Gujarat High Court

Ambuja Cement Limited vs Pratap Raysing Nakum on 22 January, 2021

Bench: Nirzar S. Desai

        C/SCA/12192/2020                                        ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 12192 of 2020
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                   AMBUJA CEMENT LIMITED
                            Versus
                   PRATAP RAYSING NAKUM
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Appearance:
MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR UT MISHRA(3605) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                 Date : 22/01/2021

                                  ORAL ORDER

1.Heard learned advocate Mr. Premal Joshi for

the petitioner and learned advocate Mr. U.T.

Mishra for the respondent through video

conference.

2.This petition is preferred by the petitioner

challenging the legality, validity and

propriety of the award dated 13.11.2019

passed below Exh.47 in Reference (T) Case No.

21 of 2013 by the Presiding Officer, Labour

Court No. 2, Junagadh, whereby, the Reference

of the respondent workman was partly allowed

C/SCA/12192/2020 ORDER

by holding that the termination dated

24.05.2012 as illegal and directed to

reinstate the workman without any backwages.

3.The facts of the case can be summarized as

under:

3.1. It was the case before the Labour

Court that the respondent no.1 workman

herein was working as a Peon since

01.02.1997 under the respondent no.2. He was

performing his duty in the best possible

manner and was paid wages @ 192.26 per day

and his service came to be terminated orally

by one Mr. Jain of the present petitioner

and since he had performed 15 years of

continuous service under the petitioner and

had completed 240 days in each year, his

termination was illegal and therefore he

prayed for his reinstatement alongwith back

wages. In his statement of claim, the

workman has also stated that though on the

salary slip, there is a stamp of respondent

C/SCA/12192/2020 ORDER

no.2 but actually the respondent workman was

working under the petitioner only and the

workman was not working under the respondent

no.2 - Contractor and therefore, petitioner

being the principal employer, his salary,

bonus, etc., were paid by the petitioner and

that workman has never entered into with any

contract with the respondent no.2. By filing

the aforesaid statement of claim in

Reference (T) Case No. 21 of 2013, the

petitioner prayed the reliefs as stated

hereinabove.

4. The Presiding Officer, Labour Court No.2,

Junagadh after hearing the present petitioner,

workman who is respondent no.1 herein and

contractor who is respondent no.2 herein

passed an award and directed the petitioner to

reinstate the respondent workman without back

wages within a period of 30 days vide order

dated 13.11.2019 passed below Exh.47 in

Reference (T) Case No. 21 of 2013. It is the

C/SCA/12192/2020 ORDER

aforesaid award which is the subject matter of

this petition, as the same is challenged by

way of this petition.

5. The Coordinate Bench of this Court passed the

following order in this matter on 15.12.2020:

"Heard Mr.Premal Joshi, learned advocate for he petitioner and Mr.U.T.Mishra, learned advocate for the respondent.

Mr.U.T.Mishra, learned advocate for the respondent states that, this court in Special Civil Application No. 15263 of 2017 and allied matters passed an order dated 27.08.2019, and therefore, the order passed will govern the petition. Mr.Premal Joshi, learned advocate wants time.

Hence stand over to 12.01.2021."

6. On the next date of hearing i.e. on

12.01.2021, this Court passed the following

order:

                  "Heard    learned    advocate   Mr.
                  Premal     R.     Joshi     for the

petitioner and learned advocate Mr. U.T. Mishra for the respondent no.1 through video conference.

                  Both    the     learned     advocates
                  appearing     for     the respective
                  parties      submit     that      the
                  dispute       involved in         the
                  present    petition     is    covered




         C/SCA/12192/2020                                             ORDER



                  by   the    judgment delivered    by
                  the     coordinate      Bench     of
                  this    Court    in Special    Civil
                  Application     No.     15263     of
                  2017     and allied matters, which
                  were decided on 27.08.2019.
                  In    view    of                  the    aforesaid,
                  no       further                     arguments are
                  advanced.

Hence, stand over to 22.01.2021 for orders."

7. Considering the aforesaid two orders and also

considering the fact that there is an

agreement between the learned advocates for

respective parties that the present petition

is covered by the judgment delivered by the

Coordinate Bench of this Court in Special

Civil Application No. 15263 of 2017 and allied

matters which were decided on 27.08.2019.

8. By way of filing the Special Civil

Application No. 15263 of 2017 and allied

matters, the present petitioner had challenged

a similar award, whereby, the petitioner was

directed to reinstate the workmen who were

similarly situated to the workman of the

present petition with 100% backwages.

            C/SCA/12192/2020                                            ORDER



9.    A       perusal          of    common          oral        order           dated

     27.08.2019            shows    that      in that       petition               also

     the    award         which     was     under        challenge           was       in

     respect          of      the        relationship           between              the

workman and principal employer, as in that set

of petitions also, the workmen were allegedly

working under the contractor and it was

submitted that the workmen cannot be said to

be the employee of the principal employer who

is the present petitioner in this petition as

well as in that set of petitions.

10. In the common oral order dated 27.08.2019

passed in Special Civil Application No. 15263

of 2017, in para2.3, it was observed as

under:

"2.3. In the background of such facts, the Labour Court on appreciation of evidence found that the arrangement of contract between the principal employer and the contractor was a mere camouflage and, therefore, respondent -

workmen were entitled to reinstatement and given the benefit of such reinstatement by the principal employer

C/SCA/12192/2020 ORDER

/ contractor.

11. In the present petition also, in the award

under challenge, the Presiding Officer framed

issue no.2 as under:

"Does the opponent no.1 proves that the applicant herein being workman of the opponent no.2 - contractor and hence there is no relationship of employeeemployer between the workman and opponent no.1?

12. The Labour Court held in respect of the

aforesaid issue that there is a relationship

of employeremployee between the present

petitioner and respondent no.1 and on the

basis of that alongwith considering the facts

and evidence on record directed the present

petitioner to reinstate the respondent

workman.

13. From above, it is clear that the issue in

this petition as well as in Special Civil

Application No. 15263 of 2017 and allied

C/SCA/12192/2020 ORDER

matters was the same that whether the

petitioner can be said to be principal

employer and is liable to reinstate the

respondent workman.

14. The Coordinate Bench of this Court in Special

Civil Application No. 15263 of 2017 decided on

27.08.2019 further observed in para11.2 which

read as under:

"11.2. It is in the background on this fact that the tribunal has extensively discussed the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and on appreciation of evidence, found that the contract was mere sham and bogus and further that the notification prohibited the principal employer from engaging the present respondent - workmen under the contract."

15. This Court after the aforesaid observations,

ultimately, dismissed the Special Civil

Application No. 15263 of 2017 and allied

matters by confirming the order of

C/SCA/12192/2020 ORDER

reinstatement.

16. It is under this background that both the

learned advocates jointly submitted that the

present petition is covered by the judgment

delivered by the Coordinate Bench of this

Court in Special Civil Application No. 15263

of 2017 and allied matters.