Bombay High Court
Rajya Rashtriya Kamgar Santh ... vs Hindustan Petroleum Corporation ... on 15 December, 2016
Bench: K.K. Tated
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 8053/2016
Rajya Rashtriya Kamgar Sangh (INTUC) ... Petitioner
V/s.
Hindustan Petroleum Corporation Ltd. ... Respondent
Mr. S. D. Patihane for the petitioner
Mr. Lancy D'Souza i/b. V. M. Parkar for the Respondent.
CORAM: K.K. TATED, J.
DATED : DECEMBER 15, 2016
JUDGMENT :
1. Heard the learned counsel for the parties. The matter was on
board on 22.11.2016. On that day, at the request of the learned
counsel for petitioner, the matter was adjourned to 23.11.2016, for
final hearing. Same was heard on that date. For further hearing, the
matter was posted for today.
3. By this petition under Article 226 and 227 of the Constitution of
India, the petitioner second party Union challenges the Award dated
29.02.2016 passed by the Central Government Industrial Tribunal Cum
- Labour Court No.1 (CGIT) Mumbai (hereinafter referred to as the
Tribunal) in Reference (IDA) No.19/2007 answering the Reference
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stating that the demand of the concerned workman/person in
Reference for regularisation of their service in HPCL respondent first
party management at par with the direct employees of respondent is
neither justified nor proper. Hence, no relief.
4. Few facts of the matter are as under:
The petrol pump was run by various dealers from 01.01.1997 to
30.09.2014. Initially same was allotted to M/s. Chagan Mithra & Co.
from 01.01.1997 to May 2005 on dealership basis. Dealership
agreement was executed by the respondents in favour of Munir Mitha,
Fateh Mitha and Razia A. Mithra to carry on business in the name and
style M/s. Chagan Mitha & Co. Thereafter the same was granted to
Mumbai Tax Association Cooperative Consumer Society from
04.05.2005 to May 2010 on dealership basis. To that effect, the
respondent executed dealership agreement. Thereafter the dealership
agreement was executed in favour of M/s. Kapadia Brothers from May
2010 to 29.04.2012 and again in favour of M/s. Suburban Service
Station from 30.04.2012 to 30.09.2014. Again w.e.f. 01.10.2014, same
was allotted in favour of M/s. Renuka Enterprises.
5. Petitioner's some of the members were working on the said petrol
pump. The petitioner Union filed complaint with the Government of
India, Ministry of Labour making several grievances to regularize their
services in the HPCL and all other benefits as per the permanent
employee. Pursuant to the said complaint, the reference was made by
order dated 12.02.2007 for following issues:
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"Whether the demand of 36 workmen (list enclosed) is justified and
proper to get regularized their services in the Hindustan Petroleum
Corporation Ltd.,, who are working at the respective Petrol Pumps
of HPCL, especially at Hindustan Petroleum Corporation Ltd. Pump
at Chembur at par with CHPC direct employees ? If so, then what
are the relief these 36 workmen listed (list enclosed) are entitled
to ?"
6. The petitioner filed their statement of claim dated 11.01.2012
before the Tribunal. Same was registered as Reference (IDA)
No.19/2007. The respondent filed their written statement dated
27.11.2014 and denied the petitioner's claim.
7.
Considering the submissions made by both the parties and on the
basis of the pleadings, initially, the Tribunal passed an Award dated
25.02.2013 rejecting the Reference on the ground that the petitioner
Union has failed to prove its case. The said Award was challenged by
the petitioner before this court by filing Writ Petition No.9772/2013,
which was allowed by this court by setting aside the Award dated
25.02.2013 remanding the Reference to the Tribunal for fresh hearing.
The operative part of the said order reads thus:
"O R D E R
(i) The Award dated 25th February, 2013 passed in Reference
(IDA) No. 19 of 2007 passed by the Learned Presiding Officer,
Central Government Industrial Tribunal (CGIT)-cum-Labour Court,
Mumbai in Reference (IDA) No. 19 of 2007 is set aside.
(ii) Reference (IDA) No. 19 of 2007 is remanded to CGIT,
Mumbai for fresh hearing.
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(iii) The respondent is at liberty to file an application before the
CGIT, Mumbai for permission to file written statement. The
application, if any, shall be filed within a period of 3 weeks from
today. On such application being filed, the same shall be considered
by the CGIT in accordance with law.
(iv) The reference shall be heard and disposed off by CGIT,
Mumbai within a period of 8 months from today."
8. After remand, the petitioner Union made an application for
interim relief which was rejected by the Tribunal vide order dated
30.04.2015. Said order was challenged by the petitioner Union in Writ
Petition No.6035/2015, which was disposed of by this court, as the
Tribunal had by that time passed a final order.
9. As the Union was not appearing before the Tribunal, after
disposal of the interim relief application, the respondent made an
application for proceeding exparte. The respondent also issued letter
dated 19.02.2015 to the Union enclosing therewith a copy of an
application for proceeding exparte and a copy of draft issues. The
respondent by the said notice also intimated the date of hearing before
the Tribunal which was 10.02.2015. Said letter was acknowledged by
the advocate for the petitioner's members themselves endorsing the
remark "we have not received any court notice. Whether the extension
has been granted and to whom." As the Union failed to appear before
the said Tribunal on 10.12.2015, despite notice, the said Tribunal
passed a reasoned order for proceeding exparte. Said order reads thus:
"It appears that this Tribunal by the Award dated 25.02.2013,
disposed of Reference No.CGIT-1/19/2007. The second party?
union filed a Writ Petition being Writ Petition No.9772/2013
before the Bombay High Court. The Hon'ble Bombay High Court
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by its order dated 01.09.2014 disposed of the said Writ Petition in
terms as mentioned in paragraph 2 of the said order.
Pursuant to the said order dated 01.09.2014 passed by the Hon'ble
Bombay High Court, the matter came up before this Tribunal. An
application for interim relief was filed on behalf of the second
party/Union on 10.10.2014. An affidavit in support of the said
interim relief application was filed on behalf of the second
party/Union on 14.11.2014, as noted in the order passed on the
said date.
Reply in respect of the interim relief application was filed on behalf
of the first party/Management. Rejoinder on behalf of the second
party/Union in respect of the aforesaid reply filed on behalf of the
first party/Management was also filed on behalf of the second
party/Union.
The argument in respect of the interim relief application were heard
on various dates as mentioned in the order sheet of the present
case.
On 19.01.2015, arguments of the learned counsel for the parties on
interim relief application concluded. Thereupon, by the order dated
19.01.2015, the Tribunal reserved its order in respect of the interim
relief application. The order dated 19.01.2015 is reproducted
below:
Pursuant to the order dated 15.01.2014, the case is put up today.
Mr. Lancy D'Souza, learned counsel for the first party/
Management and
Mr. S. D. Patihane, learned counsel for the second party/ Union are
present
Arguments of the learned counsel for the parties on interim relief
application concluded today.
Order reserved.
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On 30.04.2015, the Tribunal pronounced its order on the aforesaid
interim relief application filed on behalf of the second party/Union.
The order dated 30.04.2015 is quoted below:
Pursuant to the order dated 19.10.215, the case has been put up
today for orders on interim relief application filed on 10.10.2014.
Intimation regarding the fixation of today's date for orders on the
aforementioned application was given to Mr. Lancy D'Souza,
learned counsel for the first party / Management and Mr. S. D.
Paithane, learned counsel for the second party/ Union on
telephone by the Secretary to this Tribunal.
Mr. Lancy D'Souza, learned counsel for the first party/
Management is present.
Mr. S. D. Paithane, learned counsel for the second party/Union has
informed the Secretary to this Tribunal that as he is at present in
Pune, one of the workmen will be present before the Tribunal on
behalf of the second party/ Union today.
Accordingly, Shri Sugriv Kamble, one of the Workmen is present on
behalf of the second party/Union. Order on interim relief
application filed on 10.10.2014, has been pronounced today in
open court.
interim relief application has been rejected.
Order is on separate sheets.
Fix on 05.06.2015 for framing of issues and filing of documents on
behalf of the parties.
From the perusal of the above order dated 30.04.2015, it is evident
that Mr. Sugriv Kamble, one of the Workmen was present on behalf
of the second party/Union on the said date. In the above order
dated 30.04.2015, it is also recorded that intimation regarding the
fixation of the said date for orders on the aforesaid interim relief
application was given to Mr. Lancy D'Souza, learned counsel for the
first party/Management and Mr S. D. Patihane, learned counsel for
the second party/Union on telephone by the Secretary to this
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Tribunal.
The above order further records that "Mr. S. D. Paithane, learned
counsel for the second party/Union has informed the Secretary to
this Tribunal that as he is at present in Pune, one of the Workmen
will be present before the Tribunal on behalf of the second
party/Union today.
It is thus evident that the second party/Union as well as its counsl
Mr. S. D. Paithane were fully aware of the said date i.e. 30.04.2015
fixed for pronouncing the order on the aforesaid interim relief
application filed on behalf of the second party/Union.
By the said order dated 30.04.2015, the matter was fixed on
05.06.2015 for framing of issues and filing of documents on behalf
of the parties.
It may be noted that as the time fixed by the Hon'ble Bombay High
Court in its order dated 01.09.2014 passed in Writ Petition
No.9772/2013, as mentioned above, was going to expire on
30.04.2015, this Tribunal sent a communication dated 30.04.2015
to the Registrar General, High Court of Bombay, Mumbai interalia
stating that the said communication be placed "before the Hon'ble
High Court with the request that the period for disposing of the
aforesaid Reference may kindly be extended by a further period of
10 months.
In response to the said communication dated 30.04.2015, a
communication dated 21.07.2015 was received by this Tribunal,
from the Bombay High Court. Relevant portion of the said
Communication dated 21.07.2015 is reproduced below :
"With reference to your letter dated 30.04.2015 outward No.CGIT-
1/19/07/189/15, for grant of further extension of ten months for
the disposal of Reference No.CGIT-19 of 2007. I am directed to
state that your letter under reference along with the Writ Petition
was placed before the Court (Coram : Smt. R. P. SondurBaldota,J.)
on 24/06/2015 for order, and that the Court pleased to pass the
following order:
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Time extended as per the request:
Kindly take note of the Court's order and act accordingly.
Thus, the request made by this Tribunal for extending the period for
disposing of the Refrence by a further period of 10 months was
accepted by the Hon'ble Bombay High Court. The said period of 10
months would be expiring on 29.02.2016.
Reverting to the facts of the present case, pursuant to the order
dated 30.04.2015, the case was put up before the Tribunal on
05.06.2015. On the said date, i.e. 05.06.2015, as noted in the
order passed on the said date, Mr. Lancy D'Souza, learned counsel
for the first party/Management was present. However, none was
present for the second party/Union.
In the circumstances, by the order dated 05.06.2015, the case was
adjourned to 15.07.2015 for framing of issues and filing of
documents on behalf of the parties.
Pursuant to the order dated 05.06.2015, the case was put up on
15.07.2015.
On 15.07.2015, as noted in the roder passed on the said date, Ms.
Deepika Agrawal, holding brief for Mr. Lancy D'Souza, learned
counsel for the first party/ Management was present.
Mr. Ambadar Kamble, one of the Workmen was present on behalf of
the second party/Union.
By the order dated 15.07.2015, the case was adjourned to
27.08.2015 for framing of issues and filing of documents on behalf
of the parties.
Pursuant to the order dated 15.07.2015, the case was put up on
27.08.2015.
On 27.08.2015, as noted in the order passed on the said date, Ms.
Deepika Agrawal, holding brief for Mr. Lancy D'Souza, learned
counsel for the first party/Management was present. However,
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none was present for the second party/Union.
Ms. Deepika Agrawal, holding brief for Mr. Lancy D'Souza, learned
counsel for the first party / Management submitted Draft Issues in
the present case on the said date i.e. 27.08.2015. However, as none
was present on behalf of the second party/Union, the Tribunal by
its order dated 27.08.2015 adjourned the case to 01.10.2015.
Pursuant to the Order dated 27.08.2015, the case was put up on
01.10.2015.
On 01.10.2015, as noted in the order passed on the said date, Ms.
Shehwar Qureshi, holding brief for Mr. Lancy D'Souza, learned
counsel for the first party/Management was present. However,
none was present for the second party/Union. In view of the
absence of the second party/Union, the Tribunal by its order dated
01.10.2015, adjourned the case to 18.11.2015.
On 18.11.2015, as noted in the order passed on the said date, Ms.
Shehwar Qureshi, learned counsel for the first party/Management
was present. However, none was present on behalf of the second
party/Union. Ms. Shehwar qureshi, learned counsel for the first
party/Management, filed an application dated 18.11.2015 on the
said date i.e. 18.11.2015 interalia praying that the Reference be
proceeded exparte.
In the circumstances, by the order dated 18.11.2015, the case was
adjourned to 10.12.2015.
Pursuant to the order dated 18.11.2015, the case is put up today.
Today, Mr. Lancy D'Souza, learned counsel for the first
party/Management is present. However, none is present for the
second party/Union.
An application dated 10.12.2015 has been filed today on behalf of
the first party/Management. Along with the said application, a
copy of the communication dated 19.11.2015 along with enclosures
thereto sent by Mr. Lancy D'Souza,, learned counsel for the first
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party/Management to Mr. S. D. Paithane learned counsel for the
second party/Union has been enclosed.
A perusal of the said communication dated 19.11.2015 shows that
along with the said communication, copy of the draft issues
submitted on behalf of the first party/Management on 27.08.2015
as well as copy of the application dated 18.11.2015 filed on behalf
of the first party/Management, interalia praying that the Reference
be proceeded exparte, were enclosed.
A perusal of the said communication dated 19.11.2015 further
shows that the said communication interalia informed Mr. S. D.
Paithane learned counsel for the second party/Union made the
following endorsement: "We have not received any Court Notice.
Whether extension has been granted and to whom?"
It is thus evident that despite having intimation regarding today's
date, none is present today on behalf of the second party/Union.
As noted above, the extended time granted by the Hon'ble Bombay
High Court is going to expire on 29.02.2016.
Having regard to the facts and circumstances narrated above and
keeping in view that the extended time fixed by the Hon'ble
Bombay High Court is going to expire on 29.02.2015, there is no
option but to proceed with the Reference exparte as against the
second party/Union.
It is accordingly directed that the Reference will proceed exparte as
against the second party/Union.
Let the matter be fixed on 06.01.2016 for framing of issues and
filing of documents.
Sd/-"
10. The matter was proceeded for framing issues and for filing
documents on 06.01.2016. On that day also, none appeared on behalf
of the petitioner Union. Hence, the tribunal closed the evidence of the
petitioner Union and the matter was fixed on 20.01.2016 for evidence
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of the respondent. The order dated 06.01.2016 reads thus:
"Pursuant to the order dated 10.12.2015, the case is put up today.
By the order dated 10/12/215, the Reference was directed to
proceed to exparte as against the second party/Union (Hindustan
Petroleum Petrol Pump Kamgar Union).
By the said order dated 10.12.2015 the case was directed to be
fixed on 06.01.2016 i.e. today for framing for issues and filing of
documents."
The case is accordingly put up today.
Shri Lancy D'Souza, learned counsel for Hindustan Petroleum
Corporation Ltd. (i.e. first party/Management or first
party/Company) is present.
None is present for the second party/Union.
I have perused the pleadings exchanged between the parties and
heard the submissions made by Shri Lancy D'Souza, learned
counsel for Hindustan Petroleum Corporation Ltd. (i.e. first
party/Management or first party/Company)
Having perused the pleadings exchanged between the parties and
having considered the submissions made by Shri Lancy D'Souza,
learned counsel for Hindustan Petroleum Corporation Ltd. (i.e. first
party/Management or first party/Company), the issues as
mentioned in separate sheet are framed in the present case.
No other issue arises in the present case nor has any other issue
been pressed by the learned counsel for Hindustan Petroleum
Corporation Ltd. (i.e. first party/Management or first
party/Company).
As the matter is proceeding exparte against the second party/Union
and none is present even today on behalf of the second
party/Union, the evidence on behalf of the second party/Union is
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closed.
Let the case be fixed on 28.01.2016 for evidence on behalf of
Hindustan Petroleum Corporation Ltd. (i.e. first
party/Management or first party/Company)."
11. On 20.01.2016, the respondent filed their affidavit of evidence
along with compilation of documents. As none appeared on behalf of
the petitioner Union, the Tribunal passed the impugned award on
29.02.2016 holding that the petitioner Union is not entitled. to any
relief. The operative part of the said Award reads thus:
"175.
In view of the above discussion, the Reference is
answered by stating that the demand of the concerned
workmen/concerned persons in the present Reference for
regularization of their alleged services in Hindustan Petroleum
Corporation Ltd. ("the first party/ Management" or "the HPCL" or
"the Corporation" or "the First Party/Company") at par with the
direct employees of Hindustan Petroleum Corporation Ltd. ("the
first party/ Management" or "the HPCL" or "the Corporation" or
"the First Party/Company") is neither justified nor proper. No relief
in this regard can be granted in respect of the concerned workmen/
concerned persons in the present Reference."
12. Being aggrieved by the said Award, the petitioner filed the Writ
Petition on several grounds.
13. The learned counsel for the petitioner submits that the
impugned Award was passed by the CGIT without hearing the
petitioner second party. Hence, same is exparte. He submits that being
exparte Award, same is required to be set aside and the matter be
decided on merits.
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14. The learned counsel for the petitioner submits that this court, by
order dated 01.09.2014 in Writ Petition No.9772/2013 directed the
CGIT-cum- Labour Court to decide the Reference as early as possible
within 8 months from the date of order. He submits that thereafter the
matter appeared before the CGIT on several occasions. But the CGIT
failed to decide the same within stipulated time as directed by this
court. He submits that neither this court, nor the Tribunal cum Labour
Court informed the petitioner about the extension of time to decide the
matter. Hence, no one was present when the matter was taken up for
final hearing. He submits that as soon as they learnt about passing of
Award, they filed the present Writ Petition for setting aside the exparte
award. He submits that being exparte award, the Tribunal has not
considered any evidence brought by the petitioner on record. Hence,
same is required to be set aside and/or remand to the Tribunal for
deciding on its own merits.
15. The learned counsel for the petitioner submits that in the
present proceedings the respondent entered into an agreement dated
01.01.1997 with Munir Mitha, Fateh Mitha and Razia A. Mitha for
conducting the said outlet in the name and style M/s.Chagan Mitha &
Co. He submits that in fact, the respondent, by agreement dated
01.01.1977 was conducting the business of outlet in partnership with
M/s. Chagan Mitha & Co. In support of this contention, the learned
counsel for the petitioner relies on clause, 13, 14, 43, 46 of dealership
agreement dated 01.01.1977 which read thus:
"13. The corporation has installed at its own expense at and
under the premises the outfit described in the second schedule
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hereunder written. The corporation may install at the premises
such other apparatus and equipment from time to time as it may
deem necessary for the efficient working of the retail outlet and all
such other apparatus and equipment shall be deemed to be and
form part of the outlet. Provided that the corporation shall have
the right to remove any particular item or items of apparatus or
equipment comprised in the outfit without assigning any reason
therefor.
14. The corporation will maintain the outfit in proper working
condition at its own expenses.
43. The dealer shall indemnify and save harmless the
corporation from all losses, damages, claims, suits or actions which
may arise out of or result from any injury to any person or
property or from violation of any statutory enactments, rules or
regulations or other written orders or other laws or caused by or
resulting from non observance by the dealer of the provisions of this
agreement.
46. The dealer shall be solely responsible for and shall himself
bear all expenses of and in connection with the dealership business,
including administration, office insurance premia, telephone,
license or other fees, rates, taxes and all other charges and outgoing
of every kind connected with the said business and shall pay the
same promptly and without fail. The dealer shall also be solely
responsible for any breach or contravention by himself, his servants
or agents or any laws, rules, regulations or bye-laws passed or
made by the central and/or State Government and/or municipal
local and/or other authorities as may be applicable from time to
time to the business including, without prejudice to the generality
of the foregoing the concerned authorities respectively appointed
under the Petroleum Act, Payment of Wages Act, Shops and
Establishments Act, Factories Act and the Workmen's Compensation
Act or any statutory modifications or re-enactments of the said
statues or rules and the corporation shall not be responsible in any
manner for any liability arising out of non compliance by the
dealer with the same. The dealer shall at all times indemnify and
keep indemnified the corporation against all actions proceedings,
claims and demands made against it by the Central and/or State
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Government and/or Municipal, Local and/or other Authorities
and/or by any customer of the product and/or by any other third
party as a result or in consequence of any act or omission of
whatsoever nature of the dealer, his servants or agents, including
without prejudice to the generality of the foregoing, any accident or
loss or damage arising out of the storage, handling and/or sale of
the products or attributable to the use of the said premises for the
aforesaid purposes whether or not such act or omission or accident
or loss or damage was due to any negligence want of care or skill or
any misconduct of the dealer, his servants or agents."
16. Some time in May 2005 said out-let was handed over to new
dealer Mumbai Tax Association's Consumer Society. Same was run by
them upto June 2010. In between, the petitioner Union filed
justification demand before the Assistant Commissioner and thereafter
the Reference was made. During pendency of the Reference, the
respondent removed the petitioner from their outlet and appointed
some other person.
17. The learned counsel for the petitioner submits that bare reading
of agreement dated 01.01.1977 between respondent and M/s. Chagan
Mitha & Co. shows that both of them were running the petrol pump on
partnership basis. Therefore, the Tribunal ought to have held that the
petitioner's members were working directly with the respondent and
therefore, they were entitled to all the benefits like permanent
employees of respondent. He submits that the respondent never denied
that the petitioner's members were working on the said petrol pump for
more than 20 years. He submits that the respondent failed to consider
the petitioner's members' demand for granting them status of
permanent employee and the benefits to that effect. In support of this
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contention, the learned counsel for the petitioner relies on the apex
court judgment in G.M. ONGC, Shilchar Vs. ONGC Contractual
Workers Union in Civil Appeal No.4755/2001 dated 16.05.2008. He
submits that in this authority, the apex court directed the ONGC to
grant status of permanent employee to the worker, labourer who were
working with them on contractual basis. He mainly relies on para 18 of
the said judgment which reads thus:
"18. The pleadings in the present matter would show that the core
issue before the Tribunal was with regard to the status of the
employees as employees of the ONGC or of the contractor and that
it was this issue simplicitor on which the parties went to trial. Mr.
Dave's argument with regard to the decision of the Tribunal being
beyond the reference, is to our mind, and in the circumstances,
hyper technical. In this background, we feel that the judgments
cited by Mr. Dave pertaining to regularization of contract labour
are not applicable to the facts of the case."
18. The learned counsel for the petitioner submits that the Tribunal
failed to consider the fact that the competent authority issued license
for petrol pump in the name of the respondent and the petitioner's
members were working on the said petrol pump. That itself shows that
they were working as per the terms conditions of the respondent. The
learned counsel for the petitioner submits that even the license was
issued by the Government in the name of respondent HPCL to carry on
out-let. He submits that the petitioner's members were working with
the respondent for more than 20 years. He submits that the CGIT
failed to consider these facts at the time of deciding the relationship of
the employer and employee between the petitioner and the
respondents.
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19. The learned counsel for the petitioner also relied on the
judgment of the apex court in the matter of Steel Authority of India
Ltd. Vs. National Union Water Front Workers & Ors. in Appeal
(Civil) 6009-6010/2001 dated 30.08.2001, wherein it is held that
where a workman is hired in or in connection with the work of an
establishment by the principal employer through a contractor, he
merely acts as an agent so there will be a master and servant
relationship between the principal employer and the workman. He
submits that in the case in hand, the petitioner's members were
working with the respondent on their outlet for last more than 20
years. He submits that the respondent may appoint different dealers
for different period. But the petitioner's members' employment
required to be considered with the principal i.e. respondent. He
submits that these facts were not considered by the Tribunal according
to law and therefore, the Award passed by the Tribunal is required to
be set aside answering the Reference in favour of the petitioner.
20. On the basis of these submissions, the learned counsel for the
petitioner submits that this Hon'ble Court be pleased to allow the Writ
Petition by setting aside the impugned Award dated 29.02.2016 passed
by the learned Presiding Officer, CGIT cum Labour Court No.1, Mumbai
in Reference (IDA) No.19/2007 and answer the Reference in favour of
the petitioner. He submits that the respondent may be directed to pay
arrears of wages and other benefits to the petitioner as they were
permanent employees with them. He submits that if the petition is not
allowed irreparable loss and injury will be caused to the petitioner.
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21. The learned counsel for the respondent made following legal
submissions :
a. After remand, the respondent filed its written statement in
the Reference.
b. The respondent contended that there was no employer-
employee relationship between the concerned persons and itself.
There are detailed pleadings from paragraphs 30 to 41 of the
written statement on the absence of employer-employee relationship
between the concerned persons and the respondent.
c. The Union did not file any rejoinder to the written statement
refuting the contentions of the respondent despite the fact that
under sub rule 4 of Rule 10B of the Industrial Disputes (Central)
Rules 1957 the Union had a right to file a rejoinder to the written
statement filed by the employer.
d. The Union did not lead any evidence to prove and/or justify
its demand.
e. The averments made in the written statement have been
proved through the evidence of the respondents witness. The
evidence was unchallenged as the witness was not cross examined
by the Union.
f. There is no relationship of employer and employee between
the concerned persons.
g. Renuka Enterprises employed its own manpower and the
respondent No.1 had no say in the matter.
22. The learned counsel for the respondent vehemently opposed the
Writ Petition. He submits that though the petitioner specifically
intimated the date of hearing to the petitioner's advocate in writing,
they failed and neglected to remain present when the matter was heard
on its own merits.
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23. The learned counsel for the respondent submits that in the
present proceedings the respondent used to appoint dealers to carry on
business on their outlet from time to time. He submits that as per the
terms and conditions of those dealership agreement, the dealers used
to appoint their employees/workers. Hence, there is no question of any
relationship between the petitioner and the respondent as employer
and employee.
24. The learned counsel for the respondent submits that though the
respondent placed on record of dealership agreement, the petitioner
failed and neglected to challenge the validity of the same. Apart from
that they failed to raise any objection about the same as sham and
bogus in the present pleadings. This itself shows that the petitioner's
members have no knowledge about several dealership agreement
between different persons. They used to work on the said outlet with
dealers. He submits that the respondent specifically made averments in
the written statement that the dealer used to pay salary and provident
fund contribution of the petitioner directly. These facts were not
denied by the petitioner in any proceedings. This itself shows that they
accepted that their appointment was made by the dealer from time to
time. He submits that the Tribunal framed issue No.2 to the effect that,
"whether the petitioner's members proved relationship of employer and
workman between the HPCL and the concerned persons?" He submits
that the Tribunal considered the evidence on record holding that the
petitioner failed to prove the relationship of employer and employee
between the petitioner and respondent.
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25. The learned counsel for the respondent in support of this
contention relies on the apex court judgment in General Manager
(OSD) Bengal Nagpur Cotton Mills, Rajnandgaon Vs. Bharat Lal &
Anr. 2011 (1) CLR 1 SC, in which the apex court held that if the
labours are supplied by the contractor for a particular period then they
cannot claim any benefit of permanent employee. He relies on para 9
of the said judgment which reads thus:
"9. On a careful consideration, we are of the view that the
Industrial Court committed a serious error in arriving at those
findings. In regard to the first test as to who pays the salary, it
placed the onus wrongly upon the Appellant. It is for the employee
to aver and prove that he was paid salary directly by the principal
employer and not the contractor. The first Respondent did not
discharge this onus. Even in regard to second test, the employee did
not establish that he was working under the direct control and
supervision of the principal employer. The Industrial Court
misconstrued the meaning of the terms `control and supervision'
and held that as the officers of Appellant were giving some
instructions to the first Respondent working as a guard, he was
deemed to be working under the control and supervision of the
Appellant. The expression `control and supervision' in the context
of contract labour was explained by this Court in International
Airport Authority of India v. International Air Cargo Workers
Union 2009 (13) SCC 374 thus:
If the contract is for supply of labour, necessarily, the labour
supplied by the contractor will work under the directions,
supervision and control of the principal employer but that would
not make the worker a direct employee of the principal employer, if
the salary is paid by contractor, if the right to regulate employment
is with the contractor, and the ultimate supervision and control lies
with the contractor.
The principal employer only controls and directs the work to be
done by a contract labour, when such labour is
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assigned/allotted/sent to him. But it is the contractor as employer,
who chooses whether the worker is to be assigned/allotted to the
principal employer or used otherwise. In short, worker being the
employee of the contractor, the ultimate supervision and control lies
with the contractor as he decides where the employee will work and
how long he will work and subject to what conditions. Only when
the contractor assigns/sends the worker to work under the principal
employer, the worker works under the supervision and control of
the principal employer but that is secondary control. The primary
control is with the contractor.
Therefore we are of the view that the Industrial Court ought to have
held that first Respondent was not a direct employee of the
Appellant, and rejected the application of the first Respondent."
26. The learned counsel for the respondent also relied on the
judgment of this court in Hindoostan Spinning and Weaving Mills,
Mumbai Vs. Hindustan Crown Mills Siddhivinayak Kamgar
Karmachari Sangharsha Sanghatana and Ors. 2008(1) LLJ 243. He
submits that in this authority, it is held that statement and pleadings
are admissions against the party making them. He submits that in the
case in hand, the petitioner failed and neglected to lead any evidence in
spite of several opportunities granted by the Tribunal. Hence, there is
no question of considering the objection raised by them in the Writ
Petition. He relies on paragraph 65 and 67 of the said judgment which
read thus:
"65. With the aforesaid rival pleadings on record, the parties were
permitted to lead oral as well as documentary evidence. However,
before proceeding to examine the rival evidence, looking to the
nature of defence taken, it is necessary to examine legal position
based on law of evidence with regard to the number of admissions
given and burden of proof incurred by the Union.
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67. The statements in pleadings are admissions against the party
making them. In Union of India v. Moksh Builders etc.
[1977]1SCR967 , the Supreme Court cited a statement from its
own earlier decision to the effect that an admission is substantive
evidence of the fact admitted and when properly proved is relevant
irrespective of the fact whether the maker approved it in the witness
box or not and when he appears; whether he was confronted with
those statements or not in case he made a statement contrary to his
admission. Admission so far as facts are concerned binds the maker
of the admission. Admission may be oral or contained in
documents, e.g. Letters, depositions, affidavits, plaints, written
statements, deeds, receipts etc. Admissions in pleadings are judicial
admissions. They can be made foundation of rights. Admission in
the written statement filed in some other case have been held by the
Supreme Court to be an important piece of evidence and, therefore,
entitle to its due weight though like all other admissions, it is
neither conclusive nor irrefutable. (see Shankar v. Vithalrao,
AIR1989SC879. In the case on hand, admissions are given in the
written statement filed in the very case."
27. The learned counsel for the respondent also relied on the
judgment of this court in Somnath Tulshiram Galande Vs. Presiding
Officer, IInd Labour Court, Pune & Ors. 2008 I CLR 656, wherein a
Division Bench of this court held that the court cannot disturb the
finding of facts in Letters Patent Appeal unless and until same are
against the well settled principles of law. He relies on paragraph Nos.7
and 8 which read thus:
"7. This was the documentary and oral evidence relied upon by
the labour Court to arrive at a finding that the appellant did not
satisfy the ingredients of being a 'workman'and thus was
incapacitated from raising an industrial dispute. It is a settled
principle of law that the onus lies upon the workman to prove that
he satisfies the essential ingredients of being a workman and,
therefore, could raise an industrial dispute. This is a mixed question
of fact and law and unless the finding arrived at by the Labour
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Court was patently perverse or contrary to law, this Court could
hardly disturb the findings of facts in a letters patent appeal."
8. In the case of All India Reserve Bank Employees' Association
and Anr. v. Reserve Bank of India and Anr. (1965) IILLJ 175 SC ,
the Supreme Court while approving the findings recorded by the
Labour Appellate Tribunal in Ford Motor Co. of India Ltd. v. Ford
Motors Staff Union held thus:
"..........the question whether a particular workman is a
supervisor within or without the definition of 'workman' is
"ultimately a question of fact, at beast one of mixed fact and
law..." and "will really depend upon the nature of the
industry, the type of work in which he is engaged, the
organisational set up of the particular unit of industry and
like factor."
28. On the basis of these submissions and the authorities, the learned
counsel for the respondent submits that there is no substance in the
Writ Petition and same is required to be dismissed with costs.
29. Heard both sides at length. The Tribunal, considering the
pleadings on record framed following issues for consideration:
"1. Whether Hindustan Petroleum Petrol Pump Kamgar Union
(hereinafter also referred to as "the second party/Union") has locus
standi to prosecute the present Reference and file statement of claim
on behalf of the persons mentioned in the Order of Reference
(hereinafter also referred to as the "concerned persons")?
2. Whether any relationship of Employer and Workmen
between Hindustan Petroleum Corporation Ltd. (hereinafter also
referred to as "the first party/Management" or "the first
party/Company") and the concerned persons have been proved by
the second party/Union ? If not, its effect?
3. Whether the demand of the concerned persons for
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regularization of their services in the services of Hindustan
Petroleum Corporation Limited (i.e. the first party/Company" or
"the first party/Management") at par with the direct employer-
employees of Hindustan Petroleum Corporation Ltd. (i.e. "the first
party/Company" or "the first party/Management") is justified and
proper ?
4. To what relief, if any, the second party/Union is entitled?"
30. It is to be noted that, though the advocate for the respondent
issued notice dated 19.11.2015, the petitioner failed and neglected to
remain present before the Tribunal at the time of hearing.
31.
In the present proceedings the trial court framed issues about the
demand of the petitioner's members for regularization of their services
with HPCL at par with the direct employer-employees of HPCL. It is to
be noted that, in the present proceedings though the petitioner relied
on several dealership agreements, made averments that the respondent
was doing business with M/s. Chagan Mithra & Co. in partnership, but
they failed and neglected to place on record any document showing
that the respondent was doing business with M/s. Chagan Mithra & Co.
in partnership. It is to be noted that the dealership agreement executed
between the respondent and M/s. Chagan Mithra & Co. clearly shows
that M/s. Chagan Mithra & Co. was acting as a dealer on behalf of the
respondent with certain and conditions for a particular period.
32. Thereafter the respondent appointed various dealers for running
the said petrol pump. Apart from that the petitioner failed to place on
record any documentary evidence to show that the salary was paid by
the respondent company to them. The respondent company placed on
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record the fact that from time to time the dealer used to pay salary of
the petitioner's members and also the provident fund. This itself shows
that there was no relationship between the petitioner's members and
the respondent as the employer-employees. These facts were correctly
decided by the trial court. If the petitioner failed to prove the
relationship of employer-employee with the respondent company, there
is no question of granting them any relief as per issue No.3 framed by
the trial court in the present proceedings.
33. In the present proceedings, the respondent made an application
for exparte hearing on 10.12.2015 which was also served on the
advocate for the petitioner. In spite of service on the petitioner, they
failed and neglected to remain present. Hence, the Tribunal passed
order on 10.12.2015 to proceed with the matter exparte. The
respondent filed their affidavit of evidence as well as documents.
34. Bare reading of the dealership agreements executed by the
respondent in favour of the dealers, shows that the dealer used to
engage the services of petitioner's members from time to time. Apart
from that the dealer used to pay salary as well as provident fund
contribution. This itself shows that the respondent never engaged the
petitioner's members as their employee on the said outlet. These
facts were considered by the Tribunal at the time of deciding issue No.2
in outlet. Apart from that at the time of hearing the Writ Petition, the
petitioner failed to produce any other document to show the
relationship of employer and employee between them and the
respondent. Therefore, the finding given by the Tribunal on the issue
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No.2, does not require any interference at this stage.
35. During pendency of the proceedings before the Tribunal, the
Union filed a contempt petition being No.130/2015 before this court
alleging that the respondent had committed breach of order dated
01.09.2014 passed by this court in Writ Petition No.9772/2013. The
Union contended that the respondent committed a contempt w.e.f.
01.10.2014 by allowing the service provider to deploy his own man
power. This court dismissed the contempt petition holding that no
case was made out for initiating any contempt proceedings and Union
was at liberty to adopt appropriate proceedings in case if they are of
the opinion that during pendency of the proceedings before the
Tribunal, the respondents have changed service conditions.
36. Considering the fact that in spite of giving sufficient
opportunities to the petitioner before the Tribunal they failed and
neglected to remain present at the time of final hearing and several
dealership agreements were executed by the respondent with the
dealers clearly show that the petitioner failed to make out any case to
answer the Reference in their favour.
37. Hence, I do not find any substance in the Writ Petition. Same
stands dismissed. No order as to costs.
(K.K. TATED, J.)
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