Punjab-Haryana High Court
Krishan vs Presiding Officer , Industrial ... on 13 May, 2024
CWP-23942-2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-23942-2022
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, Hisar, in 23 of 2018)
Krishan
...Petitioner(s)
Versus
Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar and
others
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
Presence: Mr. Lajpat Rai Sharma, Advocate,
for Mr. Vivek Khatri, Advocate, for the petitioner.
Mr. Praveen Chander Goyal, Addl.AG, Haryana, and
Mr. Satish Singla, AAG, Haryana.
Mr. Padamkant Dwivedi, Advocate, for respondent Nos. 2 & 3.
-.-
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. 17232 of 2022, titled
as "The Managing Director, Haryana Agro Industries Corporation
Limited and another v. Anoop Kumar and another", and 68 connected
cases, including present petition.
(SANJAY VASHISTH)
JUDGE
May 13, 2024
Pkapoor
Whether speaking/reasoned? Yes/No
Whether reportable? Yes/No
CWP-17232-2022 (O&M) & 68 connected petitions 1
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. Petitioner(s) out of
Respondent(s) award
Reference passed by
No. Industrial
Tribunal-
cum-Labour
Court, Hisar
01 CWP- The Managing Anoop Kumar 21 of 2017 28.04.2022
17232- Director Haryana and another
2022 Agro Industries
(O&M) Corporation Limited
and another
02 CWP- Jagat Pal Presiding 29 of 2016 28.10.2022
6981- Officer,
2023 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
03 CWP- Dhollu Ram Presiding 30 of 2016 28.10.2022
6781- Officer,
2023 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
04 CWP- Gopi Ram Presiding 33 of 2016 28.10.2022
6827- Officer,
2023 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
05 CWP- The Managing Sharwan 10 of 2017 31.03.2022
17595- Director, Haryana Kumar @
2022 Agro Industries Meenu and
Corporation Limited another
and another
CWP-17232-2022 (O&M) & 68 connected petitions 2
06 CWP- Sharwan Kumar @ Presiding
24050- Meenu Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
07 CWP- The Managing Subhash and 11 of 2017 31.03.2022
17605- Director, Haryana another
2022 Agro Industries
Corporation Limited
and another
08 CWP- Subhash Presiding
24370- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
09 CWP- The Managing Vinod Kumar 12 of 2017 31.03.2022
17657- Director, Haryana and another
2022 Agro Industries
Corporation Limited
and another
10 CWP- Vinod Kumar Presiding
23845- Officer,
2022 Industrial-cum-
Labour Court,
Hisar and
others
11 CWP- The Managing Satish and 13 of 2017 31.03.2022
17661- Director, Haryana another
2022 Agro Industries
Corporation Limited
and another
12 CWP- Satish Presiding
23905- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
13 CWP- The Managing Mehar Chand 14 of 2017 31.03.2022
17593- Director, Haryana @ Kallu and
2022 Agro Industries another
Corporation Limited
CWP-17232-2022 (O&M) & 68 connected petitions 3
and another
14 CWP- Mehar Chand @ Presiding
24005- Kalu Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
15 CWP- The Managing Charan Singh 15 of 2017 31.03.2022
17599- Director, Haryana and another
2022 Agro Industries
Corporation Limited
and another
16 CWP- Charan Singh Presiding
24024- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
17 CWP- The Managing Dharam Chand 16 of 2017 28.04.2022
17728- Director, Haryana @ Magar
2022 Agro Industries Singh and
Corporation Limited another
and another
18 CWP- Dharam Chand @ Presiding
23882- Magar Singh Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
19 CWP- The Managing Parveen Kumar 17 of 2017 14.07.2022
18127- Director, Haryana and another
2022 Agro Industries
Corporation Limited
and another
20 CWP- Parveen Kumar Presiding
23904- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
21 CWP- The Managing Rakesh and 19 of 2017 15.07.2022
18067- Director, Haryana another
CWP-17232-2022 (O&M) & 68 connected petitions 4
2022 Agro Industries
Corporation Limited
and another
22 CWP- Rakesh Presiding
24002- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
23 CWP- The Managing Raju and 22 of 2017 28.04.2022
17287- Director Haryana another
2022 Agro Industries
(O&M) Corporation Limited
and another
24 CWP- The Managing Rajender and 23 of 2017 28.04.2022
17237- Director Haryana another
2022 Agro Industries
(O&M) Corporation Limited
and another
25 CWP- The Managing Lokesh Kumar 02 of 2018 01.09.2022
9065- Director, Haryana and another
2023 Agro Industries
(O&M) Corporation Limited
and another
26 CWP- The Managing Anoop and 03 of 2018 26.08.2022
9090- Director, Haryana another
2023 Agro Industries
(O&M) Corporation Limited
and another
27 CWP- Anoop The Presiding
21968- Officer,
2023 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
28 CWP- The Managing Hardeep and 04 of 2018 01.09.2022
9102- Director, Haryana another
2023 Agro Industries
(O&M) Corporation Limited
and another
29 CWP- Hardeep The Presiding
21989- Officer,
2023 Industrial
Tribunal-cum-
CWP-17232-2022 (O&M) & 68 connected petitions 5
Labour Court,
Hisar and
others
30 CWP- The Managing Krishan Kumar 05 of 2018 01.09.2022
9084- Director, Haryana and another
2023 Agro Industries
(O&M) Corporation Limited
and another
31 CWP- The Managing Satyawan and 06 of 2018 01.09.2022
9070- Director, Haryana another
2023 Agro Industries
(O&M) Corporation Limited
and another
32 CWP- The Managing Suber and 07 of 2018 26.08.2022
9076- Director, Haryana another
2023 Agro Industries
(O&M) Corporation Limited
and another
33 CWP- The Managing Lakhmi and 08 of 2018 01.09.2022
9326- Director, Haryana another
2023 Agro Industries
(O&M) Corporation Limited
and another
34 CWP- The Managing Sanjay and 09 of 2018 15.09.2022
9072- Director, Haryana another
2023 Agro Industries
(O&M) Corporation Limited
and another
35 CWP- Sanjay The Presiding
22104- Officer,
2023 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
36 CWP- The Managing Om Prakash 10 of 2018 01.09.2022
9117- Director, Haryana and another
2023 Agro Industries
(O&M) Corporation Limited
and another
37 CWP- The Managing Jagdish and 11 of 2018 09.03.2023
7431- Director, Haryana another
2024 Agro Industries
Corporation Limited
and another
38 CWP- The Managing Sandeep and 12 of 2018 26.08.2022
CWP-17232-2022 (O&M) & 68 connected petitions 6
9087- Director, Haryana another
2023 Agro Industries
(O&M) Corporation Limited
and another
39 CWP- Sandeep Kumar @ The Presiding
21953- Sandeep Officer,
2023 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
40 CWP- The Managing Malook Singh 13 of 2018 14.07.2022
18044- Director, Haryana and another
2022 Agro Industries
Corporation Limited
and another
41 CWP- Malook Singh Presiding
23869- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
42 CWP- The Managing Krishan Singh 13 of 2018 01.09.2022
9083- Director, Haryana and another
2023 Agro Industries
Corporation Limited
and another
43 CWP- The Managing Sewa Singh 14 of 2018 26.08.2022
9074- Director, Haryana and another
2023 Agro Industries
(O&M) Corporation Limited
and another
44 CWP- The Managing Sanjay and 18 of 2018 15.09.2022
9113- Director, Haryana another
2023 Agro Industries
(O&M) Corporation Limited
and another
45 CWP- Sanjay The Presiding
21985- Officer,
2023 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
46 CWP- The Managing Satyawan and 19 of 2018 14.07.2022
CWP-17232-2022 (O&M) & 68 connected petitions 7
18035- Director, Haryana another
2022 Agro Industries
Corporation Limited
and another
47 CWP- Satyawan Presiding
24055- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
48 CWP- The Managing Dharam Raj @ 20 of 2018 28.04.2022
17669- Director, Haryana Raja
2022 Agro Industries
Corporation Limited
and another
49 CWP- Dharam Raj @ Raja Presiding
24011- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
50 CWP- The Managing Raghubir and 20 of 2018 23.12.2022
9092- Director, Haryana another
2023 Agro Industries
Corporation Limited
and another
51 CWP- The Managing Sanjay and 21 of 2018 15.07.2022
18041- Director, Haryana another
2022 Agro Industries
Corporation Limited
and another
52 CWP- Sanjay Presiding
23872- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
53 CWP- The Managing Pawan Kumar 22 of 2018 28.04.2022
17604- Director, Haryana and another
2022 Agro Industries
Corporation Limited
and another
54 CWP- Pawan Kumar Presiding
CWP-17232-2022 (O&M) & 68 connected petitions 8
24054- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
55 CWP- The Managing Krishan and 23 of 2018 31.03.2022
18097- Director, Haryana another
2022 Agro Industries
Corporation Limited
and another
56 CWP- Krishan Presiding
23942- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
57 CWP- The Managing Narender and 23 of 2018 23.12.2022
9066- Director, Haryana another
2023 Agro Industries
Corporation Limited
and another
58 CWP- The Managing Balwant Singh 24 of 2018 28.04.2022
17655- Director, Haryana and another
2022 Agro Industries
Corporation Limited
and another
59 CWP- Balwant Singh Presiding
23892- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
60 CWP- The Managing Raghubir and 25 of 2018 31.03.2022
17634- Director, Haryana another
2022 Agro Industries
Corporation Limited
And Anr
61 CWP- Raghubir Presiding
23785- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
CWP-17232-2022 (O&M) & 68 connected petitions 9
others
62 CWP- The Managing Kanwar Singh 26 of 2018 31.03.2022
17596- Director, Haryana and another
2022 Agro Industries
Corporation Limited
and another
63 CWP- Kanwar Singh Presiding
23876- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
64 CWP- The Managing Pankaj Kumar 29 of 2018 31.03.2022
17598- Director, Haryana and another
2022 Agro Industries
Corporation Limited
And Anr
65 CWP- Pankaj Kumar Presiding
24250- Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
66 CWP- The Managing Mandeep and 32 of 2018 23.12.2022
9075- Director, Haryana another
2023 Agro Industries
Corporation Limited
and another
67 CWP- The Managing Rajesh Kumar 01 of 2019 15.07.2022
18072- Director, Haryana @ Raju and
2022 Agro Industries another
Corporation Limited
and another
68 CWP- Rajesh Kumar @ Presiding
24023- Raju Officer,
2022 Industrial
Tribunal-cum-
Labour Court,
Hisar and
others
69 CWP- The Managing Sonu Ram and 08 of 2019 15.09.2022
25377- Director, Haryana another
2023 Agro Industries
Corporation Limited
CWP-17232-2022 (O&M) & 68 connected petitions 10
and another
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
ARGUED BY:
For the Management : Mr. Padamkant Dwivedi, Advocate,
i.e. (1) Managing in all cases.
Director; & (2) District
Manager; Haryana
Agro Industries
Corporation Limited.
For Labour : Mr. Praveen Chander Goyal, Addl. A.G.,
Department, State of Haryana, and Mr. Satish Singla, A.A.G.,
Haryana Haryana, in all cases.
For Workman(s) : Mr. Lajpat Rai Sharma, Advocate,
for Mr. Vivek Khatri, Advocate,
in CWP Nos. 24055, 23845, 23905, 24050,
24250, 24370, 24002, 23869, 23882, 23904,
24005, 24011, 24024, 24054, 23876, 23872,
24023, 23785, 23942, 23892, 17232, 18035,
17657, 17661, 17595, 17598, 17605, 18067,
18044, 17593, 17599, 17604, 17669, 17728,
18127, 17596, 18041, 18072, 17634, 18097,
17655, 17237 & 17287 of 2022 and CWP Nos.
6781, 6827 & 6981 of 2023.
Mr. Shubham Saroha, Advocate,
in CWP Nos. 9070, 9076, 9326, 9074, 9117,
9084, 9083 & 9065 of 2023.
Mr. Suresh Kumar Kaushik, Advocate,
in CWP Nos. 22104, 21953, 21989, 21985,
21968, 9072, 9087, 9102, 9113 & 9090 of
2023.
Mr. Parvinder Moar, Advocate,
in CWP No. 7431 of 2024.
Mr. Sandeep Kumar Simpy, Advocate, for
Mr. Chetan Gupta, Advocate,
in CWP No. 25377 of 2023.
Mr. Suman Sagar, Advocate, and
Mr. Jitender Dhanda, Advocate,
in CWP No. 9075 of 2023.
None in CWP Nos. 9066 & 9092 of 2023.
For respondent No. 4 - : None in CWP Nos. 6781, 6827 & 6981 of
CWP-17232-2022 (O&M) & 68 connected petitions 11
M/s Lokesh Security 2023.
and Detective Agency
For respondent No. 5 - : Mr. Dhananjay Singh, Advocate,
M/s Oscar Security & in CWP Nos. 6781, 6827 & 6981 of 2023.
Fire Services
SANJAY VASHISTH, J.
[1.] This common judgement shall decide the fate of aforementioned
69 writ petitions, since the facts and law involved in all the writ petitions are
similar.
[2.] All the 69 writ petitions have been filed against 44 different
awards passed by the Industrial Tribunal-cum-Labour Court, Hisar (hereafter
referred to as, 'the Labour Court'), in respective references (as shown in the
chart, in the opening part of this judgement), which were referred to it for
adjudication, under Section 10(1)(c) of the Industrial Disputes Act, 1947
(hereafter referred to as, 'the 1947 Act'). In all the cases, learned Labour Court
held that because of violation of the provisions of Section 25-F of the 1947
Act, termination of the services of the workmrn is bad in law. Therefore,
workmen in all the cases have been ordered to be reinstated with immediate
effect with continuity of service and all other consequential benefits.
However, nothing has been awarded towards back-wages.
[3.] Out of total 69 writ petitions, 41 have been instituted by the
management, namely, (1) Managing Director, Haryana Agro Industries
Corporation Limited, Panchkula; and (2) District Manager, Haryana Agro
Industries Corporation Limited, Hisar, challenging the findings recorded by
the Labour Court qua reinstatement and other service benefits of the workmen,
CWP-17232-2022 (O&M) & 68 connected petitions 12
whereas 28 writ petitions have been filed by the workmen, by challenging the
award(s) to the extent of non-grant of back-wages.
The Management has not assailed the award(s) passed by the
Labour Court in 03 cases, i.e. (1) Reference No. 30 of 2016, decided on
28.10.2022; (2) Reference No. 33 of 2016, decided on 28.10.2022; and (3)
Reference No. 29 of 2016, decided on 28.10.2022.
[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. Case No(s). Ref. Date of Name of Worked as Chowkidar
No. No. Award the From To
Workman
1. 2. 3. 4. 5. 6. 7.
01 CWP-17232- 21 of 28.04.2022 Anoop April, 31.03.2013
2022 (O&M) 2017 Kumar s/o 2010
[By Rajender
Management]
02 CWP-9070- 06 of 01.09.2022 Satyawan April, September,
2023 (O&M) 2018 s/o Ved 1997 2016
[By Parkash
Management]
03 CWP-18035- 19 of 14.07.2022 Satyawan April, February,
2022 [By 2018 s/o 1999 2017
Management] Chandgi
& CWP- Ram
24055-2022
[By
Workman]
04 CWP-9076- 07 of 26.08.2022 Suber s/o April, 31.01.2016
2023 (O&M) 2018 Pal @ 2001
[By Satpal
Management]
CWP-17232-2022 (O&M) & 68 connected petitions 13
05 CWP-17657- 12 of 31.03.2022 Vinod April, 31.03.2012
2022 [By 2017 Kumar s/o 2002
Management] Ram Sarup
& CWP-
23845-2022
[By
Workman]
06 CWP-6827- 33 of 28.10.2022 Gopi Ram April, July, 2014
2023 [By 2016 s/o Shankar 2002
Workman] Lal
07 CWP-17661- 13 of 31.03.2022 Satish s/o August, 07.03.2017
2022 [By 2017 Telu Ram 2002
Management] Sharma
& CWP-
23905-2022
[By
Workman]
08 CWP-9072- 09 of 15.09.2022 Sanjay s/o April, 11.01.2018
2023 (O&M) 2018 Ratan 2003
[By Singh
Management]
& CWP-
22104-2023
[By
Workman]
09 CWP-9326- 08 of 01.09.2022 Lakhmi s/o April, March,
2023 (O&M) 2018 Mamchand 2007 2015
[By
Management]
10 CWP-17595- 10 of 31.03.2022 Sharwan April, 31.03.2012
2022 [By 2017 Kumar @ 2008
Management] Meenu s/o
& CWP- Mahavir
24050-2022
[By
Workman]
11 CWP-9117- 10 of 01.09.2022 Om April, March,
2023 (O&M) 2018 Prakash s/o 2008 2015
[By Pokar
Management]
12 CWP-17605- 11 of 31.03.2022 Subhash April, 31.03.2012
2022 [By 2017 s/o Om 2008
Management] Parkash
& CWP-
CWP-17232-2022 (O&M) & 68 connected petitions 14
24370-2022
[By
Workman]
13 CWP-9074- 14 of 26.08.2022 Sewa Singh April, 31.01.2015
2023 (O&M) 2018 s/o Shiva 2008
[By @ Shiv Lal
Management]
14 CWP-17598- 29 of 31.03.2022 Pankaj April, September,
2022 [By 2018 Kumar s/o 2008 2017
Management] Ram Niwas
& CWP-
24250-2022
[By
Workman]
15 CWP-6781- 30 of 28.10.2022 Dhollu April, July, 2014
2023 [By 2016 Ram s/o 2008
Workman] Bhajan Lal
16 CWP-9084- 05 of 01.09.2022 Krishan April, March,
2023 (O&M) 2018 Kumar s/o 2009 2016
[By Bhagwana
Management]
17 CWP-7431- 11 of 09.03.2023 Jagdish s/o April, April, 2016
2024 [By 2018 Mange 2009
Management] Ram
18 CWP-18067- 19 of 15.07.2022 Rakesh s/o April, November,
2022 [By 2017 Raja Ram 2009 2013
Management]
& CWP-
24002-2022
[By
Workman]
19 CWP-6981- 29 of 28.10.2022 Jagat Pal April, April, 2014
2023 [By 2016 s/o 2009
Workman] Rameshwar
Dass
20 CWP-18044- 13 of 14.07.2022 Malook 01.05.2009 22.03.2017
2022 [By 2018 Singh s/o
Management] Lala Ram
& CWP-
23869-2022
[By
Workman]
21 CWP-17593- 14 of 31.03.2022 Mehar April, 31.03.2012
CWP-17232-2022 (O&M) & 68 connected petitions 15
2022 [By 2017 Chand @ 2010
Management] Kalu s/o
& CWP- Balbir
24005-2022 Singh
[By
Workman]
22 CWP-17599- 15 of 31.03.2022 Charan April, 31.03.2012
2022 [By 2017 Singh s/o 2010
Management] Mani Ram
& CWP-
24024-2022
[By
Workman]
23 CWP-17728- 16 of 28.04.2022 Dharam April, 31.03.2012
2022 [By 2017 Chand @ 2010
Management] Magar
& CWP- Singh s/o
23882-2022 Tara Chand
[By
Workman]
24 CWP-18127- 17 of 14.07.2022 Parveen April, 31.03.2012
2022 [By 2017 Kumar s/o 2010
Management] Gopal Dass
& CWP-
23904-2022
[By
Workman]
25 CWP-17669- 20 of 28.04.2022 Dharam April, February,
2022 [By 2018 Raj @ Raja 2010 2017
Management] s/o Ram
& CWP- Kishan
24011-2022
[By
Workman]
26 CWP-17604- 22 of 28.04.2022 Pawan April, February,
2022 [By 2018 Kumar s/o 2010 2016
Management] Banarshi
& CWP- Dass
24054-2022
[By
Workman]
27 CWP-17596- 26 of 31.03.2022 Kanwar October December,
2022 [By 2018 Singh s/o 2010 2016
Management] Ram
CWP-17232-2022 (O&M) & 68 connected petitions 16
& CWP- Kishan
23876-2022
[By
Workman]
28 CWP-18072- 01 of 15.07.2022 Rajesh November, June, 2016
2022 [By 2019 Kumar @ 2010
Management] Raju s/o
& CWP- Prahlad
24023-2022 Singh
[By
Workman]
29 CWP-18041- 21 of 15.07.2022 Sanjay s/o November, June, 2016
2022 [By 2018 Bir Singh 2010
Management]
& CWP-
23872-2022
[By
Workman]
30 CWP-25377- 08 of 15.09.2022 Sonu Ram February, July, 2017
2023 [By 2019 s/o Ram 2011
Management] Kumar
31 CWP-9092- 20 of 23.12.2022 Raghubir March, March,
2023 [By 2018 s/o Ram 2011 2017
Management] Kumar
32 CWP-9083- 13 of 01.09.2022 Krishan April, September,
2023 [By 2018 Singh s/o 2011 2017
Management] Sadhu Ram
33 CWP-18097- 23 of 31.03.2022 Krishan s/o April, June, 2016
2022 [By 2018 Pyare Lal 2011
Management]
& CWP-
23942-2022
[By
Workman]
34 CWP-17634- 25 of 31.03.2022 Raghubir April, June, 2016
2022 [By 2018 s/o Ved 2011
Management] Parkash
& CWP-
23785-2022
[By
Workman]
35 CWP-9066- 23 of 23.12.2022 Narender July, 2011 March,
2023 [By 2018 s/o Ram 2017
CWP-17232-2022 (O&M) & 68 connected petitions 17
Management] Parkash
36 CWP-17655- 24 of 28.04.2022 Balwant 01.07.2011 February,
2022 [By 2018 Singh s/o 2017
Management] Bhagwana
& CWP- Ram
23892-2022
[By
Workman]
37 CWP-9087- 12 of 26.08.2022 Sandeep April, January,
2023 (O&M) 2018 s/o 2012 2018
[By Ramphal
Management]
& CWP-
21953-2023
[By
Workman]
38 CWP-17287- 22 of 28.04.2022 Raju s/o April, 31.03.2013
2022 (O&M) 2017 Hukam 2012
[By Chand
Management]
39 CWP-17237- 23 of 28.04.2022 Rajender April, 31.03.2013
2022 (O&M) 2017 s/o 2012
[By Dewatram
Management]
40 CWP-9065- 02 of 01.09.2022 Lokesh August, March,
2023 (O&M) 2018 Kumar s/o 2012 2016
[By Ramesh
Management] Chander
41 CWP-9075- 32 of 23.12.2022 Mandeep April, October,
2023 [By 2018 s/o 2013 2017
Management] Jagminder
Singh
42 CWP-9102- 04 of 01.09.2022 Hardeep April, March,
2023 (O&M) 2018 s/o Raghbir 2014 2016
[By @ Beera
Management]
& CWP-
21989-2023
[By
Workman]
43 CWP-9113- 18 of 15.09.2022 Sanjay s/o July, 2014 January,
2023 (O&M) 2018 Krishan 2018
[By
CWP-17232-2022 (O&M) & 68 connected petitions 18
Management]
& CWP-
21985-2023
[By
Workman]
44 CWP-21968- 03 of 26.08.2022 Anoop s/o April, 31.01.2018
2023 [By 2018 Raja Ram 2015
Workman] &
CWP-9090-
2023 (O&M)
[By
Management]
Since the facts of these 69 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. 17232 of 2022, titled as
"The Managing Director, Haryana Agro Industries Corporation Limited
and another v. Anoop Kumar and another", which has arisen out of
Reference No. 21 of 2017, dated 20.07.2017, by treating the same as lead case.
[5.] Respondent No. 1 - Anoop Kumar (workman) pleaded before the
Labour Court that he was appointed as Chowkidar in Haryana Agro Industries
Corporation Limited, Barwala Godown, in April, 2010. There was never any
complaint against his work and conduct. He was paid salary per month as per
DC Rates and used to perform his duties from 8.00 a.m. to 8.00 p.m.. No
overtime was given by the Corporation. Without any reason, issuance of
notice, notice pay or payment of retrenchment compensation, his services were
terminated verbally on 31.03.2013. Since the workman had worked for 240
days from the date preceding one year to the date of termination, the action of
the Corporation/management is in violation of Section 25-F of the 1947 Act.
Further pleaded that at the time of termination of his services, some persons
CWP-17232-2022 (O&M) & 68 connected petitions 19
junior to him, such as (i) Satyawan son of Chandgi Ram, resident of village
Dehman; (ii) Kehar Singh son of Jagdish, resident of village Charnaund,
District Hisar; (iii) Balwant son of Bhagwana Ram, resident of Dhani Sanchla,
District Fatehabad, etc., were retained in service. Not only this, some new
persons, namely, Dilbag, Balwan, Phool Kumar, Rohtash, Lilu, Devender @
Pappu, Basau Ram, Satyawan, Rajbir Etc. were still working at the time when
services of the workman - Anoop Kumar were terminated. Thus, the
provisions of Section 25-G and 25-H of the 1947 Act have also been violated.
[6.] In the written statement filed by the management, on merits it is
pleaded that the workman was never engaged by the Corporation. He was
employed through outsourcing agency, i.e. M/s Oscar Security & Fire
Services, Panipat (not a party to the proceedings in Reference No. 21 of 2017).
Thus, without much disputing the factual aspects, the
management/Corporation pleaded that there was no relationship of employer
and employee between the two. Therefore, there is no question of violation of
any of the mandatory provisions of the 1947 Act.
[7.] Accordingly, the Labour Court framed the following issues:-
"1. Whether the termination of services of the petitioner is
legal or not? If so, to what relief he is entitled to? OP
Parties.
2. Relief."
[8.] Thereupon the workman appeared as WW1 and deposed on the
basis of his affidavit (Ex. WW1/A), reiterating the facts of the claim statement.
In the cross-examination, he denied that he was appointed through outsourcing
agency. The workman requested before the Labour Court to summon the
CWP-17232-2022 (O&M) & 68 connected petitions 20
record, i.e. payment register, muster rolls, attendance register on site of
Haryana Agro Godown, Barwala w.e.f. April, 2010 to 31.03.2013, pertaining
to him. He also asked for production of record of persons junior to him, as
well as persons who were newly appointed.
[9.] Mr. Sunil Tiwari, Authorised Representative, appeared on behalf
of the management and made statement that the relevant record is already
there on case file, which was submitted alongwith the written statement, and
no other record is available with the department. Thus, the evidence was
closed.
[10.] Accordingly, the Labour Court recorded its findings to the effect
that the management has withheld the record and there is not much substance
available on the record that the workman was employed by the outsourcing
agency and not by the Corporation. Lastly, by holding complete violation of
the provisions of Section 25F of the 1947 Act, and also violation of Sections
25G and 25F of the 1947 Act, as no record pertaining to the juniors, despite
being asked for, was produced, reference has been answered in favour of the
workman - Anoop Kumar. For ready reference, the findings recorded by the
Labour Court in paragraph Nos. 11 to 13 of the award dated 28.04.2022,
passed in Reference No. 21 of 2017, are reproduced as under:-
"11. At the outset, the petitioner apart from leading his
own evidence in support of his case, also moved an application
and summoned the record from the respondents i.e. payment
register, muster rolls, attendance register on site of Haryana Agro
Godown, Barwala w.e.f. April, 2010 to 31.03.2013 pertaining to
himself and production of same record of juniors and new
persons appointed namely Satyawan son of Sh. Chandgi Ram R/o
Village Dahman, Kehar Singh son of Sh. Jagdish R/o Village
Charnaud, District Hisar, Balwant son of Sh. Bhagwana Ram R/o
CWP-17232-2022 (O&M) & 68 connected petitions 21
Dhani Sanchla, District Fatehabad and Dilbag, Balwan, Phool
Kumar, Rohtash, Leelu, Devender @ Pappu, Basau Ram,
Satyawan, Rajbir etc. However, the said record was not
produced rather Sh. Sunil Tiwari, learned AR for the respondents
made a statement on behalf of the respondents that the relevant
record is already on the case file which was submitted along with
written statement and apart from that no other record is available
with the department. The respondents have placed on record
documents i.e. Annexure-R1 to Annexure-R6 along with the
written statement. The said documents have also been tendered
by Sh. Sandeep Kumar, Godown Keeper, MW1 as Mark-A to
Mark-F respectively. Even a perusal of documents Mark-C to
Mark-E would show that the name of one Anoop has been
mentioned at serial No.11 but his father's name has been
mentioned as Raja whereas father's name of the petitioner Anoop
Kumar is Rajender. It is not the case of the petitioner that his
father Rajender is also called/known by the name of Raja.
Further, these documents have not been formally proved on
record and thus cannot be read into evidence and are of no use to
the respondents. Moreover, complete record as sought by the
petitioner was not produced. Hence adverse inference is drawn
against the respondents on this count. Even from the cross-
examination of MW1, it is evident that replies to most of the
material/ important questions put to the witness were evasive and
he did not specifically denied about the averments of the
petitioner. Even, the documents Ex.M1 to Ex.M3 placed on record
by the respondents are of no use. The document Ex.M1 is just
copy of letter dated 01.09.2006 regarding policy for outsourcing
services/activities and the document Ex.M2 is the copy of Minutes
Book of a meeting of the Board of Directors of Haryana Agro
Industries Corporation Ltd. held on 18.12.2017 which does not
pertain to the petitioner. Even otherwise, when the service of the
petitioner was terminated on 31.03.2013, it has got no relevance.
Similarly, Service Agreement Ex.M3 entered into between
Haryana Agro Industries and M/s Oscar Security and Fire
Services does not prove that in fact the petitioner had worked
through outsourcing agency. In the circumstances, it is held that
the petitioner had worked as Chowkidar with the respondents
from April, 2010 to 31.03.2013 and had completed 240 days in
preceding 12 months of his termination on 31.03.2013 entitling
him benefits of provisions of Section 25F of the Act. However,
admittedly while terminating the service of the petitioner
provisions contained under Section 25F of the Act were not
followed or complied with by the respondents. Therefore,
termination of service of the petitioner is bad in law for violation
of provisions of Section 25F of the Act.
CWP-17232-2022 (O&M) & 68 connected petitions 22
12. The petitioner has also alleged that he had worked
from 8.00 a.m. to 8.00 p.m. for 12 hours a day for which overtime
work he has not been paid overtime wages by the respondents.
However, the petitioner in his cross-examination has stated that
he did not make any complaint to any one regarding the same.
Had the respondents been taking overtime work from the
petitioner and not paying wages for the same as alleged by the
petitioner, certainly the petitioner would have made complaint to
some competent authority regarding the same. However, nothing
of the sort was done for the reasons best known to the petitioner.
Hence, the petitioner has failed to prove the said contention.
13. Further, as per petitioner at the time of termination
of his service, some persons junior to him namely Satyawan son
of Sh. Chandgi Ram, resident of Village Dehman, Kehar Singh
son of Sh. Jagdish, resident of Village Charnaund, District Hisar,
Balwant son of Sh. Bhagwana Ram, resident of Dhani Sanchla,
District Fatehabad etc. were working with the respondents and
new persons namely Dilbag, Balwan, Phool Kumar, Rohtash,
Lilu, Devender, @ Pappu, Basau Ram, Satyawan, Rajbir etc. are
still working with the respondents and thus, there has been
violation of provisions of Sections 25G and 25H of the Act also.
As already elucidated above, the petitioner also moved an
application and sought the record of said juniors and new
persons from the management. However, no record was produced
by the management. Even, MW1, Sh. Sandeep Kumar in his
cross-examination has categorically admitted that the persons
junior to the petitioner were working and newly appointed
persons after termination of the service of the petitioner are still
working in the department. Though, the witness candidly added
that these persons are through outsourcing agency but no record
to that effect has been produced by the respondents. Hence, there
has been violation of provisions of Sections 25G and 25H of the
Act also. Accordingly, the issue is, decided in favour of the
petitioner and against the respondents."
[11.] Mr. Padamkant Dwivedi, learned counsel representing the
management in all the writ petitions, argued that the Labour Court has
completely failed in looking at the record prior to the recording of its findings.
From copy of the Lower Court Record (in Reference No. 21 of 2017), Mr.
Dwivedi firstly referred to the 'policy for outsourcing of services/activities',
issued vide letter No. 43/5/2001/IGSI, dated 01.09.2006 (Ex. M-1), by the
CWP-17232-2022 (O&M) & 68 connected petitions 23
Chief Secretary to Government, Haryana, to all the Heads of Departments,
Commissioner, Ambala, Hisar, Rohtak and Gurgaon Division etc..
On perusal of the said policy, this Court noticed that the
Government of Haryana with a view to curb the tendency of appointment on
adhoc/contract/daily wage basis and for regularization of the services of
Group-C and D employees working on adhoc/contract or daily wage basis,
decided that no appointment on adhoc/contract/daily wage basis in Group-C or
Group-D posts would be made in future. However, to meet out the emergent
need of the staff, Government of Haryana decided to frame a policy to
engage/outsource services/activities for Government Departments. For ready
reference, policy dated 01.09.2006 alongwith its Appendix i.e. Policy for
outsourcing of services/activities, is reproduced as under:-
" NO. 43/5/2001 -IGSI
From
The Chief Secretary to Government Haryana.
To
1. All Heads of Departments,
Commissioner, Ambala, Hisar, Rohtak
and Gurgaon Divisions.
2. The Registrar, Punjab & Haryana High
Court, Chandigarh.
3. All Deputy Commissioners and Sub
Divisional Officers (Civil) in Haryana.
Dated, Chandigarh the 1st Spetember, 2006.
Subject: Policy for outsourcing of services/activities.
Sir/Madam,
CWP-17232-2022 (O&M) & 68 connected petitions 24
I am directed to say that the matter regarding
framing of a new outsourcing policy has been drawing the
attention of the Govt. for past sometime. After careful
consideration of the matter, Govt. has decided to frame a policy
to engage/outsource services/activities for Government
Departments. The present policy aims at giving effect to one of
the recommendations of the 5th pay Commission i.e. outsource
auxiliary services. The policy is enclosed as Appendix.
2. In Haryana Government Notification No.
G.S.R.24/Const./Art.309/2003, dated 1st October, 2003, which
provides for the regularization of the services of Group-C and D
employees working on adhoc/contract or daily wage basis, it was
also directed that no appointment on adhoc/contract/daily wage
basis in Group-C or Group-D posts would be made in future. This
was done with a view to curb the tendency of appointment on
adhoc/contract/daily-wage basis.
3. However, to meet the emergent requirement of staff
caused due to death, resignation, retirement, promotion and
leave etc., necessary instructions were issued vide Government
circular letter No. 43/5/2001-IGSI, dated 16.8.2004 to allow the
departments to engage persons on contract basis pending
approval of regular contract policy. In the first instance, the
Departments/Public Enterprises were allowed to engage persons
on contract basis up to 31.12.04 and subsequently the period for
engagement of persons on contract basis was extended from time
to time and last time this period was extended up to 31.7.2006
through the letter of even number dated 7th July, 2006.
4. It is clarified that persons so engaged shall not have
any legal right claiming regularization of their services etc. in the
departments where they have been engaged.
5. This policy shall come into force with effect from
1.8.2006, as a result of which the instructions contained in letter
No. 43/5/2001-IGSI, dated 16.8.2004 and subsequent in circulars
of even number dated 29.12.2004, 13.5.2005, 16.1.2006,
26.4.2006 and 7.7.2006 shall stand superseded with effect from
1.8.2006.
The policy in question should be brought to the
notice of all concerned working under your control for
compliance in letter and spirit.
Yours faithfully,
CWP-17232-2022 (O&M) & 68 connected petitions 25
Sd/-
Deputy Secretary General Administration
For Chief Secretary to Government Haryana"
" APPENDIX
POLICY FOR OUTSOURCING OF SERVICES / ACTIVITIES
The Government of Haryana proposes to further
strengthen the delivery of services tö the people. Keeping in view
the emergence of new areas in the field of effective governance
and due to technological advancements, it is endeavoured to
outsource services/ activities that are of an auxiliary or
supporting nature to its functioning. It has been felt by the
government that a policy needs to be enunciated to provide a
framework for outsourcing of such services/activities as well as
provide guidelines on the subject. This policy aims to provide an
enabling framework to approach outsourcing of
services/activities wherever required for better and efficient
delivery of services.
PART-A WHERE REGULAR POSTS DO NOT EXIST
i) Services/activities may be outsourced as and when
required in part or completely by the departments. For instance,
cleaning of premises, horticultural work, housekeeping services,
maintenance of buildings, transport services, information
technology services provided the software application required to
be developed or data entry services are clearly specified,
secretarial services, courier services, highly technical and
professional services etc. The above activities are illustrative and
the departments can apply this policy for outsourcing on the
basis of need and span of the services/activities.
ii) The nature of the services/ activities required to be
outsourced should be specified and clearly defined in the tender
notice as well as the contract document instead of mentioning the
number of personnel required to perform the services/ activities.
iii) The Departments shill ensure that there is no regular
sanctioned post in that unit of office for performing the
outsourced services/ activities.
iv) The identification of the services/ activities to be
outsourced shall be done by the head of department. The
services/ activities to be outsourced can be identified for the
department as a whole or a specific unit of the department. In
CWP-17232-2022 (O&M) & 68 connected petitions 26
either case, the head of department will ensure that no regular
sanctioned posts are available in that office to perform the
services/ activities.
v) Once the services/activities to be outsourced are identified,
the minimum qualifying criteria, the deliverables (expected
service levels), performance monitoring standards and liabilities
in case of non-performance shall be unambiguously determined
and approved by the head of department.
vi) The tender form and the contract document shall be
finalized with the approval of the head of department depending
upon the existing delegation of powers in the department. Open
tenders can then be invited and decided in a transparent manner
through a competitive bidding process. A Model Draft Service
Contract Document is placed at Annexure 'A' for illustration.
vii) In case of the Mini-secretariats in the districts where
several offices of different government departments are located
under one roof, the Deputy Commissioner shall identify the
services/ activities to be outsourced for the building as a whole
and the expenditure on such outsourcing shall be borne by the
Deputy Commissioner through the budget available for the
purpose.
viii) Wherever required, the departments would move for
adequate provisions in their budget for outsourcing of services/
activities under the appropriate head.
ix) Wherever contract for services is awarded on the basis of
competitive transparent bidding process no approval of FD will
be required, if the expenditure is within the sanctioned budget
provision.
x) All the expenses for outsourcing of services/ engagement of
persons against sanctioned posts or otherwise shall be restricted
within the sanctioned budget of the department. No separate
allocations shall be made on this account.
PART-B WHERE REGULAR POSTS EXIST
i) In emergent cases involving public interest, where the
sanctioned vacant posts of Group C&D categories exist, term
engagement can be made for a period not exceeding six months
on wages fixed by the DC under the Minimum Wages Act, for
which no approval of FD shall be required. If however, it is
proposed to pay higher wages, then approval of FD will have to
CWP-17232-2022 (O&M) & 68 connected petitions 27
be obtained, giving proper justification. During these six months
the department will endeavour to make regular appointment.
ii) In case of persons already engaged on contract by some
departments, against sanctioned vacant posts of any category,
they will be considered having been engaged under this policy, on
term engagement for a period of six months from the date of
notification of this policy or the period of the term entered upon
by the parties, whichever, is less, during which the department
will endeavour to fill up the posts on regular basis by following
due procedure. The present incumbents may also be considered
for regular appointment, if they fulfill the prescribed
qualifications;
Provided that if for any reason, the process of recruitment
cannot be completed within six months then approval of FD shall
be obtained, giving justifications, for term engagement for a
further period of six months.
iii) In case of persons already engaged on contract, by some
departments, where no such posts exist, the engagements shall be
deemed to have been made under this policy for a period of six
months or the term of engagement, entered upon by the parties
whichever is less. After the expiry of. this period, however, the
department shall float tender for services/activities as laid down
in this policy.
iv) Whenever a term engagement is resorted to, whether
against a sanctioned vacant post, or otherwise, the department
should enter into an agreement, signed by both the parties, which
should unambiguously state that it is an engagement for a fixed
term and shall automatically cease on the expiry of the term
without providing any claim to the person so engaged to any
regularization of service or any consequential benefits. A draft of
such model agreement is appended at Annexure 'B'.
v) In the case of posts of a highly technical or professional
nature, of any category, whether for reasons of unavailability of
suitable persons for regular appointment or for reasons of
continuous updation of knowledge or technology, if it is decided
to fill the post on term engagement, a speaking order will be
passed by the head of department on the file. Such term
engagement will be at Deputy Commissioner's rates wherever
applicable, under the Minimum Wages Act, or upto minimum
basic pay of the pay scale prescribed for that post, plus
allowances; as the case may be, for a period not exceeding one
year, for which approval of the Finance Department will not- be
CWP-17232-2022 (O&M) & 68 connected petitions 28
required. If however, higher pay/wages are proposed to be paid
during the term engagement, then approval of the Finance
Department may be obtained giving full justifications."
[12.] After referring to the aforementioned policy, learned counsel for
the management/Corporation submitted that the management entered into
agreements with various outsourcing agencies from time to time, and also
furnished details of such agencies, during the course of the arguments, which
are as under:-
Sr. No. Name of Outsourcing Agreement between Haryana Agro
Agency Industries Corporation Limited and
Agency
1. M/s Lokesh Security & 21.08.2009 to 20.08.2010.
Detective Agency Blacklisted vide order No. WPA-
[respondent No. 4 in CWP 2011/242-269, dated 08.01.2011, for
Nos. 6781, 6827 & 6981 of breach of agreement.
2023]
2. M/s Friends Security 09.04.2012 to 08.04.2013
Services
3. M/s Oscar Fire & Security (i) 04.04.2012 to 03.04.2013,
Services extended upto 21.06.2013;
[respondent No. 5 in CWP (ii) 20.06.2013 to 19.06.2014,
Nos. 6781, 6827 & 6981 of extended from time to time upto
2023] 30.06.2016
4. M/s Security Intelligence 01.07.2016 to 30.06.2017
Services
5. M/s Orion Security 01.07.2017 to 30.06.2018
Solutions
Learned counsel further stated that as per clauses of the
agreements, it was incumbent upon the outsourcing agency to obtain CPF and
ESI numbers of the staff deployed by it. Referring to clause 14 of one such
agreement dated 04.04.2012 (copy of which was produced before the Labour
Court, alongwith several other documents, marked as Ex. M-3), entered into
CWP-17232-2022 (O&M) & 68 connected petitions 29
between the management and M/s Oscar Security and Fire Service, 44,
Shopping Complex, Lal Tanki Market, Model Town, Panipat, learned counsel
submitted that the management/Corporation was releasing lump-sum Rs.
7216/- per person, including minimum wages as per Minimum Wages Act,
EPF, ESI, Service Tax payable to government and service charges etc. Even
as per clause 14(f) of the said agreement, entrance passes were also to be
issued by the outsourcing agency. From the said agreement, learned counsel
submitted that there was no liability of the management/Corporation and
rather as per clause 35, it was made clear that there will not be any contract of
employment between the Haryana Agro Industries Corporation Limited and
contractual workers for any/all purpose.
[13.] Learned counsel for the management/Corporation further referred
to the documents (Mark F), which are bills raised by M/s Oscar Security &
Fire Service, for its payment from the management/Corporation, for the period
from 01.01.2013 to 31.01.2013, 01.02.2013 to 28.02.2013 and 01.03.2013 to
31.03.2013. Also referred to the muster-rolls where the presence of workers
engaged by M/s Oscar Security & Fire Service, is marked.
[14.] Thereafter, Mr. Dwivedi pointed out the document of license,
dated 19.02.2013, issued by the Government of India to M/s Oscar Security &
Fire Service, under Section 12(1) of the Contract Labour (Regulation &
Abolition) Act, issued for a period of one year, i.e. uptil 18.02.2014. By
referring to another document (Ex. M1), Mr. Dwivedi also argued that, in fact,
the license to engage in the business of private security agency, issued by the
CWP-17232-2022 (O&M) & 68 connected petitions 30
Government of Haryana, was there with M/s Oscar Security and Fire Service,
for the period from 04.10.2011 to 03.10.2016.
Thus, by referring all the aforesaid documents, learned counsel
for the management/Corporation argued that there is ample documentary
evidence available on record for making it clear that, in fact, workmen in all
these cases, were the employees of the outsourcing agencies, i.e. (i) M/s
Lokesh Security & Detective Agency; (ii) M/s Friends Security Services; (iii)
M/s Oscar Security & Fire Service; (iv) M/s Security Intelligence Services;
and (v) M/s Orion Security Solutions, having no connection with the
management/Corporation.
[15.] Learned counsel further argued that version of the workmen
otherwise also is not tenable because neither there is any appointment letter
nor any termination order or any documentary proof to prove that the salary
was paid by the management/Corporation.
[16.] It is also argued that date of the alleged termination in the case of
workman - Anoop Kumar (in Reference No. 21 of 2017) is 31.03.2013,
whereas demand notice was issued on 15.02.2017, which is after lapse of four
years. Thus, the dispute raised by the workman is highly belated.
[17.] On the other hand, learned counsel for the workmen while
defending the reasoning recorded in the awards passed by the Labour Court,
submitted that the awards have been passed with the correct approach, rather
the same are required to be modified by awarding full back-wages to the
workmen.
CWP-17232-2022 (O&M) & 68 connected petitions 31
For that purpose, Mr. Suresh Kumar Kaushik, learned counsel
submitted that as per settled proposition of law, once it is found that there is
violation of Section 25-F of the 1947 Act, the workman has to be held entitled
for full back-wages. Further argued that if the version of the management is
accepted, it is clear that it is a case of unfair labour practice, and the provisions
of the Contract Labour (Regulation & Abolition) Act, 1970, have been
violated. In support of the argument, reliance has been placed on the
judgement of Hon'ble Apex Court in the case of Secretary, Haryana State
Electricity Board v. Suresh, 1999 (2) S.C.T. 600, and a Division Bench
judgement of this Court (Punjab and Haryana High Court) in the case of Food
Corporation of India v. The Presiding Officer, Central Government
Industrial Tribunal, Chandigarh, 1987 (2) PLR 22.
[18.] I have gone through the pleadings raised by the workmen in the
claim statement and the reply thereto by the management/Corporation and
after going through the reasoning assigned by the Labour Court, this Court
realizes that the management is shifting its liability towards the outsourcing
agencies, such as (i) M/s Lokesh Security & Detective Agency; (ii) M/s
Friends Security Services; (iii) M/s Oscar Security & Fire Service; (iv) M/s
Security Intelligence Services; and (v) M/s Orion Security Solutions, which in
fact were never a party before the Labour Court in each and every case. From
scrutiny of files, it is evident that M/s Lokesh Security and Detective Agency
is party respondent No. 4; and M/s Oscar Security and Fire Services is party
respondent No. 5, before this Court only in three petitions, which are CWP
Nos. 6781, 6827 and 6981 of 2023. Even during the course of arguments,
CWP-17232-2022 (O&M) & 68 connected petitions 32
learned counsel for the management/Corporation has referred and placed
reliance upon the documentary evidence, i.e. agreement, licenses and muster
rolls etc., concerning M/s Oscar Security and Fire Services only, for taking the
plea that, in fact, the workmen in all the cases are workers/employees of
outsourcing agencies. Once such is the specific plea of the
management/Corporation, it could have moved appropriate applications in
each and every case, for impleadment of the concerned outsourcing agency, as
a party to the proceedings before the Labour Court or the authorised
representative/contractor/official of such agency could have been produced in
the witness box. However, no such exercise has been undertaken by the
management/Corporation to prove its case.
[19.] There is another aspect which is noticed by this Court. From the
table in para No. 4 of this judgement, containing all the required particulars of
the workmen, it is evident that large number of workmen were employed
between 1997 to 2009 and some of the workmen were employed after
execution of the agreements between the Haryana Agro Industries Corporation
Limited and outsourcing agencies. Even as per own showing of learned
counsel for the management/Corporation, there is no dispute that at the time of
initial appointment of such workmen, no outsourcing agency was in picture.
Obviously, the 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 agencies from
time to time, converting the employment conditions and even the employer of
the workmen.
CWP-17232-2022 (O&M) & 68 connected petitions 33
Surprisingly, for the period from 21.08.2009 to 20.08.2010, the
outsourced 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.
Thereafter, another agreement for the period from 09.04.2012 to 08.04.2013
was executed by the management with M/s Friends Security Services; and
another agreement for the period from 04.04.2012 to 03.04.2013 was executed
with M/s Oscar Fire & Security Services, which was extended upto
30.06.2016. Thereafter, agreements were also stated to be executed with M/s
Security Intelligence Services (from 01.07.2016 to 30.06.2017) and M/s Orion
Security Solutions (from 01.07.2017 to 30.06.2018). The said decision was
taken unilaterally by the management/Corporation.
[20.] This Court finds that there is no explanation available on record
that once, the workmen are found to be working for the management at the
time of black-listing of M/s Lokesh Security & Detective Agency, Hisar, w.e.f.
08.01.2011 uptil the new agreement i.e. 04.04.2012 with M/s Oscar Security &
Fire Services, how management would plead that the workmen were the
employee of some other agency. 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 management/Corporation.
Undoubtedly, management has tried to show that the workmen were the
CWP-17232-2022 (O&M) & 68 connected petitions 34
employees of outsourcing agencies at the time of termination. Thus, this
question also requires to be examined.
[21.] As already noticed above, except in CWP Nos. 6781, 6827 and
6981 of 2023, where M/s Lokesh Security and Detective Agency is respondent
No. 4; and M/s Oscar Security and Fire Services is respondent No. 5, in rest of
the writ petitions, the concerned outsourcing agency is not even party to the
proceedings before the Labour Court.
Even it is not clear that compliance of Section 9A of the 1947
Act, which is mandatorily required to be followed by the
management/Corporation, has been done or not. If, plea of the management is
that initially, some of the workmen were employed by it directly, but later on,
they were shown on the roll of some outsourcing agency with which it entered
into contract, in that situation also, compliance of Section 9A read with Fourth
Schedule of the 1947 Act, would be relevant for consideration. For ready
reference, provisions of Section 9A and Fourth Schedule of the 1947 Act, 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
CWP-17232-2022 (O&M) & 68 connected petitions 35
(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;
CWP-17232-2022 (O&M) & 68 connected petitions 36
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."
[22.] Therefore, in such circumstances, this Court finds that all the
aforementioned 44 references, require adjudication again at the level of the
Labour Court because some of the documents appended with the LCR also
require to be examined after impleadment of the concerned outsourcing
agency from which the management/Corporation allegedly hired the services
of the workmen. It is also noticed that in some of the cases, the workmen
were employed almost 9/10 years earlier to hiring the services from the
outsourcing agencies. In such situation, pleading raised by the
management/Corporation draws attention, and needs to be examined, to
ascertain the fact that who is the true employer of the workmen. Enough
material is not available on record whether the provision of Section 9A of the
1947 Act was complied with or not.
CWP-17232-2022 (O&M) & 68 connected petitions 37
[23.] However, this Court is of the view that without impleadment and
granting of opportunity to plead and lead evidence to the concerned
outsourcing agency, real controversy cannot be resolved in proper and lawful
manner.
[24.] As a sequel to the above discussion, I deem it appropriate to set
aside all the awards impugned in these 69 writ petitions, detail of which has
been given in the opening part as well as in the table drawn in para No. 4 of
the judgement. The writ petitions filed by the workmen, claiming full back
wages are rendered infructuous because the said issue would also be re-
considered by the Labour Court.
Accordingly, all the cases/references are remanded back for re-
decision by the Labour Court, after impleadment of all the concerned
outsourcing agency as party to the proceedings, in each and every case. The
management/Haryana Agro Industries Corporation Limited shall move
appropriate application(s) for impleadment of concerned outsourcing agency,
and thereafter the proceedings would be conducted in accordance with law.
[25.] Needless to say that the opportunity for filing reply/written
statement would only be given to the newly added respondent, if any, and
thereupon each of the party would be afforded maximum two opportunities for
leading evidence so that the proceedings can be finally concluded afresh
within the year 2024. It is also clarified that impleadment of the outsourcing
agencies and their service through Dasti process, would be the sole
responsibility of the management/Corporation.
CWP-17232-2022 (O&M) & 68 connected petitions 38
Let further exercise be commenced by the learned Labour
Court from 27.05.2024. On the said date all the parties to the lis shall
appear before the Labour Court to enable it to commence the further
proceedings, as per law.
Registry is directed to transmit copy of this judgement
immediately to the Industrial Tribunal-cum-Labour Court, Hisar, for
information and compliance.
[26.] With the aforementioned directions, all the 69 writ petition and
pending miscellaneous applications therein, are disposed of.
(SANJAY VASHISTH)
JUDGE
May 13, 2024
Pkapoor
Whether speaking/reasoned? Yes/No
Whether reportable? Yes/No
