Punjab-Haryana High Court
Managing Director And Another vs Baljeet @ Matru And Others on 13 May, 2024
CWP-24852-2023 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-24852-2023
Judgement Reserved on: May 01, 2024
Judgement Pronounced on: May 13, 2024
(arising out of the award passed by the Industrial Tribunal-cum-Labour Court, Ambala, in 241 of
2018)
Managing Director, Haryana Agro Industries Corporation Limited and
another
...Petitioners
Versus
Baljeet @ Matru and others
...Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
Presence:Mr. Padamkant Dwivedi, Advocate, for the petitioners.
Mr. Praveen Chander Goyal, Addl.AG, Haryana, and
Mr. Satish Singla, AAG, Haryana.
Mr. J.P. Dhull, Advocate, for respondent No. 1
Mr. Dhananjay Singh, Advocate, for respondent No. 2 - M/s
Oscar Security & Fire Services.
Mr. Rakesh Nuniwal, Mr. Tarun K. Sharma and
Mr. Vishaw Partap Singh, Advocates,
for respondent No. 3 - M/s SIS India Limited.
-.-
SANJAY VASHISTH, J.
This petition and pending miscellaneous application(s), if any,
stands disposed of, in terms of detailed observations made in the common
judgment of even date, passed separately in CWP No. 24831 of 2023, titled
as "Managing Director, Haryana Agro Industries Corporation Limited
and another v. Joginder and others", and 10 connected cases, including
present petition.
(SANJAY VASHISTH)
JUDGE
May 13, 2024
Pkapoor
Whether speaking/reasoned? Yes/No
Whether reportable? Yes/No
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Judgement Reserved on: May 01, 2024
Judgement Pronounced on: May 13, 2024
Sr. Case No. Case Title Arising Date of
No. Petitioners Respondents out of award
Reference passed by
No. Industrial
Tribunal-
cum-
Labour
Court,
Ambala
01. CWP- Managing Director, Joginder and 246 of 31.05.2023
24831- Haryana Agro others 2018
2023 Industries
Corporation Limited
and another
02. CWP- Managing Director, Randhir and 257 of 31.05.2023
24841- Haryana Agro others 2018
2023 Industries
Corporation Limited
and another
03. CWP- Managing Director, Ram Niwas 251 of 06.06.2023
24877- Haryana Agro and another 2018
2023 Industries
Corporation Limited
and another
04. CWP- Managing Director, Baljeet @ 241 of 07.06.2023
24852- Haryana Agro Matru and 2018
2023 Industries others
Corporation Limited
and another
05. CWP- Managing Director, Vinod and 244 of 07.06.2023
24868- Haryana Agro others 2018
2023 Industries
Corporation Limited
and another
06. CWP- Managing Director, Kapil and 253 of 31.05.2023
24919- Haryana Agro others 2018
2023 Industries
Corporation Limited
PRASHANT KAPOOR and another
07. CWP- Managing Director, Hariom and 258 of 31.05.2023
24844- Haryana Agro others 2018
2023 Industries
Corporation Limited
and another
08. CWP- Managing Director, Vikas and 281 of 31.05.2023
24866- Haryana Agro others 2018
2023 Industries
Corporation Limited
and another
09. CWP- Managing Director, Suresh and 252 of 31.05.2023
24849- Haryana Agro others 2018
2023 Industries
Corporation Limited
and another
10. CWP- Managing Director, Rohtas and 239 of 31.05.2023
24861- Haryana Agro another 2018
2023 Industries
Corporation Limited
and another
11. CWP- Managing Director, Jasvir Singh 237 of 07.06.2023
24883- Haryana Agro and others 2018
2023 Industries
Corporation Limited
and another
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
ARGUED BY:
For the petitioners/ : Mr. Padamkant Dwivedi, in all cases.
Management Advocate
For Labour Department, : Mr. Praveen Chander in all cases.
State of Haryana Goyal, Addl.AG, Haryana,
and
Mr. Satish Singla,
AAG, Haryana.
For respondent No. 1 - : Mr. J.P. Dhull, Advocate. in all cases.
Workman(s)
For respondent No. 2 - : Mr. Dhananjay Singh, in CWP Nos.
M/s Oscar Security & Advocate. 24831, 24841,
Fire Services 24844, 24849,
24852, 24866,
24868, 24883,
24919 of 2023.
For respondent No. 3 - : Mr. Rakesh Nuniwal, Mr. in CWP Nos.
M/s SIS India Limited Tarun K. Sharma and Mr. 24852, 24868,
Vishaw Partap Singh, 24919 and
Advocates 24883 of 2023.
For respondent No. 4 - : None in CWP Nos.
M/s Orion Solutions Pvt. 24868, 24883
Ltd. and 24919 of
2023.
SANJAY VASHISTH, J.
[1.] This common judgement shall decide the fate of
aforementioned 11 writ petitions, since the facts and law involved in all the
writ petitions are similar.
[2.] All the total 11 petitions have been filed by the
petitioners/management, namely, (1) Managing Director, Haryana Agro
Industries Corporation Limited, Panchkula; and (2) District Manager,
Haryana Agro Industries Corporation Limited, Kaithal, challenging the
award(s) passed by the Industrial Tribunal-cum-Labour Court, Ambala
(here-after referred to as the 'Labour Court'), while answering 11 references,
on different dates (as depicted in the above table).
After adjudicating the industrial dispute, the Labour Court
answered the same in favour of respective workman(s), and ordered for their
reinstatement with continuity in service. The Labour Court also awarded
50% back wages as last drawn by the workman(s), from the date of
termination till reinstatement, to be paid within 3 months, failing which
interest @ 9% on the due amount was ordered to be paid.
[3.] At the outset, it is apt to notice that in all the 11 cases, pursuant
to the demand notice(s), raising industrial dispute by the respective
workman(s) before the Assistant Labour Commissioner, Kaithal, and
appearance of the petitioners/management before the said authority, no
settlement took place. Subsequently, upon issuance of requisite certificate(s)
by the said authority, enabling the workman(s) to approach the Labour
Court, for adjudication of the industrial dispute, the workman(s) filed
application(s), under Section 2-A(2) of the Industrial Disputes Act, 1947
(hereafter referred to as, 'the 1947 Act'), seeking permission to file the claim
petition on the basis of certificate(s) issued by the office of Assistant Labour
Commissioner, Kaithal. For ready reference, Section 2-A of the 1947 Act, is
reproduced as under:-
"2A. Dismissal, etc., of an individual workman to be deemed
to be an industrial dispute. -
(1) Where any employer discharges, dismisses,
retrenches or otherwise terminates the services of an individual
workman, any dispute or difference between that workman and
his employer connected with, or arising out of, such discharge,
dismissal, retrenchment or termination shall be deemed to be
an industrial dispute notwithstanding that no other workman
nor any union of workmen is a party to the dispute.
(2) Notwithstanding anything contained in section 10,
any such workman as is specified in sub-section (1) may, make
an application direct to the Labour Court or Tribunal for
adjudication of the dispute referred to therein after the expiry of
forty-five days from the date he has made the application to the
Conciliation Officer of the appropriate Government for
conciliation of the dispute, and in receipt of such application
the Labour Court or Tribunal shall have powers and
jurisdiction to adjudicate upon the dispute, as if it were a
dispute referred to it by the appropriate Government in
accordance with the provisions of this Act and all the
provisions of this Act shall apply in relation to such
adjudication as they apply in relation to an industrial dispute
referred to it by the appropriate Government.
(3) The application referred to in sub-section (2) shall
be made to the Labour Court or Tribunal before the expiry of
three years from the date of discharge, dismissal, retrenchment
or otherwise termination of service as specified in sub-section
(1)."
[4.] For convenience and ready reference, the relevant particulars
viz. writ petition number; reference number of the industrial dispute; date of
award by the Labour Court; name of the workman(s); and their tenure of
working , are summarized and tabulated as under:-
Sr. CWP Ref. No. Date of Name of Worked as Chowkidar
No. No. Award the From To
workman
01 24831 of 246 of 31.05.2023 Joginder April, 2008 31.07.2015
2023 2018 s/o Karam
Singh
02 24841 of 257 of 31.05.2023 Randhir s/o March, 31.12.2015
2023 2018 Diwana 2008
03 24877 of 251 of 06.06.2023 Ram Niwas March, 31.12.2015
2023 2018 s/o Mange 2008
Ram
04 24852 of 241 of 07.06.2023 Baljeet @ 15.04.2008 23.04.2018
2023 2018 Matru s/o
Jile Singh
05 24868 of 244 of 07.06.2023 Vinod s/o May, 2008 31.03.2018
2023 2018 Mahender
06 24919 of 253 of 31.05.2023 Kapil s/o August, 20.12.2017
2023 2018 Harphul 2008
07 24844 of 258 of 31.05.2023 Hariom s/o March, 31.07.2015
2023 2018 Meg Raj 2009
08 24866 of 281 of 31.05.2023 Vikas s/o August, 31.03.2016
2023 2018 Subash 2009
09 24849 of 252 of 31.05.2023 Suresh s/o April, 2011 31.07.2016
2023 2018 Soran
10 24861 of 239 of 31.05.2023 Rohtas s/o April, 2011 31.12.2015
2023 2018 Pala Ram
11 24883 of 237 of 07.06.2023 Jasvir April, 2011 18.02.2018
2023 2018 Singh s/o
Phool
Singh
Since the facts of these 11 petitions are identical, to avoid
repetition and for the sake of brevity, the same are being referred in the
subsequent paras of this judgement, from CWP No. 24831 of 2023, which
has arisen out of Reference No. 246 of 2018, dated 09.08.2018, by treating
the same as lead case.
[5.] Respondent No. 1 - Joginder (workman in CWP No. 24831 of
2023) pleaded that he was appointed as Chowkidar by the
petitioners/management w.e.f. April, 2008. He served the management with
full efficiency, diligently and never there was any complaint during his
service tenure. Despite satisfactory service rendered by him, by verbal
orders of the Managing Director, Haryana Agro Industries Corporation
Limited, his services were terminated on 31.07.2015, without assigning any
reason and complying with the provisions of law. At the time of termination
from service, he was drawing the salary of Rs.10,558/- per month, including
ESI and EPF. The workman also pleaded that during his service tenure,
officers of the management changed and he worked under the Managing
Directors of the Corporation, namely, Mahabir and Lalit Narula etc.
Also pleaded that principle of 'last come first go' was not
followed. His services were terminated without issuance of show cause
notice, pay notice or retrenchment compensation. Thus, the action of the
petitioners/management is in violation of the provisions enshrined under
Sections 25-F, 25-G and 25-H of the 1947 Act.
[6.] In the written statement filed by the petitioners/management,
i.e. respondent Nos. 1 and 2 before the Labour Court, it was pleaded that to
promote agro based industries, Government of Haryana is engaged in the
procurement of food grains, such as wheat and paddy, for the Central pool.
After procuring the food grains, the same are stored in open plinths/godowns
until the stored stock is finally delivered to the Food Corporation of India.
During this period, the Haryana Agro Industries Corporation Limited is
required to preserve the stock by arranging adequate security to guard it, to
avoid any pilferage or theft etc. Therefore, on contractual basis and through
outsourcing agencies, Chowkidars are appointed by the Government of
Haryana. One policy was also formulated on 01.09.2006 by the State
Government, to have the services of the manpower through some
outsourcing agency.
[7.] The petitioners/management further pleaded that in the year
2014, the work of providing requisite manpower was allotted to M/s Oscar
Security & Fire Services, having its registered office at Panipat (respondent
No. 2 in CWP Nos. 24831, 24841, 24844, 24849, 24852, 24866, 24868,
24883, 24919 of 2023). For the said purpose, the petitioners/management
entered into an agreement with M/s Oscar Security & Fire Services on
01.03.2014, and the said contract continued uptil 30.06.2016. The
manpower was also obtained from the agencies like M/s SIS India Limited
(respondent No. 3 in CWP Nos. 24852, 24868, 24919 and 24883 of 2023)
and M/s Orion Solutions Private Limited (respondent No. 4 in CWP Nos.
24868, 24883 and 24919 of 2023), who were registered under the provisions
of the Contract Labour (Regulation and Abolition) Act, 1970. Such
outsourcing agencies were providing the services of the workmen and such
like persons at the Farmers Services Centre (FSC), Kaithal, and in turn on
receipt of bills from the outsourcing agency(s), FSC, Kaithal, used to submit
the bills to the Haryana Agro Industries Corporation Limited for
reimbursement of the wages to the agency(s). It is claimed that the salary of
the workman was paid by the outsourcing agency(s). It has, thus, been
contended that those employees including the workman(s), were the
employees of the outsourcing agency(s) and not of the
petitioners/management.
[8.] Petitioners/management further pleaded by giving explanation
that procurement in FSC, Kaithal was closed in September/October, 2017
and no procurement of foodgrains was made during the financial year 2018
and 2019, therefore, Board of Directors of Haryana Agro Industries
Corporation Limited decided to reduce the manpower, as it was not required
because of non-procurement of the foodgrains.
[9.] In this way, without contesting much on the factual aspects,
petitioners/management broadly contested the claim by submitting that since
there is no employer and employee relationship, question of termination of
the services of the workman by the management does not arise. In fact, the
workman was employed by the outsourcing agency and his wages, including
ESI and EPC etc. were being paid through the outsourcing agency.
Accordingly, the Labour Court, vide its order dated 26.10.2018, framed the
following four issues:-
"1. Whether the termination of the services of workman is
liable to be set-aside being wrong, illegal, null and void
etc. And the workman is entitled to reinstatement in
service with full back wages and all the benefits
including the continuity of service? OPW
2. Whether the claim statement is bad for mis-joinder and
non-joinder of necessary parties? OPM
3. Whether the claim statement is not maintainable in the
present form? OPM
4. Relief."
[10.] It is the petitioners/management itself, who took the stand that
the services of the workmen were hired through outsourcing agency(s) like
M/s Oscar Security & Fire Services; M/s SIS India Limited; and M/s Orion
Solutions Private Limited. Therefore, on moving applications in respective
references by the petitioners/management itself, for impleading the
concerned agency as a party, the Labour Court allowed the said prayer and
impleaded the outsourcing agencies as parties, wherever application of
impleadment was filed by the petitioners/management.
One such order dated 30.01.2019 has been passed by the
Labour Court, impleading M/s Oscar Security & Fire Services, Panipat, as
respondent No. 3 in the ongoing proceedings before it, in the case of
Joginder - workman (in Reference No. 246 of 2018, out of which CWP No.
24831 of 2023 has been filed).
[11.] In the written statement filed by M/s Oscar Security & Fire
Services, apart the formal objections of maintainability and non-issuance of
the demand notice, it has been pleaded that the contract with the Haryana
Agro Industries Corporation Limited was for the period from 01.04.2012 to
30.06.2016. On factual aspects, it further pleaded that the agreement with
the Corporation was executed on 01.04.2012 and the workman - Joginder
joined their agency in June, 2013 and worked with it upto August, 2015.
During the contract period, the workman worked only for 220 days. M/s
Oscar Security & Fire Services clearly expressed its ignorance, as having no
concern with the workman, for the working of the earlier period of service
rendered by him with the petitioners/management. Rather, it pleaded that
from their roll, the services of the workman ended on 12.04.2014, and the
contract with the Corporation was also ended on 30.04.2016. Thus,
explained that there is no question of terminating the services of the
workman by M/s Oscar Security & Fire Services, which allegedly happened
prior to the completion of the contract period with the Corporation.
[12.] Workman - Joginder himself appeared as WW-1 and tendered
his affidavit (Ex. WW-1/A), reiterating his version already taken through the
claim petition. In the cross-examination, he clarified that he was engaged by
the District Manager (DM) of the Corporation, namely, Lalit Narula, and he
admitted that he was paid the salary as per DC rates. He specifically denied
existence of any contract system in the Corporation or that his salary was
paid by the contractor.
In the cross-examination of the workman - Joginder, conducted
at the instance of M/s Oscar Security & Fire Services, he clearly expressed
his ignorance about the existence of any contract prior to the year 2012.
Rather, he clearly denied the suggestion that he ever worked in the month of
June, 2013 with the agency or that he left in the month of April, 2016.
To strengthen the claim, the workman - Joginder also
summoned the witness from the office of the Haryana Agro Industries
Corporation Limited. Pushpinder Kumar, Store Keeper-cum-Godown
Keeper, Farmers Service Center, appeared as WW-2, alongwith record
comprising of muster rolls w.e.f. April, 2011 till May, 2018 (Ex. W-1). With
the appearance of the said witness, issuance of gatepasses by one worker,
namely, Sandeep Kumar, for the period from 16.06.2014 to 30.06.2014, was
proved. No other record was brought and produced by the said witness.
This witness admitted the working of the workman as chowkidar in the
department.
[13.] Taking note of all the circumstances and evaluating the
evidence available on record, the Labour Court reached to the conclusion
that the workman - Joginder has to be considered as an employee of the
management as he had been initially engaged directly by it, first time in
April, 2008 and continuously worked for it for seven years, i.e. uptil
31.07.2015. Plea taken by the management that the workman has to be
considered as an employee of the contractor, was found to be without any
force. Thus, the Labour Court, while holding violation of the provisions of
Section 25-F of the 1947 Act, answered the reference in favour of the
workman - Joginder, by allowing the claim petition. In reaching to the said
conclusion, the Labour Court has observed that complete record has not
been produced by the Corporation, which undisputedly was supposed to be
in its possession and under its full control. The Labour Court also took note
of Section 9A of the 1947 Act and observed that while changing the service
status of the employee, it was statutorily incumbent upon the management to
apprise the workman by issuing any notice or required letter about the
change in conditions of the service.
In its final analysis, the Labour Court has held that the
termination of the workman cannot be said to be legal, and he has been held
entitled to the relief of reinstatement with continuity alongwith 50% back
wages as last drawn by him on the date of termination.
[14.] Mr. Padamkant Dwivedi, learned counsel representing the
petitioners/management in these 11 writ petitions, argued that approach of
the Labour Court is erroneous while interpreting the provisions of law, i.e.
Section 9A of the 1947 Act. There are several circumstances available on
record where once the employee is aware of the situation of his
master/employer, he does not speak out or object or write any objection to
any authority against the action of the management. Thus, provision of law
i.e. Section 9A of the 1947 Act cannot protect the rights of the workman.
Learned counsel also submitted that object of Section 9A of the 1947 Act is
not mandatory to apprise the workmen for all the changes. The purpose of
Section 9A is only to afford an opportunity to the workmen to consider the
effect of the proposed change and, if necessary, to represent their point of
view on the proposal.
In support of said arguments, learned counsel relied upon the
judgement of Hon'ble Apex Court in the case of The Management of
Indian Oil Corporation Limited v. Its Workmen, AIR 1975 SC 1856, and
judgement of this Court (Punjab and Haryana High Court) in the case of
Rajiv Kumar and others v. State of Punjab and others (CWP No. 13348
of 2018, decided on 10.12.2018).
Further submits that the changes enumerated in the Fourth
Schedule of the 1947 Act, can only be the subject matter for which the
proposed change needs to be brought to the notice of the workmen and any
act of the employer which is not mentioned in Fourth Schedule, no notice or
apprising the workmen in any manner is required under Section 9A of the
1947 Act.
[15.] From the table in para No. 4 of this judgement, containing all
the required particulars of the workmen, it is evident that all the 11 workmen
were employed during the years 2008, 2009 and April, 2011. There is no
dispute that at the time of initial appointment of the workmen, no
outsourcing agency was in picture. Obviously, the petitioners/management
itself appointed the workmen directly and subsequent thereto without
apprising any of the workman and rather unilaterally entered into
agreement(s) with private outsourcing agency(s) and changed the
employment conditions and even the employer of the workmen.
Surprisingly, the finding recorded by the Labour Court in paragraph No. 30
of the impugned award dated 31.05.2023, in Reference No. 246 of 2018 (in
CWP-24831-2023) shows that for the period from 21.08.2009 to 20.08.2010,
the outsourcing agency with which the Haryana Agro Industries Corporation
Limited had entered into the contract was 'M/s Lokesh Security & Detective
Agency, Hisar'. The said contract was extended further for one year.
However, the agreement dated 18.08.2010 was terminated and said agency
was black-listed vide order No. WPA-2011/242-269, dated 08.01.2011 (Ex.
M-2). Thereafter another agreement was executed by the management on
04.04.2012 with 'M/s Oscar Security & Fire Services (respondent No. 2
herein in CWP Nos. 24831, 24841, 24844, 24849, 24852, 24866, 24868,
24883, 24919 of 2023), with whom the workmen were allegedly shown to
be serving, but for the management. The said decision was unilateral by the
petitioners/ management.
[16.] This Court finds that there is no explanation available on record
that once the workmen are found to be working for the
petitioners/management at the time of black-listing of M/s Lokesh Security
& Detective Agency, Hisar, w.e.f. 08.01.2011uptil the new agreement i.e.
04.04.2012 with M/s Oscar Security & Fire Services, it would be only the
petitioners/management who would be called as employer of the workmen
deployed by it. In other words, from 08.01.2011 to 04.04.2012, there was no
contract with any outsourcing agency and the workmen are to be considered
as employees of the petitioners/management. This way apart, even there
cannot be any escape for the petitioners/management from denying the
status/relationship of the employer and employee of the Haryana Agro
Industries Corporation Limited vis-a-vis the workmen for the period from
08.01.2011 to 04.04.2012.
Undoubtedly, the management has tried to show that the
workmen are the employees of M/s Oscar Security & Fire Services and in
that regard some documents were summoned from EPF office to prove EPF
Code No. and contributions of EPF for the period from 01.04.2012 to
21.06.2013, which was deposited by M/s Oscar Security & Fire Services.
In such circumstances, the provisions of Section 9A and Fourth
Schedule of the 1947 Act, are required to be dealt with, and the same are
reproduced as under:-
" CHAPTER IIA
NOTICE OF CHANGE
9A. Notice of change. - No employer, who proposes to effect
any change in the conditions of service applicable to any
workman in respect of any matter specified in the Fourth
Schedule, shall effect such change,-
(a) without giving to the workmen likely to be affected
by such change a notice in the prescribed manner
of the nature of the change proposed to be
effected; or
(b) within twenty-one days of giving such notice:
Provided that no notice shall be required for effecting
any such change-
(a) where the change is effected in pursuance of any
settlement or award; or
(b) where the workmen likely to be affected by the
change are persons to whom the Fundamental and
Supplementary Rules, Civil Services
(Classification, Control and Appeal) Rules, Civil
Services (Temporary Service) Rules, Revised
Leave Rules, Civil Service Regulations, Civilians
in Defence Services (Classification, Control and
Appeal) Rules or the Indian Railway
Establishment Code or any other rules or
regulations that may be notified in this behalf by
the appropriate Government in the Official
Gazette, apply."
"THE FOURTH SCHEDULE
(See section 9A)
CONDITIONS OF SERVICE FOR CHANGE OF WHICH
NOTICE IS TO BE GIVEN
1. Wages, including the period and mode of payment;
2. Contribution paid, or payable, by the employer to any
provident fund or pension fund or for the benefit of the
workmen under any law for the time being in force;
3. Compensatory and other allowances;
4. Hours of work and rest intervals;
5. Leave with wages and holidays;
6. Starting, alteration or discontinuance of shift working
otherwise than in accordance with standing orders;
7. Classification by grades;
8. Withdrawal of any customary concession or privilege or
change in usage.
9. Introduction of new rules of discipline, or alteration of
existing rules, except in so far as they are provided in
standing orders;
10. Rationalisation, standardization or improvement of plant
or technique which is likely to lead to retrenchment of
workmen;
11. Any increase or reduction (other than casual) in the
number of persons employed or to be employed in any
occupation or process or department or shift, not
occasioned by circumstances over which the employer
has no control."
[17.] Chapter IIA, containing Sections 9A and 9B was inserted by
Act 36 of 1956 w.e.f. 10.03.1957. There could not be any debate at the time
of introduction of this provision of law, because there was no such
expectation that in future time the services of the workmen would be hired
through outsourcing agencies by the establishments/managements.
[18.] In the present cases, the workmen were appointed during the
years 2008, 2009 and 2011 and admittedly the management entered into
contract first time in the year 2009 with M/s Lokesh Security & Detective
Agency, Hisar, for getting the manpower through outsourcing agency. As a
consequence of black listing of M/s Lokesh Security & Detective Agency on
08.01.2011, its agreement was over/ended. But there is no dispute that the
workmen continued to render services for the management even during this
period i.e. 08.01.2011 to 04.04.2012, when the management entered into
another agreement with M/s Oscar Security & Fire Services. Neither at the
time of first contract nor at the time of second contract with the outsourcing
agencies, any of the workmen has been apprised by the management
regarding change in the conditions of their services or even employer.
[19.] If the plea of the petitioners/management is accepted, in that
situation, there was a complete transformation of the service conditions of
the workmen. For the purpose, it is described under Fourth Schedule of the
1947 Act in regard to the relationship of workmen with its employer, i.e.
from the petitioners/management to M/s Lokesh Security & Detective
Agency at the first instance and thereafter M/s Oscar Security & Fire
Services at the second instance. In such situation, there is no possibility that
the interest of the workmen would be secured under the provisions of the
1947 Act because the outsourcing agency itself is not ready to own any
responsibility qua the working conditions of the workmen. Thus, by
accepting the plea of the management, service conditions of the workmen
would be left on mercy without any protection of law. Admittedly, there is
no substance available on record to reach to the conclusion that at any point
of time the workmen were apprised of change of their complete service
conditions or name of the employer or control of the employer, which has
been shifted from Haryana Agro Industries Corporation Limited itself to the
outsourcing agency(s).
20. Already, the Labour Court has placed reliance upon Bhilwara
Dugdh Upadak Sehakari S. Limited v. Vinod Kumar Sharma, 2011 LLR
1079 and Civil Appeal No. 2585 of 2006, decided by Hon'ble Supreme
Court of India on 01.09.2011, wherein Hon'ble Apex Court has held that in
order to avoid their liabilities under various labour statues, employers are
very often resorting to subterfuge by trying to show their employees, in fact
the employees of contractor. It is high time that this subterfuge must come
to an end. Labour statues were meant to protect the employees/workmen
because it was realized that the employer and the employees are not on an
equal bargaining position. Hence, protection of employees was required so
that they may not be exploited. However, this new technique of stubterfuge
has been adopted by some employers in recent year in order to deny the
rights of the workman under various labour statues by showing that the
concerned workman are not their employees but are the employees/workmen
of a contractor or that they are merely daily waer or short term or casual
employee when in fact they are doing work as the regular employee. Court
can not countenance such practice any more. Globalization/Liberalization
in the name of growth cannot be allowed at the human cost of exploitation of
the workers.
21. The judgements cited by learned counsel for the
petitioners/management, i.e. rendered in the cases of The Management of
Indian Oil Corporation Limited v. Its Workmen, AIR 1975 SC 1856, and
Rajiv Kumar and others v. State of Punjab and others (CWP No. 13348
of 2018, decided on 10.12.2018), would not be applicable to the facts and
circumstances of the cases in hand because allowing the employer to violate
the provisions of Section 9A read with Fourth Schedule of the 1947 Act,
would mean that the very purpose of enactment of the Industrial Disputes
Act, 1947, which undoubtedly is a benevolent legislation to safeguard the
interests of the labour class, gets defeated.
22. As a sequel to the above discussion, this Court is left with no
other option but to agree with the findings recorded by the Labour Court
while answering respective references in favour of the workmen.
Accordingly, while upholding the award(s) passed by the Labour Court, as
detailed in the table, in opening part of this judgement, all the 11 petitions
instituted by the petitioners/management are hereby dismissed.
23. Pending miscellaneous applications therein, if any, are also
disposed of accordingly.
(SANJAY VASHISTH)
JUDGE
May 13, 2024
Pkapoor Whether speaking/reasoned? Yes/No
Whether reportable? Yes/No
