Harender Singh v. Presiding Officer And ORS
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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:
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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 nonexistence 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 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
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 l(/'*(130;*)(<40'-0+.)61()/*1 5(';)(1+.('(30'1=6+.+.(6'/-<(/))6)+/*3( 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
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
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
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
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.
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.
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