrounding circumstances an inference to that effect can be legitimately

drawn and it can be assumed that the employee intended to abandon service. Abandonment

or relinquishment of service is always a question of intention, and normally, such an

intention cannot be attributed to an employee without adequate evidence in that behalf.

Thus whether there has been a voluntary abandonment of service or not is a question of fact

which has to be determined in the light of the surrounding circumstances of each case.”

Since, in the present case also no evidence has been placed on record by the respondents

that the petitioner has abandoned the job with an intention not to resume the same, it cannot

be said that the petitioner had left the job at his own.

27. The learned counsel for the petitioner next contended that the services of the petitioner

had been terminated 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 respondents and fresh

workers have been engaged in violation of the provisions of Section 25-G and 25-H of the Act. On

the other hand, the learned counsel for respondent No. 2 contended that the services of the

petitioner were engaged for a fixed period of employment vide appointment letter Ex. PW-1/B and

therefore, the termination of the services of the petitioner does not fall within the scope of the terms

“retrenchment” under section 2(oo) of the Act. The perusal of the record reveals that even though

in the letter of appointment Ex. PW-1/B, the terms of appointment had been fixed for 12 months i.e

w.e.f. 23.12.2010 to 23.12.2011 but after 23.12.2011, no order extending the terms of the

appointment of the petitioner has been placed on record by respondent No. 2. RW-2 admitted in

cross-examination that the petitioner was engaged on 23.12.2010, transferred to Theog on

27.11.2012 and he worked till 13.6.2013 continuously. Therefore, the onus was upon the

respondent No. 2. to prove that after 23.12.2011, the terms of the appointment of the petitioner had

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been extended by way of contract. However, no such order or contract has been placed on record

by the respondent No. 2. No doubt, initially the petitioner was appointed for a fixed term of 12

months, however, after the expiry of 12 months also the petitioner continued in service. The

respondent No. 2 had not discontinued his services w.e.f 23.12.2011. As observed earlier, no order

extending the term of appointment or fixing the further terms of appointment has been placed on

record by the respondent No. 2. Therefore, it can be safely held that no limitation was fixed

regarding the period of employment of petitioner after 23.12.2011. That being the position, it is not

possible to uphold the contention of the learned counsel for the respondent No. 2 that the

termination of the services of the petitioner does not fall within the scope of retrenchment under

Section 2(oo) of the Act.

28. Admittedly, the respondent No. 2 has entered into an agreement Ex. RW-1/D with the

respondent No. 1 on 10.8.2010 and provide d its services to engage the petitioner along-with about

555 other workers. RW-1 also admitted in cross-examination that the respondent No. 2 had

recruited 555 workers and supplied them to respondent No. 1. It has also been admitted by RW-2

in cross- examination that the petitioner had worked continuously w.e.f. 23.12.2011 till 13.6.2013

and he had completed more than 240 days in each calendar year. Thus, it has been proved on

record that the petitioner had completed 240 days in twelve calendar months preceding his

termination. Since, the respondent No. 2 had engaged more than 100 workers as such the provisions

of Chapter-V-B of the Act would apply in the present case. Therefore, it was incumbent upon the

respondent No. 2 to have complied with the provisions of Section 25-N of the Act before

terminating the services of the petitioner. The provisions of Section 25-N of the Act lay down

certain conditions precedent to the retrenchment of a workman (workmen) and requires the

employer to comply with those conditions as per clauses (a) & (b) which are mandatory in nature.

Section 25-N of the Act reads as under:

Conditions precedent to retrenchment of workmen.-

(1) No workman employed in any industrial establishment to which this Chapter applies,

who has been in continuous service for not less than one year under an employer shall

be retrenched by that employer until,—

(a) the workman has been given three months' notice in writing indicating the reasons

for retrenchment and the period of notice has expired, or the workman has been

paid in lieu of such notice, wages for the period of the notice; and

(b) the prior permission of the appropriate Government or such authority as may be

specified by that Government by notification in the Official Gazette (hereafter in

this section referred to as the specified authority) has been obtained on an

application made in this behalf.

However, in the present case, the perusal of the record shows that the respondent No. 2 has

not complied with the conditions of Section 25-N as enumerated in clause (a) & (b), precedent to

the retrenchment of petitioner which are mandatory in nature as such the termination of the services

of the petitioner by the respondent No. 2 was illegal and unjustified.

29. Therefore, in view of my forgoing discussion, I have no hesitation in holding that the

services of the petitioner were terminated illegally without complying with the provisions of

Section 25-N of the Industrial Disputes Act, 1947. Hence, both these issues are decided

accordingly.

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Issue No. 2:

30. Since, I have held under issue No. 1 above that the termination of services of the

petitioner by the respondent No. 2 without complying with the provisions of Section 25-N of the

Act is illegal and unjustified. Therefore, the question which arises before this Court as to what

service benefits the petitioner is entitled. From the perusal of record, it has become clear that the

contract between the respondent No. 1 & respondent No. 2 expired on 9.8.2013 and thereafter the

contract was not renewed. RW-2, admitted in cross-examination that now they are not providing

the service in the project of 108 Ambulance. It is by now well settled that if the termination of

employee is found to be illegal, the relief by way of reinstatement with back-wages is not

automatic. The Hon’ble Supreme Court in Santosh Kumar Seal and others reported in 2010

LLR 677: 2010 III CLR 17 SC, has held that relief by way of reinstatement with back wages is

not automatic even if of an employee is found to be illegal or is in contravention of the prescribed

procedure and that mandatory compensation in lieu of reinstatement and back wages in cases of

such nature may be appropriate.

31. In Jagbir Singh Vs. Haryana State Agricultural Marketing Board (2009) 15 SCC

327, the Hon’ble Supreme Court has held that:

“It is true that the earlier view of this Court articulated in many decisions reflected the legal

position that if the termination of an employee was found to be illegal, the relief of

reinstatement with full back wages would ordinarily follow. However, in recent past, there

has been a shift in the legal position and in a long line of cases, this Court has consistently

taken the view that relief by way of reinstatement with back wages is not automatic and

may be wholly inappropriate in a given fact situation even though the termination of an

employee is in contravention of the prescribed procedure. Compensation instead of

reinstatement has been held to meet the ends of justice. ”

32. In the present case, even though the termination of the petitioner is held to be illegal

but his reinstatement would not be appropriate relief as the contract between the respondent No. 1

and respondent No. 2 expired on 9.8.2013 and the respondent No. 2 is not providing service in the

Project wherein the petitioner was engaged. Therefore, in such a situation it would not be

appropriate to make the order for reinstatement of the petitioner in the present case. Hence, taking

into account all the facts and circumstances of the case, the ends of justice would be met, if the

lump sum compensation is awarded to the petitioner. Therefore, in my view the petitioner is

entitled to receive a suitable, appropriate, just and equitable compensation from the respondent No.

2. Since, the services of the petitioner have been terminated illegally by the respondent No. 2,

therefore, in such a situation, it would be quite reasonable and justified if lump sum compensation

of ` 50,000/- (` Fifty Thousand only) is awarded to the petitioner. Consequently, this issue is

decided in favour of the petitioner and against the respondent No. 2.

Issue No. 3 :

33. In support of this issue, no evidence has been led by the respondent No. 2. 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 against respondent No. 2. However, in view of my findings on issue No. 1,

above, the petition is not maintainable against respondent No. 1. Accordingly, this issue is decided

in favour of the petitioner and against the respondent No. 2.

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Relief

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

allowed and as such the respondent No. 2 is directed to pay ` 50,000/- (` Fifty Thousand only) as

lump sum compensation to the petitioner within a period of three months from today failing which

the same shall carry interest @ 9% per annum from the date of award till its realization. The

reference is answered accordingly. 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 9thday of January, 2018.

(SUSHIL KUKREJA)

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

_________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref. No. 73 of 2013

Instituted on 5.10.2013

Decided on 9.1.2018

Sarika Patiyal s/o Shri R.L Patiyal, VPO Baral, Tehsil and District Hamirpur Through: J.C.

Bhardwaj, President, HP-AITUC, H.Q. Saproon, Solan, H.P.

….Petitioner

VERSUS

M/s GVK EMRI, JP Motors Building, Village Anji, Barog Bye-Pass Solan, Distt. Solan,

H.P. (Work Office).

M/s Adecco Flexione Workforce Solution Pvt. Ltd., C-127, Basement level, Satguru

Infotech Phase-VIII Industrial Area Mohali - 160071 (Area Office).

M/s Adecco India Pvt. Ltd. No. 2, NAL Wind Tunnel road, Murugeshpalya, Bangolore

(Corporate Office).

…Respondents

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

For petitioner

Shri J.C Bhardwaj, AR

For respondent No. 1

Shri Rajat Sahotra, Advocate

For respondents No. 2 & 3

Shri C.M Sharma, Advocate

AWARD

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

“Whether termination of the services of Sarika Patiyal s/o Shri R.L Patiyal, VPO Baral,

Tehsil and District Hamirpur, H.P. who was employed as Emergency Medical Technician,

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w.e.f. 18.10.2012 by the Employer, (i) M/s GVK EMRI, J.P. Motors Building, Village Anji,

Barog Bye-Pass Solan, District Solan, H.P. (Work Office) (ii) M/s Adecco India Private

Limited, C-127, Basement Level, Satguru Infotech, Phase VIII, Industrial Area Mohali,

(Area Office) and (iii) M/s Adecco India Private Limited, No. 2, NAL Wind Tunnel Road,

Murugeshpalya, Bangalore, (Corporate Office) without complying the provisions of the

Industrial Disputes Act, 1947 is legal and justified? If not, what amount of back wages,

seniority, past service benefits and from which date the above worker is entitled to from the

above employer?”

Briefly, the case of the petitioner is that on 23.12.2010, she was directly appointed by

respondent No. 2 and thereafter her services were transferred on the rolls of respondent No. 1 and

she continued as such till 18.10.2012 when her services were illegally terminated. It is further

stated that the respondents being employers of the respondent constituted under the Companies Act

are working in the project for the State of Himachal Pradesh under National Rural Health Mission