Bharat Petroleum Corporation ... vs Union Of India & Ors.
2012 Latest Caselaw 2026 Del

$~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : March 23, 2012

+                        LPA 968/2011

      BHARAT PETROLEUM CORPORATION LTD. ..... Appellant
            Represented by: Mr.V.N.Koura, Advocate with
                            Ms.Paramjeet Benipal and
                            Mr.Sumit Singh Benipal, Advocates.

                         versus

      UNION OF INDIA & ORS.                 ....Respondents
            Represented by:Ms.K.B.Hina, Advocate for R-3 to R-28

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI


PRADEEP NANDRAJOG, J. (Oral)

1. Respondent No.2 has been served but none appears. Hence proceeded against ex-parte and so is respondent No.1 for whom none appears.

2. Contesting respondents are respondent No.3 to respondent No.28, who are represented as above.

3. The appellant had sought quashing of a reference made by the appropriate authority to the Central Government Industrial Tribunal. The challenge failed when writ petition was dismissed vide impugned judgment and order dated September 15, 2011.

4. The reference reads as under:

"Whether the action of management of BPCL in terminating the services of 25 workmen (details as per list attached) w.e.f. 19.5.2007 engaged by their contractor M/s Oberai Service Station consequent upon termination of his dealership is just, fair and legal? What relief

the concerned workmen are entitled to and from which date?"

(Emphasis supplied)

5. With reference to the decisions reported as 144 (2007) DLT 394 Ramesh Kumar vs. UOI, (2009) 11 SCC 609 Sarva Shramik Sangh vs. Indian Oil Corporation Ltd. and AIR 1989 SC 1565 Telco Convoy Drivers Mazdoor Sangh vs. State of Bihar, the learned Single Judge has held that whether there existed an employer-employee relationship and whether the intermediatory private contractor arrangement was a camouflage can be decided by the learned Reference Court, notwithstanding the reference being improperly worded i.e. proceeding upon, as if the workmen in question were the employees of the appellant.

6. Suffice would it be to state that the learned Single Judge has not appreciated a distinction where the workmen worked and rendered services at the workplace of „A‟, but the work performed is outsourced to a contractor and in the said context a dispute arises: Whether the outsourcing is a sham, and a situation of the kind at hand.

7. The Dispensing Pump and Selling License dated February 8, 1973 clearly shows that the predecessor in interest of the appellant i.e. Burmah Shell Oil Storage & Distributing Company of India had appointed Oberai Service Station, a partnership firm of Maj.M.L.Oberai, his wife Mrs.Bimla Kumar Oberai and his son Mr.Deepak Kumar Oberai as a retailer to sell petroleum products from a site opposite Green Park. It is not doubt true that the premise from where business was to be conducted belonged to the said company but the terms of the license agreement would show that the petroleum products were supplied by Burmah Shell to Oberai Service Station on principal to principal basis. The licensee

was required to sell the products as per price determined by the Petroleum Ministry from time to time. Oberoi Service Station had engaged the workmen and was paying wages for work to be done, and done, at the petrol pump. Appellant was paying no money to Oberoi Service Station.

8. The license in favour of Oberai Service Station was cancelled on account of violating terms of the license and this is the reason why the workmen faced unemployment.

9. The representation of the workmen before the Conciliation Officer shows that they claimed to be working at Oberai Service Station at Green Park.

10. Where the facts stare a Court in the face and are admitted, no trial is warranted.

11. That apart, the decisions relied upon by the learned Single Judge are applicable on an entirely different set of facts which we have highlighted hereinabove i.e. where a part of the job is outsourced to a contractor who employs workers to perform chores at the work place of the owner and under the contract to render services the contractor receives money.

12. The appeal stands disposed of quashing the impugned reference dated October 13, 2008, leaving it open to the workmen to seek such relief as may be available to them against M/s Oberai Service Station.

13. No order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MARCH 23, 2012 KA