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fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

1st June, 2021

No. Shram (A) 3-8/2021 (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 Judge, Labour Court,

65—jkti=@2021&26&07&2021

¼2081½

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

Pradesh:—

Sl.

No.

Reference/Application

Title

Section

Ref. 36/2019

Sh. Vikram Bandari V/s Ambuja Cements Ltd. &

Anr.

Ref.167/2017

Sawara Kuddu Hydel Project Workers Union V/s

G.M. H.P. Power Corp. Ltd. & Ors.

Ref. 77/2010

Sh. Ashok Kumar & Ors V/s M.D. East India

Hotel Ltd. & Ors.

Ref. 01/2029

Sh. Chander Pal V/s M/s Lotus Herbals Colour &

Cosmetics, Baddi.

App. 03/2021

108 Ambulance Sewa Contract Workers Union V/s

Manager /Operational Head GVK, 108 Ambulance

Sewa, Solan.

33-A

App. 12/2021

108 Ambulance Sewa Contract Workers Union V/s

Manager /Operational Head GVK, 108 Ambulance

Sewa,Solan.

33-A

By order,

KAMLESH KUMAR PANT, IAS,

Principal Secretary (Lab. & Emp.).

__________

Ref. 36/2019

Sh. Vikram Bandari V/s Ambuja Cements Ltd. & Anr.

8-3-2021.

Present:

Shri J.C Bhardwaj, AR for petitioner.

Shri Rahul Mahajan, Advocate for respondent.

The appropriate government had sent a reference to this Court in December, 2018.

Strangely, there is no date nor any dispatch number or stamp which is generally found in all the

references, made to this Court. Vide this undated reference the “appropriate government”, in its

wisdom referred the dispute to this Court in the aforesaid terms:—

“Whether the industrial dispute in between Shri Vikram Bhandari s/o Shri Roshan Lal

House no. 233, ward No. 10, JBT Road, Kotlanala Solan District Solan, H..P. through Shri

J.C Bhardwaj Vs. (i) The Managing Director, M/s Ambuja Cement Ltd., Elegant Business

Park 3rd Floor, MIDC Cross Road ‘B’ Off Andheri Kurla Road Near Kohinoor Hotel,

Andheri East, Mumbai- 400059 (ii) The Vice President HR Village Nava Graon, P.O Jajhra,

Tehsil Nalagarh District Solan, H.P. also falls within the jurisdiction of State Government

of Himachal Pradesh or not? If yes whether termination of the services of Shri Vikram

Bhandari s/o Shri Roshan Lal House no. 233, ward No. 10, JBT Road, Kotlanala Solan

District Solan, H.P through Shri J.C Bhardwaj Vs. (i) The Managing Director, M/s Ambuja

Cement Ltd., Elegant Business Park 3rd Floor, MIDC Cross Road ‘B’ Off Andheri Kurla

Road Near Kohinoor Hotel, Andheri East, Mumbai- 400059 (ii) The Vice President HR

Village Nava Graon, P.O Jajhra, Tehsil Nalagarh District Solan, H.P. without complying

with the provisions of the industrial Disputes Act 1947 as alleged by workman is legal and

justified? If not, what amount of back-wages, past service benefits and compensation the

above ex-worker is entitled to from the above employer/management? If not, its effect?”

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During the course of proceedings the Ld. Counsel for the respondent while filing reply to

the statement of claim also moved an application under Order 14 Rule (2) CPC to the effect that

since the State of Himachal Pradesh is not the appropriate government under section 2(a) of the

Industrial Disputes Act in view of the letter dated 6.10.2009 issued by the Labour Commissioner,

Himachal Pradesh and as such the same may be treated as preliminary legal issue before

adjudicating the reference on merits.

It would be apposite to note at this stage that the Labour Commissioner on 6.10.2009 had

issued directions to all the Labour Officers and Labour Inspectors of Himachal Pradesh vide letter

dated 6.10.2009 in the following terms:

“Subject: Appropriate Government under Industrial Disputes Act, 1947, in respect of

Cement Industry. Memo,

It is for the information of all of you that Cement Industry has been declared as Controlled

Industry under section 2 of the Industries (Development & Regulation) Act 1951 (Act 65 of 1951)

and the Central Government is the Appropriate Government for the Cement Industry under sub

clause (1) of clause (a) of the section-2 of the Industrial Disputes Act 1947. Therefore, you are

advised to not to take up the demand notices of the dispute pertaining to the Cement Industries and

further guid the workers to raise their disputes before the authorities of the central Government.

Sd/-

Labour Commissioner

Himachal Pradesh.”

Keeping in view the mandate of the Hon’ble Supreme Court in case titled as Shri Yovan,

India Cement Employees Union and another Vs. The Management of India Cement Ltd. and

another (1994 Lab. IC 38), this Court had asked the Labour Commissioner to apprise this Court as

to whether the letter dated 6.10.2009 still holds the ground and if so how the reference is

competent.

In this behalf an order was passed on 5.3.2020. The Labour Commissioner in response to

the said observation, vide notification dated 12.10.2020 has now withdrawn the earlier notification

dated 31.12.2018, issued in respect of the “Industrial Dispute”, so raised by the petitioner Vikram

Bhandari.

A bare glance of the earlier notification issued in December 2018, shows that the

appropriate government has even earlier advised the petitioner to raise the dispute before the

appropriate authority of the Central Government, vide letter dated 5.6.2017. The appropriate

government reviewed its earlier decision and thereafter referred the dispute to this Court in

December 2018. Now the appropriate government has again reviewed its decision and withdrawn

the notification referring the dispute to this Court in December 2018.

In view of the withdrawal of the earlier notification the Industrial Dispute raised by the

petitioner does not subsist and this Court is constrained, but to hold that the “Industrial Dispute”

interse the parties has ceased to exist and the same is ordered to be dismissed accordingly. The

petitioner shall however, at liberty to approach the competent authority for adjudication of his

claim. The reference is disposed off in the aforesaid terms. Let a copy of this award be sent to the

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

to records.

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Announced:

8.3.2021.

CHIRAG BHANU SINGH,

Presiding Judge,

Labour Court, Shimla.

__________

Ref. 167of 2017

Workers Union

V/s

G.M. H.P. Power Corp Ltd & Ors.

The Ld. Csl. for the petitioner union submits that the parties have amicably settled the

dispute outside the court, as such the union does not intend to press the reference any further.

Sh. Ajay Kumar, General Secretary of the union is present in court today. He submits that

the respondents have agreed to the major demands of the workers union and as such the

union does not intend to press the reference any further. A separate statement of the General

Secretary of the union in this behalf has been recorded and placed on the file. Seeing to the

fact that the parties have amicably settled the dispute outside the court, the “Industrial

Dispute” refereed to this court has ceased to exist. The reference has thus been literally

rendered infructuous. The present reference is thus dismissed, as having not been pressed

and rendered otiose. Ordered accordingly. Be consigned to record after completion. Let, the

copy of this award be sent to appropriate government.

Announced

20.03.2021

CHIRAG BHANU SINGH,

Presiding Judge,

Labour Court, Shimla.

__________

Ashok Kumar & Others Vs. M.D East India Hotel and another’s.

(Reference no. 77 of 2010)

IN THE COURT OF CHIRAG BHANU SINGH, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA.

Reference no. 77 of 2010

Instituted on 9-6-2010

Decided on 24-3-2021

Ashok Kumar s/o Shri Tula Ram Malik, presently working as driver with the Oberoi Cecil

Shimla and following nine other drivers as per annexure-A.

Shri Surender Kumar S/o Shri Ram Dutt.

Vinod Kumar s/o Shri Ram Lal.

Ram Lal Sharma s/o Shri Sukh Dev.

Prakash Chand s/o Shri Shiv Ram.

MeharLal Chauhan s/o Sh. NandLal.

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Padam Singh s/o Shri HariDass.

KrishanDayal s/o Shri Mani Ram.

Bhim Singh s/o late Shri Ganesha.

Dharam Singh s/o Shri Raghu Ram.

..Petitioners.

The Managing Director, East India Hotel Ltd. 7, Somnath Marg, Maidan Hotel, Delhi

110054.

The General Manager, The Oberoi Cecil, ChauraMaidan Shimla-4.

The General Manager, Wild Flower Hall (an oberoi resort) Chharabra, Mashobra

Tehsil & District Shimla, H.P.

The General Manager, Nova Security Service Pvt. Ltd., Quiet Office no. 14, Sector-

35-A Chandigarh.

Avis India Merucry Car Rentals Ltd., having its Head Quarter, L-10 Green Park

Extension, New Delhi.

..Respondents.

Reference under section 10of the Industrial Disputes Act

For petitioners

: Shri R.K Khidtta, Advocate.

For respondents no. 1&2

Ms. VeenaSood, Advocate.

For respondent no. 3

Shri Rahul Mahajan, Advocate.

For respondent no. 4

Shri Vishal Panwar, Advocate.

For respondent no. 5

Shri Mukesh Thakur, Advocate.

AWARD

The following reference was received for adjudication from the appropriate government:

“Whether the demand notice dated 12.1.20098 (copy enclosed) raised under section 2-K of

the Industrial Disputes Act, 1947 by Shri Ashok Kumar s/o Shri Tula Ram Malik and 9

other drivers before the management of the Oberoi Cecil Hotel, Chaura Maidan Shimla and

management of Wild Flower Hall, Mashobra, Shimla with the plea that the terms and

conditions of their services have been changed by the concerned management without

complying with the provisions of section 9-A of the Act ibid, is legal and justified? If not, to

what wages, service benefits and relief the concerned drivers are entitled to from the

concerned employer as per demand notice dated 12.1.2009?”

“Whether the demand notice raised by Shri Ashok Kumar s/o Shri Tula Ram malik and 9

others drivers vide demand notice dated 12.1.2009 (copy enclosed) that their employers are

the management of the Oberoi Cecil Hotal, Chaura Maidan, Shimla and Management of

Wild Flower Hall Mashobra Shimla and M/s Nova Security Private Ltd., Quite Office no.

14, Sector 35-A Chandigarh can’t be considered to be their employer, as alleged in the

demand notice is legal and justified? If yes, to what service benefits and relief the concerned

drivers are entitled to as per demand notice dated 12.1.2009?”

In furtherance to the reference it is averred by the petitioners that they came to be

employed as Drivers on regular basis since the year 1997, 2001 and 2003 respectively. Their

engagement entailed facilities like free meals, rent free accommodation, uniform, leave benefits,

EPF contribution, TA/DA and other perks and they have been enjoying the same in addition to their

monthly salary. The details relating to the employment of the petitioners have been reflected in para

1 of the statement of claim as under:

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Name

Date of joining

Name of employer

MeharLal Chauhan s/o Late Shri Nand Lal

Chauhan, Shimla.

17-2-1997

The Oberoi Cecil

Parakash Chand s/o Shri Shiv Ram

Feb., 1997

The Oberoi Cecil

Vinod Kumar s/o Shri Ram Lal

10-3-1997

The Oberoi Cecil

Bheem Singh s/o Late Shri Ganesh

13-3-1997

The Oberoi Cecil

Dharam Singh s/o Shri Raghu Ram

April, 1997

The Oberoi Cecil

Ram Lal Sharma s/o Shri Sukh Dev

April, 1997

The Oberoi Cecil

Krishan Dayal s/o Shri Mani Ram

November, 1997

The Oberoi Cecil

Padam Singh s/o Shri Hari Dass

9-4-2001

Wild Flower Hall Chhabra

(an Oberoi Resort)

Surinder Kumar s/o Shri Ram Dutt

June, 2001

Wild Flower Hall Chhabra

(an Oberoi Resort)

Ashok Kumar

25-4-2003

The Oberoi Cecil

The petitioners had been performing their duties with utmost sincerity, dedication and

missionary zeal and as per the duty roaster and other directions received from their superiors from

time to time. The petitioners had also been enjoying all the facilities being offered by the

respondent.

It is further the case of the petitioners that in the month of May 2008 the services of the

petitioners were transferred to a new company known under the name and style of M/s AVIS

(Mercury Car Rental Ltd.) and to the utter surprise of the petitioners their employment was changed

from Oberoi Cecil to AVIS. This change in the employment of the petitioners and that too without

resorting to the provisions of section 9-A of the Industrial Disputes Act, 1947 (hereinafter to be

referred as Act) was stated to be illegal and arbitrary, more so, as the petitioners were regular

employees of the Oberoi Cecil and working for them for the last 7-12 years. The petitioners had

been plying the vehicles owned and controlled by the Oberoi Cecil/ Wild Flower Hall. They had

been appointed by Oberoi Cecil after completing all formalities including holding of interview and

other codal formalities and thus there was no need to change the principal employer. The

petitioners had been getting salary without any increment. Regardless of the same they were

continuing with the respondents and were presently drawing around Rs. 4432/- per month.

It is further the case of the petitioners that the action of the respondent in changing the

service conditions of the petitioners in utter violation of the Act was not only arbitrary, but was a

colorable exercise of power,tantamounting to victimization of the petitioners. It was an unfair

labour practice, totally unsustainable in the eyes of law. The petitioners have thus been compelled

to raise an industrial dispute and hence the present claim.

It is thus prayed by the petitioners that the respondent be directed not to change the

service conditions of the petitioners in view of section 9-A of the Act, as they have been regular

employees of the Oberoi Cecil/Wild Flower Hall right from their initial appointment. The

petitioners may be held to be the permanent employees of Oberoi Cecil/Wild Flower Hall and the

claim be allowed along-with all consequential benefits.

While contesting the claim the respondents no. 1 & 2 have preferred a common reply,

while respondents no. 3, 4 and 5 have filed separate replies.

The respondents no. 1 & 2 while contesting the claim have raised preliminary

objections vis-à-vis maintainability and concealment of material facts. It is also the contention of

the said respondents that the present claim was not maintainable as the demand notice had been

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raised by Bhim Singh as a group leader/President of Oberoi Contractual Workers Union. He was

neither a group leader nor the president of the said union and the replying respondents did not

recognize any such union. The petitioners were in fact the employees of M/s Nova Security Service

Pvt. Ltd. (respondent no. 4). The petitioners are the contract employees who had been deployed in

terms of agreement executed between replying respondents and the contractor (respondent no.4

herein). Since, there was no espousal of the demands by the union, the reference could not be made

to this Court as such it is bad in the eyes of law.

It is further averred by the replying respondents no. 1 & 2 that the petitioners have

suppressed material facts and failed to disclose that they were the employees of M/s Nova Security

Service Pvt. Ltd. (Respondent no.4) The said contractor had deputed petitioners S/Shri Prakash

Chand, Vinod Kumar, Bhim Singh, Dharam Singh, Ram Lal and Ashok Kumar in terms of an

agreement executed and entered between the replying respondents and the contractor with Oberoi

Cecil. The replying respondents had a registration certificate and the contractor was duly licensed

under the provisions of Contract Labour (Regulation and Abolition) Act 1970 to engage contract

labour and to supply/provide contractual labour. The replying respondents had been executing

contracts for engagement of drivers with the respondent no. 4 from time to time as such there was

no employer employee relationship between the Hotel and the petitioners. As per the agreement

M/s Nova Security Service Pvt. Ltd. were to comply with all rules, regulations and labour law and

thus for all intents and purposes the aforesaid six drivers are the contract employees and there was

no employer-employee relationship between the replying respondents and the said drivers.

It is further the case of the replying respondents no. 1 & 2 that w.e.f. 1.5.2008, the

respondent had asked the contractor to withdraw the drivers deputed by them as the replying

respondents had taken a policy decision not to provide amenities/facilities of transportation as a

part of service and it had executed a fresh agreement with one M/s Mercury Car Rentals, a firm

which specialized in providing car rentals throughout the world in five star/Premium Hotels.

10. It is also the contention of the replying respondents no. 1 & 2 that since there is no

change of service conditions, the present claim is not competent and maintainable. It is also their

grouse that the petitioners have filed one reference against four different companies having distinct

and separate legal entities in law.

11. On merits, it is the contention of the aforesaid respondents that the Oberoi Cecil

Shimla is a unit of EIH Associated Hotels Ltd., which had commenced its operation w.e.f.

23.3.1997 after renovations. The petitioners Prakash Chand, Vinod Kumar, Bhim Singh, Dharam

Singh, Ram Lal and Ashok Kumar were the employees of M/s Nova Security Services Pvt. Ltd.,

(respondent no.4) who was the contractor supplying drivers. The contention raised in the

preliminary objections are reiterated and it is further stated by the replying respondents that they

were the employees of the contractor for all intents and purposes. It is the contractor who had been

maintaining their attendance register, wages register, adult workers register. Even the contribution

under the EPF/MP Act 1962 and ESI Act 1948 was deposited by the contractor. The service

conditions of the aforesaid drivers were governed by the appointment letters issued by the

contractor. The replying respondents were the principal employer. The agreement so entered

between the management and the contractor and the few wages/salary sheets of the replying

respondents from 23.3.1997 to 31.5.2008 were attached along-with the reply.

12. It is further contended by the replying respondents no. 1 & 2 that in a writ petition filed

by the petitioners before the Hon’ble High Court, M/s Nova Security Service Pvt. Ltd. had admitted

that the aforesaid drivers were their employees. The agreement entered interse the replying

respondents and the contractor is stated to have been annexed with the reply for the perusal of this

Court. It is further their contention that the replying respondents had no control over the petitioners.

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It is denied that M/s Wild Flower Hall, Mashobra and EHI Associated Hotel Ltd. was one legal

entity. As per the respondents they are separate and distinct entities, the Oberoi Cecil being a part

of the EIH Associated Hotel Ltd., incorporated much prior to the birth of Mashobra Resort

Ltd.which runs M/s Wild Flower Hall.

13. It is further reiterated by the replying respondents no. 1 & 2 that the aforesaid six

drivers were the employees of the contractor and the contractors have deputed them as drivers with

the replying respondents. However, w.e.f. 1.5.2008, the replying respondents had asked the

contractor to withdraw the drivers as they had taken a policy decision not to provide

amenities/facilities of transportation as a part of service and in this behalf engaged one M/s

Mercury Car Rentals Ltd. (respondent no.5) to provide the same. The contractor thus have

withdrawn the services of aforesaid six drivers and transferred their services to M/s Mercury Car

Rentals Ltd. It is denied that the petitioners had ever been interviewed by the replying respondents.

The vehicles being owned by the respondents were being plied by the petitioners who were contract

employees. The replying respondents have engaged the drivers through contractor and they were

doing so as per the agreement interse the parties. There was no change in the service conditions of

the aforesaid employees.

14. It is thus prayed that the claim be dismissed being devoid of any merits.

15. The respondent no.3 Wild Flower Hall,Chharabra has also filed reply akin to that filed

by the respondents no. 1 & 2. The text and tenor of the reply on both preliminary objections and

merits is the same.The respondent no.3 however avers that four drivers namely MeharLal,

KrishanDayal, Padam Singh and Surender Kumar had been engaged through M/s Nova Security

Services Ltd., and they were contract employees of the respondent. The other difference being that

the said respondent had asked the contractor w.e.f. 1.4.2008 to withdraw the services of the drivers

deputed by the contractor i.e Nova Security Services and thereupon M/s Mercury Car Rental Ltd.,

(respondent no. 5) had started providing specialized service in car rentals to the said respondent

too. The respondent no.3 too thus prayed that the claim be dismissed being devoid of any merits.

16. The respondent no.4, i.e. contractor M/s Nova Security Service Ltd., while contesting

the claim has raised preliminary objections that the demand notice dated 12.1.2009 raised by the

petitioners was wholly illegal and contrary to the spirits of section 2-K of the Act and the

petitioners have not specified as to how their service condition had been changed by the

management without complying with the provisions of section 9-A of the Act.

17. it is also the contention of the said respondent that the present petition is bad on

account of the acts, deeds and conduct of the petitioners themselves.

18. Very strangely the said respondent has raised a preliminary objection that the

petitioners have left the area of their employment in grey zone and they be directed to specify

whether they were in the employment of M/s Oberoi Cecil Hotel/Wild Flower Hall or were

working with the replying respondent. The said respondent had denied that there is any relationship

of employer and workmen between the respondent no.4 and the petitioners.

19. While filing reply on merits, the respondent no. 4 has again averred that there is no

relationship of employer and workman between the parties. While filing reply to para 7 of the

petition it is contended by the replying respondent no.4 that the facts therein are against law and

facts and the claimants (petitioners) admittedly are under the employment of Oberoi Cecil. The

change of employments needs to be strictly proved by the claimant and it has not been specified by

the petitioners as to how the replying respondent is concerned with this change. Apart from this, the

contents of the other paras have been denied by the respondent. The said respondent also prayed for

the dismissal of the claim petition.

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20. Now adverting to the reply filed by M/s Mercury Car Rental Pvt. Ltd. (respondent

no.5). While raising the preliminary objections the said respondent has also averred that the present

claim was not competent and maintainable on account of the acts, conduct, deed and acquiescence

of the petitioners and they had concealed material facts from this Court. It is also not otherwise

competent and maintainable against the said respondent as they were engaged in the business of

renting vehicles and they had entered into an agreement with Wild Flower Hall, Mashobra and

Oberoi Cecil, ChauraMaidan Shimla w.e.f. 1.4.2008 and in terms of the agreement so executed

between them the respondent was providing the services of rental cars directly to the customers of

Wild Flower Hall, Mashobra and Oberoi Cecil, ChauraMaidan Shimla. The said respondent also

entered into an agreement with Nova Security Service Pvt. Ltd. (respondent no. 4) for providing

drivers and cleaners to the replying respondent. The said agreement is attached along-with.

21. As per the agreements entered interse the respondent no. 4 and respondent no. 5, the

drivers and cleaners provided by respondent no.4 will remain the employees of Nova Security

Service Pvt. Ltd. (respondent no.4) and there would be no employer employee relationship between

respondent no.5 and petitioners. Nova Security Service will continue to be held responsible for all

legal compliances under the various labour laws, in respect of drivers/Chauffers and cleaners

deputed with them by the respondent no.4. The drivers/cleaners deputed by respondent no.4 are

being paid salary by Nova Security Service in terms of agreement annexure RC. It is also the case

of the replying respondent no.5 that the petitioners have themselves admitted in the demand notice

submitted before the Labour-cum-Conciliation Officer Shimla that they are the employees of Nova

Security Service. It is denied there is any relationship of employer and employee between the

petitioners and Mercury Car Rental Pvt. Ltd. On merits, the replying respondent no.5 has reiterated

the same averments. It is thus prayed that the claim be dismissed.

22. While filing rejoinders to the replies filed by respondents, the petitioners controverted

the averments in the replies filed by respondents and further reiterated those in the statement of

claim.

23. I notice that on 18.11.2013, the following issues came to be framed by my Learned

Predecessor:

Whether the demand notice dated 12.1.2009, by the petitioner along-with nine other

drivers with the plea that the terms and conditions of the services have been changed

by the concerned management without complying with the provisions of section 9-A is

illegal and unjustified?

..OPP.

If Issue No.1 is proved in affirmative, to what service conditions/benefits the petitioner

along-with nine other drivers is entitled to?

..OPP.

Whether this petition is not maintainable in view of the preliminary objections raised

by the respondents?

..OPR 1 to 5.

Relief:

24. I have heard the Ld. Counsel for the parties and gone through the pleadings, over

whelming evidence bot oral and documentary and other attendant material placed on record. My

findings on the issues framed are thus:—

Issue no.1

Partly yes.

Issue no.2

Per operative part.

Issue no.3

No.

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Relief:

Reference is partly allowed in favour of the petitioners and

against the respondents per operative part of the award.

REASONS FOR FINDINGS

Issues No. 1& 2.

25. Both these issues being correlated and intermingled are being taken up together for

decision.

26. The pleadings set out by the parties make an interesting reading. The respondents no. 1

to 3 have raised the pleas which are pari-materia. The petitioners have pleaded that they were the

employees of the OberoiCecil/Wild Flower Hall right from the inception. The respondents no. 1 to

3 have however averred that the petitioners have failed to disclose that they were the employees of

M/s Nova Securities Service Pvt. Ltd. (respondent no.4). It is thus their pleaded case that the

petitioners were the employees of the contractor i.e respondent no.4 and it is the said contractor

who had deputed the petitioners Prakash Chand, Vinod Kumar, Bhim Singh, Dharam Singh, Ram

Lal and Ashok Kumar with Oberoi Cecil and had deputed the remaining four drivers namely

MeharLal, KrishanDayal, Padam Singh and Surender Kumar with Wild flower Hall. Both Oberoi

Cecil and Wild Flower were further stated to have entered into agreements with respondent no.4

from time to time.

27. It is further the case of the three respondents that w.e.f. April 2008 all the three

respondents had asked the contractor (respondent no. 4) to withdraw the drivers deputed by them as

they had taken a policy decision not to provide amenities/facilities of transportation as part of

service and it had executed a fresh agreement with respondent no.5 i.e M/s Mercury Car Rental, a

firm which specialized in providing car rental throughout the world in five star hotels/premium

hotels.

28. Strangely, respondents no. 1 to 3 have not specifically denied that the petitioners had

ever been engaged as drivers from the dates shown in para 1 of the statement of claim. There is

neither any specific admission nor denial in the pleadings, in this behalf. It is also not pleaded by

the respondents no. 1 to 3 as to when the first contract was entered inserse the said respondents and

respondent no.4. Though in para 1 of the reply on merits, the respondents no. 1 & 2 have tried to

portray that agreements so entered between the management and the contractor, and few

wages/salary sheets of the replying respondents from 23.3.1997 to 31.5.2008 are attached herewith,

though respondent no.3 has attached the said documents from 1.5.2001 to 31.5.2008 only. There is

no such record placed in evidence for the period 1997-2000.

29. The respondent no. 4, the contractor i.e M/s Nova Security Service has taken a

diametrically opposite stand in its reply. The respondent no.4 has not only denied any relationship

of workman and employer between the parties, but has gone to state that the petitioners admittedly

were under the employment of Oberoi Cecil.

30. Even in the preliminary objections the respondent no. 4 has stated that the petitioners

have left the area of their employment in grey zone and the petitioners be directed to specify

whether they were in the employment of M/s Oberoi Cecil/Wild Flower Hall or with the replying

respondent no.4 and that prima-facie the complainant (petitioners) have failed to establish any

relationship between respondent no.4 and the workman.

31. The reply filed by respondent no.5 M/s Mercury Car Rental shows that they entered

the scene w.e.f. 1.4.2008 after having executed agreement with both Oberoi Cecil and Wild Flower

Hall and even with the Nova Security Services. As per the agreements on the one hand the

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customers of Hotel Oberoi Cecil and Wild Flower Hall were to deal directly with M/s Mercury Car

Rental for providing vehicles and transport facilities and the Nova Security Service were to provide

drivers/cleaners/Chauffers to the respondent no.5. The drivers/Chauffers/cleaners deputed by Nova

Security Service would continue to remain the employees of Nova Security Services Pvt. Ltd., for

all intents and purposes. Further, all legal compliances in relation to these transferred employees

vis-à-vis the labour laws were to be complied by respondent no.4 i.e Nova Security Service itself.

There was thus no relationship of an employer and employee between the petitioners and M/s

Mercury Car Rentals. The ESI and EPF contribution of the drivers supplied by Nova Security

Service were also to be paid by respondent no.4, itself.

32. Having discussed the pleadings of the parties it would be apposite to venture into the

evidence led by the parties to substantiate their claims made therein. Humongous exercise has been

conducted by the parties in placing on record the documents of all hues and colours, to further their

respective claims. It would thus be apposite to confine oneself to the relevant documents pertaining

to the dispute. It is the pleaded case of the respondent no. 1 to 3 that the petitioners were infact the

employees of M/s Nova Security Service Pvt. Ltd. from the very beginning. However, strangely

there is no specific denial by the said respondents that the petitioners had not been engaged on the

dates shown by them in para 1 of the statement of claim. There is also not a whisper in the reply as

to when the first contract with M/s Nova Security Service (respondent no.4) came to in existence.

The respondent no.4 has not only denied any relationship with the petitioners of an employer and

employee in its reply before this Court, had also denied the same before the Labour-cum-

Conciliation Officer as is clear from annexure P-3 (mark P-14).

33. The petitioners while appearing as their own witnesses (from PW-1 to PW-10), have

reiterated their pleadings vide affidavits Ex. PW-1/A to PW-10/A. All of them have deposed in

unison that they were appointed by Oberoi Cecil and wild flower Hall respectively, as per the dates

mentioned in the statement of claim. Along-with the affidavits they have placed on record sheets

whereby duties were assigned to them by the said respondents, which was duly entered in the

monthly/day to day duty sheets commonly known as limousine control sheet, reception errand

sheets, concierge errand sheets etc. All the entries regarding their duties were entered in the log

books of the vehicles owned by Oberoi Cecil and Wild Flower Hall. In addition to the above the

Oberoi Cecil and Wild Flower Hall used to issue duties. They were sanctioned leave by the front

office Manager employed by Oberoi Cecil/Wild Flower Hall. There entire leave records were

maintained by Oberoi Cecil/ Wild Flower Hall. The documents regarding the service carrier and

conditions are attached along-with the affidavits as Ex. P-1 to Ex. P-28. It is further deposed by

them that OberoiCecil/Wild Flower Hall was regularly paying the installments with respect of the

health insurance/medi claims. In this behalf an identity card had also been issued by the Employees

State Insurance Corporation which also clearly discloses the name of the employer as Oberoi Cecil/

Wild Flower Hall. They also used to issue petty cash vouchers or cash disbursement vouchers or

meal allowance authorization vouchers whenever they were assigned duties to drop or receive

guests away from the Hotel.

34. It is also deposed by the petitioners in their affidavits that few of them were provided

rent free accommodations by their employer i.e. Oberoi Cecil/Wild Flower Hall in their premises

and they were paying electricity usage charges in their own name. Those employees who were not

using the accommodation were being paid house rent more particularly by Wild Flower Hall,

because there was no rent free accommodation available there, whereas the drivers working in

Oberoi Cecil were allotted rent free accommodation and no house rent was being paid to them.

Their salaries were being released through vouchers or through cash receipts and the signatures

were obtained on the registers maintained for the said purpose.

35. It is denied by the petitioners that they have any privity of contract with either Nova

Security Service (respondent no. 4) or Avis Mercury Car Rentals Ltd. (respondent no. 5). No notice

of any kind was ever served upon the petitioners regarding the change of service. The action of the

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respondents no. 1 to 3 was thus totally illegal, arbitrary, unlawful and violative of the provisions of

the Act.

36. It is also deposed by the petitioners that they had been contributing to the EPF Scheme

since the beginning of their employment and the receipt issued in this behalf clearly reveals the

name of the employer i.e. Oberoi Cecil/Wild Flower Hall. The petitioners had never applied for any

job either with the Nova Security or Mercury Car Rental and they have been regularly working

with the Oberoi Cecil/Wild Flower Hall. For the last two months the respondents no. 1 to 3 have

been paying salary in cash to them. Per the petitioners they came to know about the change of their

service condition after they had raised the demand notice dated 12.1.2009.

37. Apart from the affidavits the petitioners have also placed on record the copy of the

identity cards issued by General Manager, Oberoi Hotel as Ex, PW-1/B, PW-2/B, PW-3/B, PW-

4/B, PW-5/C, PW-7/B and PW-9/B. They have also placed on record the copy of identity cards

issued by the Election Commission. The copy of the car log book have been placed on record by

various petitioners. The copy of the petty cash disbursement have also been placed on record and

marked. For instance PW-1 had marked it as Mark P-4, PW-2 had marked it as Mark P-19, PW-3

had marked it as Mark P-25, PW-4 had marked it as Mark P-28, PW-5 had marked it as Mark P-31,

PW-6 had marked it as Mark P-36, PW-7 had marked it as Mark P-41, PW-8 had marked it as

Mark P-45, PW-9 had marked it as Mark P-47 and PW-10 had marked it as Mark P-50. Likewise

the petitioners have placed on record the copies of car log books, the copies of concierge errand

sheets of Oberoi Cecil/Wild Flower Hall, the copies of the limousine control sheets, copies of

temporary identification certificate issued by ESI. All the petitioners have placed on record the

copies of the receipts of EPF. PW-1, Prakash Chand has placed on record copies of receipt of EPF

as Ex. PW-1/E to Ex. PW-1/G. Copy of the statement of contribution for the period March 1997 to

Feb., 1998 of the Cecil establishment bearing PN number/1701 has also been placed on record as

Mark P-13 (Ex. PW-12/A). The copy of the receipt filed by respondent no.4 before the Labour

Officer has been placed on record as Mark P-14. Likewise PW-2 Padam Singh has also placed on

record almost the same documents and so has PW- Bhim Singh placed on record the copy of ESI

card Ex. PW-3/C and the statement of contribution for the period November 1997 relating to the

Cecil establishment, vide Mark P-13 and his name figures at serial no. 108 therein. PW-4 Mehar

Chand has also placed on record almost the same set of documents. The documents relating to his

EPF contribution is also on record as Mark P-14. PW-5 KrishanDayal has also placed almost the

same documents and his EPF contribution statement is Mark P-13. Vinod Kumar one of the

petitioner has appeared as PW-6 has also placed almost identical documents. The copy of the

statement of EPF contribution is mark P-13 and the copy of the receipt of the EPF is Ex. PW-1/F.

The PW-7 Ram Lal, PW-8 Surender Kumar, PW-9 Dharam Singh and PW-10 Ashok Kumar have

also filed almost similar documents and their affidavits by way of evidence are also almost on the

same lines.

38. The respondents no. 1 & 2 while cross-examining the witnesses have tried to question

the witnesses regarding the respondents no. 1, 2 and 3 being different legal entities i.e one being

run by EIH Associates and the other by Mashobra Resorts respectively. They have cross-examined

the witnesses on the existence of the workers union.The witnesses have denied the suggestion that

there was no regular workers union in the Hotel. The witnesses have denied that they were the

workers of Nova Security Service. Six of the workers have stated that they were the workers of

respondent no. 2 while four have stated that they were the workers of respondent no. 3. The

petitioners have denied that they have any knowledge about the respondent no. 4 being the

contractor and that he has a licence under the Contract Labour (Regulation and Abolition) Act.

They have denied that they have any knowledge regarding any agreements between respondents no.

2, 3 and 4 for providing contractual workers. The petitioners have also denied that their EPF and

ESI contribution were being paid by respondent no. 4. It is denied that they were the employees of

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the respondent no. 4, hence identity cards have been issued by the respondent no. 2. The petitioners

have denied that they have no knowledge that if the contractor fails to pay the EPF contributions, it

is the responsibility of the principal employer to pay the same. The witnesses have denied that

Nova Security Service had made a request to respondent no. 2 to provide out house/staff quarters to

the petitioners. The petitioners have denied any knowledge of the EPF code of the Nova Security

Service. The petitioners have denied that the receipts placed on record were/and by Nova Security,

as far as their EPF contributions were concerned.

39. Strangely, the respondents no.1 & 2 and for that matter even respondent no.3 have

nowhere asked any question as to when the first contract between them and Nova Security had been

entered neither they have cross-examined the witness about their purported employment since

1997. There is not a single question asked about their having been not engaged prior to the year

2000 or 2001. The respondent no. 3 has only sought to portray that they came into operation after

2001, which apparently is not disputed. Not even a remote suggestion has come from the

respondent that even an appointment letter was also never issued to them what to say of their being

on the rolls of the said respondents.

40. Strangely, the cross-examination of respondent no. 4 does try to highlight that no

appointment letter had been issued by respondents no. 1 & 2, except the identity cards issued by

them. The question regarding issuance of identity cards for ingress and egress has also been asked

by the respondent no.4 and not by respondents no. 1 to 3. The petitioners have denied that they

were the employees of respondent no.4 from the year 1997. The petitioners have denied that they

did not know about agreement dated 1.4.2001 which had been entered interse respondents no. 1 to

3 and respondent no. 4. Strangely, the first glimpse of the purported agreement between

respondents no. 1 to 3 and respondent no.4 is noticed at this stage alone. In the pleadings there has

been no mention as to when the first agreement was entered into between respondents no. 1 to 3

and respondent no. 4. The respondent no.4 by way of cross-examination tried to portray that some

agreement had been entered interse the parties on 1.4.2001 which had been denied by the

petitioners. The petitioners in unison denied that they were the employees of respondent no. 4 right

from the year 1997. The petitioners have also denied that their services stands transferred to the

respondent no.5 w.e.f. April, 2008.

41. The petitioners have further denied that Nova Security Service had issued identity

cards to them in the year 2007. They have denied that EPF and ESI contributions are being paid by

respondent no. 4. Certain contributions under ESI (for example mark R-4/C and the receipt therefor

mark R-4/D) had been issued in favour of PW-1. (It would be relevant to point out here that Ex.

PW-4/C and Ex. PW-4/D pertains to period between 31.12.2006 and 30.6.2007 respectively). The

petitioners had denied that their attendance registers were being maintained by respondent no.4.

They have also denied that the leave record were also being maintained by them. It is denied that

salary and other record of petitioners are being maintained by respondent no. 4. The petitioners

have however admitted that they have filed CWP Ex. RP-3 before the Hon’ble High Court and the

respondent no. 4 had therein made a statement that they will not transfer/depute the drivers to any

other establishment. This writ petition also pertains to the year 2009. The admission if any by

respondent no.4, admittedly does not pertains to the year 1997-2000.

42. Even while being cross-examined by respondent no. 5 the petitioners have denied that

they are plying the vehicles owned by respondent no. 5. It is also denied that the respondent no. 4

has deployed them on the vehicles owned by respondent no. 5. it is also denied that the salaries are

being paid by the respondent no. 4 and so are the EPF and ESI contribution being paid by them. It

is denied that overall control on the petitioners are that of respondent no. 4. It is however admitted

by all the petitioners that they had not been issued any appointment letters by respondents

no. 1 to 3.

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43. The petitioners have also examined one Vinod Kumar as PW-10 (though it should

have been PW-11 wrongly mentioned as PW-10). The witness is an official of the Registrar Trade

union, Shimla. As per him there is an union known as the Oberoi Contract Workers Union which is

registered in the office vide registration no. 1118 dated 24.1.2009. He has placed on record the

registration certificate Ex. PW- 10/A and also an application moved vide Ex. PW-10/B for the

change of the union name and registration of certificate issued thereon vide Ex. PW-10/C. As per

this witness no notice had ever been given to Oberoi Cecil/Wild Flower hall and Nova Security

regarding the change of the name of the union.

44. The petitioners have further examined one Mukesh Kumar from Shiva Gas Agency to

show that one of the petitioner’s Prakash Chand had been issued a gas connection and his address

has been mentioned as Cecil Hotel ChauraMaidan, the same has been placed on record vide Ex.

PW-11/A and Ex. PW-11/B.

45. The petitioners have also examined one Shishamber as PW-12. He is Social Security

Assistant in the office of EPF. He has placed on record Ex. PW-12/A wherein the names of the

workers have been shown working under Oberoi Cecil, ChauraMaidan. The EPF contribution of

the aforesaid workers as per record used to be paid by Oberoi Cecil ChauraMaidan in the year 1998

and even thereafter. The account no. PN 1701/192 to 210 was initially allotted to EIH and now the

same is in the name of Oberoi Cecil. As per this witness the account no. 1701/192 has been allotted

to Vinod Kumar, account no. 1701/193 has been allotted to Mehar Singh, account no. 1701/194 has

been allotted to Bhim Singh, account no. 1701/195 has been allotted to Parkash Chauhan, account

no. 1701/199 has been allotted to Ram Lal, account no. 1701/201 has been allotted to Dharam

Singh, account no. 1701/203 has been allotted to KrishanDayal and account no. 1701/204 has been

allotted to Prakash Chand. The EPF contribution pertaining to the aforesaid workers is paid by

oberoi Cecil. He has placed on record form no. 24 showing the detail of EPF contribution vide Ex.

PW-12/B.

46. It transpires from his cross-examination that he has not brought any record regarding

paying of EPF contribution by Oberoi Cecil after the year 2000. It signifies that they were paying

the EPF prior to 2000. He has admitted that the principal employer is also liable to pay EPF

contribution in respect of workers engaged through contractor.

47. The petitioners have further examined one Shri AbhinavVerma, HR Assistant Oberoi

Cecil as PW-13. As per this witness the old record have been destroyed. The attendance register

and the salary sheets of the workers of front office from march 1997 till 31.3.2012 has been

destroyed as per the destruction policy, Ex. PW- 13/B. He has brought the attendance register but

from 1.4.2012 till December, 2016. The witness has deposed that he cannot say whether the drivers

were employed by the Hotel in the year 1997 for want of record. He has also not brought the log

books of certain vehicles sought by the petitioners. The witness has also not brought the petty cash

disbursement slips issued to the petitioners w.e.f. 1997 till 2008 as the same are also stated to be

destroyed as per the destruction policy.

48. PW-14 KamtaPrashad, Social Security Officer ESIC Baddi, has submitted the

declaration form of ESI in respect to the petitioners vide Ex. PW-14/A-1 to Ex. PW-14/A-9.

49. The petitioners have also examined one record keeper posted in the Court of Civil

Judge, Senior Division, Panchkula Haryana as PW-15 to prove and place on record the documents

pertaining to release of some vehicles which had met with an accident in Panchkula and was stated

to be driven by the petitioner’s Prakash Chand and Mehar Lal at the relevant time. The FIR

pertained to the year 1997 and 2001 respectively.

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50. On the other hand the respondents have examined one Shri H.S Chauhan, Assistant

Manager, Nova Security Service as RW-1. He has placed on record the appointment letters of the

petitioners vide Ex. RW-1/A to Ex. RW-1/M. He has also placed on record the extract of payment

of wages register, but from the year 2000 to 2008 (Ex. R-1 to Ex. R-9), the extract of attendance

cheques to Nova Security by Oberoi Cecil from Jan., 2000 to Feb., 2008 (mark RX-1) and the

receipts regarding EPF contribution by Nova Security Service from the year 2001 to 2008 with

respect to petitioners Dharam Singh, Vinod Kumar, Ram Lal and Bhim Singh vide Ex. R-14 to Ex.

R-21. He has also placed on record form no. 5 evidencing the deposit of ESI contribution by Nova

Security for the years 2000 to 2008 respectively of the aforesaid petitioners vide Ex. R- 22 to Ex.

R-41. The witness has also placed on record the licence of Nova Security Service under the

Contract Labour (Regulation & abolition) Act Ex. R-42 and the half yearly return submitted in this

behalf for the years pertaining to 2005 to 2008 vide Ex. R-43 to Ex. R-48. He has also placed on

record the extract of adult workers register Ex. R-49. He has placed on record the agreement

between Nova Security and Oberoi Cecil from the year 2000 to 2008 (Ex. R-52 to Ex. R-58).

51. This witness in his cross-examination has admitted that the petitioners were deployed

by them with oberoi Cecil w.e.f. 2000 to 31.3.2008 vide yearly agreements and after 31.3.2008 they

were deployed with M/s Avis Mercury Car Rental. One of the petitioner namely Vinod Kumar was

their employee and since he has committed some misconduct his services had been terminated by

them and one of the petitioner’s Ashok Kumar had resigned from the job. He has also placed on

record ESI cards of the petitioners. He has in no uncertain terms admitted that prior to the year

2000 there was no agreement of the nova Security Services (respondent no.4) with Oberoi Cecil

and Wild Flower Hall.

52. Though, one witness from the office of the Regional Provident Fund Commissioner

was examined as RW-2 but as per this witness the records from the year 2001 to 2008 stands

weeded as per the certificate issued by Assistant Provident Fund Commissioner, Regional office

Chandigarh vide Ex. RW-2/A.

53. The respondents have also examined KamtaPrashad as RW-3 (who has also appeared

in the witness box as PW-14). He has placed on record the attested copy of the ESI contributions

made by Nova Security w.e.f. March 2000 to September, 2008 in respect of six workers.

Admittedly as per his testimony too, the respondent no.4 started making payment after the year

2000.

54. RW-4, is the Labour Officer Shimla. He has placed on record half yearly returns filed

by nova Security Service under the Contract Labour (Regulation & Abolition) Rules for the half

year ending December 2006, June 2007 and December 2007 as Ex. RW-4/B to Ex. RW-4/D. As per

him the annual return of Oberoi Cecil for the year 2007-2008 are not available in his office. The

witness however admitted in his cross-examination that the Rules framed under the Contract

Labour, Rules provide for prosecution in case of non-filling of returns. He has not brought any

record prior to the year 2006 and the names of the employees are not mentioned in the returns

produced by him vide Ex. RW-4/A to Ex. RW-4/D.

55. The respondents have examined the General Manager of Oberoi Cecil, Mr. Amardeep

Singh as RW-5. He has placed on record his affidavit Ex. RW-5/A along-with the copy of the

registration certificate under the Contract Labour (Regulation 7 Abolition) Act Ex. RW-5/D and the

copy of the agreement dated 1.4.2001 Ex. RW-5/E (earlier marked as mark RX), the copy of the

agreement dated 1.8.2008 Ex. RW-5/F. He has also placed on record the copy of the salary

statement w.e.f. November 1997 to Jan., 2008 of the workers on the rolls of the Hotel as Mark RW-

5X and a letter dated 30.4.2008 whereby the contract with Nova Security to provide drivers and

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cleaners stands terminated (Mark RW-5H). In his affidavit Ex. RW-5/A the witness has reiterated

the facts narrated in the reply filed by respondents no. 1 & 2.

56. Even the General Manager has admitted in his crossexamination that initially when the

first agreement with Nova Security took place in the year 2001, they have deputed five drivers with

Oberoi Cecil. They were the principal employer and as such used to keep a check on Nova Security

Service for compliance of Labour Law. The adult workers register, wages register and attendance

who was the contractor prior to the year 2001. He admitted that the Identity cards Ex. PW-1/D, Ex.

PW-7/D and Ex. PW- 4/B were issued by Oberoi Cecil, but as per him the same were only issued

for their ingress and egress. He does admit that as per the document Ex. PW-1/A, the Oberoi Cecil

had deposited the amount in respect of its employees for the year 1997. He has denied that any such

amount was deposited with the ESI vide Ex. PW-14/A-1 to Ex. PW- 14/A-9. He has denied having

any knowledge about the existence of any contract between Oberoi Cecil and Nova Security

Service between 1997 and 2001. He has denied that the petitioners were on the rolls of the hotel

prior to the year 2001. He has also denied that the petitioners were placed on the rolls of the Nova

Security Service in the year 2001, without their consent and without any notice. He has admitted

that the designation of the workers had not been mentioned in the salary statement Ex. RW-5/X.

The witness admits that the out houses are in the possession of a few of the drivers, but, has

hastened to add on his own that they were provided accommodation in terms of the agreement with

Nova Security.

57. An employee of RPF Commissioner, Chandigarh, Ms. Jaswinder Kaur has also been

examined as RW-6. She has brought the account statement of the PF relating to petitioners

Surender Kumar, KrishanDayal and MeharLal Chauhan vide Ex. RW-6/A to Ex. RW-6/C but the

record produced by her relates to the year 2000 and beyond. The record prior to the year 2000 are

stated to have been weeded out. As per this witness the contributions are being made by an

employer having code number 13974.

58. Another representative of Nova Security Service Man Dass has been examined as RW

7. He has also placed on record the wages paid to the petitioners but that also relates from the year

2000 till 2008. It has been placed on record vide Ex. RW-7/A. The witness has also placed on

record the annual statement of submission of PF from the year 2001 till 2008 vide Ex. RW-7/D to

Ex. RW-7/K. He has also placed on record the appointment letters of petitioners Padam Singh,

Mehar Lal and Surender Kumar vide Ex. RW-7/N to RW-7/P. He has also placed on record the

adult workers register vide Ex. RW-7/Q. As per this witness Surender Kumar, Krishan Dayal,

Mehar Lal and Padam Singh are still working with Nova Security Service.

59. In response to a Court question the witness has specifically deposed that the first

contract with the respondents no. 1 to 3 was executed in the year 2000. He has denied any

knowledge about the reply filed by Nova Security before the Conciliation Officer and that the stand

of the respondents therein was that these workers were not the employee of Nova Security. In his

cross-examination the witness has deposed that as per record the initial dates of engagement of

Padam Singh is 31.5.2001, Surender Kumar is 30.11.2001, Mehar Lal is 31.5.2003 and Krishan

Dayal is 31.5.2003. As per this witness the respondent no.4 is operating in Shimla since 2001 and

licence was issued to him w.e.f. 30.3.2001. The first agreement with Oberoi Cecil was made in the

year 2001 and with Wild Flower in the year 2002.

60. On behalf of Wild Flower Hall one Pratap Sharma, Manager HR has appeared in the

witness box as RW-8. He has filed his affidavit Ex. RW-8/A and also placed on record the

certificate of incorporation Mark-A and the registration of the respondent no. 3 under the Contract

Labour Act, vide Mark B. He has placed on record a letter dated 16.3.2008,(Mark C), terminating

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the agreement with the respondent no.4 i.e Nova Security Service. He has also placed the list of

employees on rolls of respondent no. 3, as on July 2005, December 2006 and Jan., 2007 as Mark J-

1 to Mark J-3. His deposition is on the same lines as RW-5. He has otherwise joined the Hotel in

the year 2006 and as such has deposed that he knows nothing about the happening in the Hotel

prior to the year 2006. Though, he has denied that the petitioners have been working in the Hotel

since 1997 and had been engaged on 17.2.1997.

61. The respondents have also examined one Phool Chand Maurya, Accountant with Nova

Security Service (RW-9). He has also placed on record the salary slips of the petitioners and the

account statement of the payments relating to the EPF but the said payment had been made after

31.3.2000 and the account statements are from the year 2001 onwards. Even this witness in his

cross-examination has admitted that the first agreement was made by Nova Security Service with

Oberoi Cecil/Wild Flower Hall in the year 2001.

62. M/s AVIS Mercury Car Rental has examined one Gautam Ohri as RW-9 who has

placed and proved on record an agreement between Mercury Car Rental Ltd. and Nova Security

Service starting from 1.4.2008, Ex. RW-9/C to Ex. RW-9/H. He has also placed on record the bills

raised by Nova Security since 2008 as Mark R/9. As per this witness they are providing cars to

Oberoi Cecil and Wild Flower Hall after April 2008. As per this witness Nova Security had

outsourced these drivers to them in the year 2008.

63 Col. Dalvinder Singh, the Managing Director of Nova Security has appeared as RW-

10. In his affidavit Ex. RW-10/A, he has deposed that all the petitioners are the employees of Nova

Security Pvt. Ltd. and they have been deployed by them with the respondents no. 1 & 2 in the year

2000 and they had been issued appointment letters by Nova Security Service Pvt. Ltd. His

testimony in this behalf is very relevant and would be considered in the later part of the judgment

and rest of his deposition is only relating to the fact that they are duly registered under the Contract

Labour Act and are following the mandatory provisions of labour laws and depositing ESI and EPF

contribution of the aforesaid employees. He has further submitted that w.e.f. April 2008, after the

termination of the contract with respondents no. 1 & 2, Nova Security is providing contractual

drivers to Mercury Car Rentals (Respondent no.5). In his cross-examination he has admitted that

Nova Security Service had executed an agreement with respondent no.1 & 2 in the year 2000. The

witness has further deposed that he has no knowledge that prior to April 2000 the ESI and EPF

were being deducted by respondents no. 1 & 2 in respect of the petitioners. As per this witness all

the petitioners were employed by respondent no.4 in the year 2000. The rest of his deposition is not

be reproduced being repetitive in nature.

64. The learned counsel for the petitioner has vehemently argued that the documentary

evidence on record more particularly the identity cards Exhibited vide Ex. PW-1/B, PW-2/B, PW-

3/B, PW-4/C, PW- 5/C, PW-7/B and PW-9/B, the petty cash disbursement slips placed on record

by PW-1 to PW-9, record of the car log books, the copy of limousine control sheets, reception

errand sheets, concierge errand sheets, electricity bills showing that the some of the petitioners

were staying in the out houses of the Oberoi Cecil Hotelgoes to conclusively show that the

petitioners were working with respondents no. 1 to 3. He would further contend that the stand taken

by respondent no.4 i.e Nova Security Service further shows that the petitioners were the employees

of the Hotel. As per the Learned Counsel respondent no.4 had specifically taken a stand before the

Labour-cum-Conciliation Officer that they had no relationship of employer and employee with the

petitioners and they were the employees of respondents no. 1 to 3 and the same is the stand of the

said respondent before this Court and as such the defence taken by respondents no. 1 to 3 stands

falsified and it is proved on record that the petitioners were the employees of respondents no.

1 to 3.

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65. He further contended that the records of the EPF more particularly form no. 6-A (Ex.

PW-12/A), the details of EPF contribution reflected in Ex. PW-12/B and the copy of withdrawal

form Ex. PW-12/X clearly shows that the petitioners had been working with the Oberoi Cecil/Wild

Flower Hall. It is also contended by the learned counsel that based upon the aforesaid documents it

is proved on record that the petitioners were appointed as drivers by Oberoi Cecil/Wild Flower Hall

and they are their employees for all purposes.

66. The learned counsel for the petitioner further placed strong reliance upon the

documents placed on record in relation to some FIR’s lodged in the year 1997/2001 relating to the

accident of the vehicles owned and controlled by the Oberoi Cecil and pending before the Ld. Civil

Judge, Senior Division Panchkula Haryana. Placing reliance upon Ex. PW-15/A-1 to Ex. PW-15/A-

19, the learned counsel contends that it clearly goes to show that the petitioners were working

under the direct control of the respondents no. 1 to 3 at the relevant time.

67. Learned Counsel further contends that the petitioners have summoned the witness

along-with the record from respondent no. 2, which would have clearly thrown light on the fact that

the petitioners were engaged by the respondents no.1 to 3, however, the witness has failed to bring

the summoned record and as such adverse inference be drawn against the said respondents. In this

behalf the learned counsel has placed reliance upon a judgment reported in 2013 LLR and 2016

LLR 1050.The learned counsel for the petitioner has further placed reliance on a judgment of

the Hon’ble Supreme Court titled as Management of Indian Oil Corporation Ltd. Vs.

Wormen (1976) 1 SCC 63 and a judgment titled as Gulf Oil Lubricants Vs. Shri Sudhakar

Parte and others (2016) SCC online 6736 (Bombay) to contend that section 9-A comes in to

operation, the moment the employer proposes to change any condition of service applicable to any

workman and once this is done, notice has to be given to the workman.

68. He further contends that the petitioners have succeeded to prove the control and

organization test which a Court is required to consider while deciding whether or not there exists a

relationship of employer and employee between the parties, before it. The learned Counsel has also

filed written arguments on behalf of the petitioners.

69. On the contrary, the learned counsels for the respondents have not only addressed oral

arguments before this Court but has also filed written arguments by way of an application under

section 151 CPC. The gravamen of their arguments is that the demand notice dated 12.1.2009 itself

suggest that there was no employer employee relationship interse respondents no. 1 to 3, and the

petitioners. Since the petitioners are the employees of respondents no. 4 & 5 and they have failed to

prove that they were the employees of respondents no. 1 to 3, the question of violating the

provisions of section 9-A does not arise. In this behalf the learned counsel has further very

vehemently urged that in the demand notice itself the petitioners have averred that they were under

one principal employer and their services were transferred to AVIS (Mercury Car Rental).

70. It is further the contention of the learned counsels that it was for the petitioners to have

proved the relationship of employer and employee and having failed to do so they are not entitled

to any relief. In this behalf the learned counsel has placed strong reliance on the judgment of the

Hon’ble Supreme Court reported in (2004) 3 SCC 514 and (2014) 9 SCC 407. The learned

counsel further contended that no appointment letters have been placed on record to show any

relationship of an employer and an employee and there is no clear evidence that they were working

under respondent no.3 since 1997. The mere deposit of ESI/EPF contribution would not mean that

they have proved the employee-employer relationship. Even prior to the year 2000 they were

working through the contractor. The Ld. Counsel would further contend that all the appointment

letters, for example, mark RX-9, Ex. RP-4A and Ex. R-4/4-1 have been issued by Nova Security. It

is further their contention that no grievance was raised till the year 2009.

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71. Seeking assistance of one of the latest judgments of the Hon’ble Supreme Court titled

as Bharat Heavy Electrical Ltd. Vs. Mahendra Prasad Jakhmola and others (2019) 13 SCC 82 and a

judgment of our own Hon’ble High Court titled as Manoj Kumar Vs. Sintex Pvt. Ltd. 2016

SCC online HP 4276 and 2016 LLR 580, the Ld. Counsel for the respondent would further

contend that the petitioners have failed to prove the control and organization test, laid down for

establishing a relationship of an employer and employee, in the aforesaid two judgments.

72. The discussion hereinabove clearly goes to show that the respondents no. 1 to 3 have

denied in the pleadings that the petitioners were ever engaged by them at any point of time. It is

their pleaded case that the petitioners were contract employees and had been engaged only through

M/s Nova Security Service (respondent no.4). There is admittedly no dispute regarding the parties

having requisite permission to engage an employee under the contract labour as per the provisions

of the Contract Labour (Regulation & Abolition) Act, 1970.

73. Strangely, in the pleadings the respondents no. 4 has denied having any relationship of

an employee and employer with the petitioners, rather they go to the extent to saying that the

claimant are the employees of Oberoi Cecil.

74. The self-effacing and contradictory stands of the respondents is in itself fatal for the

respondents. However, even if one is oblivious to the stand taken by respondent no.4, the over

whelming evidence which has come on record, shows that the first agreement came to be entered

inserse respondents no. 1 to 3 and respondent no.4 in the year 2000/2001. Though the respondents

no.1 to 3 also nowhere specified in the pleadings as to when the first agreement was entered into

and nor is there any specific denial by them regarding the engagement of the petitioners from the

year 1997 to 2000. To this extent the pleadings by the respondents no. 1 to 3 are totally evasive.

Therefore, it becomes imperative to evaluate the evidence on record minutely.

75 RW-1 Shri H.S Chauhan, Assistant Manager (operations) Nova Security Service has

placed on record the agreement between Nova Security and Oberoi Cecil vide Ex. R-50 to Ex. R-

58. It is thus clear that the first agreement was entered between respondents no. 1 to 3 and

respondent no.4 in the year 2000 only. In his cross-examination the witness has clearly stated that

he did not know anything about the employment of the drivers prior to the year 2000. RW-5 Shri

Amardeep Singh happens to be the General Manager of Oberoi Cecil. Though, he has stated in his

affidavit that the petitioners were deployed by Nova Security Service/ contractor with Oberoi Cecil,

Chaura Maidan and the agreement has been attached which is exhibited vide Ex. RW-5/C (earlier

marked as mark RX). It is dated 1.4.2001. Even in his cross-examination he has admitted that

initially the agreement with Nova Security took place in the year 2001 and they had deputed five

drivers with Oberoi Cecil at that time. He does not know who was the contractor prior to the year

2000.

76. In fact RW-7 Man Dass, the Field Officer with Nova Security has also placed on

record, the receipts pertaining to the payment of wages in respect of a few of the petitioners namely

Mehar Lal, Krishan Lal, Padam Singh and Surender Kumar from the year 2000 to 2008 (Ex. RW-

7/A). Even he has deposed that the first contract was executed in the year 2000. The fact that the

payment of wages also commenced after the year 2000 further corroborate the said factum, that the

petitioners came to be engaged by M/s Nova Security Services (Respondent no.4) only after the

year 2000. This factum is further clearly established and corroborated by the depositions of RW- 1,

RW-3, RW-4 and RW-10 and PW-12.

77. The Managing Director of Nova Security, RW-10, also candidly admits that not only

the agreement was entered for the first time in the year 2000, but as per him all the petitioners were

employed by respondent no.4 in April 2000.

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78. It is thus conclusively proved on record that even if the petitioners were working as

contract employees with the Nova Security (respondent no.4), it undoubtedly happened somewhere

in the year 2000. RW-10 himself has deposed that all the petitioners were taken on board in April

2000.

79. The petitioners have averred their dates of joining in the statement of claim, and as per

the same seven of them had joined in the year 1997 while two joined in 2001 and one in 2003.

There is no specific denial about the same by the respondents no. 1 to 3. There stand being that they

were the employees of respondent no.4, right from the inception, seems highly suspect. There being

no denial per se, it will have to be presumed that from the year 1997 till the respondents No. 1 to 3

entered into an agreement with Nova Security (respondent no. 4), the petitioners were the

employees of respondents no. 1 to 3, at least those who were engaged in the year 1997. At best the

petitioners engaged after 2000 can be said to be the contract employees of the respondents. It is

now well settled that admitted facts may not be proved, but in the present case apart from tacit

admission the evidence also conclusively points to the fact that from the year 1997 to 2000, at least

seven of the petitioners were directly engaged by respondents no. 1 to 3.

80. The petitioners have placed on record sufficient material to prove that they had been

engaged in the year 1997 and on the dates reflected in para -1 of the statement of claim.

81. Though the respondents no. 1 to 3 have claimed that the petitioners were the

employees of Nova Security but the testimony of RW-1 demolishes the case propounded by

respondents no. 1 to 3. He has no doubt placed on record the appointment letters issued by the

respondent no.4 vide Ex. RW-1/B to Ex. RW-1/M, but the record however shows that the petitioner

Dharam Singh was issued appointment letter on 29.10.2000 (mark RX-9), Vinod Kumar was issued

an appointment letter on 29.10.2000 (Ex. RP-4/A), Ram Lal was issued appointment letter on

30.11.2000 (mark R-7), Bhim Singh was issued appointment letter on 30.10.2000 (mark RX-4),

Parkash Chand was issued appointment letter on 18.12.2003 ( Ex. RP-1), Surender Kumar was

issued appointment letter on 24.6.2001 (Ex. X-4) and Padam Singh on 2.4.2007 (mark R-4). Mehar

Lal was offered appointment on 30.11.2000 (Mark R-44). It is thus clear that any appointments

offered by the respondent no.4 was after the year 2000.

82. The petitioners have, however, placed on record identity cards issued by Oberoi Cecil

vide Ex. PW-1/B, PW-2/D, Ex. PW- 3/B, Ex. PW-4/C, Ex. PW-5/C, Ex. PW-7/B and Ex. 9/B and

few of them have marked the same. They have also placed on record petty cash disbursement slips,

car log books, limousine control sheets, reception errand sheets, concierge errand sheets and even

certificates issued by the management, illustratively one certificate issued by Oberoi Cecil itself to

Padam Singh vide mark P-14 shows that he was engaged by the company as driver since March

1998. The aforesaid certificate had been issued on 17.3.2000. Likewise identity card had been

issued to Dharam Singh on 25.5.1997 and Krishan Dayal on 2.4.1998 as is clear from Ex. PW-9/B.

Ram Lal and Mehar Chand had also been issued identity cards on 15.5.1997 and 5.4.1997

respectively, as is clear from Ex. PW-7/B and Ex. PW-4/B on record. One document Mark P-21,

which is an extract of the EPF Scheme also reflects the names of the employees and bears the

signatures of Account Manager, Hotel Oberoi Cecil, Shimla, it bears the names of Ram Lal, Bhim

Singh, Dharam Singh and Krishan Dayal and their date of eligibility for membership has been

reflected as 1.11.1997, whereas the dates of eligibility of Vinod Kumar, Mehar Lal Chauhan and

Prakash Chauhan has been shown as 1.10.1997.

83. The Social Security Assistant working in the office of Employees Provident Fund

Organization, Shimla has placed on record a copy of form no. 6-A, which also contains the names

of the workers who were the part of the EPF Scheme. He has placed the same on record vide Ex.

PW-12/A, it pertains to a period commencing from March 1997 till Feb., 1998 and at page four of

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the same the names of the petitioners are clearly reflected. As per this witness the EPF contribution

for the aforesaid workers was also paid by Oberoi Cecil, Chaura Maidan. So much so, he has even

got recorded the account numbers of the petitioners and placed on record the details of EPF

contribution vide Ex. PW-12/B. No doubt the HR Assistant of the respondent Oberoi Cecil was

examined as PW-13 who has failed to place on record the attendance register and the salary sheets

of the workers of Front Office from March 1997 as they were stated to have been destroyed as per

destruction policy Ex. PW-13/B, but, the evidence detailed hereinabove still clearly goes to show

that that the petitioners were indeed on the rolls of respondents to 1 to 3 from 1997 till 2000. At

best they be can said to have come on the rolls of Nova Security Service (respondent no.4) in the

year 2000 alone.

84. Though, much was urged that no appointment letters have been placed on record to

prove that they were ever employed or engaged by the respondents no.1 to 3 and merely the

contribution of EPF will not mean that the petitioners had any relation of an employer and

employee with the respondents no. 1 to 3 but I am afraid the said contention of the Learned

Counsel cannot be sustained in view of the evidence discussed hereinabove, supra. More so the said

factum is further corroborated by two applications for release of Vehicle made vide Ex. PW-15/A-9

and Ex. PW-15/A-1/8 whereby petitioners Mehar Lal and Prakash Chand while making an

application for the release of the vehicle of the Oberoi Cecil relating to an FIR registered in 1997

and 2000 respectively have averred therein that they were the drivers of the aforesaid vehicle. It

may not directly prove the factum of the employer and employee relationship but it does

corroborate the fact that they were working as driver with the respondent no.3 even in the year

1997. The overwhelming documentary evidence on record, dehorse the appointment letters also

goes to show that they were working as drivers with the respondents no.1 to 3. The testimonies of

the witnesses of the respondents themselves, more particularly RW-1, RW- 3, RW-4, RW-7 and

RW-10 also go to show that Nova Security Services started rendering contract service to the

respondents no. 1 to 3 only after the year 2000.

85 It is true that the Hon’ble Supreme Court as far back as 2004 in Workmen of Nilgiri

Corporation Vs. State of TN, (2004) 3 SCC 514 had held that the existence of a relationship

between an employer and an employee will have to be substantiated by the person who sets it up. In

the present case however strangely the respondents have not denied the relationship perse, there

stand being that they were always the employees of Nova Security. As per the evidence on record

and discussed hereinabove, Nova Security came into the picture for the first time in the year 2000,

itself. That being so the respondents no. 1 to 3, having failed to deny the relationship, now cannot

take the benefit of the aforesaid judgment. Moreover, as detailed hereinabove the petitioners have

placed on record sufficient material to show that they were in fact working with the respondents

no.1 to 3 from the year 1997 or the dates mentioned against their names in para 1 of statement of

claim, atleast till the year 2000/2001. It is by now well settled that a person who claims equity must

come in a fair and equitable manner. The respondents no.1 to 3 have never pleaded or proved that

the petitioners had been working with them till Nova Security Service came in to picture. In that

sense of the matter the respondents no. 1 to 3 cannot even take advantage of the fact that the

petitioners raised their demands too late i.e. on 12.1.2009, moreso, because it is an undisputed fact

that M/s Mercury Car Rental Pvt. Ltd., entered into an agreement with respondents no. 1 to 3 w.e.f.

1.4.2008 and they were only to provide the service of rental cars directly to the customers of the

respondents no.1 to 3. It was in fact Nova Security who had also entered with an agreement with

respondent No. 5 that they would provide them the service of their drivers/cleaners. The petitioners

cannot also be said to be estopped from raising the dispute at this belated stage as was being urged

faintly. Had the respondents no.1 to 3, set up a case that the petitioners were engaged directly by

them in the year 1997and then were re-engaged through respondent no.4, w.e.f. 2000, acquiescence

and estoppal could have been urged, but the same does not now lie in the mouth of the respondents

no. 1 to 3.

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86. Since, the evidence on record clearly shows that the petitioners were working as

Drivers with the respondents no. 1 to 3 from the year 1997 till the year 2000 when Nova Security

Service (respondent No. 4) entered into a contract with the respondents No. 1 to 3 and it is only

after the year 2000 that the petitioners got on to the rolls of respondent No. 4, the question of

control and supervision of work and the test laid thereto will not be of much relevance in the

present case, as from the year 1997 till 2000 admittedly there was no contractor between the

petitioner and the respondents No.1 to 3. The control and supervision during this period will have

to only rest with the respondents No. 1 to 3. The ratio of the two judgments i.e Bharat Heavy

Electrical Ltd. and Sintex case, referred to hereinabove, supra does not thus apply in the facts and

circumstances of this case, because prior to the year 2000 the petitioners cannot be said to be the

contractual drivers. As per the evidence on record, at best the petitioners can be said to be the

contractual drivers only after the year 2000. The dispute does not relate to their engagements in the

year 2000 but it only relates to the change of their service conditions in the year 2000 and that too

without any notice as contemplated under section 9-A of the Act. Section 9-A postulate thus:

Section 9A OFThe Industrial Disputes Act, 1947 9A. Notice of change.—

No employer, who proposes to effect any change in the conditions of service applicable to

any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,—

(a) without giving to the workmen likely to be affected by such change a notice in the

prescribed manner of the nature of the change proposed to be effected; or

(b) within twenty- one days of giving such notice: Provided that no notice shall be

required for effecting any such change—

(a) where the change is effected in pursuance of any settlement or award]; or

(b) where the workmen likely to be affected by the change are persons to whom the

Fundamental and Supplementary Rules, Civil Services (Classification, Control and

Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil

Service Regulations, Civilians in Defence Services (Classification, Control and

Appeal) Rules or the Indian Railway Establishment Code or any other rules or

regulations that may be notified in this behalf by the appropriate Government in the

Official Gazette, apply.

87. Since, the respondents no. 1 to 3 have denied that the petitioners were never working

with them, therefore the question of having issued notice under section 9-A of the Act does not

arise and they have in fact not served any notice to the aforesaid petitioners regarding the change of

their service conditions in the year 2000. It is almost and undisputed fact that no notice of the

change so effected by respondents w.e.f. the year 2000 was afforded to the petitioners, it

undoubtedly will thus fall under clause 9 of Schedule IV of the Act and as such it was incumbent

upon the respondents no. 1 to 3 to have notified the said change to the petitioners, which admittedly

was not done. The action of the respondents no. 1 to 3 is thus illegal, arbitrary and against the

mandate of section 9-A of the Act.

88. It however transpires from the record that only Bhim Singh, Vinod Kumar, Krishan

Dayal, Ram Lal, Dharam Singh, Mehar Lal and Prakash Chand were engaged in the year 1997.

Petitioners Surender Kumar came to be engaged in June 2001, Padam Singh in April, 2001 and

Ashok Kumar on 25.4.2003. That being so, the three of them in fact apparently come straightway

on the rolls of Nova Security Service. The other petitioners however had been working with the

respondent no.1 to 3. It is thus held that seven petitioners namely Bhim Singh, Vinod Kumar,

Krishan Dayal, Ram Lal, Dharam Singh, Mehar Lal and Prakash Chand have been working with

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Oberoi Cecil/Wild Flower Hall from the year 1997 till the year 2000 and their services had been

handed to over to M/s Nova Security in violation of the provisions of section 9-A of the Act. The

issues are decided accordingly.

89. For all the reasons discussed hereinabove it is held that the seven petitioners Bhim

Singh, Vinod Kumar, Krishan Dayal, Ram Lal, Dharam Singh, Mehar Lal and Prakash Chand were

the employees of Oberoi Cecil/Wild Flower Hall (Respondents no. 1 to 3) right from the inception

of their service i.e. from the year 1997 and they shall be deemed to be in their service even after the

year 2000/2001, when they entered into a contract with respondent no.4, Nova Security Services. It

is held accordingly. They shall be entitled to seniority and continuity in service from the respective

dates of their joining. The petitioners who were not deputed or engaged by M/s Nova Security

Services after the year 2000 or were disengaged by the respondents no.1 to 3 shall only be entitled

to back-wages from the dates of their disengagement. The petitioners, who however continued

working with contractors will not be entitled to any back-wages. The back-wages, if any shall be

paid within 45 days, failing which the respondents no. 1 to 3 shall pay interest @ of 9% per annum

from the date of this award till its realization thereof. The petitioners who has resigned of his own

shall be considered the employee of the respondents no.1 to 3 only till the date of his resignation.

Issue No. 3:

90. The Learned Counsel for the respondents No. 1 to 3 have with all vehemence urged

that the espousal of the demands is not proper as the replying respondents did not recognize any

union known as the Oberoi Contractual Workers Union and it stands raised by one Bhim Singh as

Group Leader/President of the Contractual Workers Union. Moreover, since the petitioners are

neither the employees of the respondents no. 1 to 3, the question of violation of section 9-A will not

arise. It will arise only, if they succeed in proving that they were the employees of respondents no.

1 to 3.

91. For all the reasons discussed in detail hereinabove supra and the findings returned vis-

a-vis issues no. 1 & 2 above, clearly go to show that it is not the case that the employer employee

relationship never existed between the respondents no. 1 to 3 and the petitioners. The relationship

of a master and servant stands established as has been held hereinabove and as such the objection

of the learned counsel for the respondents no. 1 to 3 cannot be sustained on this score.

92. A bare glance of the demand notice dated 12.1.2009 shows that the petitioners have

also signed the demand notice individually. Apart from Bhim Singh it has been signed by nine

other petitioners. Even assuming that Bhim Singh was not the President of the union or the union

never existed the petitioners have signed the demand notice and raised their objections in their own

behalf too before the Labour-cum-Conciliation Officer. It is thus apparent that the dispute in

question was a collective dispute. As far back as the year 1958, the Hon’ble Supreme Court in

Workmen Vs. Dimakuchi TS State (AIR 1958 SC 354) has clearly laid down that if the dispute is

a collective dispute, and the party raising the dispute has a direct interest in the subject matter of

dispute or even substantial interest in a sense that the class to which the aggrieved parties belong is

adversely effected, it can be said there was community of interest. There being comity of interest of

the class as a whole, it indeed furnishes a real nexus to the present petitioners in the present dispute

too. In a case where the party to the dispute is composed of aggrieved workmen themselves and the

subject matter of the dispute relates to them or any of them they clearly have a direct interest in the

dispute. So is the situation in the present case.

93. It is thus apparent that the crucial test is one of community of interest and the person

regarding whom the dispute is raised must be one in whose employment, non-employment, terms

of employment and the conditions of labour, the parties to the dispute have a direct or a substantial

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interest. The demand notice in the present case is supported by appreciable number of workmen, in

fact all the petitioners. It thus cannot be said that no "industrial dispute” exists interse the parties, as

given in section 2-K of the Act. No other point is urged. The issue is thus decided against the

respondents.

FINAL ORDER/ RELIEF

94. For the foregoing reasons discussed herein supra, the reference is partly answered in

favour of the petitioners and against the respondents. As a sequel thereto, it is held that seven

petitioners who were engaged prior to the year 2000 namely Bhim Singh, Vinod Kumar, Krishan

Dayal, Ram Lal Dharam Singh Mehar Lal and Prakash Chand were the employees of Oberoi

Cecil/Wild Flower Hall (respondent no. 2 & 3) right from the year 1997 and they shall be deemed

to be in their service even after the year 2000/2001, when the respondents no. 2 & 3 had entered

into a contract with respondent no. 4. They shall be entitled to seniority and continuity in service

from the respective dates of their joining and shall be entitled to all consequential relief thereto.

The petitioners who were not deputed or engaged by M/s Nova Security Services (respondent no.

4) after the year 2000 or who were either disengaged by respondents no. 2 & 3, shall be entitled to

backwages and that too only from the date of their respective disengagements. The petitioner who,

however, continued working with the contractor i.e Nova Security Service will however, not be

entitled to any back-wages. The back-wages, if any shall be paid within 45 days, failing which the

respondents no. 1 to 3 shall pay interest @ of 9% per annum from the date of this award till its

realization thereof. The petitioners namely Padam Singh, Surender Kumar and Ashok Kumar, who

were engaged after the year 2000, however shall be deemed to have been engaged directly through

the contractor i.e Nova Security Service (respondent no.4) w.e.f. the dates reflected in the statement

of claim.

95. The respondents no.1 to 3, however, shall be at liberty to take resort to the provisions

of section 9-A of the Act, if so advised, though as per law and that too only prospectively. The

reference is disposed off in the aforesaid terms. Let a copy of this award be sent to the appropriate

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

Announced in the open Court today

On this 24th day of March 2021.

Sd/-

(CHIRAG BHANU SINGH),

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

__________

Ref. 01 of 2019

Chander Pal

V/s

M/s Lotus Herbals Colour & Cosmetics

The Ld. Csl. the for petitioner submits that the matter indeed stands amicably settled inter-

see the parties and the petitioner does not intend to press the reference any further. Consequently

the reference is ordered to be dismissed as having become infructuous. Disposed off accordingly,

Let a copy of this order be sent to the appropriate government for publication in the official gazette.

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Announced

24.03.2021.

Sd/-

(CHIRAG BHANU SINGH),

Presiding Judge,

Labour Court, Shimla.

___________

Workers Union Vs. 108 Ambulance Sewa.

(Application nos. 03 of 2021 and 12 of 2021)

IN THE COURT OF SHRI CHIRAG BHANU SINGH, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Application no. 3 of 2021

Instituted on 11-1-2020

Decided on 31-3-2021

108 Ambulance Sewa, Contract Workers Union (INTUC), Rajiv Bhawan near Lift, The

Mall Shimla, H.P. through its Chairman/General Secretary

..Petitioners.

The Manager/Operational Head GVK, 108 Ambulance Sewa, Village Dharampur, Shimla

Chandigarh Highway, District Solan, H.P.

..Respondent.

Application no. 12 of 2021

Instituted on 16-2-2021.

Decided on 31-3-2021.

108 Ambulance Sewa, Contract Workers Union (INTUC), Rajiv Bhawan near Lift, The

Mall Shimla, H.P. through its Chairman/General Secretary.

. .Petitioners.

The Manager/Operational Head GVK, 108 Ambulance Sewa, Village Dharampur, Shimla

Chandigarh Highway, District Solan, H.P.

..Respondent.

Petitions under section 33-A of the Industrial Disputes Act

For petitioners :

Shri R.K. Khidtta, Advocate.

For respondent : Shri Rajat Sahotra, Advocate.

ORDER/AWARD

This order shall dispose off the aforesaid two petitions i.e application no. 3 of 2021 and 12

of 2021 being identical and involving similar questions of law and facts.

The petitioner union i.e the 108, Ambulance Sewa Contractor Workers Union have

preferred the aforesaid two applications under section 33-A of the Industrial Disputes Act, 1947

(hereinafter to be referred as Act) for setting aside the dismissal order dated 13.12.2020, 7.1.2021,

27.1.2021 and 2.2.2021. The persons terminated in application no. 3 of 2021 are five emergency

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medical technicians while the persons terminated in application no. 12 of 2021 are seven

emergency medical technicians and pilots working with the respondent.

It is the contention of the petitioner union that it is a duly registered body. They have

annexed along-with the copy of registration certificate and the list of the Executive Committee

members. The Chairman namely Shri Puran Chand and Shri Vijay Kumar, General Secretary have

been duly authorized to pursue the case of the workers.

Per the petitioner union the Government of India has started a service known as 108

Ambulance Sewa under the National Mission Scheme, whereby the State of Himachal Pradesh has

entered into a Memorandum of Understanding with the respondent (GVK) for providing the

services of 108 Ambulance in the State of Himachal Pradesh. The respondent contractor has to

abide by all the labour laws, applicable in the State and even the financial benefits are being

released by the State Government through the contractor i.e the respondent herein.

It is further the case of the union that the respondent had illegally terminated certain

workmen and had even failed to provide facilities as per the MOU. They have also filed petitions

under section 20 and 21 of the Minimum Wages Act, 1948, as the respondents are not paying the

minimum wages to the workers employed by them. The same is pending before the Ld. CJM

Shimla. The copy of the demand notice and the petition under the Minimum Wages Act have been

annexed along-with as Annexure P-3 and Annexure P-5. A reference is also pending before this

Court being reference no. 65 of 2016, regarding the grievances so raised by the workers through the

union. The said demands, including the illegal termiantions are stated to be pending for

adjudication before this Court.

It is further the case of the union that during the pendency of the reference the

respondents initiated disciplinary proceedings against the workers namely Manmohan, Aslam

Mohd., Balraj, Hari Saran, Vishwanath Pratap Singh, Anchal Goswami, Vinod Kumar, Rohit

Kumar (in application no. 12 of 2021) and Virender Kumar, Atul Mishra, Ajay Kumar, Uday

Chauhan and Shamsh Deen (in application no. 3 of 2021). Show cause notices were issued to the

workers. They had filed detailed replies thereto. After receiving the replies the workers had been

called to the office of the respondent at Dharampur, where the workers have been pressurized to put

their signatures on the papers and thereupon their services were terminated without following any

procedure and without giving any opportunity of being heard. The copies of the show cause

notices, replies and termination letters have been annexed along-with as Annexure P-7 to Annexure

P-24 and Annexure P-6 to Annexure P-24 in both the applications, respectively.

It is thus the grouse of the petitioner union that the termination of the said workmen

during the pendency of the reference and the petitions filed by them under the Minimum Wages

Act, is illegal, arbitrary and against the mandatory provisions of section 33 of the Act. The

respondents have failed to comply with the provisions of section 33, merely to victimize the

workers and to frustrate their right involved under the Minimum Wages Act. The dismissal orders

are in clear cut violation of section 33 of the Act and as such the same deserves to be quashed and

set aside.

It is further the case of the union that no application for approval has been filed by the

respondent before this Court neither one month’s wages has been paid by the respondent to the

workmen, which is a mandatory requirement of law as per section 33-2(b). The action is thus stated

to be totally illegal and it is prayed that the dismissal being not valid in the eyes of law be quashed

and set aside. It is further prayed that the dismissal orders passed against Shri Virender Kumar Atul

Mishra, Ajay Kumar, Uday Chauhan and Shamsh Deen (in Application No. 3 of 2021) and

workmen namely Manmohan, Aslam Mohd., Balraj, Hari Saran, Vishwanath Pratap Singh, Anchal

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Goswami, Vinod Kumar, Rohit Kumar (in Application No. 12 of 2021) may be set aside and

quashed and they may be allowed to work as per their respective designations and at the respective

places where they were working along-with the all consequential benefits including back-wages.

The petitioners also claims an amount of ` 50,000/- as litigation costs and damages to the tune of `

two lakhs.

The respondent while contesting the applications have filed replies which are pari-

materia. The respondents have raised preliminary objections that on 8.12.2020, the General

Secretary of the union had instigated the employees of the 108 National Ambulance Sewa and 102

Janani Express not to follow and share the Patient Care record details (PCR) in real time and even

not to follow the closing of the EM case after handing over the patient to the medial/health

institution. This resulted in a strike/protest and all the terminated workers had not been informing

the respondent about the various details captured/related to the emergency case handled in real

time. The copies of the Whattsapp. messages circulated in this behalf have been annexed as

Annexure R-2 and Annexure R-3.

10. It is further the contention of the respondent that due to the aforesaid acts of the

workers, the emergency Ambulance Service started getting affected and it had become difficult for

the respondent to know whether the patient had been picked up in time from the incident location

or not. It had also become difficult for the respondent to comprehend as to whether the Ambulance

was free to handle the next patient. The act of the petitioners in not sharing the patient care record

was intentional and a deliberate attempt to disturb the operation, create confusion and slow down

the work during Covid time.

11. It is also urged by the respondent that the employees had violated the orders of the

Hon’ble High Court passed n CWPIL 135/2017 dated 8.1.2020, whereby the employees have been

directed not to indulge in protest/strike etc. the copy of the said order is annexed along-with as

Annexure R-4. It is also contended that the employees have been paid the enhanced salary of

`15,000/- per month and the Hon’ble High Court had expressed its satisfaction on this score, while

passing the order dated 13.11.2020 in CWPIL no. 10010 of 2020, as is clear from the copy of the

order annexed alongwith as Annexure R-5.

12. It is also the contention of the respondent that the employees had been restrained to go

on strike by the Hon’ble High Court in CWPIL No. 11 of 2020 and as such the employees could be

prosecuted under the Contempt of Court Act as is clear from Annexure R-6 attached along-with. As

a sequel to the aforesaid order the Mission Director, NHM had also sent a letter to the respondent in

this behalf vide Annexure R-7. When the workmen resorted to such tactics, the Mission Director

had been informed vide E-mails dated 17.12.2020 and 23.12.2020, that the employees had gone on

strike as is clear from Annexure R-8 annexed along-with.

13. It is further the case of the respondent that they had issued multiple circulars to all its

employees through Whattsapp/text messages to update the PCR on real time basis, as their acts

were endangering the lives of the people in need of emergency service and their acts were also

contemptuous of the orders passed by the Hon’ble High Court. The circulars are attached along-

with as Annexure R-9. The copy of the status report dated 4.1.2021 (Annexure R-10) also apprises

about the various issues being faced by the respondent due to the strike/protest of the employees. It

is thus the case of the respondent that for all the aforesaid reasons the employees were terminated

by the respondent.

14. It is further the case of the respondent that the present applications are not maintainable

as there were no pending dispute in reference no. 65/2016 pertaining to the present applicants and

as such the applications are not maintainable. It is further the contention of the respondent that the

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provisions of section 33-A of the Act are not applicable as the dispute raised in reference no.

65/2016, pertains to the employees of the contractor i.e M/s Addecco Flexions Workforce

Solutions. The petitioners have not come to this Court with clean hands and have suppressed the

material facts from this Court. More particularly as the union itself has circulated messages not to

provide PCR details and to go on strike.

15. On merits, it is admitted that the State of Himachal Pradesh had entered into MOU

with the respondent and they had agreed to abide by all laws applicable in the state, and the same

are being followed by the respondent. It is however, denied that they had earlier terminated the

services of workers and that the demands raised by the union as per reference no. 65/2016 pertained

to the respondent. Per the respondent the services of the workmen had been terminated by the

contractor i.e M/s Addecco Flexions Workforce Solutions during the period 2012-13 and the

respondent thus have no connection to the said reference.

16. It is denied that the respondent had terminated the services of the workers because of

some ulterior motive or to victimize them. Per the respondent, on the contrary the workers had been

issued advisory notes and show cause notices as they were not closing the EM cases, which was an

integral part of their daily functioning and extremely important part of the emergency medical

services. They not only failed to provide the PCR detail on real time basis but also instigated other

workers to resort to a strike/protest. The workers not only voilated the orders of the Hon’ble High

Court in CWPIL no. 135/2017 and CWPIL no. 11 of 2020 but also went on strike/protest which

amounted to major misconduct and insubordination. Consequently, show cause notices were issued

to them. The replies having not been found satisfactory a disciplinary enquiry was conducted,

whereby complete opportunity of being heard was afforded to the workmen.

17. It is further the case of the respondent that the terminated workers in the disciplinary

enquiry had admitted the fact that they were not closing the EM cases with 108 ERC (updating the

patient care record on real time basis) and they had tendered an apology for the same. The copy of

their admission letters have been annexed along-with as Annexure R-3 and Annexure R-14,

respectively. It is only after hearing the workmen that their services had been terminated by the

respondent.

18. It is further the case of the respondent hat as per orders passed in CWPIL No. 11 of

2020 dated 3.12.2020 the Hon’ble High Court had already directed to terminate the services of

those employees who go on strike during Covid-19 pandemic. It is further their case that section 33

of the Act is not applicable as the terminated workers do not have any concern with the pending

dispute under reference no. 65/2016.

19. It is further the case of the respondent that these workers had indulged in slowing

down the operation and were not complying with the laid down protocols and processes of the

Emergency Ambulance Sewa and as such were guilty of misconduct, of disobedience in

discharging their day to day duties. They have rather admitted their misconduct, hence, the action

of the respondent cannot be faulted at any score. It is thus prayed that the applications be dismissed.

20. While filing rejoinders to the replies (in both the applications) filed by respondent, the

applicants controverted the averments in the replies filed by respondent and further reiterated those

in the petition.

21. I have heard the learned counsel for the parties and gone through the records of the

case carefully.

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22. At the very outset it would be relevant to point out here that the case does not pertain

to the power and competence of the respondent to initiate disciplinary proceedings and that the due

procedure as envisaged under law, had not been followed. It is not that the enquiry proceedings are

under challenge or approval has been sought to terminate the workmen on the basis of the

disciplinary proceedings.

23. The only question which is required to be answered is whether the respondent could

have changed the service conditions of the workmen, more particularly, discharge or punish them,

whether by dismissal or otherwise, without seeking the approval of this Court, more particularly in

view of the provisions envisaged in section 33 of the Act. It would thus not be proper to go into the

legality of the disciplinary proceedings, perse.

24. In short, it is the case of the petitioner union that the respondent did not follow the

provisions of section 33-2(b) of the Act, while terminating the services of the workmen. Neither

have the respondent paid one month’s salary nor they have filed an application seeking the

approval of this Court, more particularly, keeping in view the pendency of the reference no.

65/2016 before this Court. The provisions of section 33 being mandatory the action of the

respondent is void and illegal.

25. Per contra, it is the case of the respondent that not only have the terminated workmen

been closing the EM cases with 108 PCR (updating the patient care record on real time basis) but

have also been intentionally slowing down the emergency services and literally resulting in a

strike/protest. Having admitted such acts of insubordination, there was no other option with the

respondent but to terminate the services of the said workmen. More particularly, because the

Hon’ble High Court in CWPIL no. 135 of 2017 and CWPIL no. 11 of 2020 had directed the

employees not to resort to protest/strikes and had also directed that the services of those employees

who go on strike during Covid-19 pandemic can be terminated. As per the respondent the

provisions of section 33 of the Act are not applicable as the terminated workers do not have any

concern with the reference no. 65/2016, pending before this Court.

26. However, admittedly the respondent has neither paid any wages for one month to any

of the workmen so terminated, nor any approval has been sought from this Court as per section 33-

2(b) of the Act.

27. It would now be apposite to note that the reference no. 65/2016 has been initiated by

the 108 HP Contract Workers Union as is clear from Annexure P-4 on record. The demands therein

relates to a few terminated employees and to the general working conditions of the workers and the

facilities to be made available to them. It also demands that all the employees of the respondent be

registered with the Labour Department and all of them be covered under EPF and ESI schemes.

They also sought wages at par with the other Government Employees and one holiday in each

week. It is thus apparent that the demands were raised on behalf of all the workmen. The espousal

of the cause in the present applications and the reference is by the Union and admittedly pertains to

all the workers working with the respondent and registered with the union.

28. Though the respondent has tried to portray that the workers in Reference no. 65/2016

were the employees of the contractor i.e M/s Addecco Flexion Workforce Solution, but, there is

nothing on record to prove so. Annexure P/5, the copy of the reference sent by the Appropriate

Government, also does not in any way substantiate the contention of the respondent.

29. Reading of section 33 (2) would be relevant at this stage. It reads thus:

Section 33 in The Industrial Disputes Act, 1947

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33. Conditions of service, etc., to remain unchanged under certain circumstances during

pendency of proceedings.-

(1) ………………………

(2) During the pendency of any such proceeding in respect of an industrial dispute, the

employer may, in accordance with the standing orders applicable to a workman

concerned in such dispute or, where there are no such standing orders, in accordance

with the terms of the contract, whether express or implied, between him and the

workman],--

(a) alter, in regard to any matter not connected with the dispute, the conditions of

service applicable to that workman immediately before the commencement of

such proceeding; or

(b) for any misconduct not connected with the dispute, or discharge or punish,

whether by dismissal or otherwise, that workman: Provided that no such workman

shall be discharged or dismissed, unless he has been paid wages for one month

and an application has been made by the employer to the authority before which

the proceeding is pending for approval of the action taken by the employer.

(3) …………………….

30. The bare reading of section 33 shows that it contemplates both the situations i.e change

of service conditions in regard to any matter connected with the dispute and even a change with

regard to any matter not connected with the dispute. Section 33-1 (a) deals with the situation

whether the change of condition are in regard to any matter connected with the dispute while clause

2-(a&b) specifically deals with the misconduct not connected with the dispute. The rigors are

slightly less where the matter is not connected with the dispute. In the former case express

permission in writing is required while in the later, approval has to be sought from the competent

authority and one month’s wages have to be paid to the workman. It is not that the employers

cannot discharge, punish or dismiss the employees for any misconduct even not connected with the

dispute, but in those circumstances, prior approval of the authority so envisaged under the section

has to be sought and wages for one month’s has to be paid to the workman.

31. It is now by fairly well settled that the provisions of section 33 are mandatory in

nature. In this behalf support can ably be drawn from the judgment of the Hon’ble Supreme Court

titled as Jaipur Zila Sehkari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and others

(2002) 2 SCC 244 and a recent judgment of our own Hon’ble High Court titled as Pritpal Vs.

M/s Federal Mogal Bearing India Ltd. CWP No. 3441 of 2012 decided on 12.10.2018. Our own

Hon’ble High Court has rather gone further to hold that section 33 does not envisage a situation

where the management can first terminate the services of an employee and thereafter seeking

ratification of such order. The import of the statutory provisions is that before such action is

actually taken by the management, permission in this regard has to be obtained from the

competent/concerned authority.

32. In the case in hand, admittedly, the respondent management had not taken resort to the

provisions of section 33-2(b) of the Act, and since the provisions are mandatory in nature, the act of

the respondent in not complying with the said provision renders the action, so taken by them void

and illegal in the eyes of law.

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33. No doubt, the learned counsel for the respondent has very strenuously urged that the

action is not based on malafide, but it was in administrative exigency, and further a proper enquiry

had been conducted against the workmen and that too for gross misconduct. The workers had been

not only slowing down the emergency service but were also failing to update the patient care record

on real time basis. They were failing to inform the respondent about the various details related to

the EM cases handled by them in real time. The action of the respondent literally tantamounted to

striking work. Since, the Hon’ble High Court had restrained them from going on strike/protest, the

action of the workmen not only is contemptuous but amounted to misconduct. They were charge

sheeted for their misconduct and a proper enquiry was initiated against them and since the

workmen admitted their lapses, their services were terminated.

34. Without going into the merits of the contentions, more particularly, the legality or

otherwise of the disciplinary proceedings, suffice it to say that neither the respondent approached

the Hon’ble High Court that the workmen had resorted to a strike/protest and as such violated the

directions made in CWPIL No. 11 of 2020, neither did they seek the approval of this Court for

terminating their services. No doubt, the respondent had all the liberty to initiate the disciplinary

proceedings but nothing stopped them from either approaching this Court for seeking approval or

directly approaching the Hon’ble High Court for the contempt allegedly committed by the said

workmen. Since, the provisions of section 33-2(b) of the Act are mandatory in nature the

respondent were necessarily required to file an application, for seeking the approval. It would rather

have given a semblance of legality to their action. But for reasons best known to them, the

respondent failed to do so.

35. It is not a case that the disciplinary proceedings are hit by the vice of arbitrariness and

is wrong and illegal, as such the merits of the enquiry have not been touched. It is only that the

respondent has failed to abide by the provisions of section 33-2(b), which are otherwise mandatory

in nature. Having conducted the disciplinary proceedings the respondent had merely to file an

application, for seeking approval of their action. At best it could have delayed the termination

orders by a few days, but the respondent chose not to file the application at all. It militates against

the mandatory provisions of section 33-2(b) and cannot be sustained. The respondent no doubt

could terminate the petitioners, but as per law i.e by following the procedure enumerated in section

33-2(b) of the Act.

36. Having failed to abide by the mandatory provisions so envisaged under section 33-2(b)

of the Act, it has to be held that the action of the respondent is voilative of the same and liable to be

quashed and set aside. It is ordered accordingly.

37. As a sequel, the termination of the workmen namely Virender Kumar Atul Mishra,

Ajay Kumar, Uday Chauhan and Shamsh Deen (in Application no. 3 of 2021) and workmen

namely Manmohan, Aslam Mohd., Balraj, Hari Saran, Vishwanath Pratap Singh, Anchal Goswami,

Vinod Kumar, Rohit Kumar (in Application no. 12 of 2021) from their respective dates of

termination are quashed and set aside. They are ordered to be reinstated forthwith. They shall be

entitled to seniority and continuity from the dates of their respective termination. Seeing to the

nature allegations made against the workmen, more so, as it pertains to maintaining the emergency

services, it is directed that the petitioners shall only be entitled to back-wages @ 50% of their

salary. The said amount shall be payable from the date of their respective terminations till their re-

instatement. It is however directed that no workmen shall resort to any strike or contravenes any

orders passed by the Hon’ble High Court or even try to slow down the services in any manner.

Both the applications are disposed off in the aforesaid terms. There shall be no orders as to costs.

Let a copy of this award be sent to the appropriate government for publication in the official

gazette. File, after completion, be consigned to records.

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Announced in the open Court today

On this 31st day of March 2021.

Sd/-

(CHIRAG BHANU SINGH),

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

____________

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vifjofrZr jgsxhA

12 ;fn foHkkxh; izksUufr lfefr@foHkkxh; LFkk;hdj.k lfefr fo|eku gks]rks mldh lajpuk-

&&tSlh ljdkj }kjk le;≤ ij xfBr dh tk,A

13- HkrhZ djus esa ftu ifjfLFkfr;ksa esa fgekpy izns”k yksd lsok vk;ksx ls ijke”kZ fd;k

tk,xk-&&tSlk fof/k }kjk visf{kr gksA

14- lh/kh HkrhZ fd, tkus ds fy, vfuok;Z vis{kk-&&Ykkxw ugh

15- lh/kh HkrhZ }kjk in ij fu;qfDr ds fy, p;u-&& ykxw ugh

16- vkj{k.k-&&lsok esa fu;qfDr] fgekpy izns”k ljdkj }kjk le;≤ ij vuqlwfpr tkfr;ksa@

vuqlwfpr tutkfr;ksa@vU; fiNMs+ oxksZ vkSj O;fDr;ksa ds vU; izoxks± ds fy, lsok esa vkj{k.k dh ckcr

tkjh fd, x, vkns”kksa ds v/;/khu gksxhA

17- foHkkxh; ijh{kk-&&ykxw ughA

18 f”kfFky djus dh “kfDr-&&tgka jkT; ljdkj dh ;g jk; gks fd ,slk djuk vko”;d ;k

lehphu gS] ogka og] dkj.kksa dks fyf[kr esa vfHkfyf[kr djds vkSj fgekpy izns”k yksd lsok vk;ksx ds

ijke”kZ ls] vkns”k }kjk] bu fu;eksa ds fdlh micU/k ¼micU/kksa½ dks fdlh oxZ ;k O;fDr ¼O;fDr;ksa½ ds izoxZ

;k in ¼inksa½ dh ckcr] f”kfFky dj ldsxhA

&&&&&&&&&&

[Authoritative English text of this Department Notification No. Per (SAS-I) A(3)-4/2019, dated

6th May, 2021 as required under Clause (3) of article 348 of the Constitution of India].

PERSONNEL DEPARTMENT

SECRETARIAT ADMINISTRATION SERVICES-I

NOTIFICATION

Shimla-171002, the 6th May, 2021

No.Per (SAS-I) A (3)-4/2019.—In exercise of the powers conferred by proviso to

Article 309 of the Constitution of India, the Governor of Himachal Pradesh, is pleased to make the

Recruitment and Promotion Rules for the post of Security Guard, Class-III (Non-Gazetted) in the

Department of Personnel (Secretariat Administration Services), Himachal Pradesh, as per

Annexure-“A” attached with this notification, namely:—

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Short title and Commencement.—(1) These rules may be called the Himachal

Pradesh, Department of Personnel (Secretariat Administration Services) Security Guard, Class-III

(Non Gazetted) Recruitment and Promotion Rules, 2021.

(2) These rules shall come into force from the date of publication in the Rajpatra (e-

Gazette), Himachal Pradesh.

Repeal & Savings.—(1) The Himachal Pradesh, Department of Personnel (Secretariat

Administration Services) Security Guard, Class-III (Non Gazetted) Recruitment and Promotion

Rules-1996 notified vide notification No.Per (SAS)-A-A(3)-2/95 dated 19th June, 1996, are hereby

repealed.

(2) Notwithstanding such repeal, any appointment made or anything done or any action

taken under the rules, so repealed under sub rule 2(1) supra, shall be deemed to have been validly

made, done or taken under these rules.

By order,

ONKAR CHAND SHARMA,

Pr. Secretary (SA).

___________

ANNEXURE-‘A’

RECRUITMENT AND PROMOTION RULES FOR THE POST OF SECURITY GUARD,

CLASS-III (NON-GAZETTED) IN THE DEPARTMENT OF PERSONNEL

(SECRETARIAT ADMINISTRATION SERVICES), IN THE

HIMACHAL PRADESH SECRETARIAT

Name of post.— Security Guard

Number of post(s).—15 (Fifteen)

Classification.—Class-III (Non-Gazetted), Non-Technical Services

Scale of Pay.—Pay Band Rs.5910-20200+ Rs.2400 Grade Pay

Whether “Selection” post or “Non-Selection” post.—Non-Selection

Age for direct recruitment.—Not applicable

Minimum Educational and other qualifications required for direct recruit(s).—

Not applicable.

Whether age and educational qualification(s) prescribed for direct recruit(s) will

apply in the case of the promotee(s).—(a) Age:—Not applicable.

(b) Educational qualification:—Not applicable

Period of probation, if any.—Two years subject to such further extension for a period

not exceeding one year as may be ordered by the competent authority in special circumstances and

reasons to be recorded in writing.

2116

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10. Method(s) of recruitment, whether by direct recruitment or by promotion/

secondment/ transfer and the percentage of post(s) to be filled in by various methods.—100%

by promotion.

11. In case of recruitment by promotion/ secondment/ transfer, grade(s) from which

promotion/secondment/transfer is to be made.— By promotion from amongst the Jamadars who

possess two years regular service or regular combined with continuous adhoc service, if any, in the

grade.

(I) In all cases of promotion, the continuous adhoc service rendered in the feeder post if

any, prior to regular appointment to the post shall be taken into account towards the length of

service as prescribed in these rules for promotion subject to the conditions that the adhoc

appointment/promotion in the feeder category had been made after following proper acceptable

process of selection in accordance with the provisions of R & P Rules.

Provided that in all cases where a junior person becomes eligible for consideration by virtue

of his total length of service (including the service rendered on adhoc basis followed by regular

service/appointment) in the feeder post in view of the provisions referred to above, all persons

senior to him in the respective category/post/cadre shall be deemed to be eligible for consideration

and placed above the junior person in the field of consideration:

Provided that all incumbents to be considered for promotion shall possess the minimum

qualifying service of at least three years or that prescribed in the Recruitment & Promotion Rules

for the post, whichever is less:

Provided further that where a person becomes ineligible to be considered for promotion on

account of the requirements of the preceding proviso, the person(s) junior to him shall also be

deemed to be ineligible for consideration for such promotion.

EXPLANATION.—The last proviso shall not render the junior incumbents ineligible for

consideration for promotion if the senior ineligible persons happened to be Ex-Servicemen who

have joined armed forces during the period of emergency and recruited under the provisions of

Rule-3 of Demobilized Armed Forces Personnel (Reservation of vacancies in Himachal State Non-

Technical Service) Rules, 1972 and having been given the benefit of seniority there under or

recruited under the provision of Rule-3 of Ex-Servicemen (Reservation of vacancies in the

Himachal Pradesh Technical Service) Rules, 1985 and having been given the benefit of seniority

there under.

(II)

Similarly, in all cases of confirmation, continuous adhoc service rendered on the feeder

post if any, prior to the regular appointment against such post shall be taken into account towards

the length of service, if the adhoc appointment/promotions had been made after proper selection

and in accordance with the provision of the Recruitment & Promotion Rules:

Provided that inter-se-seniority as a result of confirmation after taking into account, adhoc

service rendered shall remain unchanged.

12.

If a Departmental Promotion Committee/Departmental Confirmation Committee

exists, what is its composition ?.—As may be constituted by the Govt. from time to time.

13. Circumstances under which the Himachal Pradesh Public Service Commission

(HPPSC) is to be consulted in making recruitment.—As required under the law.

14. Essential requirement for a direct recruitment.—Not applicable.

2117

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15. Selection for appointment to the post by direct recruitment.—Not applicable.

16. Reservation.—The appointment to the service shall be subject to orders regarding

reservation in the service for Scheduled Castes/Scheduled Tribes/Other Backward Classes/other

categories of persons issued by the Himachal Pradesh Government from time to time.

17.

Departmental Examination.—Not applicable.

18.

Power to Relax.—Where the Government is of the opinion that it is necessary or

expedient to do so, it may, by order for reasons to be recorded in writing and in consultation with

the Himachal Pradesh Public Service Commission relax any of the provision(s) of these rules with

respect to any class or category of person(s) or post(s).

_____________

In the Court of Sh. Jagan Thakur, Marriage Officer-cum-Sub-Divisional

Magistrate Dalhousie, Tehsil Dalhousie, District Chamba (H.P.)

In the matter of :

Shri Ajay Kumar s/o Shri Darshan Kumar, r/o Village Bharera, P.O. Bailly, Tehsil

Dalhousie, District Chamba (H.P.) age 27 years.

Smt. Pooja Devi d/o Shri Kikker Singh, r/o Ward No. 02, V.P.O. Kot Palahari, Tehsil

Nurpur, Distt. Kangra (H.P.) age 28 years

. . Applicants.

Versus

General Public

Subject.—Application for the registration of Marriage under section 16 of the Special Marriage

Act, 1954.

Shri Ajay Kumar and Smt. Pooja Devi have filed an application alongwith an affidavit in

the court of undersigned under section 16 of the Special Marriage Act, 1954 stating that they have

solemnized their marriage on 30-04-2011 and that they have been living together as husband and

wife since then. Hence their marriage may be registered under Special Marriage Act, 1954.

Therefore, the general public is hereby informed through this notice that any person who

has any objection regarding the registration of this marriage can file an objection personally or in

writing before this court on or before 28-07-2021. After that no objection will be entertained and

marriage will be registered.

Seal.

JAGAN THAKUR,

Marriage Officer-cum-Sub-Divisional Magistrate,

Dalhousie, District Chamba (H.P.).

2118

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In the Court of Sh. Jagan Thakur, Marriage Officer-cum-Sub-Divisional

Magistrate Dalhousie, Tehsil Dalhousie, District Chamba (H.P.)

In the matter of :

Shri Suraj Parkash s/o Shri Des Raj, r/o Village Karad, P.O. Bagdhar, Tehsil

Dalhousie, District Chamba (H.P.) age 24 years.

Smt. Reeva d/o Shri Budhi Chand, r/o Village Surajpur, P.O. Dhalira, Tehsil Dehra,

Distt. Kangra (H.P.) age 21 years

. . Applicants.

Versus

General Public

Subject.—Application for the registration of Marriage under section 16 of the Special Marriage

Act, 1954.

Shri Suraj Parkash and Smt. Reeva have filed an application alongwith an affidavit in the

court of undersigned under section 16 of the Special Marriage Act, 1954 stating that they have

solemnized their marriage on 30-05-2011 and that they have been living together as husband and

wife since then. Hence their marriage may be registered under Special Marriage Act, 1954.

Therefore, the general public is hereby informed through this notice that any person who

has any objection regarding the registration of this marriage can file an objection personally or in

writing before this court on or before 28-07-2021. After that no objection will be entertained and

marriage will be registered.

Seal.

JAGAN THAKUR,

Marriage Officer-cum-Sub-Divisional Magistrate,

Dalhousie, District Chamba (H.P.).

____________

In the Court of Sh. Jagan Thakur, Marriage Officer-cum-Sub-Divisional

Magistrate Dalhousie, Tehsil Dalhousie, District Chamba (H.P.)

In the matter of :

Shri Mahinder Singh s/o Shri Des Raj, r/o Village Dramanu, P.O. Goli, Tehsil

Dalhousie, District Chamba (H.P.) age 27 years.

Smt. Aakasni d/o Shri Tilak Raj, r/o Village Dhanei, P.O. Saru, Tehsil Chamba, Distt.

Chamba (H.P.) age 19 years

. . Applicants.

Versus

General Public

Subject.—Application for the registration of Marriage under section 16 of the Special Marriage

Act, 1954.

2119

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Shri Mahinder Singh and Smt. Aakasni have filed an application alongwith an affidavit in

the court of undersigned under section 16 of the Special Marriage Act, 1954 stating that they have

solemnized their marriage on 30-05-2011 and that they have been living together as husband and

wife since then. Hence their marriage may be registered under Special Marriage Act, 1954.

Therefore, the general public is hereby informed through this notice that any person who

has any objection regarding the registration of this marriage can file an objection personally or in

writing before this court on or before 28-07-2021. After that no objection will be entertained and

marriage will be registered.

Seal.

JAGAN THAKUR,

Marriage Officer-cum-Sub-Divisional Magistrate,

Dalhousie, District Chamba (H.P.).

____________

In the Court of Sh. Jagan Thakur, Marriage Officer-cum-Sub-Divisional

Magistrate Dalhousie, Tehsil Dalhousie, District Chamba (H.P.)

In the matter of :

Shri Rahul s/o Shri Nand Lal, r/o Village Pukhri Kotha, P.O. Bathri, Tehsil Dalhousie,

District Chamba (H.P.) age 26 years.

Smt. Bindu Devi d/o Shri Kunj Lal, r/o Village & P.O. Belera, Tehsil Dhalhousie,

Distt. Chamba (H.P.) age 24 years

. . Applicants.

Versus

General Public

Subject.— Application for the registration of Marriage under section 16 of the Special Marriage

Act, 1954.

Shri Rahul and Smt. Bindu Devi have filed an application alongwith an affidavit in the court

of undersigned under section 16 of the Special Marriage Act, 1954 stating that they have

solemnized their marriage on 07-05-2021 and that they have been living together as husband and

wife since then. Hence their marriage may be registered under Special Marriage Act, 1954.

Therefore, the general public is hereby informed through this notice that any person who

has any objection regarding the registration of this marriage can file an objection personally or in

writing before this court on or before 28-07-2021. After that no objection will be entertained and

marriage will be registered.

Seal.

JAGAN THAKUR,

Marriage Officer-cum-Sub-Divisional Magistrate,

Dalhousie, District Chamba (H.P.).

2120

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In the Court of Sh. Jagan Thakur, Marriage Officer-cum-Sub-Divisional

Magistrate Dalhousie, Tehsil Dalhousie, District Chamba (H.P.)

In the matter of :

Shri Shamsher Singh s/o Shri Sahbo Ram, r/o Village Pukhri, P.O. Banikhat, Tehsil

Dalhousie, District Chamba (H.P.) age 32 years.

Smt. Maneesha Devi d/o Shri Karam Singh, r/o Village Dramnu, P.O. Goli, Tehsil

Dhalhousie, Distt. Chamba (H.P.) age 26 years

. . Applicants.

Versus

General Public

Subject.—Application for the registration of Marriage under section 16 of the Special Marriage

Act, 1954.

Shri Shamsher Singh and Smt. Maneesha Devi have filed an application alongwith an

affidavit in the court of undersigned under section 16 of the Special Marriage Act, 1954 stating that

they have solemnized their marriage on 21-04-2021 and that they have been living together as

husband and wife since then. Hence their marriage may be registered under Special Marriage Act,

1954.

Therefore, the general public is hereby informed through this notice that any person who

has any objection regarding the registration of this marriage can file an objection personally or in

writing before this court on or before 28-07-2021. After that no objection will be entertained and

marriage will be registered.

Seal.

JAGAN THAKUR,

Marriage Officer-cum-Sub-Divisional Magistrate,

Dalhousie, District Chamba (H.P.).

____________

In the Court of Sh. Jagan Thakur, Marriage Officer-cum-Sub-Divisional

Magistrate Dalhousie, Tehsil Dalhousie, District Chamba (H.P.)

In the matter of :

Shri Amit Kumar s/o Ajit Kumar, r/o Village Baloon bazar, Dalhousie, Tehsil

Dalhousie, District Chamba (H.P.) age 26 years.

Smt. Nisha d/o Shri Parmesh, r/o Mohalla Pacca Tala, Chamba, P.O. Chamba, Tehsil

Chamba, Distt. Chamba (H.P.) age 24 years

. . Applicants.

Versus

General Public

Subject.—Application for the registration of Marriage under section 16 of the Special Marriage

Act, 1954.

2121

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Shri Amit Kumar and Smt. Nisha have filed an application alongwith an affidavit in the

court of undersigned under section 16 of the Special Marriage Act, 1954 stating that they have

solemnized their marriage on 15-03-2017 and that they have been living together as husband and

wife since then. Hence their marriage may be registered under Special Marriage Act, 1954.

Therefore, the general public is hereby informed through this notice that any person who

has any objection regarding the registration of this marriage can file an objection personally or in

writing before this court on or before 28-08-2021. After that no objection will be entertained and

marriage will be registered.

Seal.

JAGAN THAKUR,

Marriage Officer-cum-Sub-Divisional Magistrate,

Dalhousie, District Chamba (H.P.).

____________

In the Court of Sh. Jagan Thakur, Marriage Officer-cum-Sub-Divisional

Magistrate Dalhousie, Tehsil Dalhousie, District Chamba (H.P.)

In the matter of :

Shri Singh Sahib s/o Sh. Parmjeet Singh, r/o 91, ABC Sadar bazar, Dalhousie, Tehsil

Dalhousie, District Chamba (H.P.) age 29 years.

Smt. Mehak Verma d/o Shri Subesh Chand, r/o Kallar, Near BDO Office, Udhampur,

Distt. (J&K) age 26 years

. . Applicants.

Versus

General Public

Subject.—Application for the registration of Marriage under section 16 of the Special Marriage

Act, 1954.

Shri Singh Sahib and Smt. Mehak verma have filed an application alongwith an affidavit in

the court of undersigned under section 16 of the Special Marriage Act, 1954 stating that they have

solemnized their marriage on 23-07-2021 and that they have been living together as husband and

wife since then. Hence their marriage may be registered under Special Marriage Act, 1954.

Therefore, the general public is hereby informed through this notice that any person who

has any objection regarding the registration of this marriage can file an objection personally or in

writing before this court on or before 17-08-2021. After that no objection will be entertained and

marriage will be registered.

Seal.

JAGAN THAKUR,

Marriage Officer-cum-Sub-Divisional Magistrate,

Dalhousie, District Chamba (H.P.).

2122

jkti=] fgekpy izns'k] 26 tqykbZ] 2021@4 Jko.k] 1943

c vnkyr Jh ukud jke usxh dk;Zdkjh n.Mkf/kdkjh ¼uk;c rglhynkj½] mi&rglhy Vkijh]

ftyk fdUukSj ¼fg0 iz0½

eqdíek ua0 16@2011

rkjh[k % 29&07&2021

Jh iyl jke] fuoklh pxkao] rglhy Vkijh] ftyk fdUukSj ¼fg0 iz0½

cuke

vke turk

fo"k;-&&izkFkZuk&i= cjk, uke nq#LrhA

Jh iyl jke] fuoklh xkao pxkao] rglhy Vkijh] ftyk fdUukSj ¼fg0 iz0½ us bl vnkyr esa ,d

izkFkZuk&i= is'k fd;k gS fd mldk iVokj o`Ùk pxkao ds jktLo vfHkys[k esa ijl jke uke ntZ gS tks fd

xyr gS tcfd mldk uke iapk;r vfHkys[k o vU; nLrkostksa esa iyl jke ntZ gSA ftldh iqf"V gsrq

izkFkhZ us udy ifjokj jftLVj o 'kiFk&i= izLrqr fd;k gS] izkFkhZ us jktLo fjdkMZ esa viuk uke iyl

jke ntZ djus gsrq vuqjks/k fd;k gSA

vr% loZlk/kkj.k dks bl bl b'rgkj ds ek/;e ls lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr dks

iVokj o`Ùk pxkao ds jktLo fjdkMZ esa ijl jke dk uke nq#Lr dj iyl jke fd, tkus esa fdlh dks

dksbZ mtj o ,rjkt gks rks og ,d ekg ds Hkhrj o rkjh[k is'kh 29 tqykbZ] 2021 dks o blls iwoZ viuk

mtj vnkyr esa is'k djsA vU;Fkk fu;ekuqlkj dk;Zokgh dh tk,xhA

vkt fnukad 29 twu] 2021 dks esjs gLrk{kj o eksgj lfgr vnkyr ls tkjh gqvkA

eksgjA

gLrk{kfjr@&

dk;Zdkjh n.Mkf/kdkjh ¼uk;c rglhynkj½]

mi&rglhy Vkijh] ftyk fdUukSj ¼fg0 iz0½A

&&&&&&&

c vnkyr lgk;d lekgrkZ f}rh; Js.kh /kkeh] mi&rglhy /kkeh] ftyk f'keyk ¼fg0 iz0½

eqdíek la[;k % 08@2021

rkjh[k et#vk % 21&06&2021

rkjh[k is'kh % 17&07&2021

Jh nqyh pUn iq= Jh jke lju] fuoklh xkao itSy teksxh] Mkd?kj vks[k:] mi&rglhy /kkeh]

ftyk f'keyk ¼fg0iz0½A

jktLo vfHkys[k esa uke nq#Lrh ckjs izkFkZuk&i=A

bl eqdíesa dk laf{kIr lkj ;g gS fd mijksDr izkFkhZ Jh nqyh pUn iq= Jh jke lju] fuoklh xkao

itSy teksxh] Mkd?kj vks[k:] mi&rglhy /kkeh] ftyk f'keyk ¼fg0iz0½ us izkFkZuk&i= bl vk'k; ds

lkFk bl vnkyr esa izLrqr fd;k gS fd Hkw&jktLo vfHkys[k ekStk iatSy teksxh esa izkFkhZ dk uke nquh pUn

iq= Jh jke lju gS tks fd xyr ntZ gS tcfd izkFkhZ }kjk fn;s x;s nLrkost Hkkjr fuokZpu vk;ksx

igpku&i=] 'kS{kf.kd izek.k&i=] ifjokj udy jftLVj] vk/kkj dkMZ] 'kiFk&i= o C;kukr okf'kUnxku

nsg ds vuqlkj izkFkhZ dk uke nqyh pUn iq= Jh jke lju gS tks fd lgh gSA

2123

jkti=] fgekpy izns'k] 26 tqykbZ] 2021@4 Jko.k] 1943

vr% b'rgkj }kjk lwfpr fd;k tkrk gS fd ;fn fdlh dks Hkh mijksDr eqdíek uke nq#Lrh ckjs

dksbZ Hkh mtj o ,rjkt gks rks Lo;a ;k fyf[kr rkSj ij fnukad 17&08&2021 dks vijkà 2-00 cts gkftj

vnkyr vkdj viuk ,rjkt is'k djsa] vU;Fkk ;g le>k tk;sxk fd fdlh Hkh lEcfU/kr O;fDr dks bl

eqdíek uke nq#Lrh ckjs dksbZ mtj@,rjkt u gS rFkk vkosnu&i= dks vfUre :i fn;k tk;sxk o

,drjQk dk;Zokgh vey esa ykbZ tk,xhA

vkt rkjh[k 17&07&2021 dks esjs gLrk{kj o eksgj lfgr vnkyr ls tkjh fd;k x;kA

eksgjA

gLrk{kfjr@&

lgk;d lekgrkZ f}rh; Js.kh]

mi&rglhy /kkeh] ftyk f'keyk ¼fg0iz0½A

&&&&&&&&&&

c vnkyr lgk;d lekgrkZ f}rh; Js.kh /kkeh] mi&rglhy /kkeh] ftyk f'keyk ¼fg0 iz0½

eqdíek la[;k % 05@2021

rkjh[k et#vk % 13&04&2021

rkjh[k is'kh % 17&07&2021

Jherh crh nsoh iRuh Lo0 Jh fgjnw jke] fuoklh xkao lykS.k] Mkd?kj tkcjh] mi&rglhy /kkeh]

ftyk f'keyk ¼fg0iz0½A

jktLo vfHkys[k esa uke nq#Lrh ckjs izkFkZuk&i=A

bl eqdíesa dk laf{kIr lkj ;g gS fd mijksDr izkfFkZ;k Jherh crh nsoh iRuh Lo0 Jh fgjnw jke]

fuoklh xkao lykS.k] Mkd?kj tkcjh] mi&rglhy /kkeh] ftyk f'keyk ¼fg0iz0½ us izkFkZuk&i= bl vk'k;

ds lkFk bl vnkyr esa izLrqr fd;k gS fd Hkw&jktLo vfHkys[k ekStk lykS.k esa izkfFkZ;k dk uke ikoZrh nsoh

ntZ dkxtkr gS tks fd xyr ntZ gS tcfd ifjokj udy jftLVj] vk/kkj dkMZ] jk'ku dkMZ] 'kiFk&i= o

C;kukr okf'kUnxku nsg ds vuqlkj izkfFkZ;k dk uke orh nsoh iRuh Lo0 fgjnw jke gS tks fd lgh gSA

vr% b'rgkj }kjk lwfpr fd;k tkrk gS fd ;fn fdlh dks Hkh mijksDr eqdíek uke nq#Lrh ckjs

dksbZ Hkh mtj o ,rjkt gks rks Lo;a ;k fyf[kr rkSj ij fnukad 17&08&2021 dks vijkà 2-00 cts gkftj

vnkyr vkdj viuk ,rjkt is'k djsa] vU;Fkk ;g le>k tk;sxk fd fdlh Hkh lEcfU/kr O;fDr dks bl

eqdíek uke nq#Lrh ckjs dksbZ mtj@,rjkt u gS rFkk vkosnu&i= dks vfUre :i fn;k tk;sxk o

,drjQk dk;Zokgh vey esa ykbZ tk,xhA

vkt rkjh[k 17&07&2021 dks esjs gLrk{kj o eksgj lfgr vnkyr ls tkjh fd;k x;kA

eksgjA

gLrk{kfjr@&

lgk;d lekgrkZ f}rh; Js.kh]

mi&rglhy /kkeh] ftyk f'keyk ¼fg0iz0½A

2124

jkti=] fgekpy izns'k] 26 tqykbZ] 2021@4 Jko.k] 1943

fu;U=d] eqnz.k rFkk ys[ku lkexzh] fgekpy izns'k] f'keyk&5 }kjk eqfnzr rFkk izdkf'kr

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