Allahabad High Court
Mukhya Chikitsa Adhishak Lko. vs Smt. Shilpi Srivastava And Anr. on 27 May, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:40234
Court No. - 17
Case :- WRIT - C No. - 8852 of 2021
Petitioner :- Mukhya Chikitsa Adhishak Lko.
Respondent :- Smt. Shilpi Srivastava And Anr.
Counsel for Petitioner :- C.S.C.
Counsel for Respondent :- Shri Prakash Pandey,Kuldeep Pandey,Suresh Chandra Mishra
Hon'ble Manish Mathur,J.
1. Rejoinder affidavit filed today is taken on record.
2. Heard learned State Counsel for the petitioner and Mr. Suresh Chandra Mishra, learned counsel for opposite party no.1. In view of order being passed, notice to opposite party no.2 stands dispensed with.
3. Learned Counsel for opposite party no.1 has raised a preliminary objection that Labour Court being a deemed Civil Court, writ Petition is maintainable only under Article 227 and not Article 226 of Constitution of India.
4. Learned counsel for petitioner in view of objection, prays for and is granted liberty to amend the nomenclature of this petition from under Article 226 to Article 227 of the Constitution of India along with concomitant changes in the prayers. Consequential amendments shall be incorporated during the course of day.
5. Petition has been filed challenging award dated 28.12.2019 passed in P.W. Case No.211 of 2018 under the Payment of Wages Act, 1936 (herein after referred to as the Act of 1936) whereby claim of opposite party no.1 has been allowed. Also under challenge is the judgment and order dated 22.09.2020 passed in Misc. Appeal No.25 of 2020 under Section 15 of the Act of 1936.
6. It has been submitted that opposite party no.1 filed a Claim under aforesaid Act of 1936 to claim wages from June, 2017 till January, 2018. It is submitted that aforesaid claim has been allowed without consideration of the fact that there was no relationship of employer and employee between the parties and that opposite party no.1 in fact had been employed through an outsourcing agency, M/s Avani Paridhi Energy and Communication (Pvt.) Ltd. and therefore the Claimant was in fact an employee of aforesaid outsourcing agency due to which there was no occasion for the Prescribed Authority to have saddled the petitioner-State with the arrears of wages. It is submitted that prior to deciding the dispute on merit, it was incumbent upon the Prescribed Authority to have recorded a finding with regard to employer-employee relationship but the Prescribed Authority has decided the case only on the basis of letter dated 30.01.2018 issued by the then Chief Medical Superintendent without adverting to its effect. It is submitted that the Prescribed Authority has also erred in holding that the claimant had worked with the petitioner with effect from 18.09.2013 till January, 2018 continuously.
7. Learned counsel appearing on behalf of opposite party no.1-claimant has refuted the submissions advanced by learned counsel for petitioner with submission that a perusal of impugned award will make it evident that the same has been passed only on the basis of admission by opposite parties with regard to services rendered by the claimant with opposite parties and violation of their duties in pursuance of the alleged agreement of outsourced services.
8. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, particularly the impugned award, it is evident that the Prescribed Authority has passed its award primarily on the basis of averments made in the written statement by petitioner-State as well as outsourcing agency to the effect that they had entered into an agreement dated 01.01.2017 for engagement of contractual employees to be provided through an outsourcing agency. The award thereafter adverts to various conditions of the Award whereby it was the duty of petitioner-State to indicate to the outsourcing agency, the number of days on which the employee who is said to have been engaged through outsourcing had worked with the Hospital whereafter the outsourcing agency was required to make payment of remuneration, on that basis.
9. A concurrent finding of fact has been recorded by Prescribed Authority as well as the appellate authority to record a conclusion that no such details were ever provided by the petitioner to the outsourcing agency due to which payment of remuneration could not be made to petitioner. It is on that basis that petitioner was saddled with the burden of making remuneration to opposite party who is said to have been engaged through an outsourcing agency.
10. A perusal of aforesaid judgment and award will also make it evident that it was admitted case of petitioner that the claimant was engaged by them through an outsourcing agency and in terms of the contract entered into between the petitioner and the outsourcing agency, remuneration was required to be paid to the claimant in tandem with petitioner and the outsourcing agency. The award has recorded a specific finding that in pursuance of contract entered into between petitioner and the outsourcing agency, no documents pertaining to number of days of working of the claimant was provided to the outsourcing agency resulting in non-payment of remuneration. The said finding is the basis of the award.
11. The appellate court has also adverted to the same contract between the parties and the specific terms therein which are said to have been violated by petitioner.
12. There is no document or averments on record on the part of petitioner to refute the same and therefore it cannot be said that the finding recorded in the impugned judgment and award is against the material on record.
13. It is not the case of petitioner that opposite party no.1 has not worked with them for the period claim has been instituted.
14. In view of the concurrent finding recorded by the Prescribed as well as the appellate authority, this Court does not find any occasion to take any exception to the orders and judgments impugned. In view of admission on the part of petitioner that the claimant was engaged by it although through an outsourcing agency, there was no occasion for the Prescribed Authority to have entered into the dispute regarding employer-employee relationship.
15. In view of aforesaid, the petition being devoid of merits is dismissed. The parties to bear their own costs.
Order Date :- 27.5.2024
kvg/-
