Salila Pradhan vs Ram Bali Prasad And Another
2023 Latest Caselaw 5192 Ori

          IN THE HIGH COURT OF ORISSA, CUTTACK
                           WP(C) No.2459 of 2017
                            (Through hybrid mode)

      Salila Pradhan                                  .......        Petitioner


                                     -Versus-


      Ram Bali Prasad and another                     ......    Opposite Parties

      Advocates appeared in the case:

            For petitioner            -     Ms. P.P. Mohanty &
                                            Mr. G.N. Mishra, Advocates

            For opposite parties -          Mr. Satyabrata Mohanty, Advocate
                                            (for opposite party no.1)
                                             Mr. S.P. Sarangi, Advocate
                                            (for opposite party no.2)

            CORAM:

            JUSTICE ARINDAM SINHA
            JUSTICE SANJAY KUMAR MISHRA
-------------------------------------------------------------------------------------
       Date of Hearing: 01.02.2023 and 03.05.2023
       Date of Judgment: 05.05.2023
-------------------------------------------------------------------------------------
S.K. MISHRA, J.

1. The Petitioner workman, being aggrieved by the award dated

23rd December, 2016 passed in I.D. Case No.03 of 2015, has

approached this Court. Vide the said impugned award, though the

Labour Court answered issue no.1 in favour of the petitioner workman holding that the termination of services of the petitioner workman by

the present opposite party management no.1, without compliance of

section 25-F of the Industrial Disputes Act, 1947, shortly, I.D. Act,

1947, is illegal and unjustified, while answering issue no.2, as to what

relief the petitioner workman is entitled to, the Labour Court awarded

a lump sum compensation of Rs.1,60,000/- to be just and proper with

an observation that the opposite party management no.1 has no work

under the opposite party management no.2.

2. As per the statement of claim filed by the petitioner workman

before Labour Court, he was engaged as 'Fitter' w.e.f. 30th June, 2008

under the opposite party management no.1, a contractor, in the

establishment of the opposite party no.2-employer. Having employee

gate number and coverage under the Employees Provident Fund, he

was discharging his duty sincerely, honestly, with full dedication. The

opposite party management no.1 had issued a gate pass to the

petitioner workman, which was extended from time to time. Though

the petitioner workman maintained a clean service record having no

adverse remark, all of a sudden, on 31st August, 2013, without any

reason, the opposite party management no.1 terminated his service by

way of refusal of employment. There was no prior notice to the

petitioner workman nor he was paid retrenchment compensation prior

to such refusal of employment. The opposite party management no.1

WP(C) no.2459 of 2017 has undertaken work from construction period of M/s OSWAL

Chemical and Fertilizers Ltd, which was taken over by the M/s IFFCO

Ltd., Paradeep, opposite party management no.2.

It is further case of the petitioner workman, other contractors

namely, M/s. Unique, M/s S.B. Industries, M/s Kapoor Brothers, M/s J

& J, M/s Behera Engineering (P) Ltd. and M/s Rambahadur are

executing works along with the present opposite party management

no.1. The contract work performed by the opposite party management

no.1 is of perennial nature, which is necessary for the industry, trade,

business, manufacture or occupation carried on in that establishment

and are regular in nature. The petitioner workman was working in the

PAP side and the work performed by him, is of perennial nature. After

the contract work of the opposite party management no.1 ceased, the

said work has been executed by other contractors at present. The

retrenched workers of the opposite party management no.1 are

working in M/s S.B. Industries, M/s Sakti Contractor and M/s Jaya

Maa Tarini Contractor. Therefore, the petitioner workman has a right

for his reengagement under the other contractors of the opposite party

management no.2. It being the principal employer, is not only

responsible to ensure payment of wages to the contract labourers, but

also liable to reengage the retrenched workmen of the opposite party

management no.1. It is also the case of the petitioner that the contract

WP(C) no.2459 of 2017 work of the opposite party management no.1 did not expire in the

month of September, 2013. Rather, it continued till January, 2014. The

petitioner workman has not received any notice dated 26th August,

2013, as claimed by the opposite party management no.1. He has no

knowledge about the alleged meeting held on 12th September, 2013.

The petitioner workman continued till 31st August, 2013 and all

of a sudden, without any rhyme or reason, the opposite party

management no.1 illegally terminated his service by way of refusal of

employment w.e.f. 1st September, 2013, without any prior notice,

notice pay or compensation i.e. without compliance of the legal

provisions laid down under the I.D. Act, 1947.

It is further case of the petitioner workman, while continuing as

such, at the project site of opposite party management no.2, he had

rendered uninterrupted service for more than 240 days. The opposite

party management no.1 issued gate pass and wage slips to him. He

was paid wages from time to time through wage register kept and

maintained by the opposite party management no.1, as per the days of

work reflected in attendance card. All the statutory records are within

the custody of the opposite party management no.1.

It has also been pleaded that the petitioner is a workman and the

opposite party managements are industries as defined under the I.D.

Act, 1947. The opposite party management no.2 i.e. M/s IFFCO Ltd.

WP(C) no.2459 of 2017 Paradeep Unit was formerly known as M/s OSWAL Chemical and

Fertilizers Ltd. (OCFL) and the present opposite party management

no.1 has been working from construction period (Primary stage) of

OSFL till date. The opposite party management no.1 as well all the

workmen engaged by it, provided uninterrupted services to the

opposite party management no.2. M/s IFFCO Ltd. Paradeep Unit is a

large industry and there are more than 2000 employees working in the

said industry directly and indirectly. Further, it was pleaded before the

Labour Court that action of the managements in terminating the

service of the petitioner workman amounts to illegal retrenchment

from service and has been brought into effect without compliance of

principles of natural justice and in gross violation of statutory

provisions enshrined under sections 25-F, G and H of the I.D. Act,

1947. Therefore, the retrenchment of the petitioner workman by way

of refusal of employment w.e.f. 1st September, 2013 by the opposite

party management no.1 is bad in law and unsustainable in the eye of

law and liable to be declared as illegal and unjustified.

It has also been alleged in the claim statement that since the

petitioner workman along with others demanded EPF and ESI

benefits, which are obligatory on the part of the opposite party

management no.1 to provide, the said management bore grudge on the

workmen for taking up the demand for coverage under EPF and ESI,

WP(C) no.2459 of 2017 so also safety devices before the opposite party management no.2

(IFFCO). Accordingly, a prayer was made to answer the reference in

favour of the petitioner workman by directing the opposite

management no.1 and or principal management to re-instate the

petitioner with full back wages and all consequential service benefits

in the interest of justice.

3. Being noticed, the opposite party management no.1 appeared

and filed its written statement. Apart from taking various technical

pleas as to maintainability of reference, it was pleaded that it is a

registered Contractor of the present opposite party management no.2,

which is a necessary party to the said reference, being the principal

employer. The reference is bad for non-impleadment of management

of IFFCO as a party. A stand was also taken in the written statement

that the contract of the management was only for one year, which was

signed on 4th September, 2012 and the same was operative till 3rd

September, 2013 and thereafter, the contract was not extended.

Therefore, the termination/retrenchment of the petitioner workman is

not coming under the definition of 'retrenchment' in view of section

2(oo) (bb) of the I.D. Act, 1947. Time to time agreements were signed

between the opposite party management no.1 and the management

no.2 and the last agreement signed in the said regard was on 4th

September, 2012 for one year. Thereafter, the said agreement was not

WP(C) no.2459 of 2017 further extended and expired from the month of September, 2013. It is

also the stand of the opposite party management no.1, it issued a

notice on 26th August, 2013 to the workman and copy of the said

notice was also marked to the Secretary of Employees' Union, District

Labour Office, Jagatsinghpur, DGM Security and the opposite party

management no.2, indicating therein that there is no pending work,

therefore 53 employees were retrenched w.e.f. 1st September, 2013. It

was also informed to all the employees to collect their final dues up to

31st August, 2013 from the opposite party management no.1.

When nobody received the final dues, as informed by the notice

dated 26th August, 2013, the opposite party management no.1 on 10th

September, 2013 gave a reminder for collecting the dues with copies

to the parties as before. Thereafter, a meeting was held between the

members of employees union, IFFCO and opposite party management

no.1, in which the opposite party management no.1 undertook on 12th

September, 2013 that it will re-employ the retrenched employees as

and when it is required in future. It again gave further reminder on 13th

September, 2013 to all the employees to collect their full and final

dues by 16th September, 2013.

Out of the said employees, 13 employees, instead of taking their

full and final dues, raised an industrial dispute on

24th April, 2014 before the Conciliation Officer-Cum-DLO,

WP(C) no.2459 of 2017 Jagatsinghpur alleging therein the termination of their services to be

illegal. The management contractor contested the said dispute before

the Conciliation Officer-Cum-District Labour Office, Jagatsinghpur

and a settlement was arrived on 13th May, 2014 between the

management no.1 and its workmen, vide which it was agreed by the

parties that the workmen will receive their full and final dues and they

will not demand for reinstatement due to non-availability of work and

non-renewal of contract. It was further agreed between the parties,

whenever there will be requirement, the opposite party management

no.1 will follow the provision of section 25-H of the I.D. Act, 1947.

Subsequently, another group of employees of the management

no.1 made a complaint on 19th March, 2014 before the Conciliation

Officer alleging therein that their termination to be illegal and a similar

settlement was also arrived on 07th May, 2014 between the opposite

party management no.1 and its workmen with similar terms and

conditions as of the earlier settlement dated 13th May, 2014.

It is further case of the opposite party management no.1 that the

petitioner workman and two others did not accept their full and final

settlement and sent a notice on 4th July, 2014 through their counsel

stating therein that the petitioner was working as 'Fitter' under the

opposite party management no.1 and their services were terminated

w.e.f. July, 2013. It was further stated that an unlawful agreement was

WP(C) no.2459 of 2017 executed on 27th January, 2014 between the petitioner workman and

Mr. Nirmal Gupta. Thereafter, the petitioner workman raised an

industrial dispute. It was also mentioned in the said complaint that Mr.

Gupta is not a competent person on behalf of the management no.1 to

execute an agreement with anybody. It is also stated that the petitioner

workman was working as 'Helper' under the management w.e.f. 1st

June, 2008 to 31st August, 2013 and his service was terminated

because of non-renewal/further extension of the contract of the

management no.1, which expired w.e.f. 1st September, 2013. There

was no work available with the management no.1 to continue the

petitioner workman along with others. Therefore, the management

no.1 offered all the legal dues, including retrenchment compensation

and one month's salary in lieu of notice to the petitioner workman and

others by issuing notice to the said effect on 26th August, 2013. Copy

of such notice was also marked to the employees union, DLO,

Jagatsinghpur and other officials. But the petitioner workman did not

receive his legal dues offered by the opposite party management no.1.

Thereafter, on 10th September, 2013, 12th September, 2013 and 13th

September, 2013, it offered the statutory dues to the petitioner

workman, who did not accept the same. The petitioner workman and

several others, on 27th January, 2014 kidnapped one Mr. Nirmal

Gupta, Site In-charge of the opposite party management no.1 and

WP(C) no.2459 of 2017 forcibly, under threat, got signatures of Mr. Nirmal Gupta on some

blank papers at Kujang Court premises and they also manhandled Mr.

Nirmal Gupta for obtaining his signatures on some blank papers,

which was informed to the opposite party management no.2 by letter

dated 28th January, 2014. In response to such communication, the

Executive Director of opposite party management no.2 wrote a letter

dated 30th January 2014 to the opposite party management no.1 to take

legal action. The Joint General Manager (HR), IFFCO also vide his

letter dated 8th July, 2014 informed the DLO, Jagatsinghpur regarding

the incident dated 27th January, 2014. All the workmen, retrenched by

the opposite party management no.1, due to non-renewal of contract as

well as non-availability of work, have received their full and final

payment, except the present petitioner workman and two others. In

terms of agreement entered into before the Conciliation Officer-Cum-

DLO, Jagatsinghpur, the petitioner workman is also bound by such

tripartite agreement made by majority of workmen. It was also

contended in the written statement that the opposite party no.1 is ready

to pay the legal dues to the petitioner workman, which comes around

Rs.1,42,169/-, which includes one month's salary in lieu of the notice

period.

That apart, while giving para-wise reply to the averments made

in the statement of claim filed by the workman, vide paragraph

WP(C) no.2459 of 2017 no.25(c), a stand was taken with regard to legality of the order of

reference made by the State Government on the ground of non-

impletion of necessary party i.e. present opposite party no.2.

4. In view of such stand of the opposite party management no.1 in

its written statement, the petitioner workman filed a petition before the

Labour Court to implead the present opposite party no.2 as

management no.2 to the said I.D. case. The same being allowed and

the newly impleaded management no.2, being noticed, appeared and

filed its written statement reiterating the stand taken by the opposite

party management no.1 in its written statement. Apart from reiterating

the stand taken by the opposite party management no.1, it took a stand

that it being the principal employer, an agreement was signed between

it and the opposite party management no.1. Accordingly, the opposite

party management no.1 is liable and responsible for engagement and

payment of the dues to the contract labourers. The opposite party

management no.2 has no liability and responsible in the matter. As per

section 21 of the Contract Labour (Regulation and Abolition) Act,

1970, shortly, "the CLRA Act, 1970", being the principal employer, it

is only obligatory on its part to ensure payment of wages to the

contract labourers in the event of failure on the part of the contractor to

pay the wages, in terms of section 21 of the CLRA Act, 1970.

WP(C) no.2459 of 2017

5. Ultimately, as is permissible under Rule 10 B (4) of Orissa

Industrial Disputes Rules, 1957, the petitioner workman filed his

rejoinder stating therein that the opposite party management no.1

executed contract work in various sides such as Mechanical

Maintenance Job as well as new Jobs in P.A.P. side, D.A.P. side,

S.A.P. side, Amonia side, Bagging Plant side, Material Handling,

Boiler, Central Workshop (Crane Maintenance) of M/s IFFCO Ltd.

There are other contractors namely, M/s Unique, M/s S.B. Industries,

M/s Kapoor & Brothers executing work in P.A.P. side, M/s J & J, M/s

Behera Engineering (P) Ltd, M/s Ram Bahadur. M/s Prasad & Co. is

executing work in S.A.P. side and was a very old Contractor, who was

also working under former Management M/s OSWAL, which was

taken over by management M/s IFFCO. The opposite party

management no.1 was executing the work in different sides and those

work are of perennial nature and necessary for industry, trade,

business, manufacture, or occupation carried on in that establishment

and are regular in nature. The petitioner workman was working as

'Fitter' in P.A.P. side (Phosphoric Acid Plant) side and the said work

is of perennial nature. After the contract work of the management no.1

ceased, the said work has been executed by other contractors at

present. The retrenched workers of management no.1 are working in

M/s Sakti Contractor, Bibhuti Bhusan Pradhan, Dillip Das & Lokanath

WP(C) no.2459 of 2017 Sahoo are working in M/s Jay Maa Tarini Contractor. Therefore, the

present workman has a right of re-engagement under other

Contractors, as the very same job is available with the management

no.2.

It is also pleaded in the rejoinder that opposite party

management no.2, being the principal employer, is not only

responsible to ensure payment of wages to contract labourers but also

liable to re-engage the retrenched contract workers of the opposite

party management no.1, who have been retrenched due to expiry of

work order of the said contractor as the very same work is available

and executed through other contractors. The opposite party

management no.2 has not filed the agreement with the contractor as

well as labour license of the contractor and all relevant documents

relating to execution of contract work by the contract labourers and

their employment, deliberately to suppress the material facts and

irregularities committed by them. The petitioner workman has no

knowledge with regard to alleged settlement arrived at between the

opposite party management no.1 with the other workers in presence of

the Conciliation Officer. It was also pleaded in the rejoinder that the

contract of the opposite party management no.1 never expired in

September, 2013. Rather, it continued till January, 2014. The

petitioner workman has never received any notice dated 26th August,

WP(C) no.2459 of 2017 2013 as alleged nor any letter/ information has been received by him

with respect to collection of dues from opposite party management

no.1. The work order issued in favour of opposite party management

no.1 was not renewed by the management opposite party no.2 with

malafide intention. The petitioner workman has a right for

reemployment in terms of Rule 11 of the Orissa Contract Labour

(Regulation and Abolition) Rules, 1975 (Conditions of Service) read

with section 25-H of I.D. Act, 1947 under the management no.2 and

his termination of service by way of refusal of employment by his

employer i.e. management no.1, which is a contractor's establishment

of management no.2, is illegal and justified.

6. The Labour Court vide the impugned award, after taking into

consideration the pleadings of the parties, so also evidence on record,

framed the following issues.

"1. Whether the termination of services of Sri Salila Pradhan, Fitter w.e.f. 01.09.2013 by way of refusal of employment by the employer of M/s. Prasad & Co. Contractor of M/s. IFFCO Ltd., Paradeep having Head Office at 11-B, Strachy Road, Vasant Vihar, Allhabad-211001, Uttar Pradesh is legal and/or justified?

2. If not, what relief Sri Pradhan is entitled to? "

7. While answering issue no.1, the court below held that the

termination of services of the petitioner workman by the management

no.1 is not covered under section 2(oo) (bb) of I.D. Act, 1947. It

further held that the said termination of services of the petitioner-

WP(C) no.2459 of 2017 workman by the management no.1, being without compliance of

section 25-F of I.D. Act, is illegal and unjustified.

However, while answering issue no.2, as to what relief the

petitioner workman is entitled to, the court below awarded a sum of

Rs. 1,60,000/- in favour of the petitioner workman in lieu of

reinstatement and back wages. The said relief granted, being the

subject matter of challenge in the writ petition, allegedly to be

perverse, the relevant portion from the findings of issue no.2 is

extracted below:

"It is also clear that the 1st party management no.1 has no work under the 1st party management no.2 at present. Hence, the 2nd party workman is not entitled to reinstatement in service under the 1st party management no.1. However, he is entitled to compensation. It is admitted by the 1st party management no.1 at paragraph-22 of its written statement that the 2nd party is entitled to Rs.1,42,169/- including one month salary in lieu of notice. Taking into consideration the period of service of the 2nd party under the 1st party management no.1, a compensation of Rs.1,60,000/- will be just and proper. Hence, 1st party management no.1 is directed to pay a sum of Rs.1,60,000/- to the 2nd party workman within one month of publication of the Award by the Government, failing which he will be entitled to interest @ 9% per annual till it is actually paid to him.

The reference is disposed of accordingly."

8. Ms. Mohanty, learned Counsel for the Petitioner submitted that

sufficient evidences were led before the court below to prove that even

after September, 2013, the opposite party management no.1 worked in

the establishment of opposite party no.2 till October, 2014. Other co-

workmen were reengaged in the establishment of the opposite party

no.2, the said work of management no.2 being permanent and

WP(C) no.2459 of 2017 perennial in nature. Even though the said evidence led by the

workman as W.W. no.1 remained untouched during his cross-

examination, the Labour Court, while answering issue no.2, as to

relief to be granted, failed to take note of the admitted evidence on

record as to reemployment of retrenched workman in terms of section

25-H of the I.D. Act, 1947, so also discrimination meted out to the

petitioner because of his raising voice against the management for his

non-coverage as well as similarly placed workmen under the EPF and

ESI Act, so also not providing safety appliances in terms of the

Factories Act, 1948.

Learned Counsel for the petitioner workman further submitted

that while granting relief, the Labour Court failed to take note of the

legal provisions enshrined under Rule 11 of the Orissa Contract

Labour (Regulation and Abolition) Rules, 1975 (Conditions of

Service), which mandates as to applicability of Chapter V-A and V-B

of the I.D. Act, 1947 to the establishment of opposite party

management nos.1 and 2 and re-engagement of retrenched contract

labourers, as is being provided under section 25-H of the I.D. Act,

1947. She further submitted that it is obligatory on the part of opposite

party management no.2 to ensure implementation of the said legal

provision as to reengagement of retrenched contract labourers, more

particularly when evidence was led to the said effect as to

WP(C) no.2459 of 2017 reengagement of similarly placed retrenched contract labourers. That

apart, the Labour Court further failed to award compensation over and

above the admitted alleged amount due in favour of the petitioner

workman, to compensate the said illegal and unjust termination. The

opposite party management no.1 admitted in its written statement, so

also while leading evidence before the court below that the legal dues

payable to the petitioner workman comes around Rs. 1,42,169/- and it

is ready and willing to pay the said legal dues. Despite giving a

finding against the management no.1 as to its action in terminating the

services of the workman w.e.f. 1st September, 2013 to be illegal and

unjustified, the court below only awarded a compensation of

Rs.1,60,000/, which includes alleged admitted legal dues of the

petitioner workman to the tune of Rs.1,42,169/-, though the petitioner

workman had worked for a substantial period from 2008 to 2013 and

thereafter was debarred from reengagement though is counterparts

have been reengaged.

Learned Counsel for the Petitioner also drew attention of this

Court as to the provision under Rule-11 of the Orissa Contract Labour

(Regulation and Abolition) Rules, 1975 (Conditions of Service) and

submitted that since contractor's establishment of opposite party no.2

had engaged more than 120 workmen during the relevant period, as

has been admitted by the management witness no.1 during his cross-

WP(C) no.2459 of 2017 examination, Chapter V-A and Chapter V-B of the Industrial Disputes

Act, 1947 regarding retrenchment, so also re-employment are

applicable to the said contractor's establishment. The said provision

is extracted below:

"11. Lay-off and Retrenchment, etc. - (1) Chapters V-A and V- B of the Industrial Disputes Act, 1947 regulating lay-off and retrenchments shall apply to contractor's establishment in which fifty or more workmen on an average per working day have been employed in the preceding calendar month. "

(Emphasis supplied)

9. Mr. Mohanty, learned Counsel for the opposite party

management no.1, so also Mr. Sarangi, learned counsel for opposite

party management no.2 submitted that there is no infirmity in the

impugned award and the Labour Court has rightly awarded a lump

sum compensation of Rs.1,60,000/- in lieu of reinstatement and back

wages to the workman, who is a contract labourer. As the opposite

party management no.1 is no more working in the establishment of

opposite party management no.2 since 2014, the prayer of the

petitioner workman to reinstate or reengage him in terms of section

25-H of the I.D. Act, 1947 is misconceived.

10. Keeping in view of the aforesaid facts, so also submissions

made by the learned Counsel for the parties and on examination of

evidence on record, it is found that the workman has specifically

deposed to justify his prayer for reengagement/ reinstatement as well

WP(C) no.2459 of 2017 as reason for disengaging him from employment in contravention of

various provisions enshrined under the I.D. Act, 1947. Relevant

Paragraphs, so also part of some Paragraphs from examination in-

chief of W.W. no. 1 are extracted below:

"7.xxx After our retrenchment Union (IKASU) issued letter dt.24/09/2013 to 2nd party management copy to M/S Prasad & Co to absorb 17 numbers of retrenched workers as assured by IFFCO during discussion where my name was there within those 17 workers. But 16 workers were allowed to work under M/s Prasad & Co after 26/09/2013, but I was not allowed. The copy of letter dt.24/09/2013 of IKASU with annexure A & B are filed herewith be marked as Ext.5.

10. That my retrenchment amounts to illegal retrenchment and has been brought into effect without compliance to the principles of natural justice and gross violation of statutory provisions as stipulated u/s 25 E, G & H of I.D. Act. Therefore my retrenchment by way of refusal of employment w.e.f. 01/09/2013 by the 1st Party management is bad in law and can not be sustained and is liable to be declared as illegal and unjust.

11. That as I along with other co-workers demanded E.P.F., E.S.I benefit and safety devices to which 1st Party Management is under statutory obligation to provide, the Management kept grudge on me and retrenched me when other workers allowed to work.

13. That M/S Prasad & Co continued to work till 31/10/2014 in M/S IFFCO which is evident from Labour License and retrenchment of 52 workers on 17/02/2014 and retrenchment of 10 workers on October, 2014. The copy of application for renewal of licence of Prasad & Co in Form-VII, Copy of settlement dt.13/05/2014 and dt.07/05/2016 and payment Sheet of M/S Prasad & Co regarding full and final payment to its workman obtained from DLO Office, Jagatsinghpur are filed herewith be marked as Ext.9 series.

14. xxx.That the work executed by M/s Prasad & Co is being executed by other contractors namely M/S Unique, M/S S.B.

Industries, M/S Kapoor & Brothers, M/S J & J, M/S Behera Engineering (P) Ltd., M/S Ram Bahadur etc. where some of the retrenched workers are allowed to work and I have not been allowed to work. At present Sri Dasharathi Sahoo is working in S.B. Industries, Sanjay Swain and Sumit Hati are working in M/s Sakti Contractor, Bibhuti Bhusan Pradhan,

WP(C) no.2459 of 2017 Dilip Das & Lokanath Sahoo are working in M/s Jay Maa Tarini Contractor, who had been retrenched earlier vide letter dt.29.09.2014 by M/S Prasad and Co., and the said letter be marked as Ext.10. 1st Party as well as 2nd Party Management are taking false plea of non-availability of work and non-renewal of work order with malafide intention to debar/ refuse employment to old workers who may claim regular employment under Principal Employer."

(Emphasis supplied)

11. The said evidence led by the workman remained untouched

during his cross-examination. Rather, he has reiterated his stand

during his cross-examination as to reengagement of his co-

workmen/contract labourers under various contractors. Relevant

portion from Paragraph-29 of cross-examination of W.W. No.1 is

extracted below:

"29.xxx. It is a fact that M/s. Unique, M/s S.B. Industries, M/s Kapoor & Brothers, M/s. J & J, M/s. Berhara Engineering Pvt. Ltd., M/s Ram Bahadur etc. have got their work orders from the 1st party management no.2 directly. It is a fact that some of our retrenched workers are working under the aforesaid contractors.xxx."

(Emphasis supplied)

12. The management witness no.1 for 1st party management no.1,

during his cross-examination, stated/admitted as follows:

"26. Since 2006 our Company is working under the IFFCO i.e. management No.2. Some other companies are working under IFFCO. Those are Behera Engineering, SBI, J & J and some other whose name I do not remember now. The first party management no.1 was executing work at PAP, SAP and DAP of the first party management No.2. Our company was engaged for the work of fabrication, erection of pipe and structure work only. There were other contractors executing the similar type of work under the first party management No.2.

WP(C) no.2459 of 2017

27. xxx. Approximately 120 workmen were engaged at that time by the management No.1. There was no interview for engagement of those workmen. No Bio-data were also submitted by them.

28. xxx.

29. The other companies were executing to work similar to the works executed by the first party management No.1 under different work orders.xxx.

30. xxx. I heard that the son of Ram Bali Prasad had got some work under the first party management No.2 but the first party management No.1 has no connection with him. I cannot say whether the name of the company run by the son of Ram Bali Prasad is Jaga Kalia Project Engineering.

31. xxx

32. xxx

33. After a particular work come to an end all the employees were used to be retrenched by keeping some employees for finishing work. At the time of retrenchment, the 1st party management no.1 does not follow the principles of seniority.xxx.

34. xxx.The witness volunteers that about 120 workers were working under the 1st party management no.1 during that period. It is a fact that 1st party management no.1 had got labour license for 150 workers.

35. xxx. It is fact that the management no.1 was performing maintenance work and also taking new work. I cannot say whether the said maintenance work and other work is going on through J & J, SBI, Samantaray Engineering, Maa Manga, Behera Engineer and OSAL. I do not remember the 2nd party was engaged in PAP and belt filter site. I do not know the 2nd party was engaged for preparation of new, elbow, new T, new reducer, new flinch and patch work of tanks. xxx.

36. xxx. It is not a fact that we both the managements joined our hand together and falsely claiming that the work of the 1st party management no.1 came to an end under the 1st party management no.2. It is not a fact that to avoid the rigour of Labour Law the work has been taken in the name of J.K. Project Engineer, which is in the name of the son of the proprietor of 1st party management no.1. It is not a fact that the workers of 1st party management no.1 are utilizing the machineries of the 1st party management no.1 in the work of J.K. Project Engineer.xxx"

(Emphasis supplied)

WP(C) no.2459 of 2017 Similarly, the management witness no.1 for management no.2, during

his cross-examination, admitted/stated as follows:

14. The 1st party management no.1's company was doing mechanical maintenance work under our management. They were working in 2 to 3 sites, but I cannot say the name of those sites exactly. The other contractors are now doing the works which were performed by the 1st party management no.1 earlier. Unless I see the record, I cannot say the name of those contractors. The 1st party management no.1 was only engaged for mechanical maintenance work under the 1st party management no.2 It is a fact that the 1st party management no.1 had undertaken more work for repairing of Acid Tanks in PAP Site. There is no reason for non-engagement of the 1st party management no.1 by the 1st party management no.2.xxx.

15. Rambali Prasad is the proprietor of the 1st party management no.1. As I do not know his son I cannot say whether his son has taken work from the 1st party management no.2 in the name of J.K. Project Engineering. Unless I see the record, I cannot say now whether J.K. Project Engineering has got some work under the 1st party management no.2 or not. It is not a fact that the company namely J. K. Project Engineering is executing the work of the 1st party management no.2 now. xxx"

(Emphasis supplied)

13. Despite evidence on record, as quoted above, while answering

issue no.2 as to what relief the present petitioner workman is entitled

to, though it was well proved/demonstrated by the petitioner workman

that the nature of job performed by him is of perennial nature and

there was violation of sections 25-F, G and H of the I.D. Act, 1947,

the court below erroneously held that as the opposite party

management no.1 has no work under the management no.2, the

petitioner workman is not entitled to reinstatement in service under the

WP(C) no.2459 of 2017 opposite party management no.1 and hence, he is entitled to

compensation.

Further, though the alleged admitted unpaid dues of the

petitioner workman (as admitted in the written statement) is

Rs.1,42,169/-, which the present petitioner allegedly did not receive

when he was subsequently approached to accept the said amount

towards full and final settlement of his dues, which includes one

month's salary in lieu of the notice period, as it seems from the

impugned award, the court below only awarded Rs.17,831/- extra over

and above the said admitted dues (notice pay and retrenchment

compensation) and other dues of the workman, while passing the

impugned award.

14. The petitioner workman, though was working as a contract

labourer under the opposite party management no.1, from the

pleadings of the parties, so also evidence on record as detailed above,

it is well proved that the nature of job performed by the petitioner

workman is permanent and perennial. Further, there is an admission

by the management witnesses during their cross-examination that the

management no.1 was working since 2006 without any public tender

floated by the management no.2 and the same work is being executed

through different contractors. Some of the co-workmen/contract

WP(C) no.2459 of 2017 labourers, though accepted the retrenchment compensation and other

benefits by entering into tripartite settlements in presence of the

Conciliation Officer, the management no.1 agreed to reengage

retrenched contract labourers in terms of section 25-H of the I.D. Act,

1947. The said settlements were duly witnessed by the officers of the

opposite party management no.2 i.e. Officer (H.R), so also Officer,

I.R. of IFFCO management, Paradeep Unit and some of them have

been reengaged through the existing contractors. Hence, we are of the

view that it was obligatory on the part of the opposite party

management no.2 to ensure reengagement of the petitioner through

other contractors, who were assigned with the said job/work, as was

being done by the opposite party management no.1.

15. The law is well settled that if employer wants to disengage a

workman, in terms of Section 25-F of the Act, it is obligatory on the

part of the employer to give one month's prior notice or pay in lieu of

the notice period, so also retrenchment compensation for each

completed year of service and the said payment has to be made

simultaneously at the time of retrenchment of the workman. A

coordinate Bench of this Court in Shyam Sundar Rout v. Orissa

State Road Transport Corporation and others, reported in (1990)

69 CLT 357, held that the payment should be made simultaneously

along with the order of retrenchment in order to constitute a single

WP(C) no.2459 of 2017 transaction. It was further held that compliance of Section 25-F of the

Act is required even if employment is contractual or for a specific

term. Paragraph 12 of the said judgment is reproduced below:

"12. The settled position of law is, section 25-F of the Act being a beneficial legislation it has to be strictly complied with and is a mandatory pre-condition. The negative form adopted by the provision, coupled with the use of the work 'until' which introduces the condition, indicates that the conditions must be first satisfied before retrenchment can be validly effected. Non-compliance of section 25-F of the Act renders the order of retrenchment void ab initio. Taking into account all the provisions of law in A.I.R. 1976 S.C.1111, The State Bank of India, v. Shri N. Sundara Money, their Lordships have laid down the dictum that the payment of retrenchment benefits as required under section 25-F(2) of the Act is mandatory and pre-condition to the order of retrenchment. In absence of such compliance it has to be held that the workman continued in service though the order of appointment was for a specific period. xxx."

(Emphasis supplied)

16. Further, in Deepali Gundu Surwase v. Kranti Junior

Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324, at

Paragraph-22, the Supreme Court held as follows:

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise termination from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-

employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial

WP(C) no.2459 of 2017 body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

17. In view of the evidence on record as detailed above, so also

settled position of law, we are of further view that it is a fit case to set

aside the findings/observation, so also relief granted by the Labour

Court while answering issue no.2. Accordingly, the relief granted vide

issue no.2 is set aside.

18. In view of the averments made in the counter affidavit filed by

the opposite party management no.1, a query being made, learned

counsel for the petitioner workman confirmed that though the cheque

dated 20th January, 2017 for an amount of Rs.1,60,000/- was sent to

her client by post, the same was never encashed by the petitioner.

Rather, the petitioner filed a misc. case in the present case seeking

liberty to encash the said cheque without prejudice to his rights and

contentions in the writ petition. However, the cheque has lapsed since

long. Undisputedly, the alleged dues of the petitioner workman to the

tune of Rs.1,42,169/- is lying with the opposite party management

WP(C) no.2459 of 2017 no.1 since September, 2013 i.e. almost for about last 10 years. It

would have accrued huge interest had it been kept in shape of fixed

deposit in any nationalized Bank.

That apart, there is a specific finding as to non-compliance of

section 25-F of the I.D. Act, 1947 by the opposite party management

no.1. Also there is an admission by the M.W. no.1, who deposed for

the management no.1, as to non-compliance of section 25-G of the

I.D. Act, 1947 at the time of retrenching the workers, so also

continuance of work even after termination of service of petitioner

workman by way of refusal of employment by instructing the security

personnel not to allow him to enter into the factory premises w.e.f. 1st

September, 2013. Hence, we are of the view that the petitioner

workman should be paid Rs. 3,00,000/- (Rupees three lakhs) over and

above his admitted dues of Rs.1,42,169/- to compensate him for the

period he remained unemployed, so also for illegally terminating him

from service in contravention of sections 25-F and G of the I.D. Act,

1947 by the opposite party management no.1.

19. At this stage, it is apt to extract Paragraph 25(c) from the

written statement filed by the opposite party no.1 in I.D. Case No.3 of

2015.

WP(C) no.2459 of 2017 " That, the contents of paragraph no.-6 of the statement of claim filed by the workman is not correct, hence denied. It is submitted that the 1st party was a mere contractor and was working under the control and direction of the IFFCO. The payment was also given by the IFFCO, but the workman has not impleaded the IFFCO as party in the present reference, hence he is not entitled for any relief from the present 1st party and the present reference is bad in law in absence of the proper party."

(Emphasis supplied)

In view of such stand, as quoted above, opposite party no.2, at

instance of the petitioner workman, was impleaded as management

no.2 in I.D. Case No.30 of 2015.

20. Section 18 (3) (b) of the I.D. Act, 1947 mandates as to binding

effect of a settlement or award. The same is extracted below:

"18. Persons on whom settlements and awards are binding.-

(3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3-A) of section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on -

(a) xxx

(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;"

(Emphasis supplied)

21. Section 21(4) of the CLRA Act, 1970 mandates as to the

responsibility of the principal employer for ensuring payment of

WP(C) no.2459 of 2017 wages to the contract labourer. Wages, as defined in clause (h) of

section 2(1) of the CLRA Act, 1970, read with clause (vi) of section 2

of the Payment of Wages Act, 1936, includes the benefits flowing out

of an award.

The said provision under section 21(4) and section 2 (1)(h) of

the CLRA Act, 1970, so also relevant portion from the definition of

"wages" in clause (vi) of section 2 and section 3(2) of the Payment of

Wages Act, 1936 are reproduced below:

Extract from CLRA Act, 1970

"21. Responsibility for payment of wages.-(1) a contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.

(2) Every principal employer shall nominate a representative duly authorized by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed.

(3) It shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorized representative of the principal employer.

(4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.

"2(1) (h) "wages" shall have the meaning assigned to it in clause

(vi) of section 2 of the payment of Wages Act, 1936."

WP(C) no.2459 of 2017 Extract from Payment of Wages Act, 1936

"2(vi) "wages" means all remuneration (whether by way of salary, allowances, or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes-

(a) any remuneration payable under any award or settlement between the parties or order of a Court;"

"3. Responsibility for payment of wages.(1) Every employer shall be responsible for the payment of all wages required to be paid under this Act to persons employed by him and in case of persons employed,-

(a) In factories, if a person has been named as the manager of the factory under clause (f) of sub-section (1) of section 7 of the factories act, 1948 (63 of 1948);

(b) In industrial or other establishment, if there is a person responsible to the employer for the supervision and control of the industrial or other establishment;

              (c)       xxx
              (d)       xxx
              (e)       xxx

              (2)     notwithstanding anything contained in sub-section (1), it

shall be the responsibility of the employer to make payment of all wages required to be made under this act in case the contractor or the person designated by the employer fails to make such payment."

(Emphasis supplied)

22. Since the opposite party management no.2, because of the

specific stand of opposite party management no.1 in its written

statement, was impleaded as management no.2 in I.D. Case No.03 of

2015, the award passed in the said case, which is partially set aside as

above, is also binding on the opposite party management no.2 in terms

of section 18(3) (b) of the I.D. Act, 1947.

WP(C) no.2459 of 2017

23. That apart, in view of the provisions enshrined under section

21(4) of the CLRA Act, 1970 and definition of "wages", as defined in

clause (h) of section 2(1) of the CLRA Act, 1970, read with clause

(vi) (a) of section 2, so also section 3(2) of the Payment of Wages Act,

1936, we are of the view that it is also obligatory on the part of the

opposite party no.2 to ensure payment of unpaid dues as well as

compensation to the petitioner workman.

24. Accordingly, we direct the opposite party management no.1 to

pay the petitioner workman Rs.3,00,000/- (three lakhs only) in

addition to Rs.1,42,169/- (Total Rs.4,42,169/-) within four weeks

hence. The management no.2 is directed to ensure payment of the said

amount to the petitioner workman within the stipulated time, as

directed. If required, it will pay the said amount at the first instance

and recover the same from opposite party no.1 in terms of Section

21(4) of the CLRA Act, 1970, if so advised.

25. So far as reinstating/reengaging the workman in the

establishment of opposite party management no.2, in view of the stand

of both the managements that management no.1 is no more working in

the establishment of management no.2, we direct the opposite party

management no.2 to ensure reengagement of the petitioner through

other contractors, including the establishment owned by the son of

WP(C) no.2459 of 2017 proprietor of opposite party no.1 establishment, if he is working at

present, for carrying out the jobs, in which the present petitioner was

deployed, at the earliest, preferably within a period of two weeks

hence.

26. Accordingly, the writ petition is allowed and disposed of to the

extent as detailed above. No order as to cost.

(Arindam Sinha) Judge

(S. K. Mishra) Judge

P.C.Dash PADMA Digitally signed by PADMA CHARAN CHARAN DASH Date: 2023.05.05 DASH 21:26:16 +05'30'

WP(C) no.2459 of 2017