Punjab-Haryana High Court
Harender Singh vs Presiding Officer And Ors on 21 October, 2024
Neutral Citation No:=2024:PHHC:137389
CWP-23012-2018 and 1
connected cases.
252 (18 cases)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-23012-2018
Date of Decision: 21.10.2024
HARENDER SINGH .... PETITIONER
V/S
THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT-III, FARIDABAD AND ORS
.... RESPONDENTS
Sr. No. Case No. Parties Name
2. CWP-22319-2018 KHEM CHAND V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
3. CWP-22356-2018 HARENDER BHATI V/S PRESIDING
OFFICER, INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT-III, FARIDABAD AND
ORS
4. CWP-22357-2018 KARAM CHAND V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
5. CWP-22359-2018 VIJAY KUMAR V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
6. CWP-22361-2018 ANUJ KUMAR SHUKLA V/S PRESIDING
OFFICER, INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT-III, FARIDABAD AND
ORS
7. CWP-22362-2018 BHAGAT SINGH V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
8. CWP-22363-2018 HUKAM SINGH V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
9. CWP-22365-2018 KARAMBIR V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
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Neutral Citation No:=2024:PHHC:137389
CWP-23012-2018 and 2
connected cases.
10. CWP-22366-2018 SURESH KUMAR V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
11. CWP-22367-2018 DHARMENDER SINGH V/S PRESIDING
OFFICER, INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT-III, FARIDABAD AND
ORS
12. CWP-22368-2018 RAJ KUMAR V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
13. CWP-22369-2018 ROSHAN DAS V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
14. CWP-22370-2018 MANOJ SINGH V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
15. CWP-22371-2018 DIGAMBER SHARMA V/S PRESIDING
OFFICER, INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT-III, FARIDABAD AND
ORS
16. CWP-22372-2018 SUDESH KUMAR V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
17. CWP-22373-2018 DAYA RAM V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
18. CWP-23010-2018 RAM NARAYAN V/S PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT-III, FARIDABAD AND ORS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Ms. Abha Rathore, Advocate
for the petitioner.
Mr. Mohak Bhandana, Advocate
for respondent No.2.
Mr. Satyaveer Singh, Advocate
for respondent No.3.
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Neutral Citation No:=2024:PHHC:137389
CWP-23012-2018 and 3
connected cases.
****
JAGMOHAN BANSAL, J. (Oral)
1. By this common order, a bunch of 18 petitions is hereby
disposed of since issues involved and prayer sought in the captioned
petitions are common. With the consent of parties and for the sake of
brevity, facts are borrowed from CWP-23012 of 2018.
2. The petitioner through instant petition under Articles
226/227 of the Constitution is seeking setting aside of Award dated
01.06.2018 (Annexure P-6) whereby Labour Court has answered the
reference against him.
3. The petitioner from March' 2008 to February' 2013 worked
in the factory premises of respondent No.2-M/s Showa India Pvt. Ltd.,
Faridabad. The workman claims that he was terminated whereas
contractor-respondent No.3 claims that he had abandoned his job. The
workman approached Labour Authorities and matter came to be referred
to Labour Court. The Government made reference to Labour Court to
answer the following question:
"Whether services of workman Harender Singh were
terminated illegally? If so, what relief he is entitled
to?"
4. The parties appeared before Labour Court and made their
submissions. The Labour Court vide order dated 31.01.2017 framed
following issues:
"1. Whether the workman is the employee of M/s
Showa India Pvt. Limited, Faridabad or of the
contractor? OPW
2. If he is employee of M/s Showa India Pvt.
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Limited, Faridabad, whether the termination of his
services is illegal? If so, to what relief he is entitled
to ? OPW
3. Whether the reference is not maintainable?
OPM
4. Relief."
5. The Labour Court by Award dated 01.06.2018 concluded
that workman was not employee of M/s Showa India Pvt. Ltd., Faridabad
whereas he was employee of contractor namely M/s Leo Enterprises.
Thus, petitioner cannot claim protection granted by Industrial Disputes
Act, 1947 (for short 'ID Act') against M/s Showa India Pvt. Ltd.,
Faridabad. The relevant extracts of findings recorded by Labour Court are
reproduced as below:
"22. Now coming to the facts of the present case, it
may be noticed that no appointment letter has been
produced by the workman in order to show that he was
in the direct employment of respondent No. I company.
On the other hand, the respondents have led
overwhelming evidence to prove that salary was being
paid to the claimant by the contractor and the
contribution which is made from the salary of the
workman to the ESI and PF department was regularly
being deposited by the contractor only. At this stage,
the learned AR appearing on behalf of the respondents
Sh. J.S. Bhadana has also drawn attention of this
Court to the copies of the ESI returns Ex. MW4/2 to
stress the point that ESI contributions of the claimant
during his employment with respondent No. 2-
contractor for the period from 1.4.2009 to 30.4.2009
and again from 1.4.2010 to 5.2.2013 was regularly
deposited by the contractor only. MWI Rajeev Verma
had also brought attendance as well as payment of
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wages register of respondent No. 1-company for the
period from 2007 to December 2013 wherein the name
of the workman did not exist. Similarly, he has also
placed on record ESI returns for the said period as Ex.
MW1/3 in order to show that the claimant had never
been in the employment of respondent No. 1- company
and as such the question of relationship of employee
and employer between respondent No. 1-company and
the claimant does not arise. Moreover, Sonveer Singh
MW4, Supervisor of respondent No. 2-establishment-
M/s. Leo Enterprises, has also stated categorically in
his affidavit Ex. MW4/A that the claimant was working
with them as Helper and thereafter he has abandoned
the job of his own. This witness has also placed on
record copies of the ESI returns of his establishment
for the period from October, 2007 to March, 2013 Ex.
MW4/2 running into pages (1-378) in order to show
that they have been depositing the ESI contributions of
the claimant during his employment with them in
between 1.4.2009 to 30.4.2009 and from 1.4.2010 to
5.2.2013. The above discussed evidence thus leaves no
doubt that the workman in fact was on the rolls of
respondent No. 2 contractor who had deputed him to
work with respondent No. 1 company and as such
there was no relationship of employee and employer
between the claimant and respondent No. 1.
24. However, in the present case, MW1 has clearly
stated in his affidavit that respondent No. 1 company
has obtained registration certificate from the
Government of Haryana under CLRA Act and it has
been engaging contract employees through different
contractors vide agreement Ex. MW1/2 running into
pages 1 to 16.
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25. Even for the sake of arguments, it is assumed
that the Principal Employer respondent No. No. 1
company had not obtained registration u/s 7 or the
Contractor respondent No. 2 did not get licence u/s 12
of the CLRA Act, as being projected on behalf of the
workman, then also, as held by the Hon'ble Supreme
Court in Dena Nath's case (supra), that non-
obtaining of the registration by the Principal
Employer and licence by the Contractor under CLRA
Act does not ipso facto entitle the workman to claim
the status of the direct employee of the Principal
Employer.
26. It is also the submission of the learned AR
appearing on behalf of the workman that respondent
No. 1 company was not having any valid agreement
with respondent No. 2 for supply of contract labour.
These submissions being beyond pleadings cannot be
looked into. Otherwise also, it is for the workman to
aver and prove that respondent No. I was not having
any valid agreement with respondent No. 2 or that the
agreement Ex. MW1/2 is void or uncertain, which the
workman has failed to do so.
27. Another contention raised on behalf of the
workman is that the tractor respondent No. 2 could not
have deployed the workman as an Operator in the
establishment of respondent No. 1 company and the
fact that the workman has worked there in such
capacity would, in itself, establish that the workman
was the direct employee of respondent No. 1 company.
These contentions are again devoid of any merit and
hence cannot be accepted. It may be noticed here that
as per the Schedule of Haryana Contract Labour
(Regulation & Abolition) Rules, 1975 there is no bar
to employ any workman through contractor to work as
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an Operator in the establishment of respondent No. 1
company."
6. Ms. Abha Rathore, Advocate for the petitioner submits that
contract between principal employer and contractor was a camouflage. It
was a sham transaction just to deprive the workman from his valuable
right granted by Section 25B and 25F of ID Act. The Labour Court has
passed impugned award travelling beyond the reference. The Labour
Court was not supposed to examine employer-employee relation. The
Labour Court has wrongly shifted burden upon workman to prove
relation of employer-employee. It was duty of employer to prove non-
existence of employer-employee relation. The Court has wrongly relied
upon judgment of Dena Nath and others Vs. National Fertilizer Limited
and others 1992 LLR Page 42 (SC).
Supreme Court in B.S.N.L. Versus Bhurumal (2014) 7 SCC
177 has clearly held that employer has to prove that employee was not
directly engaged but engaged through a contractor. The workman has
worked during the period in question as machine operator which is core
activity of respondent. The principal employer could not engage
petitioner-workman for core activities. Operating machine in a
manufacturing unit is a core activity. The respondent did not produce on
record copy of license/registration certificate issued by Competent
Authority in favour of principal employer as well as contractor.
7. Per contra, Mr. Mohak Bhandana, Advocate and Mr.
Satyaveer Singh, Advocate for respondents No.2 and 3 submit that copy
of license issued by Competent Authority in favour of principal employer
to engage contractor was produced before Labour Court. The officials of
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ESI and Provident Fund categorically deposed that it is contractor who is
depositing EPF and ESI. Copy of contract executed between principal
employer and contractor was placed on record and duly considered by
Labour Court. The principal employer as well as contractor discharged
their burden and proved beyond iota of doubt that workman was engaged
through contractor. The contractor was having contract with principal
employer up to March' 2013, thus, contractor offered alternative job to
workman, however, he refused to work because he was gainfully
employed and this fact was duly disclosed before Conciliation Officer
and raised in written statement filed before Labour Court.
8. I have heard arguments of learned counsel for both sides and
perused the record with their able assistance.
9. From the pleadings and arguments of Ms. Abha Rathore, it
comes out that petitioner is assailing impugned order on following
counts:
(i) The Labour Court has travelled beyond the reference
made by the State Government;
(ii) The Management was duty bound to prove absence of
employer-employee relation;
(iii) Burden to deny employer-employee relation was upon
Management and not workman;
(iv) The Management has failed to prove existence of
contract and compliance of provisions of The Contract
Labour (Regulation and Abolition) Act, 1972 (for short
'1972 Act').
10. The petitioner is claiming that Labour Court framed issue
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No.1 beyond the reference made by State Government. The Labour Court
was not supposed to examine whether petitioner was employee of M/s
Showa India Pvt. Ltd., Faridabad or of the contractor.
There is no substance in the contention of the petitioner. The
Labour Court was duty bound to examine whether petitioner was
employee of M/s Showa India Pvt. Ltd., Faridabad (principal employer)
or M/s Leo Enterprises (contractor). The petitioner himself impleaded
both the entities as respondents No.1 and 2. In the absence of
determination of question whether petitioner was workman of M/s Showa
India Pvt. Ltd., Faridabad or M/s Leo Enterprises, it was impossible to
determine whether he was legally or illegally terminated. The petitioner
by impleading principal employer as well as contractor compelled the
Labour Court to decide whether he was workman of respondent No.1 or
respondent No.2. It is further apt to notice that issues were framed vide
order dated 31.01.2017 and impugned order was passed on 01.06.2018.
The petitioner at the time of framing of issues did not object. They did
not avail remedy as permissible by law. She, at this stage, cannot be heard
to say that issue No.1 was framed beyond the reference.
The Labour Court cannot be expected to act as per need of
the workman. The Labour Court was duty bound to examine all the issues
connected with the main issue. This Court is of the considered opinion
that Labour Court has not travelled beyond the reference. It did not
determine rights or liabilities beyond the reference. The question of
termination could not be adjudicated without determining status of the
workman.
11. The petitioner is not disputing the legal position that a
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workman engaged through contractor cannot claim reinstatement against
principal employer unless and until contract between principal employer
and contractor is a sham transaction or camouflage. The petitioner is
claiming that he was workman of principal employer, thus, he was
entitled to compensation or reinstatement in terms of Section 25F of ID
Act against the principal employer. He is not making claim against
contractor. The workman was employed for core manufacturing activity
of respondent, thus, there was violation of license granted to respondent
No.2-principal employer.
12. The workman before Labour Court, Labour Authorities as
well as this Court has impleaded M/s Leo Enterprises apart from M/s
Showa India Pvt. Ltd., Faridabad. M/s Showa India Pvt. Ltd., Faridabad
is engaged in the business of manufacturing automobile parts. The
workman by impleading M/s Leo Enterprises has conceded existence of
contract between principal employers & contractor. Thus, it is difficult to
conclude that workman was unaware of the fact that he was engaged by
contractor.
13. The petitioner is claiming that principal employer was
supposed to establish existence of contract executed with contractor and
existence of contractor. The workman had proved that he was working in
the factory premises of principal employer, thus, burden shifted upon
principal employer to prove that there was a valid contract between
principal employer and contractor and contractor was engaged after
complying with provisions of 1972 Act.
The contractor as well as principal employer appeared before
Labour Court. Officials of ESI and EPF appeared before Labour Court
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and deposed that contractor is depositing EPF and ESI of the workman.
This Court to allay apprehension of the petitioner that
contract between principal employer and contractor was a sham
transaction and was a camouflage asked the contractor to produce its
income tax and service tax returns. The contractor during the course of
hearing produced tax returns and invoices. The same are taken on record.
The Registry is directed to tag the same at an appropriate place.
14. From the perusal of income tax and service tax returns as
well as invoices issued by the contractor, it can be easily culled out that
contractor was not only supplying manpower to M/s Showa India Pvt.
Ltd., Faridabad-respondent No.2 but also to others business entities.
Contractor was paying service tax on the consideration received from
principal employer. It was depositing EPF as well as ESI. It was filing
income tax return wherein consideration received from different service
recipients was disclosed. Similarly, the principal employer was engaging
more than one contractor. These facts collectively satisfy this Court to
conclude that contractor was not a dummy entity and it was not created
by principal employer. The averments of workman are bald allegations
and have no leg to stand.
15. The workman has further assiduously pleaded that burden
was upon respondent No.2 to prove existence of contract with manpower
supplier bring on record license from Competent Authority to engage
workers through manpower agency, however, they have failed to
discharge their burden. From the findings of Labour Court, it is evident
that contract executed between respondents No.2 and 3 i.e. principal
employer and contractor was duly placed on record. The contract was
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valid during the entire service tenure of the workman. License(s)
obtained from Competent Authority were duly placed on record. The
officials of EPF and ESI appeared before Labour Court and deposed that
contribution of workman towards EPF and ESI has been made by the
contractor. The workman is unable to controvert the fact that contribution
towards ESI and EPF was made by the contractor.
16. In this backdrop, it cannot be concluded that findings of
Labour Court are contrary to record or perverse. The Labour Court has
duly considered oral and documentary evidence to conclude that
workman was engaged through contractor and he was not engaged by
principal employer i.e. respondent No.2.
17. The petitioner has alleged that he was assigned duty of
machine operator which is a core manufacturing activity and as per
license placed on record by principal employer, no worker engaged
through contractor could be employed for core manufacturing activities.
The Labour Court has adverted to this argument of the workman. The
Court has held that there is no bar to employ any worker through
contractor to work as an operator in the establishment. The respondents
are pleading that workman was actually performing duty of helper and he
was not operating machine. These are disputed questions of fact and
ordinarily cannot be adjudicated in writ jurisdiction. In any case, the
workman without demur worked from 2008 to 2013 and cannot be heard
to say that he was wrongly appointed contrary to license as machine
operator. On one hand, petitioner is disputing existence of license to
engage contractor and on the other relying upon license produced by
Management, thus, stand of petitioner is self-contradictory.
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18. The respondent No.3-contractor in its written statement filed
before Labour Court categorically pleaded that their contract with
principal employer was till March' 2013 and they offered alternative job
to petitioner, however, he refused to join because he was already
gainfully employed. The petitioner before this Court has primarily
contended that he was actually worker of principal employer. The
contractor, as pleaded, offered alternative job with another company
before Conciliation Officer, however, workman refused to accept. Had
there been any substance in the allegation of workman, he must have
pleaded before Labour Court at the first instance that he is willing to
work at alternative workplace offered by contractor. The stand of
contractor seems to be convincing because it was providing manpower to
different companies. It was not providing manpower to only respondent
No.2- M/s Showa India Pvt. Ltd., Faridabad.
19. From the aforesaid discussion and findings, this Court finds
no substance in the argument of petitioner. The instant petitions deserve
to be dismissed and accordingly dismissed.
( JAGMOHAN BANSAL )
JUDGE
21.10.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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