Karnataka High Court
The Management Of Ajax Fiori Engg vs Mr Santhosh on 28 February, 2020
Author: G.Narendar
Bench: G.Narendar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
W.P.No.15778/2017 (L-RES)
C/W
15792/2017 (L-RES),
6263/2017 (L-TER) AND
6281/2017 (L-MW)
IN WP No.15778/2017
Between:
The Management of Ajax Fiori Engg.
India Private Limited,
No.3, 16 & 17 KIADB Industrial Area,
Bashettihalli, Doddaballapur- 561 203,
Represented by its Authorized,
Representative, Mr. Ganapati N.S.
... Petitioner
(By Sri P.S. Rajagopal, Senior Advocate for
Sri Aditya Narayan, Advocate)
And:
1. Mr. Santhosh,
C/o Mr. Ramesh,
Aged about 25 years,
4th Cross, D Cross,
Shahjahan Nagar,
Doddaballapur,
Bangalore Rural Dist-561203.
2. Mr. Mahesh Gowda D. H.,
S/o Mr. Danana Gowda H.,
2
Aged about 29 years,
Amarkola Village,
Hole Adageli, Rona Tq.,
Gadag Dist- 582 209.
3. Mr. Prasanna Kumar, K.,
S/o Mr. Kempanna B.,
Aged about 23 years,
Jathuvara village Post,
Chikballapur Tq. & Dist.
PIN-561 208.
4. Mr. Kalandar Khan,
S/o Mr. Dilsha,
Aged about 22 years,
No.12, Ramapattana,
Post- 562 101,
Chikaballapur Tq. & Dist.
5. Mr. Chenna Gowda B. H.,
S/o Mr. Hanumegowda,
Aged about 23 years,
Bacchehalli Village,
Anthrahalli Post,
Doddaballapur Tq,
Bangalore Rural Dist- 561 203.
6. Mr. Keshava Murthy C. M.,
S/o Mr. Munirajappa,
Aged about 27 years,
Chikka Tumkur,
Doddaballapur Tq.,
Veerapura Post,
Bangalore Rural Dist- 561 203.
7. Mr. Raghu N.,
S/o Mr. Nagaraju,
Aged about 21 years,
Vinayak Nagar,
Bashettyhalli post,
3
Doddaballapur Taluk,
Bangalore Dist- 561 203.
8. Mr. Prabhakara M.,
C/o Mr. Hanumanthappa,
Aged about 22 years,
S.No.1/1,
Site No.26 Vinayanagar,
Bashettyhalli,
Bangalore Rural Dist- 561 023.
9. Mr. Shivaraju M.,
S/o Mr. Malleshappa,
Aged about 23 years,
No.50,
Linganahalli Village,
Kasaba Hobli,
Doddabalapur Tq.,
Bangalore Dist- 561 023.
10 . Mr. Biyas Prasad,
S/o Mr. Gangappa,
Aged about 30 years,
No.52 Majara,
Hosahalli Veerapura Post,
Doddabalapur Taluk,
Bangalore Rural Dist- 561 023.
11. Mr. Ramesh Kumar M.,
S/o Mr. Munithippanna,
Aged about 24 years,
No.1602, 10th cross,
Veerabhadranapalya,
Thalabarahatti,
Doddaballapura Taluk,
Bangalore Rural Taluk- 561 203.
12. Mr. Anil Kumar,
C/o Mr. Shamanna,
Aged about 24 years,
4
Near Nikhila School,
Veerapura post,
Doddabalapur Taluk,
Bangalore Rural Dist- 561 203.
13.Mr. Baliram Chowdhari,
S/o Mr. T. P. Narayanaswamy,
Aged about 32 years,
Room No.3 Bashettyhalli,
Vijaynagar, Doddaballapur Taluk,
Bangalore Rural Dist- 562 110.
14.Mr. Naveen Kumar T. N.,
S/o Mr. Neelakantachar,
Aged about 25 years,
Thindlu Village,
Jalige Post Devanahalli Tq.,
Bangalore Rural Dist- 561 203.
15.Mr. Ramanjinappa,
S/o Mr. Munivekataramanappa,
Aged about 25 years,
Hassanaghatta,
Mallatha Halli Post,
Doddaballapur Taluk,
Bangalore Rural Dist- 561 203.
16.Mr. Manjunathaih,
S/o Mr. Sanjeevappa,
Aged about 27 years,
Bedattur village,
Meedagesi Hobli,
Madhugiri Taluk,
Tumkur Dist- 572 175.
17. Mr. Kumar M.,
S/o Mr. Munishamaiah,
Aged about 30 years,
Byrasandra village,
Aralumallige Post,
5
Doddaballapur Taluk,
Bangalore Rural Taluk- 561 203.
18. Mr. Bir Bahadur Rai,
S/o Mr. Ramev Rai,
C/o Anitha,
D/o Mune Gowda,
Aged about 35 years,
Majara Hosahalli,
Veerapura PO,
Doddaballapur Tq- 561 203.
19. M/s. Needs Manpower Support
Services Pvt. Ltd.,
No.25, Needs Towers,
4th Floor, SBM Colony,
80 Feet Road, Banashankari 1st Stage,
Bangalore- 560 050.
Represented by its Managing Director
... Respondents
(By Sri T.S Anantharam, Advocat for R1 to R18;
Sri Ajay J N & K Manu K. Advocates for R19)
These Writ Petitions are filed under Articles 226 & 227
of the Constitution of India, praying to issue writ of certiorari
or writ in the nature of certiorari, or such other writ, order or
direction as this Court deems fit, setting aside the impugned
common Award of the Principal Labour Court, Bangalore
dated 09.12.2016, in ID Nos.71/2012 to ID No.87/2012 and
ID No.101/2012, (Annexure-A), Notification dated
17.01.2017 bearing No.KPA/105/2017 (Annexure-B) and
dismiss the aforesaid Industrial Dispute Cases.
6
IN WP No.15792/2017
Between:
The Management of Ajax Fiori Engg.
India Private Limited,
No.3, 16 & 17 KIADB Industrial Area,
Bashettihalli, Doddaballapur- 561 203,
Represented by its Authorized,
Representative Mr. Ganapati N. S.
...Petitioner
(By Sri P.S. Rajagopal, Senior Advocate for
Sri Aditya Narayan, Advocate)
And:
1. Mr. Harish Kumar T G,
S/o Govindaraju,
Age: 23 years,
Tindlu Village Jalige Post,
Devanahalli Taluk,
Bangalore Rural District- 562 110.
2. Mr. Rajanna C,
S/o Chowdappa Age: 29 years,
Dodda Mankulala village,
Kollegere Post,
Doddabelavangala Hobli,
Doddaballapur Taluk,
Bangalore Rural District- 561 203
3. Mr. Ashok N K,
S/o Narayana Anchal P. N.,
Aged about 23 Years,
No.13, "Govinda Nilaya",
1st Floor, 1st Cross,
R.R.M.R. Extension,
Bangalore- 560 027.
7
4. Mr. Santhosh P N,
S/o Narayanaswamy,
Age: 22 years,
Kuruvigere, Gantiganahalli Post,
Doddaballapur Taluk,
Bangalore Rural Dist- 561 205.
5. Mr. Manjunatha S,
S/o Sri Somashekarappa P N,
Aged about 28 Years,
C/o Sri B T Ramanjanappa,
Bashettihalli,
(Behind Govt. Model Primary School)
Doddaballapur- 561 203.
6. Mr. Ramesh A,
S/o Sri Adaveeshaiah,
Aged about 33 Years,
Byrasandra, Haraluru Post,
Tumkur Taluk & Dist- 572 104.
7. Mr. Rajesh R. Achari,
S/o Ramesh Achari,
Aged about 24 years,
Chandavara Village,
Honnavara Taluk,
Karwar District,
North Karnataka 581 334.
8. M/s. Needs Manpower Support
Services Pvt. Ltd.,
No.25, Needs Towers,
4th Floor, SBM Colony,
80 Feet Road, Banashankari 1st Stage,
Bangalore- 560 050.
Represented by its Managing Director
... Respondents
8
(By Sri Anantharam T.S., Advocate for
C/R1, R2, R4, R5 & R6;
(C.P.No.1201/2017, 1203/2017, 1205/2017,
1207/2017, 1199/2017) and For R1 to R7;
Sri Ajay J.N. & Sri Manu K, Advocates for R8)
These Writ Petitions are filed under Articles 226 & 227
of the Constitution of India, praying to issue writ of certiorari
or writ in the nature of certiorari, or such other writ, order or
direction as this Court deems fit, setting aside the impugned
common Award of the Principal Labour Court, Bangalore
dated 09.12.2016, in ID No.89/2012 c/w ID No.90-95/2012,
(Annexure-A), and Notification dated 17.01.2017 bearing No.
KPA/106/2017 (Annexure-B) and dismiss the aforesaid
Industrial Dispute cases.
IN WP No.6263/2017:
Between:
1. Sri. Santhosh,
Age: 30 Years,
C/o Sri Ramesh,
R/a 4th Cross, "D" Cross,
Shahjahan Nagar,
Doddaballapur,
Bangalore Rural Dist-561203.
2. Sri. Mahesh Gowda D. H.,
S/o Sri. Danana Gowda H.,
Aged about 29 years,
Amarkola Village,
Hole Adageli, Rona Tq.,
Gadag Dist- 582 209.
3. Sri. Prasanna Kumar, K.,
S/o Sri. Kempanna B.,
Age: 26 years,
Jathuvara village & Post,
9
Chikballapur Tq. & Dist.
PIN-562 101.
4. Sri. Kalandar Khan,
Age: 26 Years,
S/o Sri. Dilsha,
No.12, Ramapattana Post and & Village,
Chikaballapur Tq. & Dist.-562 101.
5. Sri. Chenna Gowda B. H.,
Age: 28 years,
S/o Sri. Hanumegowda,
Bacchehalli Village,
Anthrahalli Post,
Doddaballapur Tq,
Bangalore Rural Dist- 561 203.
6. Sri. Keshava Murthy C. M.,
Age: 31 Years
S/o Sri. Munirajappa,
Chikka Tumkur,
Doddaballapur Tq.,
Veerapura Post,
Bangalore Rural Dist- 561 203.
7. Sri Raghu N.,
Age: 28 years,
S/o Sri Nagaraju,
Vinayak Nagar,
Bashettyhalli post,
Doddaballapur Taluk,
Bangalore Dist- 561 203.
8. Sri. Prabhakara M.,
C/o Sri. Hanumanthappa,
Age: 32 years,
S.No.1/1,
Site No.26 Vinayanagar,
Bashettyhalli,
Bangalore Rural Dist- 561 203.
10
9. Sri Shivaraju M.,
S/o Sri. Malleshappa,
Age 28 years,
No.50,
Linganahalli Village,
Kasaba Hobli,
Doddabalapur Tq.,
Bangalore Dist- 561 203.
10. Sri. Ramesh Kumar M.,
S/o Sri Munithippanna,
Age 30 years,
No.1602, 10th cross,
Veerabhadranapalya,
Thalabarahatti,
Doddaballapura Taluk,
Bangalore Rural Taluk- 561 203.
11. Sri. Anil Kumar,
Age: 29 Years,
C/o Mr. Shamanna,
Residing Near Nikhila School,
Veerapura post,
Doddabalapur Taluk,
Bangalore Rural Dist- 561 203.
12. Sri Baliram Chowdhara,
Age: 36 Years,
S/o Sri. T. P. Narayanaswamy,
Room No.3 Bashettyhalli,
Vijaynagar, Doddaballapur Taluk,
Bangalore Rural Dist- 561 203.
13. Sri. Naveen Kumar T. N.,
Age: 29 Years,
S/o Sri. Neelakantachar,
Thindlu Village,
Jalige Post Devanahalli Tq.,
Bangalore Rural Dist- 562 110
11
14. Sri. Ramanjinappa,
Age: 32 years
S/o Sri. Munivekata Ramanappa,
Hassanaghatta,
Mallatha Halli Post,
Doddaballapur Taluk,
Bangalore Rural Dist- 561 203.
15. Sri. S. Manjunathaih,
Age: 31 Years,
S/o Sri Sanjeevappa,
Bedattur village,
Meedagesi Hobli,
Madhugiri Taluk,
Tumkur Dist- 572 133.
16. Sri. Kumar M.,
Age: 36 Years
S/o Sri. Munishamaiah,
Byrasandra village,
Aralumallige Post,
Doddaballapur Taluk,
Bangalore Rural Taluk- 561 203.
... Petitioners
(By Sri Anantharam T.S., Advocate)
And:
1. The Management of
M/s Ajex Flori Engineering
India Pvt. Ltd.,
No.03, 16 & 17 KIADB Industrial Area,
Bashettihalli, Doddaballapur- 561 203
Represented by Sri Ganapati N.S.
Head HR and Admin.
2. M/s Needs Manpower Support
Services Pvt. Ltd.,
No.25, Needs Towers,
12
4th Floor, SBM Colony
80 Feet Road, Banashankari 1st Stage
Bangalore- 560 050
Represented by Sri Srinivas M.
Managing Director
... Respondents
(By Sri P.S. Rajagopal, Senior Advocate for
Sri Aditya Narayan, Advocate)
These Writ Petitions are filed under Articles 226 & 227
of the Constitution of India, praying to grant full back wages
to the petitioners along with the relief granted by the Labour
Court by suitable modifying the award dated 09.12.2016 of
the Principal Labour Court, Bangalore in ID No.71/2012
C/w ID No.72 to ID No.87/12 and ID No.101/12 Annexure-
H and any other reliefs as deemed fit in the circumstances of
the case.
IN WP NO.6281/2017 :
Between:
1. Sri Harishankar T G,
(correct name is Harishkumar T G),
S/o Govindaraju,
Age: 29 years,
Tindlu Village Jalige Post,
Devanahalli Taluk,
Bangalore Rural District- 562 110
2. Sri. Rajanna C,
S/o Chowdappa,
Age: 34 years,
Dodda Mankulala Village,
Kollegere Post,
Doddabelavangala Hobli,
Doddaballapur Taluk,
Bangalore Rural District- 561 203.
13
3. Sri. Santhosh P N,
S/o Narayanaswamy,
Age: 26 years,
Kuruvigere, Gantiganahalli Post,
Doddaballapur Taluk,
Bangalore Rural Dist- 561 203.
4. Sri. Manjunatha S,
Age: 32 years,
S/o Sri Somashekarappa P N,
C/o Sri B T Ramanjanappa,
Bashettihalli,
(Behind Govt Model Primary School),
Doddaballapur Taluk,
Bangalore Rural District- 561 203.
5. Sri. Ramesh A,
Age: 36 years,
S/o Sri Adaveeshaiah,
Byrasandra, Haraluru Post,
Tumkur Taluk & Dist- 572132.
... Petitioners
(By Sri Anantharam T.S., Advocate)
And:
1. The Management of
M/s Ajex Flori Engineering
India Pvt. Ltd.,
No.03, 16 & 17, KIADB Industrial Area,
Bashettihalli, Doddaballapur,
Bengaluru Rural District - 561 203,
Represented by Sri Ganapati N.S.,
Head HR and Admin.
2. M/s Needs Manpower Support
Services Pvt. Ltd.,
No.25, Needs Towers,
4th Floor, SBM Colony
14
80 Feet Road, Banashankari 1st Stage,
Bangalore- 560 050.
Represented by Sri Srinivas M.,
Managing Director.
... Respondents
(By Sri P.S. Rajagopal, Sr. Adv. for
Sri. Adithya narayan, Adv. for R1,
R2 - Served)
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to grant full back-wages to
the petitioners along with the relief granted by the labour
Court by suitably modifying the award dated 09.12.2016 of
the Principal Labour Court, Bengaluru in I.D. No.89/2012
Connected with I.D. No.90/2012 to I.D. No.95/2012 -
Annexure-H and any other reliefs as deemed fit in the
circumstances of the case.
These writ petitions having been heard and reserved
for orders on 03.09.2019, coming on for pronouncement of
orders, this day, the court made the following:-
COMMON ORDER
All the four petitions are taken up for disposal by this common order in view of the commonality of facts, law and parties involved with the proceedings. Two sets of petitions in W.P. No.15778/2017 & W.P Nos.16043- 59/2017 and W.P. No.15792/2017 & W.P. Nos.16036- 16041/2017 are preferred by the Company and two sets of writ petitions i.e. W.P. Nos.6263-6280/2017 and W.P. 15 Nos.6281-6287/2017 are preferred by the workmen- first parties before the Labour Court.
2. The company is the first entity of the second party and the 19th respondent is the second entity of the second party in the first writ petition and in the second writ petition the petitioner is the first entity of the second party and the 8th respondent is the second entity of the second party. The respondent Nos. 1 to 18 are the first party in I.D. No.71/2012 and I.D. No.72 to 87 of 2012 and I.D. 101/2012. The respondent No.1 to 7 in the second writ petition are the first party in I.D. No.89 of 2012, I.D.No.90 to 95 of 2012. The third and fourth writ petitions are by the first parties in the aforenoted disputes.
3. The first entity of the first party is henceforth referred to as the Company and the second entity of the second party before the labour Court is referred to as the Contractor and the respondent Nos.1 to 18 in the 16 first writ petition and the respondents No.1 to 7 in the second writ petition and who are the petitioners in the third and fourth writ petitions respectively are hereinafter referred to as "the workmen" for the sake of brevity and convenience.
4. This is the second round of litigation before this Court on the same issue i.e. the claim of the 'workmen' that they are the 'workmen of the company' and that the manpower supply contract or labour supply contract between the petitioner and the respondent and the 19th respondent/8th respondent is a sham contract and hence their order of termination dated 29.12.2012 is illegal and to reinstate them in their earlier post with continuity of service from 30.12.2012 and further award full backwages and other consequential benefits as permissible under law.
5. The earlier writ petitions preferred by the 'Company', registered as W.P. Nos.17369-373/2015 and 17 W.P. Nos.17374-17377/2015 C/w W.P. No.11404/2015 and W.P. Nos.11773-11790/2015 came to be disposed off by a common order dated 30.07.2015. The parties were heard in detail and with the following observation the Court was pleased to hold that the matter required reconsideration at the hands of the tribunal.
"16. The submissions of the learned counsel have received my thoughtful consideration.
17. The perusal of the impugned awards reveals that the Labour Court has relied on the decisions which are not governing the field any longer.
18. The onus of proving that they (respondent workmen) are the employees of the petitioner is not discharged. The tests for determining as to whether the respondent workmen have been the employees of the petitioner or of M/s.Needs Manpower Support Services Private Limited should have been (a) who has appointed them (b) who has been paying the wages to them (c) who was exercising the disciplinary powers over them, etc.
19. If these tests are applied to the cases on hand, the oral and documentary evidence placed by the 18 respondent workmen on record is not adequate to hold that they are the direct employees of the petitioner or of M/s.Needs Manpower Support Services Private Limited. The supply of uniforms and tools by the petitioner to the respondent workmen does not conclusively establish that the petitioner has appointed the respondent workmen. They may have been supplied only to extract the work from them. The admission of WW1 (Harish Kumar) that he has not worked anywhere prior to his taking up the work in M/s.Needs Manpower Support Services Private Limited has not weighed with the Labour Court.
20. I find that the evidence on record is not supportive of the Labour Court's finding that M/s.Needs Manpower Support Services Private Limited is only a dummy organization and a name lender.
21. For all the aforesaid reasons, I quash the impugned common award, dated 03.02.2014 passed in I.D. No.89/2012 and other connected matters and the common award, dated 30.01.2015 passed in I.D.No.71/2012 and other connected matters. However, it is also the Court's anxiety that the respondent workmen are to be given one more opportunity to produce cogent and satisfactory evidence in 19 support of their claims that they have been directly appointed by the petitioner and that they have been removed from service by it.
22. Further if the Labour Court delivers a finding that the respondent workmen are indeed appointed by M/s.Needs Manpower Support Services Private Limited and that they have worked for 240 days in a given year and have been terminated without following the requirements for effecting the retrenchment, appropriate directions are to be given to M/s.Needs Manpower Support Services Private Limited.
23. Keeping all the contentions open and reserving the liberty to all the parties to adduce fresh/additional evidence, I remand the matter to the Labour Court. The Labour Court shall make every possible endeavour to dispose of the remanded matter as expeditiously as possible and in any case within an outer limit of six months from the date of the production of the certified copy of today's order.
24. These petitions are accordingly allowed. No order as to costs."
6. From a reading of the above, one can reasonably discern, that the Co-ordinate Bench has not merely 20 remitted the matter, but while so doing has imposed a burden on the workmen to demonstrate the triple test i.e. a) who has appointed them b) who has been paying the wages to them and c) who was exercising the disciplinary power over them, etc. The Co-ordinate Bench has further categorically observed that a mere supply of uniform and tools would not conclusively establish employer workmen relationship. Further the observation is made in the light of WW1's admission, that he has not worked anywhere prior to his taking up the work with the second entity of the second party i.e., the Contractor. The Co-ordinate Bench further observed that the evidence on record, is not supportive of the labour Court's finding, that the 19th / 8th respondent is merely a name lender.
7. The Coordinate Bench thereafter proceeded to quash the common award dated 03.02.2014 and 30.01.2015. The coordinate Bench though was pleased 21 to quash the award, empathizing with the workmen was pleased to grant one more opportunity "to produce cogent and satisfactory evidence in support of their claim that they are directly employed by the company/petitioner and they have been removed from service by it". Dehors the above direction the Co- ordinate Bench was pleased to further direct the Labour Court that, in the event of it rendering a finding that the respondents are the workmen of the second entity of the second party, appropriate directions be issued to the second entity of the second party. Thereafter, the Co-ordinate Bench was pleased to leave all contentions open to be adjudicated a fresh and further liberty was also given to the parties to adduce additional evidence.
8. From the above, it is apparent that the Co- ordinate Bench, in the earlier round of litigation, has categorically held that the findings rendered by the Labour Court, in the earlier round, is not supported by 22 the evidence on record and in that view of the matter, the Co-ordinate Bench, empathizing with the workmen has granted one more opportunity to the workmen to tender fresh/additional evidence to demonstrate their case.
9. Pursuant to the order of remand, the case was taken up by the labour court and came to be disposed off by award dated 09.12.2016. Even after the third round of litigation, the issue that stares at this Court is the very same issue that has been laboured upon in the preceding three rounds of litigation i.e. whether the respondents 1 to 18 and 1 to 7 in both the writ petitions, proved that they are workmen appointed and employed by the petitioner-company. In view of the multiple rounds of litigation, this Court deems it appropriate to delve into the factual aspects also, in order to give a quietus to the dispute that has been incinerating for the last seven years. 23
10. In the light of the approach adopted by this Court it is necessary to delve and dwell upon the material placed before and appreciated and such of those not appreciated by the labour Court. This Court is constrained to do so in the light of the pronouncement by the Co-ordinate Bench, in the previous round of litigation.
11. As noted by the labour Court the pleadings are common and so is the majority of the defense. In the first instance one workman by name Keshavamurthy (Respondent No.6) was examined as WW-1 and the termination order against one M. Shivaraj and the notice dated 01.12.2012 issued by the union were marked on behalf of the second parties entities 1 and 2. MW-1 and 2 were examined and Ex. M1 to M9 were marked. In the light of the leave granted by this Court in the earlier round of litigation one more workman by name Sri. Manjunatha was examined as WW-2 and 24 Exs.W2 to W9 and W11 to W33 were got marked on behalf of the workmen.
12. On behalf of the company, apart from Exs.M1 to M9, Exs.M4, M5, M7, M10, M10A, M11, M11A, M14, M15, M16, M17, M18, M19, M20, M21, M22, M23, M24, M25, M26, M27, M28, M29, M30, M31, M32, M33, M34, M35, M36, M37, M38, M39, M40, M41, M42, M43, M44, M45, M46, M47, M48, M49 were additionally produced to drive home the defense.
13. This Court having collated the additional material proceeds further to examine the nature of the material placed on record. Prior to examining the contents of the exhibits it would be prudent to peruse the pleadings set out in claim petition preferred under Section 10(4) (A) of the Industrial Disputes Act.
(i) In paragraph 3 it is contended that the company appointed the first respondent 25 as a forklift operator/store keeper on 04.01.2008 and that the appointment was made after conducting an interview. That he was given training and necessary orientation by the supervisory and managerial staff of the company only.
That after completion of training he was drafted to work along with the regular workmen in the company. That his work was supervised and controlled by the supervisory personnel of the company. That he was working with the aid of the tools, equipment, material etc. provided by the company. That the wages and other statutory benefits were paid by the representative of the company and not by anyone else. That he was issued uniforms which were issued to the regular workmen. That initially he was supplied 26 free food in the canteen and later on at subsidized rates on par with the regular workmen. That except for disparity in the limited area of wage rate and extending other benefits there is difference between the claimant and the regular workmen.
But, the workman like the claimant were exploited under the badge of "contract labour". That the contractor was imposed only in August 2012.
(ii) In paragraph 4 it is contended that there was no contractor within the meaning of Section 2 (C) of the Contract Labour (Regularisation and Abolition Act), 1971.
That the claimant/workman was not appointed by any contractor much less the respondent contractor herein. That the contractor never entrusted nor 27 supervised any work of the company either by itself or through any of its appointees. That the wages were never paid by the contractor and that the contractor is a mere fiction and creation of the company, only with the intention of denying the statutory benefits that would otherwise be mandatorily available to them. That the labour contract is not genuine but a bogus and a sham arrangement in order to camouflage and create a smoke screen to defeat the rigors of labour legislation. That the company has resorted to such a sham arrangement with the intention of taking undue advantage of the unemployment crisis prevailing and thereby negate the bargaining power of the workmen.
28
(iii) In paragraph 5 it is contended that the contractor is a non-existent entity in the eye of law and there is no nexus between the workmen and the contractor. That the contractor has not appointed or placed any of the workmen with the company. That the contractor does not possess any license as mandated u/s 12 of the Act. That the contractor has not obtained any registration as Principal Employer as mandated u/s 7 of the Act.
Hence, the real employer is the company as there exists no jural relationship of employer-workmen, between the contractor and the workmen i.e., claimants.
(iv) In paragraph 6 it is contended that there is a registered and recognised trade union 29 of the company. That the trade union appalled by the exploitation of the workmen including the claimant started demanding that the company abolished the contract labour system and absorb the workmen. The said demand was consistently ignored by the company resulting in the union raising a demand on 11.07.2012 to absorb the contract labourers.
(v) In paragraph 7 it is stated that the claimant and 80 others joined the other union called that the Karnataka Agricultural, Industrial and Commercial Workers' Union for espousing their cause as the main union pleaded inability to enroll them as members even though the said union supported their cause.
30
(vi) In paragraph 8 it is contended that the workmen started to lay a strong demand to regularise their service and the company did not take kindly to this demand and warned them of dire consequences if they persisted with the demand. Undeterred the workers persisted with their demand.
(vii) In paragraph 9 it is contended that on the evening of 29.10.2012 the company called WW1 and 29 others and intimated them that their services were no longer needed and that they had settled their accounts with the contractor. No amount of pleading could convince the company otherwise and that they received the letter dated 29.10.2012 from the contractor and a cheque was enclosed along with the said 31 letter. The cheques have been encashed without prejudice to their rights.
(viii) In paragraph 10 it is contended that the workmen were employed by the company only and therefore the termination notice issued by the contractor is incompetent and no-nest in the eye of law.
(ix) In paragraph 11 it is contended that without prejudice to the earlier contention of employment by the 'company', the termination of the services by the 'Contractor' amounts to retrenchment within the meaning of Section 2(o)(o) of the I.D. Act as the company is employing more than 500 labourers as stipulated under Chapter VB. That as the termination did not comply with the provisions of Section 25 (F) (G) (N) of the 32 Act, the action of termination is void ab initio. That thereafter the Karnataka Agricultural Commercial Workers Union, Industrial Commercial Union of which they were members addressed a letter to the company requesting that the services of the workmen be regularised and absorbed. On the contrary the company refused employment to the workmen on 03.11.2012 without there being any just or reasonable cause. That the conduct of the company amounts to refusal of employment. Hence, the same is illegal.
14. The said claim came to be resisted by both the company and the contractor by filing separate counter statement.
15. The company put forth the following objections:- 33
In paragraph (i) Outrightly denied any employer, employee relationship. In paragraph (ii) It contended that in the absence of any employer and employee relationship the dispute is not a dispute as defined u/s 2 (k) of the Act. The absence of jural relationship and maintainability of the petition is reiterated in paragraph 3, 4 and 5.
(iii) In paragraph 6; it is contended that it is a company incorporated under the Companies Act. That the company entered into a service agreement with the contractor, who is engaged in the business providing services in the area of human resources and outsourcing of skilled and semi-skilled workers.
(iv) In paragraph 7; it is contended that in view of the service agreement the contractor deputed the claimants.
(v) In paragraph 8; it is contended that the claimant- workman is employed with the contractor and that the 34 wages and other statutory benefits are paid by the contractor. That as per the terms of the agreement the onus of discharging the statutory liabilities is on the contractor only.
(vi) In paragraph 9; it is contended that the administrative, economic and over-all control, over the claimant is exercised by the contractor. That the company merely maintained the records of duty performed by the claimant for the purpose of making payment to the contractor periodically. That the contractor has periodically raised bills and payments have been made by the company, in lieu of the claimants, whose services have been out- sourced/deputed to the company.
(vii) In paragraph 10; it is contended that the certificate of registration u/s 7 of the CL(R&A) Act, 1970 is issued to the company and the company has 35 complied with all the statutory compliance with the principal employer.
(viii) It is further contend, that due to various factors the services of about 23 contract labourers was found unwarranted on account of global recession and adverse marketing conditions on account of which, the company was forced to reduce its production by 40%. That in consonance with its policy decision, the company intimated the contractor and requested him to take back the deployment of 23 contract employees with effect from 30th October onwards, but has continued the remaining contracted employees. That in compliance with the request of the company the contractor withdrew the services, by issuing a notice dated 29.12.2012 and also paying the amounts equals to one month's pay.
(ix) It is further contended in paragraph 12, that the contractor further offered to the workmen, to place their 36 services elsewhere. Hence, it is contended that the withdrawal of the workmen from the services of the company by the contractor does not amount to termination as the contractor has offered to relocate them in the establishment of his other clients.
(x) The company thereafter has proceeded to set-out a parawise rebuttal. In paragraph 15; it denies the claim set out in paragraph 3 it is contended that the work or services of the claimants were also supervised by the supervisor deputed by the contractor. That the wages and other statutory benefits like ESI, EPF, Bonus, OT wages, etc., were paid by the contractor out of this account and the statutory amounts were deposited under the code number allotted to the contractor. That the canteen food permitted to the claimant is only a facility extended and not a part of the service condition. That uniforms were issued by the contractor and the uniform bear the name of the contractor's company. It is contended that the claimant and regular workmen are not at par, as there is a word of difference in 37 the source and method of recruitment. That the qualification, experience, job responsibilities, etc. are entirely different from that of the regular workman. That all statutory benefits have been paid by the contractor only.
In paragraph 17; the allegation in paragraph 5 of the claim statement that the contractor is a name lender is denied. It is further stated that the contractor has obtained the valid license under the act and is also registered with the ESI and PF authorities.
(xi) In paragraph 18; the claim of the workmen that the registered union were espousing their cause and demanded abolition of contract labour is denied and it is elaborated that, on receipt of the reply to the notice by the contractor, the recognised union refused to espouse the cause of the claimants and that is why the claimants and other respondents joined the other union with the malafide intention of raising a dispute.
(xii) In paragraph 19; it is stated that even the general union did not espouse their cause as the respondents did not place 38 any material before it. In paragraphs 20, 21, 22, 23 and 24 the other allegations are denied which are not elaborated here as they are not crucial for disposal of these petitions.
16. The contractor by its separate counter statement and objections has submitted as follows:
(i) In paragraph 1; it is submitted that, it is a company incorporated under the Companies Act having its office at Bengaluru.
(ii) In the second paragraph; it is submitted that it is engaged in a business of providing services in the area of Human Resources Management, Consultancy by way of recruitment, training and outsourcing to various companies and inter-alia it is engaged in the business of providing specific corporate services to its customers by deputation of its semiskilled and unskilled workers to its customers at site.39
(iii) In paragraph 3; it is submitted that the 'company' is one such customer, who has engaged its services under various terms and conditions.
(iv) In paragraph 4; it is submitted that the claimant/workmen was employed by it on a consolidated monthly salary and assigned to work with the company. It is stated that the claimant was also covered under the various welfare statutes and the claimant was also entitled to other benefits like leave, holidays and annual bonuses.
(v) In paragraph 5; it is submitted that in consonance with the terms of the agreement, entered into between the company and the contractor, the contractor has deputed many employees, including the claimants to work in the premises of the company.
(vi) Paragraph 6; is a repetition and hence not relevant, in paragraph 7; the contractor reiterates the stand of the company regarding the withdrawal of 23 contract 40 labourers with effect from 30.12.2012 and that the company continued employing the remaining contract labourers.
(vii) In paragraph 8; the contractor reiterates the contention of the company that it offered to relocate/depute the services of the 22 labourers with its other clients in Bengaluru.
(viii) In paragraph 11; it is submitted that the uniforms have been supplied by it and the uniforms bears the name of the contractor. The contentions in paragraph 12, 13, 14, 15, 16, 17, 18 and 19 are reiterations of assertions made by the company. The statement of objections were verified by one Sri. Srinivasa, Managing Director.
17. This Court has perused the common evidence tendered on behalf of respondents 1 to 18 in the first writ petition. The examination in chief by way of 41 affidavit is nothing but a reproduction of the claim statement. In the cross-examination on 31.12.2013 he admits that he knows that the regular workmen employed with the company are issued with the appointment orders. That despite him asking the company they have not issued the appointment order to him. In paragraph 8 of the cross examination he states that he has handed over to his advocate the documents which go to prove that his wages, ESI, PF, Bonus and other payments were made by the Company, but, his Advocate has not produced them before the Court. He states that he does not know his ESI, Insurance and PF code numbers. He admits he does not know the ESI and PF code numbers of the company. He states that he does not know if the contractor has been contributing and depositing the ESI and PF amounts. He says he does not remember what was the facilities extended by the company. He further denies as not correct the suggestion that uniform and shoes were 42 issued as a safety measure. He denies as not correct that a separate attendance register was maintained for the permanent and contract employees. He denies as not correct the suggestion that the contractor possesses license to appoint contract labour. He denies as not correct the suggestion that the company has replied to the demand by the registered union. He admits that the company has not served any termination order. In paragraph 10 he admits and he states that he is not aware if the company has requested the contractor to withdraw the services of 23 labour contractors. He denies as not correct the information that the consequently the contractor withdrew the services and paid them one month salary. In paragrpah 11 he admits that he is not a union leader and he is merely a member and further admits that he has not complained anywhere that the company is indulging in unfair trade practices. He admits that he would easily get an alternative job elsewhere.
4317.1 In the continued cross examination on 19.02.2014, he contends that the salary was paid by way of cash and his signature is not obtained on any voucher or acknowledgment and denies that he was being paid wages by the contractor and states that he does not know the ESI code. He denies he knows the ESI and PF code of the contractor. He denies that the contractor has served the termination notice on him. But admits that the company has not served any termination notice on him.
Proceeding further he produces the termination notice dated 01.11.2012 issued by the contractor. He states that he does not know if the termination order marked by him pertains to one Shivaraju (Respondent No.9) and that it is not a termination notice but an offer of alternate employment.
4417.2 Pursuant to the orders of this Court in the earlier round of litigation the 6th respondent was further examined and his examination in chief by way of affidavit is filed on 29.04.2016. In paragraph 2 he states that he is tendering evidence in continuation of his earlier deposition. In paragraph 3 he states that he and the other co-workman have been issued appointment letters captioned as "Employment Jointing Letter" by the company. In paragraph 4 it is stated that they were issued punch cards as in the case of permanent workmen. In para 5 he names one B.K Ravikumar as the supervisor of the company who has signed the job cards and in paragraph 6 he states that the company was maintaining the documents pertaining to early going and late coming during the working hours. In paragraph 7 he states that they were 45 removed on the ground that they joined the registered union called Ajax Fiori Employees Union. In paragraph 8 he states that the company has created some documents in the name of the contractor to avoid entering their names on the rolls of the company. In paragraph 9 he states that the wages were being remitted into their respective bank accounts and they are drawing the wages through the ATM cards. In paragraph 11 he reiterates the earlier stand with regard to non obtaining of license under CLRA Act, 1970. That the contractor has not mentioned any documents on which he has obtained the signatures of the workmen to prove their employment under him and Exs.W3 to W28 have been produced and marked.
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18. It is relevant to note at this stage itself, that the witness, in the further examination in 2016 has taken a diametrically contra stand with regard to appointment orders, joining of the union and with regard to payment of wages. All the three are critical aspects for proving the 'employer'. During the cross-examination, dated 21.12.2013, he has categorically stated that despite his request the company has not issued the appointment order. As regards, the aspect of joining the union, in the very claim statement and the evidence affidavit it is stated that they have joined a general union called the Karnataka Agricultural, Industrial and Commercial Workers' Union. As regards the wages he has earlier deposed that they were being paid by cash but in the evidence affidavit of 2016, in paragraph 9, he states that the wages were deposited into their bank accounts. It is also necessary to note, that with regard to the appointment orders, the Company has lodged a complaint with the jurisdictional police on 10.02.2017 47 and the same has been registered as Crime No.37/2017. The complainant is one Sri N.S. Ganapati, who is examined as M.W.1. It is also relevant to note that the certificate as mandated under Section 65B of the Indian Evidence Act r/w Information Technology Act has also been furnished. The certificate has been issued for the production of the Template of letter of appointment, which, it has been alleged, has been used for forging the alleged orders of employment.
In addition to the evidence affidavit, he states that he joined the company by name Caffee in the year 2006, but states that he cannot remember that when he left the company. He further states that he cannot remember the Manager who interviewed him for the job with the 'company'. With regard to Ex.W4, that is the disputed letter of appointment / employment joining letter, he states that it was issued to him by hand, six months after joining the company. He further stated 48 that M.W.1 Sri N.S. Ganapati handed over the employment joining letter and the other deposition of note, is that, he states that the mobile number mentioned in Ex.W.4 is his mobile number that was activated in 2007. It is also relevant to note that Ex.W.4 is dated 10.01.2010. The affidavit of evidence dated 12.09.2013 filed before the Labour Court at the first instance is ominously silent about it. In paragraph No.3 he has stated that he joined the services of the company on 10.06.2010. In his cross-examination on 31.12.2013 in paragraph No.7, he categorically states that despite a request, the appointment order was not given to him. Proceeding further, for the first time in the second round of evidence, in paragraph No.3 he would venture to state that, employment joining letter, were issued to him and seven others and in the cross- examination on 20.06.2016 i.e., immediately after marking of the letter of appointment he would submit that it was issued to him six months after joining duty 49 and as below. "Now, I see Ex.W.4 it was issued to me after six months of joining in the company". If the said statement is to be taken as correct, it would have been dated June/July, 2010, whereas the letter is dated January, 2010. If the earlier deposition is considered, in juxtaposition wherein he has categorically stated that he joined the services of the company on 10.06.2010. If that being taken as correct and if the deposition 2016 are read in conjunction then the only inference that can be drawn is that the letter ought to have issued to him in 2011, because at the very first instance he has categorically stated that his joining with the company is 10.06.2010. These inconsistencies are not explained and hence do not inspire confidence.
19. In the subsequent round of cross-examination in 2016, he has stated that the Ex.W.4 was handed over to him by MW.1 Sri N.S.Ganapati, who according to the records joined the services of the company only in the 50 month of April, 2011. He would further depose in paragraph 17 of the cross-examination, that the crucial documents pertaining to ESI, PF, Bonus and other benefits have not been taken back from his earlier counsel and he does not know the ESI number. He would further go to depose that he does not know the name of Bank in which his account is operated as the passbook was not given to him and only an ATM card was given to him. In the opinion of this Court, it is a pathetic lie, as all ATM cards have the name of the issuing bank with address and phone number. He would admit that as they were not admitted to the registered union, they joined other union. He would admit in paragraph No.18 that the evidence tendered by him in the earlier round and the evidence now being tendered is quite distinct and different. He would deny that he was employed by the contractor and the contractor was paying the salary.
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20. In the further cross-examination on behalf of the Contractor, he would deny having a bank account in AXIS Bank upto 2011. He would voluntarily submit that his account is operated with State Bank of India, Doddaballapur Branch. He would yet again revert to the original stand of receiving wages by cash which is directly contradicted by paragraph No.9 of his evidence dated 26.04.2016. He would deny the bank operated by him in AXIS Bank, having S.B. A/c No.911010029563911, Kasturinagar Branch, Bangalore. In paragraph No.19, he would also denies of him having submitted an application with the Contractor requesting for a job (Ex.M.32). In paragraph No.20, he would deny the deposit and payment of salary by the Contractor. He would further submit that he is not willing to join the services of the Contractor even he was provided with the same job.
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21. In the further cross-examination by the Contractor on 18.10.2016, the witness is confronted with the document issued by the EPF Organization which refers to the account number of the witness WW.1, who is assigned PF No.BG/BNG/43836/881 and marked as Ex.C1. He would admit that the same pertains to him. The GPF register relating to the witness is marked at Ex.M-10 and the entry relating to the witness is marked as M.10-a. He would admit the receipt of amount from the P.F. account. He would admit the withdrawal of the P.F. amount which is marked as Ex.M-11 and M.11-a. He would also admit that he has submitted the form to his employer. The perusal of Ex.M-10 carries the code No.KN/43836 and the Industry noted against the employer, is Security, House keeping and manpower outsourcing and the registration number assigned is 68/CE/1227/08 and the number of employees enrolled is recorded as 45. The ESI code is also noted therein. The name of the witness is found in document No.52 at 53 Sl.No.881, Form No.9. The document issued by the PF authorities. Ex.M-11 is the document forwarded by the Employees' Provident Fund Organization with reference to the account of Vex India Securities and marked as Document M.53. Document No.54, which is marked as Ex.M.11(a) would reflect the name of Sri Keshava Murthy C. and the name of the employer is recorded as Vex India Securities and the authorized person is recorded as Sri Jagadish, General Manager. The copy of the appointment order of one Sarala Kailash, who is said to be the signatory of the employment joining letter, is produce as document No.55. Document No.56 is marked as EX.M-13 is the order transferring the said Sarala Kailash to the services of Ajax Fiori Engineering (I) Pvt. Ltd. with effect from 01.12.2003. Document No.57 and EX.M-19 announces appointing the said Sarala Kailash as Manager, Human Resource w.e.f. 07.02.2006. Document No.58, Ex.M.15 is a letter of appointment dated 10.12.2009 signed and issued by the 54 said Sarala Kailash. The said documents are produced in support of their contention that, the employment joining letters, are not signed by the said Sarala Kailash and that no proceedings in the style and captioned as Employment Joining Letter are issued. The appointment letter of one B.K. Ravikumar as a Fitter, in the company dated 1.1.1998, is also produced as Document No.15 and Ex.M.16. The copy of the letter dated 1.1.2011 promoting the said B.K. Ravikumar as Supervisor is produced as document No.61 and Ex. M-18.
22. W.W.2, Manjunath M. Munikrishnapp G. is an employee of the company and in his evidence affidavit dated 09.11.2016 it is stated that, all the workmen in the case have worked between 2008 to 2012 and that they were given similar work conditions and they were also given job cards, punch card to go outside and out pass. That they were not working with the contractor. In the cross-examination he states that he is officer 55 bearers of the registered union of the company, He admits that he has not ventured to examine the records of the union and he denies that the union has accepted membership from contract workers. He admits that he does not have any documents to show that the workmen are the employees of the company. In the cross-examination 15.11.2016, he would submit that the workman have informed that they have joined the services of the company. He would admit that he has been issued appointment letter. He would admit that his salary is deposited into his bank account. Apart from a mere statement that they were working in the company, no other material of substance is placed by WW.2. In fact, the only one denial of relevance is that, contract workers have been enrolled as member of the union, which would directly imply that the workmen have not been registered as members, as they were contract labourers.
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23. M.W.1- N.S Ganapati has filed his evidence affidavit, which reiterates the stand adopted in the statement of objections. In para 21, he submits that he is producing the agreement entered into with the contractor, the payment of bills for 3 month, the registration certification, e-mail correspondence with the company and contractor. In the ensuing cross- examination, he has stated that he has been appointed as Human Resource and Admin on 11.04.2011. In para 24, he admits that some of the workmen have been working from 2008 and some have been working from 2010. In para 24 he states that as per Ex.M2 the contractor has paid all the dues to the workman. Further he has denied the suggestion that they were working as permanent worker under the rules of the company.
24. The further evidence by way of affidavit is filed, in para 12 and 13 he has categorically asserted regarding 57 the clarification of the employment letter. He would depose that deliberately they have not produced the relevance and only Xerox copies are produced and they are cyclostyled copies. He would admit the signature and the handwriting of the of the Managing Director-Sri K. Vijay, when certain workmen were referred to medical treatment to Baptist Hospital, but would deny before this Court, of they having taken any treatment. The Field Executive of the contractor has also stepped in and let in his evidence running into 18 paras and reiterating their respective stands. He has been subjected to cross-examination dated 23.12.2014 and nothing of any debilitating effect, has been elicited. The said Sarala Kailash whose signature is found on the alleged joining letter has also been examined as MW.3 and has clearly denied that the signature found on the letter are her signature . The cross-examination has been very brief and nothing has been elicited from her 58 mouth. Sri. B.K. Ravikumar, Supervisor is also examined as additional witness as MW.4.
25. In fact, MW4, who is said to be the supervisor and who is alleged to have signed the job cards, in the cross examination on 28.11.2016 has clearly denied the signature in job cards and so also his having initialed Ex.M25. It is relevant to note that none of the denials by the management witnesses have been established to be untrue and nothing is elicited in the cross examination to contradict the assertions in the objections and defense taken by the management.
26. After an overall assessment of the material on record, the following facts emerge:-
All the workmen have not stepped in to tender evidence, even with regard to the fact of employment by the Company. The lone witness who has been examined has not been able to demonstrate the 59 issuance of the so called appointment orders to the others much less to him. More importantly, the workmen have not been able to explain their earlier stand that no appointment orders were issued. No explanation is forthcoming as to why it was uniformly stated by all the workmen that no appointment orders were issued and subsequently as to how and where the appointment orders were produced, as it was their categorical assertion that no appointment orders were issued. This critical aspect has been glossed over by the labour Court, by placing reliance on the earlier direction by this Court, that parties be permitted to lead evidence afresh. In other words, the labour Court has attempted to take cover and has virtually wished away the evidence already on record. The workmen were legally bound to explain the contradictory stand adopted by them as the contradiction goes to the very root of the matter, that is, appointment of the workmen in the services of the company. In other words, the workmen 60 in the considered opinion of this Court, have failed to establish the fact, which establishes the jural relationship between the workmen and the company. It is not the case of the workmen that all have been appointed on the same day. The fact being that, even as per the workmen, they have joined the services of the company on different dates and in different years.
27. That being the undisputed fact, the onus was on the individual workmen to step into the witness box and lead evidence, at least with regard to the fact of appointment. This aspect of the matter has not even been examined by the trial Court. Further more, what is more astonishing is that xerox copies of appointment orders have been accepted as true and genuine, when the very issuance has been seriously disputed by the company by getting registered a police complaint and also filing an application under Section 340 of Cr.P.C. and demanding an enquiry.
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28. The reasoning assigned by the trial Court that the said application under Section 340 of Cr.P.C. need not be looked into as it is not filed immediately on the production of the appointment letters and has brushed aside the prayer by stating that management is at liberty to take action in accordance with law. The labour Court failed to appreciate that a complaint under the provisions of Section 340 of Cr.P.C. is one such measure that is available to the aggrieved party. The labour Court has also conveniently ignored the fact that what is produced is only xerox copies and it has failed to appreciate the omission of the workmen to explain the absence of the originals of the documents titled as employment joining letters.
29. The other serious and baseless presumption drawn by the labour Court, is that the said employment joining letters are signed by one Sarala Kailash who has been examined as witness MW3. This presumption 62 drawn by the labour Court, based on a xerox copy of the document is not only astounding but contrary to all known canons of evidence. The presumption drawn is groundless in the light of the denial of the signature by MW.3 and further assertion that the initials are that of an other employee of the company. The said evidence clearly falsifies the stand of the workmen and renders nugatory, the presumption drawn by the labour Court. The labour Court has tried to make a mountain out of mole-hill while appreciating Exs.W-9 to W-13. A mere reference/direction, to have the workmen examined by a particular hospital has been sought to be interpreted out of context. The signatures on the job cards have been denied by the alleged signatory who is examined as MW4 and nothing is elicited in the course of evidence to demonstrate his signature. None of these contradictions have been examined by the labour Court. More importantly the labour Court has not even referred to the admissions by the workmen during the cross 63 examination with regard to the withdrawal of amounts from the provident fund account. The evidence on record clearly demonstrates that the employer code is one that is assigned to the contractor and not to the company. The labour Court has also pointedly ignored the material demonstrating the demand for the monthly wages raised by the contractor and the consequent payments made by the company to the contractor and which payments are made by way of bank transfer/RTGS. The labour Court has tried to make much out of the fact that the documents W9 to W13 demonstrate that they have been working with the company. It failed to realise that the issue was not as to whether the workmen is working with the company but the issue is whether they were discharging duties as employees of the company or the employees of the contractor, which fact in the opinion of this Court has not been demonstrated in a manner known to law. The labour Court has pointedly ignored the applications 64 made by the workmen to the contractor seeking employment and which has been produced as Exs.M27 to M44. The labour Court has also ignored or failed to appreciate the license issued to the company under the Contract Labour (R&A) Act, 1970 produced as Ex.M26. The labour Court has also pointedly ignored and failed to appreciate the documents demonstrating the registration of the contractor with the authorities and license enabling him to engage in the said activities. The payment of wages to the workmen by the contractor by way of bank transfer to their respective accounts is also not been appreciated. Even the contents of the letter withdrawing their services from the company and offer to relocate them is also not appreciated in a manner known to law. The labour Court failed to see that none of the tests specified by the Apex Court have been satisfactorily demonstrated by the workmen. In the absence of evidence demonstrating the fact of jural relationship in the form of hiring their services by the 65 company or fact of employment by the company. The conclusions drawn by the labour Court are wholly unsustainable and the relief granted cannot be sustained in the eye of law. Accordingly, the following order.
ORDER
i) The writ petitions by the company i.e. W.P. No.15778/2017 & W.P. Nos.16043- 16059/2017, W.P. No.15792/2017 & W.P. Nos.16036-16041/2017 are allowed.
ii) Consequently, the writ petitions by the workmen i.e. W.P. Nos.6263-6280/2017 and W.P.Nos.6281-6287/2017 are dismissed. In view of the disposal of the above petitions, I.As. if any does not survive for consideration and is accordingly disposed of.
Sd/-
JUDGE Chs/BL