Simplex Castings Ltd. v. Pragatisheel Engineering Shrm.San.Andors

NAFR

IN THE HIGH COURT OF CHHATTISGARH,BILASPUR

Writ Petition No. 4940 of 1999 Simplex Castings Limited, Special Castings Division, Unit-II, Urla, Raipur, through its Senior Manager, Personnel, Y.M. Dave, son of Late Shri Mukund Dave, resident of 183/13, Shantinagar, Bhilai (M.P.) (Now C.G.) ---Petitioner

Versus

1. Pragatisheel Engineering Shramik Sangh, Industrial Estate, Nandini Road, Bhilai, through its General Secretary

2. Presiding Officer, State Industrial Court, Bench at Raipur, Krishna Sadan, 16 HIG, Shankarnagar, Raipur.

3. State of Madhya Pradesh (now Chhattisgarh) through the Secretary, Department of Labour, Bhopal.

---Respondents For Petitioner : Mr. Prashant Jaiswal, Senior Advocate with Mr. K. S. Khanuja, Mr. Himanshu Sinha, Mr.Ashutosh Shukla and Mr.Yashwant Shrivastava, Advocates.

For Respondent No.1 : Mr. Varun Sharma, Advocate. For Respondent No.2 : None.

For Respondent No.3 : Mr. Dhiraj Kumar Wankhede, Govt. Advocate.

For Intervener : Mr.Gautam Khetrapal, Advocate And Writ Petition No. 73 of 2000 Pragatisheel Engg. Shramik Sangh, Labour Camp, Jamul, District Durg (Chhattisgarh) ---Petitioner

Versus

1. Simplex Casting Ltd. Urla Unit II, Raipur

2. The State Industrial Court, (M.P.), HIG-16, Shankarnagar, Raipur (M.P.) now Chhattisgarh.

---Respondents

For Petitioner : Mr. Varun Sharma, Advocate. For Respondent No.1 : Mr. Prashant Jaiswal, Senior Advocate assisted by Mr. K. S. Khanuja, Mr.Himanshu Sinha, Mr.Ashutosh Shukla and Mr.Yashwant Shrivastava, Advocates.

For Respondent No.2 : None.

Hon'ble Shri Justice Sanjay K. Agrawal C A V ORDER /05/2016 1.

The above-stated writ petitions have arisen out of award dated 16.10.1999 passed by Industrial Court, Raipur in Reference Case No. 5/M.P.I.R. Act, 1996. W.P. No. 4940 of 1999 has been preferred by the second party-employer namely Simplex Casting Limited against the part of the award granting compensation of 20,000/- to the employee attached with Reference made by ₹ appropriate Government, whereas W.P.No.73/2000 has been filed by the first party-Workmen Union namely Pragatisheel Engineering Shramik Sangh challenging the part of award refusing reinstatement/other benefits and claiming reinstatement with full back wages along with other consequential benefits. [For sake of convenience Pragatisheel Engineering Shramik Sangh herein will be referred as Workmen-Union-first party and Simplex Casting Limited will be referred as second party as their status before the Industrial Court.] BRIEF FACTS AND TERMS OF REFERENCE

2.

Since both the writ petitions arise out of one and same Reference Case No. 5/1996 referred by appropriate Government to the Industrial Court for adjudication and answered by impugned award dated 16.10.99 and since common question of law and fact is involved in both the writ petitions, they were directed to be heard analogously and are being decided by this common order.

3.

The aforesaid challenge has been made by the first party/Union and second party/employer questioning the legality, validity and correctness of the respective part of award which they are aggrieved on following factual back drop :- 3.1 The appropriate Government (erstwhile State of Madhya Pradesh) by reference order dated 26.02.1993 referred the following disputes for adjudication to the Industrial Court, Madhya Pradesh Bench at Raipur for adjudication, which state as under:- 1D;k osru ,oa HkRrksa ds iqujh{k.k dk vkSfpR; gS\ ;fn gkWa rks osru] eagxkbZ HkRrk ,oa vU; HkRrksa dh D;k ;kstuk gksuk pkfg;s ,oa bl laca/k esa fu;kstd dks D;k funsZ'k fn;s tkuk pkfg,\ 2D;k izfro"kZ 15 fnu dk vkdfLed vodk'k] 10 fnu dk R;kSgkjh vodk'k rFkk 30 fnu dk fpfdRlk vodk'k fn;s tkus dk vkSfpR; gS\ ;fn gkWa rks bl laca/k esa fu;kstd dks D;k funsZ'k fn;s tkuk pkfg,\ 3D;k layXu ifjf'k"V esa mYysf[kr ,EiykbZt dk lsok i`Fkdhdj.k oS/k ,oa mfpr gS\ ;fn ugha rks bl lEcU/k esa fu;kstd dks D;k funsZ'k fn;s tkuk pkfg;s\ 3.2 That subsequently vide order No. 6-1/93/16-A dated 31.07.1995

the Government has referred the following term of reference also by adding to the earlier three term of reference thus making the total four. 4D;k vuqdzekad 3 ds layXu ifjf'k"V esa mYysf[kr lsok ls i`Fkd fd;s ,EiykbZt dks fookn ds fujkdj.k gksus rd varfje jkgr iznku djus dk vkSfpR; gS\ ;fn gkaW rks bl laca/k esa fu;kstd dks D;k funsZ'k fn;k tkuk pkfg;s\ 3.3 The second party/employer raised preliminary objections questioning the competency of reference particularly to the terms of Reference No.3. These objections were decided by the Division Bench of the Madhya Pradesh Industrial Court, Indore by order dated 31.05.1995 rejecting the objection so raised and matter was remanded to the Industrial Court, Raipur for adjudication on merits, but thereafter matter was referred to the Full Bench of the High Court of Madhya Pradesh to decide the said question. The Full Bench of High Court of Madha Pradesh by order dated 06.04.1999 directed the Industrial Court, Raipur to decide the reference so made on merits as per law on hearing the parties.

3.4 Upon notice being issued by the Industrial Court Raipur, the first party-Workmen Union filed its statement of claim before the said court making their claim with reference to all four terms of the reference separately as under:- (i) In respect of terms of reference No.1 it was claimed that they are entitled for pay scale, darkness allowance, cycle allowances, house rent allowances and shift allowance.

(ii) In respect of terms of reference No.2, it was claimed that they are entitled for 15 days casual leave, 10 days festival holidays and 30 days medical leave.

(iii) In respect of terms of reference No.3, it was claimed that the concerned workers (311) detailed in the Reference were in the employment of the Second Party- Employer. It was further pleaded that the M.P.I.R. Act, 1960 & the Standard Standing Orders were applicable to member of first party/Union and those workers (311) were not issued any charge sheet and no enquiry whatsoever was conducted before terminating their services and even the termination orders were not passed and not communicated to the concerned workers; they were neither paid any retrenchment compensation nor one month's notice or notice pay was paid to them.

It was also pleaded that junior workers than the workers covered in the Reference were retained and they are still in the employment of the second party/Employer and new employees were also recruited, and the action of the second party/employer is wholly illegal being in contravention of the Certified Standing Order. The workers were and are always willing to work from whom they have been and are being deprived illegally and unjustifiably; and it was prayed that they be reinstated in services along with all benefits/wages/compensation. (iv) In respect of terms of reference No.4; they may be granted interim relief till pendency of the reference before the Industrial Court.

Prayer was made for answering the references in favour of first party/Union by granting reinstatement in service along with full back wages and consequential benefits.

4.

The second party/employer filed their written statement before the Industrial Court denying the averments made in the statement of claim raised by first party/Union. It is submitted that out of 311 persons detailed in reference, only 57 persons, as annexed in Annexure - A of the written statement, had only been employed by the second party/ employer. It was also pleaded that the second party has awarded the job contract to different contractors for doing the job of fabrication, turning, machining, painting, packing etc. It was the sole responsibility of the concerned contractors to engage their own labour/workers to carry out the contract work/job.

It was also their responsibility to pay wages/salaries to such respective employees engaged by them and all other employees except 57 persons mentioned in the list attached with the statement of claim (w.s.) and there was no privity of contract between the second party/employer and the first party/Union except 57 employees. It was also pleaded that there is no relationship of employee and employer exists between the parties; and the services of employees except 57 employees had not been terminated by the second party-employer. It was further pleaded that on 17.12.90 due to absence of one crane operator, labours of night shift were laid off and on the next day i.e. on 18.12.

not work demanding full pay of the day to be given to the labours of night shift. Thereafter, the second party-employer filed an application under Section 18 read with Section 61 of the M.P.I.R. Act, 1960 in the Labour Court for declaration of strike as illegal along with an application under Section 107 of the Act. The Labour Court by its interim order dated 21.12.90 directed the persons whose names are mentioned in Annexure-A (57 labours) and other striking employees who are continuing the strike and directed them to resume from work and directed not to restrict any workers going on their duty. It was also pleaded that pursuant to the order of the Labour Court, out of 57 employees as mentioned in Annexure-A, only 14 persons namely Shri B.

Mohan Rao and 13 others who have reported for duty are still in service and remaining 43 employees did not report the duty despite the order of the Labour Court and till this date, they have abandoned their services and thereby employees (44) of the second partyemployer have voluntarily and of their own accord relinquished their services and not entitled for any relief including compensation. 5.

During the course of trial of reference, first party/Union examined solitary witness namely Shri Haldhar Kumar Tarun and exhibited documents Ex.P-1 to Ex. P-26C to prove their case, whereas on behalf of second party/Employer three witnesses namely Shri Yogesh Mukund Prasad Dave, Shri Kranti Gupta and Shri Sevek Ram Bairagi were examined. In support of their case, second partyemployer exhibited documents Ex. D-1 to Ex. D-117 to prove their

case.

FINDINGS OF THE INDUSTRIAL COURT 6.

Upon appropriation of oral and documentary evidence on record, the Industrial Court, by its impugned award dated 16.10.1999 answered the terms of reference as under:- (i) The first party/Union has failed to establish by leading appropriate legal evidence that they are entitled for the pay scale, allowances and for grant of leaves as per terms of reference No.1 and 2. (ii) With reference to terms of reference No.3 it was held that the first party/Union has failed to establish the existence of employeeemployer relationship between them and further failed to establish that the services of workers (311) of first party/Union were terminated by the second party/employer, but since the second party/employer has failed to establish that the workers of the first party/Union as per list attached with the reference were the labourers of the contractors employed by the second party/employer and second party-employer also failed to justify their termination, therefore each of worker of the Union as per list total 311 workers will be entitled for compensation to the extent of 20,000/-.

₹ (iv) With reference to terms of reference No.4 no order was passed as is relates to grant of interim relief during the pendency of the reference petition.

WRIT PETITIONS AND RETURN 7.

Feeling aggrieved, questioning the legality and validity of the award granting compensation to the first party/Union, the second party/employer has filed this writ petition stating inter alia that the Industrial Court having held that the existence of Employer and Employee relationship is not established between the parties, the Industrial Court committed legal error in shifting the burden upon the second party/employer to prove the existence of relationship between the parties and thereby holding that the second party-employer has failed to establish that workers (311) of the first party/Union were the employees of the contractors engaged by the second party/employer and further committed legal error in holding that the second party/employer has failed to justify termination of workers (311) of first party/Union and thereby committed a jurisdictional error in granting 20,000/- to each of the worker (311) as per list attached with ₹ reference and therefore that part of the award granting compensation deserves to be set aside with cost(s).

8.

Return has been filed by the first party/Union opposing the writ petition stating inter alia that the workers (311) as per list attached with reference are entitled for reinstatement and back wages rightly granted by the Industrial Court and prayer has been made for dismissal of the writ petition as it is substanceless and having no merit.

9.

Dissatisfied with the part of the award refusing reinstatement with full back wages the first party/Union has filed W.P.No.73/2000 stating inter alia that the part of the award by which it has been held that relationship of employer and employee is not established, is per se illegal and perverse being contrary to the record, consequently impugned award declining to grant relief of reinstatement with back wages is liable to be set aside and they are entitled for reinstatement along with full back wages.

10.

The second party/employer has filed his return opposing this writ petition filed by the first party/Union stating inter alia that the workers of the first party Union except 57 workers listed in Annexure-A of their statement of claim (written statement) is neither entitled for compensation nor for reinstatement and back wages as no evidence have been lead by the first party/Union to establish the existence of relationship of employer and employee between them and it has further been stated that the Industrial Court has fallen in to grave legal error in granting even compensation to the workers of first party/Union as per list of reference after having held that the relationship of employer and employee is not established between the parties and prayed that writ petition so filed be dismissed with cost(s). SUBMISSION OF THE PARTIES 11.

Mr. Prashant Jaiswal learned Senior counsel appearing for the second party/employer while assailing the award granting

compensation to the tune of 20,000/- and opposing the submission ₹ of the learned counsel for Union/first party the relief of reinstatement and back wages would submit as under:- (i) That the initial burden to prove that relationship of employer and employee existed was upon the first party/Union representing the workmen.

The first party/Union only examined solitary witness Shri Haldhar Kumar Tarun to prove their case, whereas it is case of first party that services of 311 workers had been terminated by the second party/employer as such the first party/Union has failed to discharge its burden of proving the existence of relationship of employer and employee, therefore the first party/Union is not entitled for any relief and finding of the Industrial Court in this regard granting 20,000/- as ₹ compensation is perverse and liable to be set aside.

(ii) That, out of 57 employees listed in Annexure-A of the written statement, 14 employees were reported back for duty and they are still in service, whereas remaining 44 employees of the second partyemployer despite the order of the Labour Court did not join their duty and have voluntarily and of their accord relinquished their services and as such, they are not entitled for any compensation.

error in further holding in paragraph 43 and 44 of the award in contradiction to its earlier finding by holding that the second party/employer has failed to establish the fact that 311 workers attached with list with the reference were the employees of their contractors engaged by them and further committed legal error in holding that second party/employer has failed to justify the termination of those 311 workers.

(iv) That, workers of the first party/Union are neither entitled for reinstatement nor for the back wages or any other consequential relief and no evidence was led by the first party/Union to establish their case except self-serving statement of Mr. Haldhar Kumar Tarun. Other workers have not entered into witness box to prove their case nor first party/Union has taken any steps on their behalf to prove their case and as such, writ petition filed by the first party/Union deserves to be dismissed and writ petition filed by the second party deserves to be granted and order granting compensation to the tune of 20,000/- ₹ be set aside.

12.

Mr. Varun Sharma learned counsel appearing for the first party/Union in both the cases while supporting the award and further claiming the relief of reinstatement and back wages with consequential benefits would submit as under:- 12.1 That, onus to prove and to justify the removal of workers of first party/Union was upon the second party/Employer and second

party/Employer had absolutely failed to discharge its burden and therefore, the Industrial Court is absolutely justified in holding (para 51 of the award) that second party-Employer has failed to establish that workers of first party/Union were employees as per list attached with reference of the contractors of the second party-employer and further failed to establish that their termination was justified and relied upon the judgment of the Supreme Court in the matter Amar Chakravarty and others v. Muruti Suzuki India Limited1 to bring home his submission.

12.2 That, workers as per list attached with reference were employees of second party-Principal Employer and not of their contractor(s) as the second party-employer has selectively chosen 57 out of 311 to be their employees.

12.3 That, the finding of the Industrial Court holding that workers of first party/Union (311) were employees of second party/Employer is the finding based on evidence and therefore, no interference is called for in exercise of jurisdiction under Article 227 of the Constitution of India and they are neither perverse nor illegal and relied upon the judgments of the Supreme Court in the matters of General Manager, Oil and Natural Gas Commission, Silchar v. Oil and Natural Gas Commission Contractual workers Union2 and Mukund Ltd v. Mukund Staff & Officers Association3. 1 (2010) 14 SCC 471 (2008) 12 SCC 275 (2004) 10 SCC 460

QUESTIONS INVOLVED 13.

Upon hearing the learned counsel for the parties in both the writ petitions and after going through the record the following questions emerge for consideration:- (A) Whether there is relationship of employee and employer existed between the workers as per list attached with reference and second party/employer except 57 employees with whom relationship of employer-employee is admitted by the second party/Employer and finding in that regard by the Industrial Court is justified or liable to be interfered with being perverse to the record? (B) Whether the second party/Employer has justified the termination of 57 employees with whom relationship is admitted as per list attached with written statement and whether finding recorded in that regard is justified or liable to be interfered with being perverse to the record And What relief/relief(s) the parties are entitled. 14.

I have heard the learned counsel for the parties at length and considered their rival submissions made herein and gone through the record of the Industrial Court with utmost circumspection. CONSIDERATION / DISCUSSION Re-question No.1 [Whether there is relationship of employee and employer existed between the workers as per list attached with

reference and second party/employer except 57 employees with whom relationship is admitted by the second party/Employer and finding in this regard by the Industrial Court is justified or liable to be interfered with being perverse to the record?] 15.

In order to consider the plea raised at the Bar and to determine the existence of employer-employee relationship, it would be appropriate to notice the relevant judgment of the Supreme Court on the subject as same is no longer res-integra and stand settled by authoritative judgment of the Supreme Court, which may be gainfully noticed herein:- 15.1 The Supreme Court in the matter of General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon v. Bharat Lal and another 4 held that it was for the employee to establish the existence of employer-employee relationship by averring and to prove the said fact by leading reliable legal evidence. Paragraphs 10 to 13 of the report states as under:- "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 the principal employer. Two of the wellrecognised 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.

11. On a careful consideration, we are of the view that the Industrial Court committed a serious error in arriving at those findings. In regard to the first test as to who pays the salary, it placed the onus wrongly upon the appellant. It is for the employee to aver and prove that he was paid salary directly by the principal employer and not the contractor. The first respondent did not discharge this onus. Even in regard to the second test, the employee did not establish that he was working under the direct control and supervision of the principal employer. The Industrial Court misconstrued the meaning of the terms "control and supervision" and held that as the officers of the appellant were giving some instructions to the first respondent working as a guard, he was deemed to be working under the control and supervision of the appellant.

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' Union5 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, 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."

13. Therefore, we are of the view that the Industrial Court ought to have held that the first respondent was not a direct employee of the appellant, and rejected the application of the first respondent."

5 (2009) 13 SCC 374

15.2 In the matter of Balwant Rai Saluja and another v. AIR India Limited and others 6 , Their Lordships of the Supreme Court having discussed almost all previous judgments on the subject and after referring the judgment in the matter of National Aluminium Co. Ltd. v. Ananta Kishore Rout 7, which pertains to employees of the school established by Nalco, held (in Balwant Rai Saluja) (supra) in paragraphs 62 to 65 as under:- "62. A recent decision concerned with the employeremployee relationship was that of Nalco case(supra). In this case, the appellant had established two schools for the benefit of the wards of its employees. The writ petitions were filed by the employees of each school for a declaration that they be treated as the employees of the appellant company on grounds of, inter alia, real control and supervision by the latter.

This Court, while answering the issue canvassed was of the opinion that the proper approach would be to ascertain whether there was complete control and supervision by the appellant therein. In this regard, reference was made to Dharangadhra Chemical Works case {AIR 1957 SC 264} wherein this Court had observed that: (Nalco case(supra), SCC pp. 768-69, para 22) "22. '14. The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at p. 23 in Mersey Docks and Harbour Board v.

Coggins & Griffith (Liverpool) Ltd.

, {(1946) 2 All ER 345 (HL)} "The proper test is whether or not the hirer had authority to control the manner of execution of the act in question".' (Dharangadhra Chemical Works case38, AIR p. 268, para 14)"

6 (2014) 9 SCC 407 7 (2014) 6 SCC 756

63. The Nalco case16 further made reference to Workmen of Nilgiri Coop. Mktg. Society Ltd. v. State of T.N. {(2004) 3 SCC 514}, wherein this Court had observed as follows: (Nalco case16, SCC p. 771, para 27) "27. '37. The control test and the organisation test, therefore, are not the only factors which can be said to be decisive. With a view to elicit the answer, the court is required to consider several factors which would have a bearing on the result: (a) who is the appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job e.g. whether it is professional or skilled work; (g) nature of establishment; (h) the right to reject.

38. With a view to find out reasonable solution in a problematic case of this nature, what is needed is an integrated approach meaning thereby integration of the relevant tests wherefor it may be necessary to examine as to whether the workman concerned was fully integrated into the employer's concern meaning thereby independent of the concern although attached therewith to some extent.' (Workmen of Nilgiri Coop. Mktg. Society case41, SCC p. 529, paras 37-38)"

64. It was concluded by this Court in Nalco case16 that there may have been some element of control with Nalco because its officials were nominated to the Managing Committee of the said schools. However, it was observed that the abovesaid fact was only to ensure that the schools run smoothly and properly. In this regard, the Court observed as follows: (SCC p. 772, para 30) "30. ... However, this kind of 'remote control' would not make Nalco the employer of these workers. This only shows that since Nalco is shouldering and meeting financial deficits, it wants to ensure that the money is spent for the rightful purposes."

65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employeremployee 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 {(2011) 1 SCC 635}, International Airport Authority of India case {(2009) 13 SCC 374} and Nalco case {(2014) 6 SCC 756}."

16.

To judge the legality and correctness of the impugned award, it is appropriate to consider the applicability of the provisions of the Evidence Act to Industrial adjudication. It is well settled law that provisions of the Evidence Act, 1872 per se are not applicable in an Industrial adjudication, however, its general principles do apply in proceeding before the Industrial Tribunal. The Constitution Bench of the Supreme Court in the matter of Union of India v. T.R. Verma while considering the applicability of Evidence Act to the Tribunal held as under:-

10. Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of law.

Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his

being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed. Vide the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co., 1957 SCR 98: ((S) AIR 1957 SC 232) (C) where this question is discussed.

17.

Likewise, in the matter of Municipal Corporation, Faridabad v. Siri Niwas 8 , the Supreme Court has held that provisions of Evidence Act, 1872 per se are not applicable in Industrial adjudication, but the general principles are applicable. It has also been held that it is imperative for the Industrial Tribunal to see that principles of natural justice are complied with. The principle laid down in Municipal Corporation, Faridabad (supra) has been followed with approval by the Supreme Court in the matter of Amar Chakravarty (supra).

18.

In the matter of Municipal Corporation, Faridabad (supra), it has been held by the Supreme Court that burden of proof lies upon the workman to show that he had worked continuously for 240 days in the preceding one year prior to his retrenchment and observed as under:- "14........... As noticed hereinbefore, the burden of proof was on the workman. From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25-B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant 8 (2004) 8 SCC 195

herein including the muster rolls. It is improbable that a person working in a local authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by his for working during the aforementioned period. He did not even examine any other witness in support of his case."

19.

In the matter of Amar Chakravarty (supra) it has been held that in any proceeding above the burden of proving a fact lies upon a party who substantially asserts it. It has further been held that when employer asserts misconduct of workman, then it was for him to prove that fact by leading evidence and observed as under:- "12. ........ In any proceeding, the burden of proving a fact lies on the party that substantially asserts the affirmative of the issue, and not on the party who denies it. (See Anil Rishi v. Gurbaksh Singh9, SCC p. 561, para 9.) Therefore, it follows that where an employer asserts misconduct on the part of the workman and dismisses or discharges him on that ground, it is for him to prove misconduct by the workman before the Industrial Tribunal or the Labour Court, as the case may be, by leading relevant evidence before it and it is open to the workman to adduce evidence contra. In the first instance, a workman cannot be asked to prove that he has not committed any act tantamounting to misconduct." 20.

In the matter of R.M. Yellatti v. Asstt. Executive (2006) 5 SCC 558

Engineer 10, Their Lordships of the Supreme Court have held that provisions of the Evidence Act in terms do not apply to the proceeding under Section 10 of Industrial Disputes Act and held as under:- "17. Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary.

In cases of termination of services of daily-waged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year.

The above judgments further lay down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the Tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with the concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case." 21.

The decision rendered by the Supreme Court in R.M. Yellatti (supra) has been followed with approval in ONGC Ltd. and 10 (2006) 1 SCC 106

another v. Shyamlal Chandra Bhowmik 11 and further in the matter of Chief Engineer, Ranjit Sagar Dam and another v. Sham Lal 12 .

22.

The Supreme Court in the matter of General Manager, Oil and Natural Gas Commission, Silchar v. Oil and Natural Gas Commission Contractual Workers Union laid down the parameters for judicial review of award of the Industrial Tribunal clearly indicating the grounds for interfering in the award. The relevant paragraph of the report as under:- 15........ It will be seen therefore that the interference would be limited to a few cases and as already noted above, in the case of a patent illegality or perversity. On the contrary, Mr.Sanyal's reliance on Sadhu Ram Case is more appropriate to the circumstances herein. It has been observed as under:- (SCC p.158, para3) "3.....The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection.

It is not for the High Court to constitute itself into an appellate court over tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering.

But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management."

23.

After having noticed the principles governing the (2006) 1 SCC 337 12 (2006) 9 SCC 124 (2008) 12 SCC 275

determination of employee-employer relationship and also taking note of the applicability of the provisions of the Evidence Act to the Industrial adjudication and also taking note of scope of interference in Industrial award rendered by Their Lordships of the Supreme Court, I would turn to the question as to whether existence of relationship of employer and employee has been established between the parties. 24.

In order to consider the correctness of finding reached by the Labour Court in this regard, it is appropriate to reiterate that it is the case of the first party-union that the second party-employer has terminated the services of 311 workers as mentioned in the list annexed with the reference order without having served any chargesheet and without holding any departmental enquiry and therefore termination of their service is invalid and improper and they are entitled for reinstatement along with back-wages, whereas it is the case of the second party that out of 311 workers referred in the reference order, only 57 workers named in the list annexed with the written statement were their employees and rest of the employees 254 (311-57) were not their employees.

It is the further case of the second party that on 17-12-1990 due to absence of crane operator, labourers of night shift were laid-off as a protest and on 19-12-1990, labourers of A shift did not work and labourers of subsequent shift also did not work demanding full pay of the day to be given to the labourers of night shift and despite the prohibitory order of the Labour Court dated 21-12-1990 restraining unauthorized strike vide Ex.

workers reported back for duty, they were taken in service and are still in job and rest of 43 persons were abandoned their service as they did not join despite the order and therefore their services came to an end by principle of "abandonment of service". 25.

In order to prove that the relationship of employeremployee existed between the first party-union and the second partyemployer, burden lies upon the first party-union to aver and prove by leading appropriate legal evidence that the relationship exists. 26.

In order to prove relationship, the twin tests laid down in Bengal Nagpur Cotton Mills (supra) are relevant. First test is who pays the salary and second test is whether the principal employer / second party controls and supervises the work of the employee. In Balwant Rai Saluja (supra), relevant factors to be taken into consideration to establish such a relationship, who appoints the workers, payment of salary, authority to dismiss and to take disciplinary action, exercise of control and supervises have been included.

27.

In this case, in order to discharge the burden, which admittedly lies upon the first party-union who represents workmen. Chapter IV of the Industrial Relations Act, 1960 (hereinafter called as "the Act of 1960") provides for representatives of employers and employees and also provides for appearance on their behalf. Section 27 of the Act of 1960 provides for representation of employees.

Section 27 of the Act of 1960 provides as under:- The following shall be entitled to act and appear in the order of preference specified below as the representative of the employees in an industry in any local area:- (i) a Representative Union for such Industry; (ii) any union of which the employee of such Industry is a member;

(iii) Labour Officer.

Section 60 of the Chhattisgarh Industrial Relations Rules, 1961 provides as under:-

60. A party or its representative in any proceeding before a Labour Court, the Industrial Court, or a Board, shall have the right of examination, cross-examination and re-examination of the witnesses called for by any such party or the opposite party as the case may be.

28.

As per the law laid down by Their Lordships of the Supreme Court noticed herein-above on behalf of the first party-union, the solitary witness Haldhar Kumar Tarun has been examined. He states in his statement recorded before the Industrial Court on 4-31996 that he had worked with the second party since 1979, he has been dropped from service in 1990, no charge-sheet has been served to him, no enquiry was made against him and no compensation was paid to him. He has proved Ex.P-1 to Ex.P-26 i.e. copy of labour wage card-cum-work admit pass which was duly signed by the contractor and in which attendance of workers has been recorded. In the end of his cross-examination, on being asked, he has unequivocally stated that he has not been authorized by 311 workers and he also states that he has no document with regard to

employment in the second party and except Ex.P-2, which is his admit pass, he has no other document in his possession to establish the fact of his employment with the second party-employer. 29.

A careful perusal of the entire statement of the aforesaid witness would show that he was the employee of the contractor as per Ex.P-2; he was not authorized by other workers who were named in the list annexed with the reference order by the Government, he has categorically admitted that he has no other document with regard to employment by the second party-employer. No other person including 254 workers have stepped into the witness box to say that they were appointed, paid and dismissed by the second party principal employer and that the second party has also exercised effective control and supervision of their work. No person in terms of Section 27 of the Act of 1960 read with Rule 60 of the Rules 1961 have been examined on behalf of the first party-union to prove the existence of relationship. 30.

The Supreme Court in the matter of Y.R.M. Vallati (supra) has categorically held that burden is to be discharged upon the workmen by adducing cogent evidence, both oral and documentary, and mere affidavit or self-serving statement by the claimant workmen will not suffice in the matter of discharge of burden by law on the workmen and to prove the said fact of existence of relationship between employer and employee.

31.

On the other hand, on behalf of the second party, witness

Y.M. Dave - officer of the second party, has been examined. He has clearly stated that except the workers shown in the list annexed with the reference who are 254 in numbers, others were never employed by the second party Management, they were not workers of the second party-employer. He has also filed supporting documents. 32.

Applying the law laid down by the Supreme Court in the matters of Bengal Nagpur Cotton Mills, Rajnandgaon (supra) and Balwant Rai Saluja (supra) to the facts of the present case, it is apparent that there is no evidence on record to hold that 254 workers were appointed by the second party, there is no evidence brought on behalf of the first party Union that they were employed by the second party and their salary at any point of time was paid by the second party. There is no evidence on record that at any point of time, the second party exercised direct and effective control and supervision over those 254 workers of the first party Union and they have been dismissed by the second party-employer except self-serving statement of Haldhar Kumar Tarun. No prayer was made before the Industrial Court for summoning the record pertaining to the service of employee to establish the existence of such relationship. 33.

Thus, this Court is of the considered opinion that the first party has absolutely failed to prove and establish the existence of employer-employee relationship or master-servant relationship between 254 workers of the first party and the second party by leading

appropriate legal evidence. The Industrial Court also in paragraph 32 of the impugned award has clearly recorded a finding that the first party has failed to establish the said fact, but thereafter further held that evidence brought by the second party is required to be looked into. In paragraph 43 of the award the Industrial Court has further recorded a finding that all 311 workers were not served with chargesheet, strike was not declared illegal and merely on account of their absence from duty for sometime, they were not being taken on duty which is not legal and proper. A further finding has been recorded by the Industrial Court in paragraph 53 of the impugned award that since the second party has failed to establish that workers of the first party Union were employees of the contractor engaged by the second party and they were allowed to execute their job and since their termination has not been justified, therefore, the workers of the first party are entitled for compensation and granted compensation of 20,000/- to ₹ each of them.

34.

In the opinion of this Court, such a finding recorded by the Industrial Court is perverse and contrary to the record as it has been held that the first party has failed to lead any legal evidence to prove the existence of relationship of employer-employee between them and failed to discharge the burden which lies upon them to establish the existence of such relationship. The Industrial Court has also failed to consider and to take note of the fact that the second party has already admitted 57 employees as per the list annexed with the written

statement Annexure-A to be their employees and taken the plea of abandonment of service by them except 14 who joined later-on, on duty after the prohibitory order of the Labour Court and as such, the finding of the Industrial Court in this regard is liable to be set aside. It is held that the first party/ employee have failed to establish by leading evidence the existence of relationship of employer-employee between the first party-union and the second party-employer of their 254 workers.

Answer to the re-question No.2 : - 35.

The second party-employer has clearly and unequivocally admitted the relationship of employer and employee with 57 workmen of the first party named in list annexed with written statement and further pleaded that on 17-12-1990, labourers of night shift were laidoff and on 18-12-1990, labourers of A shift did not work and labourers of the subsequent shifts also did not work demanding full pay of the day to be given to the labourers of night shift, pursuant to which the Labour Court on 21-12-1990 granted interim oder by declaring the strike as illegal and directing the workers to resume their duty and pursuant to which 14 workers named in the written statement have joined and remaining 43 employees did not join their duty till date of reference and therefore, they have abandoned their services and their contract of service came to an end automatically. 36.

The second party has examined witness namely Mr.Y.M.

Dave who has clearly stated that 57 workmen as shown in Annexure A of the written statement proceeded on strike leading to filing of application for ex parte injunction before the Labour Court and the Labour Court by order dated 21-12-1990 granted prohibitory order in their favour directing the employees to join duty declaring the strike as illegal and the said order was displayed in the notice board vide Ex.D26, and notices were issued to the said employees from Exs.D-27C to D-38C and it was also publicly informed by publishing in the newspaper dated 2-1-1991 vide Ex.D-39. Personal notices were also sent to the striking employees which are Ex.D-42A to Ex.D-52B pursuant to which 14 workers came back to service up to March, 1991 and they were taken in service, whereas remaining 43 workers out of 57 did not report back and as such, there is abandonment of service by remaining 43 employees out of 57 employees detailed in the list annexed with written statement.

37.

Since the following fourteen employees namely Sarva Shri Mohd. Akhtar, Shri B. P. Shrivastava, Shri Mohan Rao, Shri Charan Shetty, Shri Yogesh, Shri Ramadhar, Shri Ajay Kumar, Shri Bachchan Prasad, Shri Harish Sahu, Shri Jivan Yadav, Shri Rambihan Yadav, Shri Ramsahay Prasad, Shri Budh Ram and Shri Subhan Ansari have already reported back to their duty and still working with the second party/employer there is no lis required to be adjudicated by this court. Now, the question is whether the plea of abandonment of service with regard to 43 employees has to be considered.

38.

In order to judge the correctness of the above-stated plea raised at the Bar, it would appropriate to notice the applicable certified standing order to find out whether the employer/management could terminate the services of their employees on the ground of abandonment of service on account of strike for acceptance of their demands. The applicable standing order is the Chhattisgarh Industrial Employment (Standing orders) Rules, 1963. Rule 12(1) (p) provides as under:- "12. Disciplinary action for misconduct. (1) The following acts or omissions on the part of an employee shall amount to a major misconduct :

xxx xxx xxx (p) unauthorized absence from duty for more than ten consecutive days;

39.

Procedure for imposing punishment has been prescribed in sub-rule (4) of Rule 12 of certified standing order indicating the manner in which enquiry has to be conducted before inflicting penalty. There is no such provision in the above-stated standing order by virtue of which management is authorized to terminate the service of their employees on the ground of abandonment of service. 40.

The question for consideration would be whether employer is competent to terminate the services of their employees in absence any provision in that regard in the certified standing order applicable. 41.

The Supreme Court in the matter of Express Newspaper Pvt. Ltd. v. Michael Mark and others 14, has held that where the 14 A.I.R. 1963 SC 1141

employees absent themselves from work for acceptance of their demands, it will not amount to abandonment of service. Paragraph five of the report states as under:- "5............ All that we want to say is that where the employees absent themselves from work because they have gone on strike with the specific object of enforcing the acceptance of their demands they cannot be deemed to have abandoned their employment."

42.

The law laid down in the matter of Express Newspaper (P) Limited (supra) was subsequently followed by the Supreme Court in G. T. Lad and others v. Chemical and Fibres of India Limited 15 in which their Lordships have defined the nature and true meaning of expression "abandonment of service" by holding as under:- 5a. Re. Question No. 1: In the Act, we do not find any definition of the expression 'abandonment of service'. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning 'to leave completely and finally; forsake utterly; to relinquish, renounce; to give up all concern in something'.

According to the Dictionary of English Law by Earl Jowitt (1959 edition) 'abandonment' means 'relinquishment of an interest or claim'. According to Black's Law Dictionary 'abandonment' when used in relation to an office means 'voluntary relinquishment'. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an 'abandonment of office'.

6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not 15 (1979) 1 SCC 590

to resume the same. In Buckingham & Carnatic Co. v. Venkatiah and Ors.16, it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case."

Their Lordships further observed in paragraph seven as under:- "7. .........Their absence from duty was purely temporary and could, by no stretch of imagination, be construed as voluntary abandonment by them of the Company's service. In Express Newspapers (P) Limited v. Michael Mark, which is on all fours with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants' absence from duty was because of their peaceful strike to enforce their demand. Accordingly, we are of the view that there was no abandonment of service on the part of appellants."

Their Lordships finally concluded by holding that management cannot by imposing new term of employment, unilaterally convert the absence of work in to the abandonment of service in absence of any such provision in the certified standing order as under:- "8................Thus, there being no provision in the certified standing orders by virtue of which the Company could have terminated the services of the appellants in the aforesaid circumstances, in impugned action on the part of the Company clearly amounted to a change in the conditions of service of the appellants during the admitted pendency of the industrial dispute before the labour Court which adversely affected them and could not be countenanced. We are 16AIR 1964 SC 1272

fortified in this view by the aforesaid decision of this Court in Express Newspaper (P) Limited v. Michael Mark, where repelling an identical contention to the effect that the failure of the workmen to return to work by a notified date clearly implied abandonment of their employment, it was held that the management cannot, by imposing a new term of employment, unilaterally convert the absence of work into abandonment of employment. It was further held in that decision that if the strike was in fact illegal, the management could take disciplinary action against the employees under the standing orders and dismiss them. If that were done, the strikers would not have been entitled to any compensation under standing orders but that was not what the appellants purported to do and the respondents were, therefore, entitled to relief."

43.

Applying the law laid down by their Lordships of the Supreme Court in Express Newspaper (P) Limited (supra) and G. T. Lad (supra) to factual score of the present case, it is quite vivid that the certified standing order applicable to the second party/employer there is no such provision of abandonment of the service by virtue of which management can terminate the services of their employee on such ground. It is the case of the second party/employer that the employees were on illegal and unjustified strike even after the declaration by the competent authority and since they did not obey the interim order dated 21.12.1990 passed by the Presiding Officer, Labour Court by which the said court had prohibited the striking workers from continuing their strike and in view of the fact that they continued their illegal and unjustified strike unabated and in view of the fact they did not resume on duties inspite of repeated request their action is nothing but voluntary relinquishment of the service and severing of contract of employment of their own accord.

44.

It is not in dispute that the employees were striking for acceptance of their demands including revision of wages etc.. The management had issued notices to the striking employees for reporting back to the duties and interim order was also passed by the labour court directing striking employees to report back on duty, but did not obey the orders and continued on strike.

The Supreme Court in the matter of Express Newspaper (P) Limited (supra) case has clearly held, if the employees are absent from the work for acceptance of their demands and there is no provision in the certified standing order by which management can terminate the services of employees in such a condition, it cannot be held that the employees have abandoned their services, and it will be case where management can initiate disciplinary proceeding against them for their misconduct.

It has already been held that the there is no provision in the certified standing order applicable to the management noticed hereinabove for termination by abandonment of service and the employees were striking for enforcement of their demands and as such there was no intention on their part relinquish their services and the appropriate course open to the employer was to take disciplinary action against the striking employees under the standing orders and to dismiss them. As such, the law laid down by the Supreme Court in the Express Newspaper (P) Limited (supra) and G. T.

not abandoned their services and the second party/employer has illegally treated them that they have abandoned their services, it is declared accordingly.

45.

The learned counsel for the second party/employer has relied upon two judgments, first is the Vijay S. Sathaye v. Indian Airlines Limited and others17 in which Their Lordships of the Supreme Court have held that in order to constitute abandonment, absence must be for a very long period and held as under: - "12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer."

The second judgment relied upon the learned counsel for second party/employer is U.P. State Bridge Corporation Ltd. and others v. U.P. Rajya Setu Nigam S. Karamchari Sangh

18. This case is not applicable to the facts of present case as the certified standing order (L-2.12) clearly provided for abandonment of service whereas there is no such provision in the certified standing order applicable herein. Which is apparent from the following observation of the Supreme Court in this case.- "21.........In Express Newspapers (supra) there was no condition of service similar to Certified Standing Order L2.12. The fact of strike was also not in dispute......... 17 (2013) 10 SCC 253 18 (2004) 4 SCC 268

22.

The fact of strike was also admitted in G. T. Lad (supra). Here again there was no condition of service similar to CSO L-2.12. ............."

46.

Thus, the decisions relied upon by the learned counsel for the first party/Union are not applicable to the facts of the present case and termination of the above-stated twelve employees are held to be illegal. The Industrial Court has granted compensation to the extent of 20,000/- to each of them, against which writ petition has also been ₹ filed by the workmen-union stating inter-alia that they are entitled for reinstatement along with back wages, and submission has been made in this writ petition for granting the relief claimed in the writ petition.

47.

The Industrial Court has considered the question of granting the reinstatement in great detail and has taken into consideration all pros and cons and thereafter reached to the conclusion that the employees are only entitled for compensation to the extent of 20,000/- and they are not entitled for relief of ₹ reinstatement in service.

48.

After hearing the learned counsel for the parties and upon consideration and taking to consideration that the nature of post duration of engagement and delay in raising the industrial dispute and time spent from the date of termination till adjudication of the dispute by the Industrial Court and the finding of the Industrial Court for not granting reinstatement of service, this Court is considered opinion that

the reasons recorded by the Industrial Court is not so perverse or arbitrary warranting interference by this Court in exercise of discretion by the Industrial Court in only awarding compensation of 20,000/- to ₹ the above-stated employees.

CONCLUSION 49.

(i) That, the first party-Workmen-Union has miserably failed to establish the existence of relationship between their 254 workers with that of second party-employer by leading appropriate legal evidence. The adverse finding recorded by the Industrial Court placing burden of proof on the second party-employer is contrary to law and perverse to the record deserves to be set aside and accordingly set aside. (ii) That, out of 57 employees, 14 employees named in paragraph 36 have already joined their services, therefore, there is no need to adjudicate their dispute.

(iii) That, services of Shri Brijkishor Sharma, Shri Ram Sevak Lodhi, Shri Nepal Singh, Shri Prakash Dubey, Shri Ramadhar Yadav, Shri Rambihari Yadav, Shri Tiju Ram Kurre, Shri Tejnath Kurre, Shri Bechu Pandey, Shri Mohd. Musa, Shri Ravindra Yadav, Shri Benudhar Prasad, Shri Bhagwati Janghel, Shri Nagina Yadav, Ganesh Ram Yadav, Shri Ganpat Ram Nishad, Shri Radheshyam Verma, Shri Pardeshi Ram, Shri Yogesh Dubey, Shri Nandu Sahu, Shri Pyarelal Sahu, Shri Samsuddin, Shri Sarju Ram Sahu, Shri Mohd. Naim, Shri Shital Prasad, Shri Bhuvan Lal, Shri Mohd. Asif, Shri Omprakash, Shri

Dauva Ram, Shri Sukhchain, Shri Devlal, Shri Ramprasad, Shri Duryodhan Yadav, Shri Samaru Lal, Shri Lala Ram, Shri Yogesh Kumar, Shri Vimal Kumar, Shri Ishwar Prasad, Shri Ramkhilavan, Shri Bhagwat Ram Sahu, Shri Dhiraj Soni, Shri Badri Prasad and Shri Rajnikant Upadhyay have been terminated illegally without following the due procedure of law.

RELIEF AND COST(S):-

50. (A) As a fall out and consequence of above-stated discussion, the impugned award in part recording finding contrary to what has been held hereinabove with regard to the existence of relationship of employer-employee between them except 43 employees as mentioned in paragraph 49 (iii) of the order is hereby set aside and result to that, the order granting compensation to the extent of 20,000/- is ₹ hereby set aside in part. The second party/employer is directed to make payment of compensation 20,000/- to ₹ the above-state 43 employees within four weeks from today if not already paid and resultantly, Writ Petition No.4940 of 1999 filed by the second party-employer would stand allowed to the extent indicated hereinabove. (B) The writ petition filed by the Workmen-Union/first party bearing Writ Petition No.

73 of 2000 would stand dismissed, being meritless as well as substanceless.

would be appropriate to direct that such a benefits given to them shall not be recovered by the second party-employer in the interest of justice.

(D) I shall make no order as to cost(s) leaving the parties to bear their cost(s).

Sd/- (Sanjay K. Agrawal) JUDGE B/-