Karnataka High Court
The Acc Limited, Wadi Cement Works Wadi vs Mr. Mallareddy S/O Ramanna Reddy on 9 September, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2024:KHC-K:6744
WP No. 87914 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 87914 OF 2012 (L-RES)
BETWEEN:
THE ACC LIMITED, WADI CEMENT WORKS
WADI, TQ. CHITTAPUR,
GULBARGA DISTRICT-585229.
REPRESENTED BY ITS
(SENIOR GENERAL MANAGER,
HR SRI. B.D.DALER).
...PETITIONER
(BY SRI. A. M. PATIL, ADVOCATE)
AND:
Digitally signed 1. MR. MALLAREDDY
by SUMITRA
SHERIGAR S/O RAMANNA REDDY
Location: HIGH R/O. MATOSHREE RAMABAI
COURT OF
KARNATAKA AMBEDKAR NAGAR,
NEAR RAILWAY STATION, SHAHABAD,
TQ. CHITTAPUR, DIST. GULBARGA-585229.
2. SRI. OMPRAKASH
PRAKASH CONSTRUCTIONS,
WADI CEMENT WORKS, ACC WADI,
TQ. CHITTAPUR, DIST. GULBARGA-585229.
...RESPONDENTS
(BY SRI P. VILAS KUMAR SR. COUNSEL,
SRI. NITESH PADIYAL, ADV. FOR R1;
NOTICE TO R2-SEVICE ACCEPTED)
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NC: 2024:KHC-K:6744
WP No. 87914 of 2012
THIS WP FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS
LEADING TO THE PASSING OF THE AWARD DATED.2.8.12,
PASSED BY THE PRESIDING OFFICER, LABOUR COURT,
GULBARGA, IN RESPECT OF REF.NO.71/2011 (ANNEXURE-Z)
AND ISSUE A WRIT OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT OR DIRECTION QUASHING AWARD DATED
2.8.12, PASSED BY THE PRESIDING OFFICER, LABOUR COURT,
GULBARGA, IN RESPECT OF REF.NO.71/11 (ANNEXURE-Z) AND
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
ORAL ORDER
(PER: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA)
1. The petitioner is challenging the award passed by the Labour Court by which the Labour Court has recorded a finding of fact that the workman was working under the petitioner till 2009 and that he was terminated illegally. The Labour Court has taken the view that the dismissal was illegal and it has proceeded to set aside the dismissal. It has therefore directed the reinstatement of the workman and also awarded payment of back wages with a suitable post.
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NC: 2024:KHC-K:6744 WP No. 87914 of 2012
2. The case put forward by the workman was that he had been employed by the petitioner-Management as a helper in the year 2000 and while he was discharging his duty on 25.04.2008 a block of cement and iron rods fell on him and he was taken to the hospital at Gulbarga by the Management and he was also shifted to Apollo hospitals where he was an inpatient for about two months and he was also operated on his knee joint and rods were inserted into his knee joint. It was his case that after he was discharged from the hospital, he was advised to take bed rest for three months and as a consequence he could not attend his earlier work.
3. It was his further case that he thereafter approached the petitioner-Management and requested them to provide him with an alternative employment which he was capable of doing. It was also his case that the petitioner- Management took him back on duty and gave him an alternative employment for about three to four months but -4- NC: 2024:KHC-K:6744 WP No. 87914 of 2012 thereafter the petitioner-Management did not regularize his services.
4. The respondent-workman went on to state that thereafter the petitioner-Management terminated his services on the ground that he was not fit to discharge the duties as helper. He took up the contention that the Management took up a false contention that he had never been employed by them and that he was the employee of the contractor called Om Prakash Constructions and they were stated that he was thrown out of service because he had acquired a disability on 15.11.2009. He was also alleged that several signatures of his was taken in order to manipulate the documents to create an impression that he was an employee of the contractor.
5. The case of the petitioner-management however, was that they had not appointed the respondent workman at all. In the counter filed before the Labour Court they stated as follows:
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NC: 2024:KHC-K:6744 WP No. 87914 of 2012 "5) It is false to say that in the year 2000 the first party workman was appointed as helper under the 1st respondent against permanent and clear vacancy. It is submitted that the 1st party has not given exact date of alleged appointment under the 1st respondent. The 1st respondent reserve the right to give detail reply after knowing about alleged date of appointment etc..
The 1 party was working under contractor by name Om Prakash of M/s. Prakash Construction. The name of 1st petitioner was appearing in wages register, PF forms etc. establishing his employment with the said contractor. The said documents will be called for at the time of trial. The 1st party left the employment with the above said contractor, now he is working under another contractor M/s. S.M. Brothers. The 1st party is receiving wages from the above said contractor. The 1st respondent at any point of time had not paid wages to the 1st party. The 1st party is not employee of the 1st respondent. There is no relationship as master and servant in between the 1st party and 1st respondent. The 1st respondent has never appointed 1st party at any point of time, the 1st party is falsely -6- NC: 2024:KHC-K:6744 WP No. 87914 of 2012 claiming to be the employee of the 1st respondent with a malafide intention."
6. As could be seen from the above, the petitioner Management admitted that the workman was working under a contractor by name Om Prakash of M/s Prakash Constructions and the name of the petitioner was found in his Wage Register, Provident Fund etc., which clearly established that he had been employed with the contractor and not by the petitioner-Management. As could also be seen from the above, it was the case of the Management that the workman had left the employment of Om Prakash Constructions and was working under another contractor called M/s. S.M. Brothers.
7. It is not in dispute from the said counter that even according to the petitioner-Management the workman had been engaged through a labour contractor called Om Prakash Constructions.
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8. The labour contractor i.e., Prakash Constructions also filed a reply and contested the proceedings. In its counter it was stated as follows:
"3. That, it is submitted that second respondent used to supply labours to the ACC Wadi Cement works whenever he was got the contract with the ACC Wadi for specific period and the said labours are under the control and supervision of respondent No.2 M/s Prakash Construction and the second respondent used to pay the PF and wages etc to the employees employed by second respondent i.e., M/s Prakash construction.
4. That first party in the above case is not the Direct employee of the first respondent at any point of time and the first respondent has never terminated the first party.
5. It is false to say that in the year 2000 the first party workman was appointed as helper under the respondent No.1 against permanent and clear vacancy. It is submitted that first party has not given exact date of alleged appointment under the respondent No.1 the first party was working under my firm i.e., M/s Prakash Construction and name of the first party was appearing in the wages register, employment register, PF forms etc., of second respondent for establishing his employment. The said documents will be produced by second respondent before the Hon'ble court.
6. That, the first party has left the employment with my firm and now the first party is working under another contractor i.e., M/s S.M Brothers. Now the first party is a receiving wages and Pf etc from the said M/s S.M. Brother contractor and the first party is still working with the said contractor.-8-
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7. It is submitted that the first respondent has not paid any wages or PF or any other benefits to the first party at any point of time and there is no relationship of employer and employee between the first party and the first respondent and the first party is falsely claiming that he is the employee of the first respondent with a malafide intention and to harass the first respondent. When there exist no relationship as employer and employee, Hence question of paying wages, PF are any other benefits by the first respondent does not arise. The first respondent have no control and supervision on the employee of the second respondent. The second respondent only has got control and supervision of the employees engage by contractor.
8. The first party was working with second respondent from 01-10-2001 to 12-04-2010 and during this period he was working with second respondent and second respondent used to pay the wages and PF and ESI to the first party and the name of the first party is mentioned in the wages register, employment register and PF register and etc., and the first party was working as Helper with second respondent and he was employed in the ACC Wadi through second respondent only and he was under the control and super vision of second respondent and he was a never working at respondent No.1 as direct employee of respondent No.1."
9. As could be seen from the above, the labour contractor admitted that the workman was working with him from 01.10.2001 till 12.04.2010 and his name was appearing in the Wage Register, Employees Register and PF register maintained by him. As could be seen from the -9- NC: 2024:KHC-K:6744 WP No. 87914 of 2012 above, it was also contended that the labour contractor also took up the plea that the workman had left its firm on 25.04.2010.
10. As could also be seen from the counter of the labour contractor it was admitted that he was engaged in the supply of labourers to the petitioner-Management whenever he secured a contract with them for a specific period and the labourers that he supplied were under his control and he himself used to pay the provident fund and wages etc. It could also be seen from the above that the labour contractor contended that the workman was not a direct employee of the management and the management had never terminated his service.
11. It thus becomes an admitted fact that the workman was engaged as a helper from 2001 to 2010 and that during this period he was being deputed to work with the Management as and when the Management entered into a contract with the second respondent.
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12. The Labour Court, on assessment of the pleadings and the evidence, has recorded a finding that the agreement under which labourers were to be supplied i.e., Ex.M.10, was a doubtful document and could not be relied upon. In order to come to this conclusion, the Labour Court has noticed that this agreement which was set up as Ex.M.10 did not mentioning the date on which it was executed and it was silent about the consideration that was to be paid for the service rendered by the laborers which had been supplied by the contractor. The Labour Court therefore arrived at the conclusion that the agreement set up by the labour contractor was not genuine and that agreement would not establish that the workman was an employee of the labour contractor i.e., Prakash constructions.
13. In my view, this finding of fact recorded by the labour Court based on assessment of the evidence including the agreement set up by the labour contract cannot be found fault with.
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NC: 2024:KHC-K:6744 WP No. 87914 of 2012
14. It may also be relevant to notice here that if the case set up by the management was accepted, that would mean that the management would call upon the contractor to supply a required number of employees for a specified period and the contractor would in turn supply the requisite number of labourers. It is obvious that in such a situation, the moment a request emanated from the management and culminated in a reply by the contractor, both these documents ought to have been produced. This would then indicate that a request had been asked for X number of employees to be sent and they were accordingly sent.
15. It may also be relevant to state here that the labour contractor, while replying to the demand of the Management, would have necessarily mentioned the names of the employees that it was deputing for discharging the work as requested by the Management. This crucial piece of evidence has not been produced before the Labour Court and on the other hand an
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NC: 2024:KHC-K:6744 WP No. 87914 of 2012 agreement is sought to be put forth to establish their defence.
16. If the list of employees sent by the contractor regularly as and when, a demand was made has been withheld by the management, it is obvious that an adverse inference would have to be drawn and the Labour Court has rightly drawn that adverse inference. The petitioner- Management being a company of repute, could have easily furnished documents which established that a specific set of name of the workman had been deputed from time to time by the second respondent.
17. Since these documents were not produced and having regard to the fact that the labour contractor admits in his objections that the workman had worked for nearly 9 years continuously, by itself, leads to an inference that the workman was in fact employed by the petitioner- Management.
18. It is obvious that this practice of engaging people through a contractor and not furnishing the details is
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NC: 2024:KHC-K:6744 WP No. 87914 of 2012 probably a method adopted to disown any relationship in the event of a dispute. The fact that the management does not dispute that the workman suffered an accident during the course of his employment lends credence to the fact that the petitioner was employed as helper continuously.
19. As noticed above, since the essential ingredient i.e., the request for supply of a specified number of employees and the reply of the labour contractor specifying the employees that he was sending, having not been produced, the Labour Court was justified in coming to the conclusion that the workman had worked continuously for more than 9 years and hence his termination was illegal. To this extent, the award of the Labour court cannot be found fault with.
20. The argument of the petitioner-Management that the Wage Registers produced by the labour contractor and the fact that the workman had collected his provident fund dues from the labour contractor would itself amount to an admission that he was an employee of the labour
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NC: 2024:KHC-K:6744 WP No. 87914 of 2012 contractor cannot be accepted. If a workman who has been terminated from service and who has suffered a disability, accepts certain amounts from a contractor due to his financial distress that would not create an inference that he was the employee of the contractor alone. As already stated above, unless the two materials which could establish clearly that the workman was an employee of the contractor having withheld from the Court, the Labour Court was justified in coming to the conclusion that the workman was indeed employed by the petitioner- Management.
21. As regards the award of back wages is concerned, the contractor under which the workman was being employed after he was terminated has been examined MW.2. MW.2 states as follows:
"2) ಈ ಪ ಕರಣದ ಅ ಾರ ಮಲ ೆ ನನ ೆ ೊತು . ಅ ಾರನು ನನ ೆಲಸ !ಾಡು# ದನು. ಅ ಾರನು $%ಾಂಕ 1.10.2009 'ಂದಲೂ ನನ ಹ# ರ ೆಲಸ !ಾಡು# ಾ)%ೆ. ಈ ಕು'ತು *ಾರಂ ನಂ.113 %ೋ ೆನು, ಇದು ./ಾ%ೆ ಎಂ.1 ಎಂದು ಗುರು#ಸಲ23ತು. ಅ ಾರ. ೆ ಸಂಬಂದಪಟ6 ಎಂ3 ./ಾ%ೆ ಎಂ.1.(ಅ) ಎಂದು ಗುರು#ಸಲ23ತು.
ಅ ಾರ. ೆ %ಾನು ಸಂಬಳ ೊಡು# ೆ%ೆ. ಈ ಕು'ತು ಸಂಬಳ ಬಟ8ಾ9ೆ
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NC: 2024:KHC-K:6744 WP No. 87914 of 2012 ರ ಸ6: ;ಾಜರುಪ =ದ)%ೆ. ಈ ರ ಸ6: $%ಾಂಕ 1.7.2011 'ಂದ 30.10.2011 ವ ೆ ೆ ಇರುತ ೆ. ಇದು ./ಾ%ೆ ಎಂ.2 ಎಂದು ಗುರು#ಸಲ23ತು. ಅ ಾರನ ?ಎ@ Aಾವ# !ಾ ದ ಕು'ತು *ಾರಂ ನಂ.19 ರB CವರDೆ ಇರುತ ೆ. ಇದು ./ಾ%ೆ ಎಂ.3 ಎಂದು ಗುರು#ಸಲ23ತು.
3) ಅ ಾರ. ೆ %ಾನು ಸಂಬಳ Aಾವ# !ಾ ದ ಕು'ತು Fೆಂಬರ 2011ರ 8ೇG =6ೕ@ %ೋ ೆ ಇದು ./ಾ%ೆ ಎಂ.4 ಎಂದು ಗುರು#ಸಲ23ತು. ನನHIಂತಲೂ Jದಲು ಅ ಾರನು Kಾರ ಅ ೆಲಸ !ಾಡು# ದ)%ೆಂದು ನನ ೆ ೊ# ಲ . ಅ ಾರನು ಈಗಲೂ ಕೂ9ಾ ನನ B ೆಲಸ !ಾಡು# ಾ)%ೆ. ಅ ಾರನ LೕBನ LೕBMNಾರDೆ ಮತು O ತ ನನ ದು ಇರುತ ೆ. ನನ ಮತು ಎ== 8ಾ ಕಂಪ.ಯ ನಡುCನ ಒಪ2ಂದ RSೋ ಪ # ;ಾಜರೂಪ = ೆ)%ೆ."
22. As could be seen from the above, the workman has been engaged by M/s. S.M. Brothers from 01.10.2009 and even as on the date of the deposition, he was working with them. In the light of the fact that the petitioner has been gainfully employed right from 1.10.2009, the award of back wages by the Labour Court would not be just. Since the workman has been working continuously under MW.2 i.e., M/s. S.M. Brothers, he would also not be entitled to claim wages under Section 17-B of the I.D. Act. The
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NC: 2024:KHC-K:6744 WP No. 87914 of 2012 workman would however be entitled for continuity of service since he has been unlawfully terminated.
23. The award of the Labour Court insofar as it relates to reinstatement is confirmed and the award insofar as relates to back wages is set aside.
24. It is however made clear that the workman would be entitled for continuity of service.
25. The workman to be reinstated within a period of two months from the date of receipt of a copy of this order.
Consequently, the writ petition is allowed in part.
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(N.S.SANJAY GOWDA) JUDGE MSR List No.: 1 Sl No.: 19