Delhi High Court
Gopal vs Bharat Sanchar Nigam Ltd on 3 July, 2014
Author: J.R. Midha
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on 21st April, 2014
Date of decision : 3rd July, 2014
+ LPA 408/2013 and CM APPL. 9309/2013
GOPAL ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 391/2013 and CM APPL. 9111/2013
BHARAT SINGH ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 392/2013 and CM APPL. 9114/2013
UDAI VEER ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
LPA No.408/2013 with other connected matters Page 1 of 24
+ LPA 394/2013 and CM APPL. 9126/2013
DEVINDER ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 395/2013 and CM APPL. 9134/2013
SANJAY ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 396/2013 and CM APPL. 9137/2013
NARENDER ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 397/2013 and CM APPL. 9141/2013
CHARAT SINGH ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
LPA No.408/2013 with other connected matters Page 2 of 24
Through: Ms. Raavi Birbal, Advocate
+ LPA 398/2013 and CM APPL. 9147/2013
BHAGAT SINGH ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 399/2013 and CM APPL. 9152/2013
INDER VEER ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 400/2013 and CM APPL. 9155/2013
ROOP RAM ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 401/2013 and CM APPL. 9158/2013
VIRAM SINGH ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
LPA No.408/2013 with other connected matters Page 3 of 24
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 402/2013 and CM APPL. 9167/2013
DESH RAJ ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 403/2013 and CM APPL. 9174/2013
KUMAR PAL ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 404/2013 and CM APPL. 9177/2013
BHARAT SINGH ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 405/2013 and CM APPL. 9180/2013
MAHIPAL ..... Appellant
Through: Mr. Bijender Singh, Advocate
LPA No.408/2013 with other connected matters Page 4 of 24
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 406/2013 and CM APPL. 9185/2013
SUNDER SINGH ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 410/2013 and CM APPL. 9200/2013
BALBIR SINGH ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 411/2013 and CM APPL. 9203/2013
ROHTASH KUMAR ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
LPA No.408/2013 with other connected matters Page 5 of 24
+ LPA 412/2013 and CM APPL. 9206/2013
KUMAR PAL ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 418/2013 and CM APPL. 9295/2013
BIRPAL ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 421/2013 and CM APPL. 9311/2013
SHRI ATTAR SINGH ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 422/2013 and CM APPL. 9319/2013
PRAVEEN KUMAR ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
LPA No.408/2013 with other connected matters Page 6 of 24
+ LPA 423/2013 and CM APPL. 9325/2013
MAM CHAND ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 425/2013 and CM APPL. 9340/2013
SANJAY KUMAR ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
+ LPA 745/2013
HARI OM GUPTA ..... Appellant
Through: Mr. Bijender Singh, Advocate
versus
BHARAT SANCHAR NIGAM LTD ..... Respondent
Through: Ms. Raavi Birbal, Advocate
CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
J.R. MIDHA, J.
1. The appellants have challenged the judgment dated 20th
March, 2013 whereby the learned Single Judge has set aside the
award passed by the Central Government Industrial Tribunal-cum-
Labour Court (hereinafter referred to as „CGIT‟):
Factual matrix
2. The facts of all the appeals are common and, therefore, the
facts in LPA 408/2013 are being noted herein.
3. Gopal, appellant in LPA 408/2013 (hereinafter referred to as
the appellant) issued a notice of demand dated 10th September,
2002 to the respondent in which he claimed to be continuously
working with the respondent since July 1994 on the post of Guard
at a salary of Rs.2,650/-per month. The appellant sought
reinstatement with backwages.
4. The conciliation proceedings were held before the Assistant
Labour Commissioner. The respondent in its reply before
Assistant Labour Commissioner, denied having ever employed or
terminated the appellant and stated that the various functions of the
department were carried out through the contractor.
5. Upon failure of the Conciliation proceedings, the Central
Government referred the following industrial dispute to the learned
CGIT:
"Whether the termination of services of S/Shri Harinder
Singh, Security Guard w.e.f. of 01.09.2002, Gopal,
Security Guard w.e.f. 01.09.2002, Narender, Security
Guard w.e.f. 01.02.2002, Bhagat Singh, Security Guard
w.e.f. 01.09.2002, Roop Ram, Security Guard w.e.f.
01.09.2002, Tejveer, Security Guard w.e.f. 01.09.2002,
Sanjay, Security Guard w.e.f. 01.09.2002, Satveer
Singh, S/o, Shri Hari Ram, Guard and Shri Sher Singh,
S/o. Shri Harchanda Nagar, Guard w.e.f. 01.09.2002 by
the management of BSNL, Faridabad is just and legal?
If not , to what relief the workmen are entitled."
6. In the claim statement dated 1st April, 2004, the appellant
reiterated that he was employed with the respondent's since July
1994 as a Security Guard at a monthly salary of Rs.2,650/- and was
terminated on 1st September, 2002; the respondent did not provide
him any appointment letter, attendance card or wages slip; ESI and
PF were deducted but the ESI card and the PF slip were not
provided to him; and he was terminated on 1 st September, 2002
without any written order and was told that the contract has been
given to Anuradha Security Services.
7. The respondent in its written statement reiterated that they
never appointed the appellant and as such, there was no employer -
employee relationship between the parties. It was further stated
that BSNL had not even been created in 1994 when the appellant
claimed to have joined the respondent. It was further stated that
the security personnel were hired through the contractor.
8. The appellant, in his evidence by way of affidavit, reiterated
the contentions mentioned above. However, in cross-examination,
the appellant contradicted his date of employment set up in the
demand notice and statement of claim i.e. July 1994 and deposed
that he was engaged in 1996 but he did not remember the month.
The appellant denied being employed through three security
contractors, namely, Laxman Security Agencies, Keshav Security
Services and Anuradha Security Services who had provided the
security according to the respondent.
9. The respondent's AGM(Legal) in his evidence by way of
affidavit deposed that the appellant was neither employed nor
terminated by the respondent and there was no employer-employee
relationship between the parties. The witness further deposed that
BSNL was not even created in 1994 and at that time only
Department of Telecom was in existence. The witness further
deposed that nobody was appointed without following the rules.
The witness further deposed that the respondent was required to
engage security personnel from DGR's sponsored agency in terms
of the office memorandum dated 1st February, 1999 issued by the
Department of Public Enterprises, Defence Ministry circular dated
26th April, 2001 and BSNL memorandum dated 3rd April, 2002.
10. The learned CGIT passed a common award dated 4th
December, 2006 holding the appellants to be the employees of the
respondent; the termination to be illegal; and the contract between
the respondent and the contractor to be sham. The learned CGIT
directed reinstatement of the appellants with 50% backwages w.e.f.
1st September, 2002.
11. The learned Single Judge allowed the writ petition of the
respondent and set aside the common award of CGIT on various
grounds inter alia that there was no employer-employee
relationship between the parties and the issue as to whether the
contract between the respondent and the contractor was sham, was
not even referred to the learned Tribunal. The learned Single Judge
held the finding of the learned CGIT to be without jurisdiction.
However, the learned Single Judge granted relief to the appellants
to the effect that wages under Section 17B received by them after
termination to be treated as compensation.
Submissions on behalf of the appellant
12. Learned counsel for the appellants could not dispute that the
issue as to whether the contract between the respondent and the
contractor was sham and bogus, was not at all referred to the
learned Tribunal. It was however submitted that the real dispute
between the parties was whether the workmen were the employees
of the contractor or of the respondent though the reference made to
the learned CGIT did not directly address this issue. The reference
made by the Central Government is suggestive of issues and is
simply framed to give direction to the Tribunal in regard of the
dispute. The onus to prove the contract was on the respondent who
did not discharge the same and therefore, the learned CGIT was
justified in holding the alleged contract to be sham and
camouflage. The learned CGIT did not make any jurisdictional
error by holding the relationship between the respondent and the
appellants to be sham and camouflage. Reliance was placed on
General Manager ONGC Silchar v. ONGC Contractual Workers
Union, (2008) 12 SCC 275.
13. The appellant proved the copies of the attendance sheets
before the learned Tribunal to prove the relationship whereas the
respondent failed to produce the alleged contract with the
contractor on record and therefore, the learned CGIT was justified
in awarding reinstatement with back wages.
14. The learned Single Judge while exercising the review
jurisdiction could not set aside the award of the Industrial Tribunal.
Reliance was placed on Harjinder Singh v. Punjab State
Warehousing Corporation, (2010) 3 SCC 192.
15. The learned Single Judge ignored the non-compliance of
Sections 25-G and 25-N of the Industrial Disputes Act which lay
down the procedure for retrenchment of the workmen. Reference
was made to Mohan Lal v. Management of M/s. Bharat
Electronics Ltd. (1981) 3 SCC 225 and Harjinder Singh v. Punjab
State Warehousing Corporation (supra).
16. The Ld. Single Judge erred in placing reliance on Keshav
Security Services Ltd. v. Union of India, 2006 (2) CTLJ 101 (Del)
and Ashok Kumar v. The State, W.P.(C) Nos.9438-42/2004
decided on 20.12.2006.
Submissions on behalf of the respondent
17. There was no employer-employee relationship between the
appellant and the respondent/BSNL and, therefore, the claim of the
worker/appellant was not maintainable. The respondent being a
government organization cannot make any appointment without
issuing appointment letters and without following due process of
law. The appellants have not been able to show any proof of
appointment such as appointment letter, salary, etc. Reliance was
placed on Workmen of Niligiri Coop. Mkt. Society Ltd. v. State of
Tamil Nadu, (2004) 3 SCC 514.
18. The issue as to whether the contracts between the respondent
and the contractor was sham and camouflage, was neither pleaded
nor the same was referred to in the terms of reference. The
appellant never pleaded before the CGIT that the contract was
sham and camouflage. The learned CGIT could not have decided
the issue beyond the terms of reference. Reliance was placed on
Mukand Ltd. v. Mukand Staff, (2004) 10 SCC 460, Ashok Kumar
v. The State, (supra) and Chhathoo Lal v. Management of
Goramal Hariram Ltd., MANU/DE/9872/2006.
19. That the whole case of the appellants in the claim before the
CGIT was that they were illegally terminated by BSNL. The onus
to prove the employer-employee relationship was on the appellants
who failed to prove the same. They did not produce any proof of
appointment letter, salary, etc. The respondent is a government
organization. It cannot make any appointment without following
due process and without issuing any appointment letters.
20. Since there was no employer-employee relation, there cannot
be any termination. Further, the plea of contract being sham and
camouflage was not taken by the appellant anywhere in the claim
statement. Neither the same was stated in the terms of reference so
referred. Though the terms of reference did mention the name of
the contractor, it did not mention anywhere that the contract was
sham and camouflage. The terms referred are self explanatory as
to the nature of dispute referred.
21. Vide an office memorandum which was issued by the
Department of Public Enterprises, which was followed by Defence
Ministry‟s circular dated 26th April, 2001, BSNL was required to
engage security personnel from Director General Resettlement
(DGR) sponsored agencies. One of the contractors, Keshav
Security Services had approached this Court to inter alia assail the
decision to discard open tender system and to draw the security
services from DGR sponsored agencies.
22. Since there is no prohibition notification under Section 10 of
the Contract Labour (Regulation and Abolition) Act, 1970, there
was no bar in engaging contract labourers.
23. Even otherwise the workers have been given adequate
compensation as per Section 17B of ID Act.
Discussions on the contentions raised
24. The first question which arises for consideration is whether
there was employer-employee relationship between the appellant
and the respondent? The appellant claims to have joined the
respondent in July 1994 at the post of the Guard but has no proof
of appointment such as appointment letter, salary slip etc. The
respondent disclosed in its written statement that BSNL was not
even created in 1994. Despite that the appellant deposed in his
evidence by way of affidavit that he joined in July 1994 which is
not possible. However, in cross-examination, the appellant stated
that he joined in 1996. The appellant has also not given the
particulars of the places of posting from 1994 to 2002. The
respondent being a Government Corporation, cannot appoint any
person without issuing proper appointment letters and cannot make
payments without a salary slip. We, therefore, hold that there was
no employee-employee relationship between the appellants and the
respondent.
25. The next question which arises for consideration is -
whether the issue as to "whether the contracts between the
respondent and the security agencies were sham or camouflage"
was referred by the Central Government to the learned CGIT. We
have referred to the pleadings of the parties and find that the issue
as to whether the contract between the respondent and the security
agencies was sham/camouflage neither arose out of the pleadings
nor it was referred by the Central Government to the learned CGIT.
The case of the appellant in the notice of demand as well as the
claim statement was that the appellant joined the respondent in July
1994 on the post of Guard at a monthly salary of Rs.2,650/- per
month and was terminated on 1st September, 2002 without any
written order. The respondent‟s case was that they never employed
the appellant and there was no employer-employee relationship
between the parties. It was further pleaded that since there was no
relation of employer-employee, the question of termination would
not arise. There is no averment either in the notice of demand or
the claim statement that the contract between the respondent and
the security agencies was sham and camouflage. The reference of
the Central Government is clear as to whether the termination of
appellant was just and legal. The reference further clearly records
that the appellant had been employed through the security
contractors but no reference was made as to the legality of the
contract between the respondent and the contractors.
26. In Mukand Ltd. v. Mukand Staff & Officers, (2004) 10 SCC
460, the Supreme Court held that the Labour Court cannot travel
beyond the terms of the reference. Relevant portion of the
judgment is reproduced as under:
"36. We, therefore, hold that the reference is limited to
the dispute between the Company and the Workmen
employed by them and that the Tribunal, being the
creature of the reference, cannot adjudicate matters not
within the purview of the dispute actually referred to it
by the order of Reference."
27. With respect to the appellants‟ contention that even if the
question relating to the validity of the contract between the
respondent and the service contractors was not referred by the
Central Government to the learned CGIT, the Industrial Tribunal
had jurisdiction to consider the issue. We do not agree with this
submission in view of the judgment of Ashok Kumar v. State
(supra) in which this Court held that the Labour Courts / Tribunals
cannot travel beyond the term of reference. This Court further held
that if no reference has been made to the Labour Court for
determining whether the contract was sham or camouflage, the
Labour Court could not have entered into this issue to hold that the
contract was sham and camouflage. Relevant portion of the said
judgment is reproduced hereunder:
"5. I consider that this argument of the counsel of the
petitioner must fail. The petitioners, before Conciliation
Officer as well as before the appropriate Government, did
not raise any dispute about the contract being sham and
camouflage. They rather claimed that they were direct
employees of the management and did not claim that they
were employees of the contractor. It is now settled law that
where the workmen claim that the contract between
principle employer and contractor was sham and
camouflage, they have to raise an industrial dispute to that
effect and it is industrial adjudicator who, after going
through the evidence and the terms and conditions of the
contract and other circumstances has to decide whether the
contract between principal employer and the contractor
was sham and camouflage. If the Industrial Adjudicator
comes to conclusion that the contract was sham and
camouflage, the industrial adjudicator can order the
absorption of the workman by the principal employer.
Similarly in a case where the workman considered that
though they were contractor's employees but the contract
labour system should be abolished, they have to approach
the appropriate Government under Section 10 of the CLRA
Act and it is the jurisdiction of the appropriate Government
to consider the demand of the workman and after taking into
account the parameters, as laid down under Section 10 of
the CLRA Act, issue a notification of abolition of the
contract labour system in the industry/establishment in
respect of specific jobs. The Tribunal or the High Court
cannot exercise powers under Section 10 of the CLRA Act.
This power vests with the Government."
"7. It is obvious that the workmen in this case did not raise
correct dispute and did not approach the appropriate
Government with the contentions that the contract was sham
and camouflage or that the contract labour system should be
abolished. They got referred a dispute that they were the
employees of the management and were not being
regularized. This claim was found false. The Labour Court
had no alternative but to dismiss the claim. It is settled law
that the Labour Courts/Tribunals cannot travel beyond the
term of reference. If no reference had been made to the
Labour Court for determining whether the contract was
sham and camouflage, the Labour Court could not have
entered into this issue and decided whether the contract
was sham and camouflage."
(Emphasis supplied)
28. In Chhathoo Lal v. Management of Goramal Hariram Ltd.
(supra), this Court again held that since the workmen had not
raised the contention that the contract between the management
and the contractor was sham, Labour Court could not have gone
into the question. This Court further held that the Labour Court is
a creation of the reference and therefore, cannot go beyond the
terms of the reference. Relevant portion of the said judgment is as
under:
"8. In the present case the workman had not raised
any contention that the contract entered into between
the contractor and the management was a sham. In fact
the contention of the workman was that he was an
employee of the respondent. The Labour Court could
not have gone into the question whether the contract
was sham or not because no such reference was made
to the Labour Court. The reference made to the Labour
Court was that whether the services of the petitioner
were illegally terminated or not and the contention of
the petitioner was that he was a direct employee of the
respondent. I consider that the petitioner should have
initially raised a proper dispute. He should have come
up with clean hands and submitted that he was an
employee of the contractor and the contract should be
declared as sham and camouflage and he should be
considered as an employee of the principal employer.
He did not disclose the true facts and taking a false plea
stood in the way of referring the proper dispute to the
Labour Court. It is settled law that the Labour Court is
a creation of the reference and the Labour Court
cannot go beyond the terms of reference except that
the questions incidental to the dispute and those, who
go to the root to the jurisdiction of Labour Court can
be decided by the Labour Court while deciding a
reference.
9. The contention of the counsel of petitioner that the
Labour Court could not have gone into the questions of
relationship of employer- employee does not stand the
scrutiny of law. The issue of relationship of employer-
employee goes to the root of the jurisdiction of the
Labour Court and is incidental to the issue raised by the
petitioner that he was illegally terminated by the
respondent. If he was not an employee of the respondent
there could have been no question of his illegal
termination the question of his illegal termination would
arise only if he was an employee of the respondent.
10. In A.P.SRTC and Ors. v. G.Srinivas Reddy and Ors.
(2006) IILLJ 425 SC, Supreme Court held that if the
respondents wanted the relief of absorption they will have
to approach the Industrial Court and establish that the
Contract Labour System was only a ruse/camouflage to
avoid labour law benefits to them. Where the workmen
do not approach the Court with correct reference and
true facts, workmen cannot later on turn around and say
that now they should be considered as workmen through
the contractor and they should be deemed to be the
employees of the management because contract was
sham and camouflage."
(Emphasis supplied)
29. We do not agree with learned counsel for the appellants that
the judgment of Ashok Kumar v. State (supra) does not apply to
the present case because the employee failed to prove the
relationship of employer-employee whereas the appellant has
successfully proved the relationship. In the present case also, the
appellant could not prove the employer-employee relationship.
This case is squarely covered by Mukand Ltd. v. Mukand Staff
(supra), Ashok Kumar v. State (supra) and Chhathoo Lal v.
Management of Goramal Hariram Ltd. (supra).
30. We do not agree with the appellants that Keshav Security
Services v. Union of India (supra) referred to by the learned Single
Judge is not relevant to the issue. The said judgment is relevant to
show that BSNL was permitted to engage security personnel from
Direct General Resettlement (DGR) sponsored agencies. By the
office memorandum dated 1st February, 1999 of Department of
Public Enterprises, Ministry of Industry; Defence Ministry circular
dated 26th April, 2001 and BSNL memorandum dated 3rd April,
2002, all BSNL establishments have to engage security personnel
from DGR's sponsored agency only.
31. The appellant‟s contention that the Writ Court while
exercising review jurisdiction, could not have set aside the award
of learned CGIT, is misconceived. We do not find any infirmity in
the exercise of the writ jurisdiction to set aside an award of the
learned CGIT on the ground that issue of the contract between the
respondent and its contractors to be sham and camouflage, was not
even referred to it. Reference in this regard may be made to
Mukand Ltd. v. Mukand Staff (supra).
32. With respect to the appellants‟ contention that the learned
Single Judge ignored the non-compliance of Sections 25-G and 25-
N of the Industrial Disputes Act, we are of the view that the
aforesaid provisions would come into play only after the
relationship of employer-employee was proved. Since the
appellant could not prove the relationship of employer-employee,
the question of application of Section 25-G and 25-N of the
Industrial Disputes Act would not arise.
33. The appellant has relied upon Mohan Lal v. Management of
M/s. Bharat Electronics Ltd. (supra) in which the appellant therein
employed with Bharat Electronics Ltd. as a Salesman was
terminated during the period of his probation. The appellant raised
an industrial dispute which was referred to the Labour Court for
adjudication. The Labour Court upheld the removal during the
extended period of probation and held that it would not constitute
retrenchment within the meaning of Section 2(oo) and section 25F
of the Industrial Disputes Act. The Supreme Court held that:
"the termination of the appellant's temporary service
does not fall under any of the expected or excluded
categories and the termination is thus for a reason
other than the expected category. Therefore, it would
be retrenchment within the meaning of the word as
defined in Section 2(oo).
Where prerequisite for valid retrenchment as laid
down in Section 25-F has not been complied with,
retrenchment bringing about termination of service is
ab initio void."
This judgment does not help the appellant because there was
no dispute with respect to the employer-employee relationship in
that matter whereas the basic dispute in the present case relates to
the employer-employee relationship between the parties. Section
25F would not apply since we have held that there is no employer-
employee relationship between the parties.
34. The appellant has also relied upon Harjinder Singh v.
Punjab State Warehousing Corporation (supra) in which the term
of the appellant therein working with Punjab State Warehousing
Corporation as Water Charge Motor Mate was challenged. The
management later issued a notice for retrenchment which was also
challenged. The Labour Court directed reinstatement with 50%
backwages on the ground of violation of principle of „last come
first go‟. The Supreme Court upheld the award of the Labour
Court. This judgment does not help the appellant as there is no
employer-employee relationship between the parties in the present
case and therefore, Section 25F of the Industrial Disputes Act
cannot be resorted to.
35. The appellant has next relied upon General Manager, Oil
and Natural Gas Commission, Silchar v. Oil and Natural Gas
Commission Contractual Workers Union (supra) in which the
workers were held to be the employees of ONGC as the wages
were being paid by ONGC; there was no contractor appointed by
ONGC; ONGC used to supervise and allot works to individual
workers; ONGC took disciplinary action and called for explanation
from the workers and therefore, it was held that there was
relationship of master and servant. In the present case, the
appellant could not produce any evidence whatsoever to prove the
relationship of employer and employee either with the respondent
or within the contractor and therefore, this judgment would not
help the appellant.
36. We agree with the respondent that the respondent being a
government organization cannot make any appointment without
issuing appointment letter and without following the due process of
law and therefore, the appellants‟ contention that they were
appointed without issuance of any appointment letter does not
appear to be true. We also agree with the respondent that irregular
appointees have no right to post as held in Umarani v. Registrar,
Cooperative, (2004) 7 SCC 112, Accounts Officer (A&I) ors. v.
K.V. Ramana, (2007) 2 SCC 324 and Indian Drugs &
Pharmaceuticals v. Workman, Indian Drugs, (2007) 1 SCC 408.
37. We agree with the respondent that the onus to prove the
relationship of employer-employee was on the appellant as held by
the Supreme Court in Workmen of Niligiri Coop. Mkt. Society
Ltd. v. State of Tamil Nadu (supra). The appellant could not
produce appointment letter or any other document to show the
relationship of employer and employee. The document relating to
the attendance sheet is not sufficient to prove the relationship of
employer and employee as the worker, through the contractor,
would be posted at different places and would not become the
employee of all the places where they are posted.
Conclusion
38. On careful consideration of the rival contentions of the
parties, we are of the view that the appellants have not proved the
relationship of employer and employee. The appellants have not
produced any document to prove the employment. The respondent
being a Public Sector Undertaking cannot employ any person
without issuance of appointment letter and maintaining proper
records of the wages. We agree with the learned Single Judge that
the issue as to whether the contract between the respondent and the
contractors were sham and camouflage, was not even referred to
the learned Tribunal. The learned Tribunal was, therefore, clearly
in error in giving a finding with respect to the same.
39. We do not find any infirmity in the impugned judgment and
agree with the findings of the learned Single Judge. We also note
that the appellants have received wages in the range of
Rs.3,00,000/- under Section 17B of the Industrial Disputes Act
which is treated as compensation and the appellants are therefore
not liable to return the same. This is sufficient compensation to the
appellants.
40. There is no merit in the appeals which are hereby dismissed.
41. Pending applications also stand dismissed.
J.R. MIDHA, J
P.K. BHASIN, J
JULY 3, 2014/dk
