Indian Railway Finance Corp. Ltd. vs Yatender Kumar Sharma And Anr.
2013 Latest Caselaw 1986 Del

28
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Date of Decision:   01.05.2013

%      W.P.(C.) No.3701/2011

       INDIAN RAILWAY FINANCE CORP. LTD.          ..... Petitioner
                       Through: Mr. Kailash Vasdev, Senior Advocate
                                alongwith Mr. Sunil K. Jain,
                                Advocate.
                versus

       YATENDER KUMAR SHARMA AND ANR.         .....Respondents
                    Through: Mr. R.K. Saini, Mr. Gautam Awasthi
                             and    Mr.     Ayush      Chaudhary,
                             Advocates
       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (ORAL)

1. I have today disposed of a similar writ petition being W.P.(C.) No.3702/2011 titled Indian Railway Finance Corporation Ltd. v. Rajendra Prasad & Ors. The award in question in the present case dated 15.10.2010 has been passed by the same tribunal in respect of the respondent. The factual position is more or less identical except that in the case of the respondent herein, his services were engaged through M/s. Hingorani M & Co., who were retainer of accounts appointed by the petitioner corporation.

2. In the case of Rajendra Prasad, he was similarly engaged on a contract basis by the petitioner through the share transfer agent. The impugned award is detailed and has considered the evidence led by the parties in depth

on the aspect whether the respondent was a direct employee of the petitioner or not. On the basis of the evidence led before the tribunal, the tribunal has concluded that the respondent was a direct employee of the petitioner as the contract between the petitioner and Hingorani M & Co. was a sham and a camouflage, so as to deprive the dues to which the respondent would have been entitled had he been directly employed by the petitioner. The evidence discussed by the Tribunal in this case may be summarized as thus -

i. The Tribunal observed that on the basis of the cross examination of the claimant as well as facts unfolded by Ms. Khuntia, witness for the management, it was clear that the claimant was being paid his wages by M/S Hingorani M. & Co., who was retainer of accounts of the petitioner corporation.

ii. But at the same time, the Tribunal observed that the test in determining the question as to whether a person is employed in a commercial establishment is whether he is wholly or principally employed in connection with the business of the said establishment. The claimant was able to prove Ex. WW 1/1 to WW1/7 before the Tribunal which were applications submitted by the claimant to the corporation for release of his travelling allowance for the month of July 1997, Januray 1998 and April-July 1998. Therefore the Tribunal observed that it was evident that for the period referred above, the corporation sanctioned travelling expenses incurred by the claimant for attending to his duties with the corporation.

iii. On the basis of the aforesaid exhibited documents, the tribunal considered whether the claimant could have availed of the travel allowance from the corporation if he was in fact an employee of Ms/ Hingorani M. & Co. The Tribunal held that by granting such allowance to the claimant, the corporation conceded that there was some relationship between it and the claimant. It was observed that the assertion of the corporation that the claimant was an employee of M/S Hingorani M. & Co. stood brushed aside by the fact that the corporation released travelling allowance in favour of the claimant. In the light of the above exhibited documents, the tribunal held that the arrangement between the corporation and M/S Hingorani M. & Co. was a sham and the claimant had been an employee of the corporation since 1997.

iv. The Tribunal also perused Ex. MW1/2, written by the Retainer of Accounts i.e. M/S Hingorani M. & Co. to the claimant withdrawing the services of the claimant from his assignment with the corporation. However, having already established that the relation of employer- employee existed between the corporation and the claimant, the tribunal held that the aforesaid letter was written at the instance of the corporation. Therefore, the tribunal concluded that the claimant was an employee of the corporation.

3. I am not inclined to interfere with the said findings since it is based on the evidence led before the tribunal and the petitioner has failed to point out either any perversity in the impugned award returning the said findings, or that the tribunal has considered extraneous materials, or has not considered

and left out any relevant material from consideration while arriving at the said findings. This Court does not sit in appeal while examining the orders/awards passed by the tribunal and since the view taken by the tribunal is a plausible view, this Court is not inclined to interfere with the same.

4. Learned counsel for the petitioner has, however, sought to place strong reliance on the order dated 12.09.2003 passed in C.M. No.67585/2003 in W.P.(C.) No.351/1999. The respondent had preferred W.P.(C.) No.351/1999 seeking regularization of his services with the petitioner. The substratum of the respondents case was that he was serving the petitioner as its employee and receiving instructions from the petitioner. The respondent contended that the contract between the petitioner and M/s Hingorani M & Co. was a sham arrangement arrived at by the petitioner to avoid direct employment of the respondent. The said writ petition was disposed of along with W.P.(C.) No.1771/1999 (preferred by Sh. Rajendra Prasad, the respondent in W.P.(C.) No.3702/2011) on 29.01.2003 granting permission to the respondent to raise an industrial dispute on the aforesaid aspect.

5. From the order dated 12.09.2003 passed in C.M. No.6785/2003 in W.P.(C.) No.351/1999, it appears that the respondent preferred the aforesaid application to seek review of the order dated 29.01.2003 on the basis that the respondent was a direct employee of the petitioner. This Court, however, did not agree with this submission of the respondent and, in that context, referred to the records. It is obvious that-on the record the respondent was not shown as an employee of the petitioner since he was shown to be an employee of M/s. Hingorani M & Co. from whom he was receiving the

salary. The issue about the contract between the petitioner and Hingorani M & Co. being genuine, or sham, or a camouflage arose in this background. If the respondent had been a direct employee on the record of the petitioner, the said issue would not have arisen at all. All that the Court did while passing the order dated 12.09.2003- rejecting the review application, was to make certain observations on the basis of the available record. The Court did not go beneath the said record to find out the true nature of the arrangement between the petitioner and Hingorani M & Co., as also the true nature of the arrangement between the petitioner and the respondent. This exercise has been undertaken by the tribunal in its impugned award and it has been found that the contract between the petitioner and Hingorani M & Co. qua the respondent was a sham. The order dated 12.09.2003, therefore, does not come to the aid of the petitioner.

6. I have set aside the direction contained in the award in respect of Sh. Rajendra Prasad insofar it directs regularization of his services. For the same reasons as recorded in the judgment in the case of Rajendra Prasad, the direction issued in the present case directing the respondents regularization in service is set aside. The impugned award, therefore, stands modified to the aforesaid extent.

7. Petition stands disposed of in the aforesaid terms. The respondent shall be entitled to costs quantified at Rs.10,000/-.

VIPIN SANGHI, J.

MAY 01, 2013 sr