Punjab-Haryana High Court
M/S. Escorts Medical Centre vs Presiding Officer, Industrial ... on 3 October, 2000
Author: Mehtab S. Gill
Bench: Mehtab S. Gill
JUDGMENT Mehtab S. Gill, J.
1. The petitioner prays for the issuance of a writ in the nature of Certiorari for quashing award dated 16.6.1999, copy Annexure P13, passed by the Presiding Officer, Labour Court-1, Faridabad.
2. The petitioner has averred that respondent No. 2 was engaged by it through respondent No. 3 who is providing services in respect of sanitation and house keeping since the year 1984, as per agreement executed between it and respondent No. 3. It has been further averred that the contractor is maintaining attendance, wage and other records of the employees as per law. The petitioner has nothing to do with respondent No. 2 as she was the employee of the contractor and she worked under the supervision and control of respondent No. 3. It has been averred that since the contractor did not have any separate Provident Fund Code, it was the petitioner who was depositing the Provident Fund Contribution deducted by the conlractor along with his share as employer's contribution in the Provident Fund Account and this was being done under the signatures of the contractor. The services of respondent No. 2 were dispensed with by the contractor as she did not return on duty with effect from 29.7.1993 even though written communications were sent to her.
3. Respondent No. 2 raised an industrial dispute on the ground that she was not allowed to report on duty on 29.8.1993 and, thus her services were wrongly terminated.
4. Notice of motion was issued to the respondents who filed their replies.
5. We have heard the learned counsel for the parties, gone through the petition, Annexures attached therewith and the written statements of the contesting respondents.
6. Respondent No. 2 has stated in the written statement that she was employed as Aaya with Escorts Medical Centre in the year 1984. Respondent No. 3 was not a licensed contractor and has also reproduced the statement of management's witnesses wherein they have stated that her services were terminated by the management. Respondent No. 3 who is a contractor by way of his reply has supported the ease of management.
7. The first reference (Annexure P1) which was made by the respondent No. 2 was rejected. A second reference (Annexure P2) again was made which was accepted by the Haryana Government. The learned counsel for the petitioner attacked the second reference on the ground that it was not competent but by going through the petition, we do not find any prayer made by the petitioner that a second reference is not maintainable nor had the second reference been impinged by the petitioner. The learned counsel for the respondent No. 2 has cited Binny Limited v. Their Workmen, 1972(3) Supreme Court Cases 806, wherein it was held that the validity of reference cannot be challenged where the Government is not a party. Another authority cited by the learned counsel is M/s Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana and others, 1979(1) Supreme Court Cases page 1, wherein it has been held that a second reference is maintainable.
8. In the written statement filed by respondent No. 2, the workman has reproduced the statements of witnesses of management which go contrary to the stand laken by the management. The statement of MW-2 has been reproduced which reads as under :-
"It is correct that the work done by me as a Contractor is of continuous and permanent nature and the employees employed by me were doing job......I had not taken the registration under the Contract (Labour) Regulation and Abolition Act, 1971 .....I have not terminated the services of the claimant. I was not there at the time of complaint against the cjaimant. When I came, she started absent ing herself and her services were already terminated by the management i.e. respondent No. 1.....It is correct that no domestic enquiry was held nor any charge-sheet was issued to the claimant for her absence."
It is, thus, clear that the services of the respondent No. 2 were terminated by the management i.e. petitioner. If respondent No. 2 was an employee of respondent No. 3, then her services could not have been terminated by the petitioner i.e. M/s Escorts Medical Centre. The contractor also produced certain postal receipts but could not substantiate them.
9. The counsel for the respondent No. 2 has cited Secretary, Haryana State Electricity Board v. Suresh and others, reported in JT 1999(2) S.C. 435:1999(2) SCT 600 (SC) in which it has been held by the Hon'ble Supreme Court that "once the Board was not a principal employer and so-called contractor Kashmir Singh was not a licensed contractor under the Act, the inevitable conclusion that had to be reached was to the effect that the so-called contract system was a mere camouflage, smoke and a screen and disguised in almost a transparent veil which could easily be pierced and the real contractual relationship between the Board, on the one hand, and the employees, on the other, could be clearly visualized." Similarly, in this case also, respondent No. 3 is not a licensed contractor and it comes out that the principal employer of respondent No. 2 is the petitioner. W W-2, a Clerk from the office of Provident Fund Commissioner, Faridabad has stated that returns of respondent No. 2 were being filed by M/s Escorts Medical Centre. He has placed on record Provident Fund Receipts WW-2/1, WW-2/2, WW-2/3 and WW-2/4. The contractor who has appeared as M W-2 has also statedthat the services of respondent No. 2 were terminated by the management without any domestic enquiry being held or the workman being charge-sheeted. He again categorically stated in his statement that he did not terminate the services of respondent No. 2.
10. After lifting the veil of relationship between the management and the workman, it is to be seen what is the nature of relationship of the employee and the employer. We, in this case, are convinced that respondent No. 2 Omwati was, in fact, the employee of petitioner and respondent No. 3 was only a camouflage to throw out the workman.
In the light of above discussion, we find no infirmity in the award, Annexure P3 and consequently this writ petition is dismissed with the above observations.
11. Petition dismissed.