Punjab-Haryana High Court
Narender vs Presiding Officer Industrial Tribunal ... on 18 November, 2024
Neutral Citation No:=2024:PHHC:149570
CWP-6108-2014 and other
Connected matters 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
224 (11 cases) CWP-6108-2014
Date of Decision : 18.11.2024
NARENDER .... PETITIONER
V/S
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, HISAR & ANR
.... RESPONDENTS
Sr. No. Case No. Parties Name
2. CWP-6349-2014 SUNDER LAL V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNA-CUM-LABOUR
COURT, HISAR AND OTHERS
3. CWP-15085-2014 VED PRAKASH SHARMA V/S BHIWANI
TEXTILE MILLS AND OTHERS
4. CWP-20985-2014 PARMA NAND V/S PRESIDING
OFFICER, INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, HISAR AND
OTHERS
5. CWP-20995-2014 AJAY KUMAR V/S PRESIDING
OFFICER, INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, HISAR AND
OTHERS
6. CWP-21673-2014 BIJENDER V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, HISAR AND OTHERS
7. CWP-21891-2014 BISHNU SINGH V/S PRESIDING
OFFICER, INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, HISAR AND
OTHERS
8. CWP-23040-2014 SUKHBIR V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
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Neutral Citation No:=2024:PHHC:149570
CWP-6108-2014 and other
Connected matters 2
COURT, HISAR AND OTHERS
9. CWP-23057-2014 SANT KUMAR V/S PRESIDING
OFFICER, INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, HISAR AND
OTHERS
10. CWP-22939-2014 PARDEEP V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, HISAR AND OTHERS
11. CWP-23024-2014 SANDEEP V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, HISAR AND OTHERS
CORAM : HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. S.S. Dalal, Advocate
for the petitioner in CWP-6108 & 6349-2014).
Mr.Rajiv Sharma (Hisarwale), Advocate and
Ms. Indu Bala Sharma, Advocate
for the petitioner in CWP Nos.15085, 20985, 20995, 21673,
21891, 21916, 23040, 23057, 22939 & 23024 of 2014.
Mr. Ashwani Talwar, Advocate and
Mr. Deepak Goyat, Advocate and
Mr. Ishan Vashisht, Advocate
for respondent No.1 in CWP-15085-2014 and
for respondent No.2 in CWP Nos. 6108, 6349, 20985,
20995, 21673, 21891, 23040, 23057, 22939 & 23024 of
2014.
****
JAGMOHAN BANSAL, J. (Oral)
1. By this common order, the above-noted petitions are hereby
adjudicated as issues involved and prayer sought in all the petitions are
common. For the sake of convenience and with the consent of parties, the
facts are borrowed from CWP-6108-2014.
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2. The petitioner through instant petition under Articles
226/227 of the Constitution of India is seeking setting aside of Award
dated 20.12.2013 (Annexure P-4) whereby Labour Court has answered
the reference against him.
3. The petitioner from 2004 to 2011 worked with respondent
No.2-Management as Paledar (Bandhani). His job was to load and unload
material manufactured by respondent No. 2. He was engaged through a
contractor. The respondent No. 2 has engaged multiple contractors to
supply manpower. The contractors are registered under Contract Labour
(Regulation & Abolition) Act, 1970 (for short '1970 Act'). The
respondent No. 2 is also registered under the said Act. The respondent
No. 2 has entered into an agreement with contractor. In accordance with
the contract, the respondent has engaged multiple workers through
contractor. The respondent No. 2 in terms of Section 40 of Employees'
State Insurance Act, 1948 (for short '1948 Act') and paragraph 30 of
Employees' Provident Fund Scheme, 1952 (for short '1952 Scheme')
made contribution of ESI and Provident Fund. The respondent instead of
paying to contractor, directly deposited its contribution along with
contribution of workman. The salary was not paid by respondent whereas
it was paid by contractor. At one point of time, the workman filed petition
before Labour Authorities claiming minimum wages. The said petition
was dismissed for non-prosecution. The said petition was filed against
contractor which indicates that workman was well aware that he has been
engaged through a contractor. The contractor did not avail service of
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CWP-6108-2014 and other
petitioner after 2011. The petitioner did not file claim against contractor,
however, opted to serve demand notice against respondent No. 2. The
matter came to be referred to Labour Court which vide impugned Award
has answered against the workman.
4. Mr. S.S. Dalal, Advocate and Mr. Rajiv Sharma, Advocate
submit that Labour Court has misread evidence led by both sides. The
contribution towards ESI and PF was made by respondent No. 2, thus,
petitioner was employee of respondent No. 2. The Labour Court has
wrongly declined claim of the petitioner.
5. Per contra, Mr. Ashwani Talwar, Advocate submits that there
is no jurisdictional error or factual infirmity in the impugned Award. The
Labour Court has appreciated entire record and thereafter concluded that
petitioner was an employee of the contractor, thus, he cannot make claim
against principal employer.
6. In Bharat Heavy Electricals Limited vs. Mahendra Prasad
Jakhmola and others, (2019) 13 SCC 82, question of liability of
principal employer came up for consideration before a two judge Bench
of Supreme Court against orders passed by High Court of Uttaranchal
whereby High Court had dismissed writ petition against Labour Court's
award. The dispute before the Labour Court was whether termination of
services of workman was justified or not. The Labour Court answered
the reference in favour of 64 workmen. The management preferred writ
petition before the High Court which dismissed the same vide order dated
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24.04.2014. The High Court held that workmen were performing duties
which were identical with regular employees, therefore, it can be said that
they were under the command, control and management of BHEL and
concomitantly, the contractor has absolutely no control over the workmen
in performing such duties. The contract with the contractor was declared
sham and consequently, the Labour Court award was upheld.
Supreme Court by judgment dated 20.02.2019 set aside order
of High Court as well as Labour Court. The Court considered parameters
with respect to expression "control and supervision". Considering the
nature of job and control of management vis-à-vis contractor, the Court
found that the findings recorded by Labour Court as well as High Court
are incorrect, accordingly, judgment of High Court was set aside. The
relevant extracts of the judgment are reproduced as below:
"21. We, now come to some of the judgments cited by Shri
Sudhir Chandra and Ms Asha Jain. In Bengal Nagpur
Cotton Mills v. Bharat Lal [Bengal Nagpur Cotton Mills v.
Bharat Lal, (2011) 1 SCC 635 : (2011) 1 SCC (L&S) 16] , it
was held that the well-recognised tests to find out whether
contract labourers are direct employees are as follows :
(SCC p. 638, para 10)
"10. It is now well settled that if the industrial
adjudicator finds that the contract between the
principal employer and the contractor to be a sham,
nominal or merely a camouflage to deny employment
benefits to the employee and that there was in fact a
direct employment, it can grant relief to the employee
by holding that the workman is the direct employee of
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the principal employer. Two of the well-recognised
tests to find out whether the contract labourers are the
direct employees of the principal employer are : (i)
whether the principal employer pays the salary instead
of the contractor; and (ii) whether the principal
employer controls and supervises the work of the
employee. In this case, the Industrial Court answered
both questions in the affirmative and as a consequence
held that the first respondent is a direct employee of
the appellant."
22. The expression "control and supervision" were
further explained with reference to an earlier judgment of
this Court as follows : (Bengal Nagpur Cotton Mills case
[Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC
635 : (2011) 1 SCC (L&S) 16] , SCC pp. 638-39, para 12)
"12. The expression "control and supervision"
in the context of contract labour was explained by this
Court in International Airport Authority of India v.
International Air Cargo Workers' Union
[International Airport Authority of India v.
International Air Cargo Workers' Union, (2009) 13
SCC 374 : (2010) 1 SCC (L&S) 257] thus : (SCC p.
388, paras 38-39)
'38. ... if the contract is for supply of labour,
necessarily, the labour supplied by the
contractor will work under the directions,
supervision and control of the principal
employer but that would not make the worker a
direct employee of the principal employer, if the
salary is paid by a contractor, if the right to
regulate the employment is with the contractor,
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and the ultimate supervision and control lies
with the contractor.
39. The principal employer only controls and
directs the work to be done by a contract
labour, when such labour is
assigned/allotted/sent to him. But it is the
contractor as employer, who chooses whether
the worker is to be assigned/allotted to the
principal employer or used otherwise. In short,
worker being the employee of the contractor,
the ultimate supervision and control lies with
the contractor as he decides where the employee
will work and how long he will work and subject
to what conditions. Only when the contractor
assigns/sends the worker to work under the
principal employer, the worker works under the
supervision and control of the principal
employer but that is secondary control. The
primary control is with the contractor.'
23. From this judgment in Bengal Nagpur Cotton Mills
case [Bengal Nagpur Cotton Mills v. Bharat Lal, (2011) 1
SCC 635 : (2011) 1 SCC (L&S) 16] , it is clear that Test No.
1 is not met on the facts of this case as the contractor pays
the workmen their wages. Secondly, the principal employer
cannot be said to control and supervise the work of the
employee merely because he directs the workmen of the
contractor "what to do" after the contractor assigns/allots
the employee to the principal employer. This is precisely
what para 12 of Bengal Nagpur Cotton Mills case [Bengal
Nagpur Cotton Mills v. Bharat Lal, (2011) 1 SCC 635 :
(2011) 1 SCC (L&S) 16] explains as being supervision and
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control of the principal employer that is secondary in nature,
as such control is exercised only after such workman has
been assigned to the principal employer to do a particular
work.
24. We may hasten to add that this view of the law has
been reiterated in Balwant Rai Saluja v. Air India Ltd.
[Balwant Rai Saluja v. Air India Ltd., (2014) 9 SCC 407 :
(2014) 2 SCC (L&S) 804] , as follows : (SCC pp. 437-38,
para 65)
"65. Thus, it can be concluded that the relevant
factors to be taken into consideration to establish an
employer-employee relationship would include, inter
alia:
(i) who appoints the workers;
(ii) who pays the salary/remuneration;
(iii) who has the authority to dismiss;
(iv) who can take disciplinary action;
(v) whether there is continuity of service; and
(vi) extent of control and supervision i.e. whether
there exists complete control and supervision.
As regards extent of control and supervision, we have
already taken note of the observations in Bengal
Nagpur Cotton Mills case [Bengal Nagpur Cotton
Mills v. Bharat Lal, (2011) 1 SCC 635 : (2011) 1 SCC
(L&S) 16] , International Airport Authority of India
case [International Airport Authority of India v.
International Air Cargo Workers' Union, (2009) 13
SCC 374 : (2010) 1 SCC (L&S) 257] and Nalco case
[NALCO Ltd. v. Ananta Kishore Rout, (2014) 6 SCC
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756 : (2014) 2 SCC (L&S) 353] ."
25. However, Ms Jain has pointed out that contractors
were frequently changed, as a result of which, it can be
inferred that the workmen are direct employees of BHEL.
There is no such finding of the Labour Court or any
reference to the same by the High Court. Consequently, this
argument made for the first time in this Court together with
judgments that support the same, is of no consequence."
7. In the case in hand, the Labour Court has recorded categoric
findings to the effect that the petitioner was engaged through a contractor.
The contract between management and contractor was not a sham
transaction. Both the parties were duly registered under 1970 Act. The
management has engaged multiple contractors for the purpose of
supplying unskilled workers to carry out job of loading and unloading
goods. The Labour Court has also considered the factum of payment of
wages as well as contribution towards 1948 Act as well as 1952 Scheme.
8. Mr. Talwar despite afore-stated findings of Labour Court, on
the asking of Court, agreed to pay lump sum compensation to workman
subject to caveat that this may not be treated as precedent because
management is still engaging contractors in terms of applicable Rules and
Regulations.
9. Mr. Talwar produced cheques as detailed below :
Sr. No. Name Writ No. Amount (in lakhs)
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CWP-6108-2014 and other
3. Ved Prakash CWP-15085-2014 1.5
4. Parma Nand CWP-20985-2014 1.5
5. Ajay Kumar CWP-20995-2014 0.75
6. Bijender CWP-21673-2014 1.5
8. Sukhbir CWP-23040-2014 1.5
10. Pardeep CWP-22939-2014 0.75
10. Mr. Dalal and Mr. Sharma submit that their clients are not
ready to accept afore-stated cheques, thus, they are unable to accept the
cheques.
11. The petitioners have not accepted cheques offered by
respondent-management. They are at liberty, if at any stage they find it
appropriate, to collect cheques from the respondent-management.
12. In the backdrop of my above findings, the petitions stand
disposed of.
18.11.2024 (JAGMOHAN BANSAL)
anju JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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