High Court of Punjab and HaryanaCWP/22131/2023dismissed

Vijay Kumar v. Pt. B.D. Sharma, Pgims Rohtak Thru Its Director And ORS

2023-10-04Mr. Justice Harsh Bunger20 pages

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As regards the plea of the petitioner that the contract between respondent No.1-Institute and M/s Delta Guards Pvt. Ltd. was only for a period of one year and there is no document on record to show that the said contract was renewed; suffice it to say that the onus to prove the relationship of employee - employer was on the petitioner, which he failed to discharge as noticed above. Further, the aforesaid plea that the contract was only for one year and was not renewed rather falsifies the stand of the petitioner and gives credence to the stand of the respondent No. 1- Institute that petitioner was not their employee.

17.

As regards the submission of the counsel for the petitioner that there is nothing on record to indicate that respondent No. 1- Institute was registered under the Contract Labour Regulation and Abolition Act, 1970, it

is observed that the effect of the provisions of the said Act was considered by the Hon'ble Supreme Court of India in "Steel Authority of India Ltd. v. National Union Water Front Workers", 2001(4) SCT 1, wherein the following findings were returned: - E124.The upshot of the above discussion is outlined thus :

(1) (a) Before January 28, 1986, the determination of the question whether Central Government or the State Government is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression "appropriate Government" as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry; or the establishment of any railway, cantonment board, major port, mine or oil field or the establishment of banking or insurance company ?

If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise is relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government.

which that other establishment is situated, will be the appropriate Government.

(2) (a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in the any establishment has to be issued by the appropriate Government :

(1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and;

(2) having regard to (i) conditions of work and benefits provided for the contract labour in the establishment in question; and (ii) other relevant factors including those mentioned in sub-section (2) of Section 10;

(b) inasmuch as the impugned notification issued by the Central Government on December 9, 1976 does not satisfy the aforesaid requirements of Section 10 it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any tribunal or court including a High Court if it has otherwise attained finality and/or it has been implemented.

(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment.

(4) We over-rule the judgment of this court in Air India's case (supra) prospectively and declare that any direction issued by any industrial adjudicator/any court including High Court, for absorption of contract labour following the judgment of in Air India's case (supra), shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.

(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of the having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.

(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process,

) operation of other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.

18.

In the instant case, neither any notification issued under Section 10 of the Contract Labour Regulation and Abolition Act, 1970 has been shown in respect of respondent No. 1-Institute (establishment) nor any such plea was raised / proved before the Labour Court; thus the said argument on behalf of the petitioner is rejected.

19.

Still further, the effect of non-registration of contractor under the Contract Labour Regulation and Abolition Act, 1970 was considered by a Division Bench of this Court in "Balwinder Singh v. Punjab State Electricity Board", 2011(4) S.C.T. 231, wherein it was observed as under:- E6. The absence of any registration of the labour contractor under the provisions of the Act, in our considered view, will not alter the situation. The same may make the labour contractor liable for penal and other action contemplated by the provisions of the Act. The absence of any such registration of the labour contractor cannot obliterate the engagement of workmen by the contractor; neither the said fact can alter the status of the workmen to one of regular employees under the principal employer..."

20.

As regards the plea of the petitioner that the learned Industrial Tribunal below has erred in not granting any relief to the petitioner atleast

qua respondent No. 2 herein (M/s Delta Guards Pvt. Ltd.); it is observed that the petitioner has not shown any demand notice having being served upon respondent No. 2 (M/s Delta Guards Pvt. Ltd.) In my considered view, serving a demand notice upon the employer is a pre-requisite for raising an industrial dispute and in the absence of the same, mere impleading respondent No. 2 herein (M/s Delta Guards Pvt. Ltd.) before the Industrial Tribunal during pendency of the claim petition against respondent No. 1 herein and also by merely adopting the claim statement filed against respondent No. 1 to be considered against respondent No. 2 herein, would not amount to raising of an Industrial Dispute by petitioner against respondent No.2 herein (M/s Delta Guards Pvt. Ltd.)

as the categoric case of petitioner was that he was employed by respondent No.1-Institute and even the claim petition was filed initially only against respondent No.1-Institute. In this regard, reference can be made to the judgment rendered by the Hon'ble Supreme Court of India in "Prabhakar v. Joint Director Sericulture Department and anr." 2015(4) SCT 493, wherein the following observation was made: - E28. In this process, let us first examine as to what would constitute 'industrial dispute' because of the simple reason that the appropriate Government has power to refer what is known as an 'industrial dispute' and likewise the Labour Court/Industrial Tribunal has jurisdiction to decide if there is an industrial dispute.

We are not going into the entire gamut of what constitutes 'industrial dispute' within the meaning of Section 2(k) of the Act. Our focus is only on the aspect that what can be referred should be the dispute which is existing and in praesenti when the reference is sought.

otherwise, if it no longer remains an industrial dispute or industrial dispute 'does not exist' at that time, there would not be any question on making reference or adjudicating the matter as it is not an industrial dispute.

29. Section 2(k) of the IDA defines 'industrial dispute' and it reads as under :

"'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons;"

30. As per Section 2A dispute relating to discharge, dismissal, retrenchment or termination of an individual are also deemed as industrial dispute and, therefore, an individual is given right to raise these disputes.

31. The term 'industrial dispute' connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression 'dispute or difference' as used in the definition, therefore, means a controversy fairly definite and of real substance, connected with the employment or nonemployment or with the terms of employment or the conditions of labour of any person, and is one in which the contesting parties are directly interested in maintaining the respective contentions.

32. To understand the meaning of the word 'dispute', it would be appropriate to start with the grammatical or dictionary meaning of the term :

'Dispute': "to argue about, to contend for, to oppose by argument' to call in question - to argue or debate (with about or over), - a contest with

1 words; an argument; a debate; a quarrel;

33. Blacks law dictionary, 5th Edition, page 424 defines 'dispute' as under :

" A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined."

34. Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Hence an 'industrial dispute' cannot be said to exist until and unless the demand is made by the workmen and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant but we are not concerned with this aspect in the instant case. Therefore, what would happen if no demand is made at all at the time when the cause of action arises? In other words, like in the instant case, what would be the consequence if after the termination of the services of petitioner on April 01, 1985, the petitioner does not dispute his termination as wrongful and does not make any demand for reinstatement for number of years?

Can it still be said that there is a dispute? Or can it be said that workmen can make such demand after lapse of several years and on making such demand dispute would come into existence at that time.

dispute about his termination. It can be said that workmen, in such a case, acquiesced into the act of the employer in terminating his services and, therefore, accepted his termination. He cannot after a lapse of several years make a demand and then convert it into a 'dispute' what had otherwise become a buried issue..." Thus, in the absence of any demand being raised against respondent No.2; the petitioner is also not entitled to any relief qua respondent No. 2 (M/s Delta Guards Pvt. Ltd.). 21.

Furthermore, the parameters for exercising of jurisdiction by the High Court under Article 226 of the Constitution of India, in cases involving challenge to the award passed by the Labour Court/Industrial Tribunal and orders passed by other judicial and quasi-judicial bodies, are well defined. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal acts illegally or improperly, i.e. it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice.

However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal, as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record.

of fact recorded by an inferior Court or Tribunal or a quasi-judicial authority can be corrected. Broadly speaking, an error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari.

A finding of fact recorded by an inferior Court or Tribunal can be corrected only if it is shown that in recording the said finding, the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as an error of law which can be corrected by a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Tribunal or the quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari.

Likewise, the mere, possibility of forming a different opinion on re-appreciation of evidence by the parties is not sufficient for issuuance of a writ of certiorari. Gainful reference can be made to the judgments rendered by Hon'ble Supreme Court in "Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 Supreme Court 477"; "Shaikh Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab and others, AIR 1970 Supreme Court 61"; "Jitendra Singh Rathor v. Sh. Baidyanath Ayurved Bhawan Ltd. and another, AIR 1984 Supreme Court 976"; "R.S. Saini v.

and others, 1999(4) RCR (Civil) 253 (SC) : J.T. 1999(6) S.C. 507" and "Mohd. Shahnawaz Akhtar and another v. Ist A.D.J. Varanasi and others, J.T. 2002(8) S.C. 69".

22.

Keeping in view the above, I do not find any illegality in award dated 26.04.2023 (Annexure P-4) passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak, which may call for interference by this Court while exercising its writ jurisdiction, therefore, the present writ petition, being bereft of any merits, is dismissed in limine. 23.

No other point has been urged.

24.

All pending application/s, if any, shall also stand closed. )** / .

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