Delhi District Court
Sh. Sanjay Kumar S/O Sh. Bachchajee ... vs M/S. New Holland Tractor Pvt. Ltd on 9 December, 2014
IN THE COURT OF SH. SANJEEV KUMAR
PRESIDING OFFICER LABOUR COURT,
KARKARDOOMA COURTS, DELHI.
ID No.312/10 (Old ID No.87/06)
IN THE MATTER BETWEEN:
1. Sh. Sanjay Kumar S/o Sh. Bachchajee Singh
2. Sh. Gyan Chandra S/o Jadish Prasad
3. Sh. Chandra Dev S/o Sh. Krishna Bihari Pal
4.Devender Singh S/o Parshu Ram Singh
5. Sh. Ashok Kumar S/o Digambar Singh
6. Sh. Rajender Singh S/o Sh. Dev Shankar
7. Sh. Subhash Bhardwaj S/o Sh. Mewa Lal
8. Sh. Uma Shankar S/o Sh. Dharmnath Thakur
9. Sh. Akhtar S/o Sh. Navi Husain
10. Sh. Kaushal Kumar S/o Sh. Mosi Ram
11. Sh. Subhash Yadav S/o Sh. Raj Kishor
12. Sh. Jai Prakash S/o Sh. Moti Ram
13. Sh. Sanjay Kumar S/o Sh. Rameshwar Prasad
14. Sh.Nirbhay Pal S/o Sh. Brijpal
ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 1 out of 52
15. Sh. Ajay Kumar S/o Sh. Ram Avtar
16. Sh. Ramesh Mandal S/o Sh. Chandra Dev
17. Sh. Manoj S/o Sh. Baij Nath
18. Sh. Sohan Lal S/o Sh. Dhan Singh
19. Sh. Hari Om S/o Sh. Madan Lal
20. Sh. Mithlesh Kumar S/o Sh. Anandi Yadav
21. Sh. Jai Shankar Kumar S/o Sh. Ram Vilash
22. Sh. Harinder Rai S/o Late Sh. Pramod Rai
23. Sh. Kamal S/o Sh. Ram Pal Sharma
24. Sh. Sita Ram S/o Sh. Ishwar Prasad Sharma
25. Sh. Sunil Kumar S/o Sh. Swami Nath Prasad
26. Sh. Sanjay Thakur S/o Sh. Gandhi Thakur
27. Sh. Surender S/o Sh. Jitin Yadav
28. Sh. Radhey S/o Sh. Bal Chand
29. Sh. Ravinder S/o Sh. Bal Kishan
30. Sh. Rajudeen S/o Sh. Badi Khan
31.Sh. Anil Kumar S/o Sh. Uma Shankar
32. Sh. Santosh S/o Sh. Ram Vilash
ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 2 out of 52
33. Sh. Dharmender S/o Sh. Lakhan Singh
34. Sh. Prem Chand S/o Sh. Pyare Lal
35. Sh. Avneesh S/o Sh. Bhagat Ram
36. Sh. Suresh S/o Sh. Lal Singh
37. Sh. Mukesh S/o Sh. Maha Singh
38. Sh. Jitender Upadhyay S/o Sh. Bal Chand
39. Sh. Shailender S/o Sh. Genda Lal
40. Sh. Sohan Singh S/o Sh. Dhani Singh
41. Sh.Uttam S/o Sh. Ram Nath Prasad
42. Sh. Chunnu S/o Sh. Ravinder Chaudhary
43. Sh. Rakesh S/o Sh. Lakhi Ram
44. Sh. Mahesh S/o Sh. Ramesh Kumar
Through: Bhartiya Karamchari General Mazdoor Union,
A590, Gola Kuan, Tehkhand, Near F22, Okhla PhaseI,
New Delhi20
............ Workman
VERSUS
M/s. New Holland Tractor Pvt. Ltd.,
E4, B1, Mohan Cooperative Industrial Area,
Mathura Road, Badarpur,
New Delhi44, ..........Management
ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 3 out of 52
Date of Institution : 04.10.2012
Date of Arguments: 20.11.2014
Date of Judgment : 09.12.2014
A W A R D
1. By this award I shall decide the reference sent to the
government of NCT of Delhi vide its order No. F.24(394)/06/Lab.
128387 dated 07.07.06:
" Whether the services of workmen whose names appear in
AnnexureA have been terminated by the management
illegally and/or unjustifiably and if so, to what sum of
money as monetary relief along with other consequential
benefits in terms of existing Laws/Govt. Notifications and to
what other relief are they entitled and what directions are
necessary in this respect.?"
2. In the reference only management no.1 hereinafter called
as M1 (M/s New Holland Tractors Pvt. Ltd.) was made respondent.
Notice of the reference was issued to the workers mentioned in the reference and they were served through their union as well as M1. However, only 26 workmen namely Gyan Chand Prasad, Chandra Dev Pal Singh, Devender Kumar Singh, Ashok Kumar, Rajinder Singh, Subhash Bharadwaj, Uma Shankar Thakur, Subhash Kumar Yadav, Sanjay Kumar, Nirbhay Pal, Ramesh Mandela, ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 4 out of 52 Manoj Singh, Jai Shankar Kumar, Sita Ram, Sunil Kumar, Surender Kumar Yadav, Sanjay Kumar Thakur, Anil Kumar Singh, Santosh Prasad, Prem Chand, Ashwani, Suresh Singh, Mukesh Kumar, Uttam Kumar, Rajesh Kumar, Mahesh Kumar has only filed their claim. Though they have filed separate claim but in their claim all the workmen have stated almost verbatim same facts except their date of appointment, salary and designation. They all had made management no1 (hereinafter called as M1) as respondent. It is stated by the workmen that the workmen were employee of the management M/s New Holland Tractor India Pvt. Ltd. The details of claimants/workmen designation, salary and date of appointment are given as under: Sr. No. Name of workman Father's Name Designation Salary D/J
1. Gyan Chand Sh. Jagdish Chand Prasad Sr. Helper Dispatch Rs.7320/ 06.10.96
2. Chander Dev Pal Singh Sh. Krishan Bihari Pal Singh Helper Packing Rs. 2420/ 13.07.99
3. Devender Kumar Singh Sh. Parbhu Ram Singh Sr. Helper Packing Rs. 2800/ 12.01.97
4. Ashok Kumar Sh. Digamber Singh Helper Packing Rs.2420/ 19.02.2000
5. Rajinder Singh Sh. Dev Shankar Singh Sr. Helper Packing Rs.2800/ 27.01.97
6. Subhash Bhardwaj Sh. Mewa Lal Sr. Helper Packing Rs.2800/ 05.06.97
7. Uma Shankar Thakur Sh. Dhram Nath Thakur Helper Packing Rs.2420/ 09.02.03
8. Subhash Kumar Yadav Sh. Raja Kishor Yadav Sr. Helper Packing Rs.2550/ 28.01.98
9. Sanjay Kumar Sh. Rameshwar Prasad Helper Packing Rs.2420/ 18.01.03
10. Nirbhay Pal Bharat Pal Singh Helper Packing Rs.2420/ 24.01.97
11. Ramesh Mandela Late Sh. Chander Dev Sr. Helper Packing Rs.2800/ 10.06.99
12. Manoj Singh Sh. Vaidnath Singh Helper Packing Rs.2420/ 09.02.03
13. Jai Shankar Kumar Sh. Ram Vilas Rawat Helper Packing Rs.2420/ 11.04.03 ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 5 out of 52
14. Sita Ram Sh. Iswar Prasad Sharma Helper Packing Rs.2420/ 09.03.2000
15. Sunil Kumar Sh. Swami Nath Helper Packing Rs.2420/ 09.03.03
16. Surender Kuar Yadav Sh. Jitan Yadav Helper Packing Rs.2420/ 20.07.2000
17. Sanjay Kumar Thakur Late Sh. Gandhi Thakur Sr. Helper Packing Rs.2800/ 03.02.97
18. Anil Kumar Singh Late Sh. Uma Shankar Singh Sr. Helper Packing Rs.3720/ 12.02.97
19. Santosh Prasad Sh. Rambilas Prashad Sr. Helper Packing Rs.2800/ 02.08.99
20. Prem Chand Late Sh. Pyare Chand Helper Packing Rs.2420/ 06.05.2000
21. Ashwani Sh.Bhagat Ram Helper Packing Rs.2800/ 25.05.2000
22. Suresh Singh Sh. Lal Singh Sr. Helper Packing Rs.2800/ 09.07.97
23. Mukesh Kumar Sh. Maha Singh Helper Packing Rs.2550/ 18.06.98
24. Uttam Kumar Sh. Ram Nath Prashad Sr. Helper Packing Rs.2800/ 27.01.97
25. Rajesh Kumar Late Sh. Likhi Ram Helper Packing Rs.2550/ 03.11.98
26. Mahesh Kumar Ramesh Kumar Helper Packing Rs.2430/ 13.07.2000 The workmen further stated that they were told not to tender their services in future as management wants to transfer the material lying on the premises to its factory situated at Noida (U.P.) and on 12.12.05 the management retrenched the workmen without notice and also stopped the entry of workmen in the industry and did not pay earned wages etc. The workmen lodged complaint to the Labour Commissioner through their union namely Bharatiya Karamchari General Majdoor Union" and sought intervention of the Labour Inspector for resume duty but in vain. The Labour Commissioner issued a notice dt. 21.12.05 to appear before it but they did not turned up, thereafter, on 06.01.06 Sh. Om Prakash (Labour Officer) again issued a notice to Sh. ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 6 out of 52 Pradeep Sharma, M.D. of the management and asked to produced the record required to be maintained by the management on 24.01.06 but management did not appear.
It is further stated that workman namely Gyan Chand filed a writ petition no.1026/06 in the High Court praying for stay the operation of the shifting the goods/material from Delhi to Noida but same was dismissed by the High Court with the direction to workman to make appropriate application before concern authorities where the complain is pending. It is further stated that the workmen are working with the management under its control and supervision and the plea of management that they were working under the control and supervision of contractor Pardeep Sharma is sham and false plea. The termination of the workmen are malafide and workmen had never worked under the control & supervision of the contractor. Therefore, prayed that the workmen be reinstated with their post, the wages for the period of their employment and all other consequential benefits.
3. Per contra M1 has filed the joint written statement to the statement of claims of all the workers. The management has taken preliminary objection that that there exits no relationship of ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 7 out of 52 employeremployee between the claimants and M1 as workman were never employee of M1 and since claimant never worked for M1 hence they are not workman as per section 2(s) of Industrial Dispute Act,1947(hereinafter call as ID Act) no proceedings can be initiated against the management. It is stated that the claimants were employee of M/s Pivot Multifiar Industrial Services Ltd. (Management no.2 impleaded as party later on) and therefore, if there was a industrial dispute, same can be raised by claimants only against the employer i.e. M/s Pivot Multifar Industrial Services Ltd. (Management no.2 hereinafter called as M2) and no relief can be granted to the claimant due to non joinder of essential party i.e.M2. The reference is bad in law and facts, for misjoinder of the M1 and further it is stated that since no cause of action arose between the workman and M1 which could be termed as industrial dispute as per section2(k) or 2A of ID Act. Further it is stated that since the conciliation officer has no jurisdiction to initiate proceedings pertaining industrial dispute in respect of the workman and since the workmen were not employee of the M1 so the conciliation proceedings is illegal and bad in law. Further objection was taken that the statement of claim has been filed ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 8 out of 52 without list of witness and without list of documents which were required to be filed within 15 days of receipt of notice and therefore, provision is violated, hence, no relief can be granted.
On merit all the contents of the statement of the claim were denied as wrong and incorrect. It is stated that the management has established its factory at plot no.3, Udyog Kendra, Surajpur, Greater Noida, Gautam Budh Nagar, and it had opened it spare parts distribution office at E4/B1, Mohan Coperative Industrial Eastate, Mathura Road, New Delhi in year 1996 and it started functioning in year 1997. This premises was taken on rent. The company never manufacture the spare part at aforesaid spare parts distribution office. The work of the spare parts distribution was given to M2 on principal to principal basis. The claimants were employed by M2 for spare parts distribution at aforesaid office. The number of workmen employed by M2 from time to time is matter of record. It is stated that their respective salary, designation is matter of record with M2. It is further stated that since claimants were never employee of the M1 so the question of retrenchment of claimants by M1 on 12.12.05 never arise. The claimants never worked under the control and ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 9 out of 52 supervision of M1 nor the M1 was paying them wages. It is further stated that the disbursement of wages and all other distributive work were managed by M2, therefore, no question of withholding their salary by the M1 arise. Further it is stated that the claimants have received wages of December, 2005 from M/s Pivot Multifar Industrial Services Ltd. in presence of labor officer. Further it is stated that the M1 file its submission before the labour officer and labour authorities time to time. The company representative appeared before the Labour Authority from time to time and a detailed reply of the notice dt. 06.01.2006 was also sent to the Labour Officer. The management also produced the record which were inspected by the labour authorities and same were found in order and that' why no challan was made against management. It is further stated that the claimants have deliberately and intentionally conceal their respective employment with M/s Pivot Multifar Industrial Services Ltd. and mislead labour authority and court. It is denied that the claimant were working under the control and supervision of the management. It is further stated that the management had a contract with M2 on principal to principal basis. It is also denied that Pardeep Sharma ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 10 out of 52 was a contractor but he was Director of M2 and the work of distribution of spare parts was under supervision and control of M2 through its Director Sh. Pardeep Sharma. Further it is stated that since claimants were not employee of M1 therefore no question of their termination by M1 arise. Therefore it was prayed that the claimant are not entitled for any relief from the management and prayed that the claim be dismissed.
4. From the pleading of both parties, vide order dt. 14.02.2007 following issues were framed:
1. Whether there existed relationship of workman and management between the claimants and respondent?
2. Whether the services of the workmen were terminated illegally and/or unjustifiably?
3. Relief.
5. Thereafter both parties were directed to lead evidence.
The workmen namely WW1 Uttam Kumar, WW2 Gyan Chand Parsad, WW3 Ashok Kumar, WW4 Sanjay Kumar, WW5 Jai Shankar Kumar, WW6 Ramesh Mandela, WW7Rajesh Kumar, WW8 Suresh Singh, WW9Subhash Bhardwaj, WW10 Surender Kumar Yadav, WW11 Rajender Singh, WW12 Subhash Kumar ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 11 out of 52 Yadav, WW13Devinder Kumar Singh, WW14 Sita Ram, WW15Uma Shankar Thakur, WW16 Santosh Parshad, WW17 Prem ChandWW18 Anil Kumar Singh, WW19Ashwani, WW20 Chander Dev Pal SinghWW21 Sanjay Kumar Thakur, WW22 Narbhay Pal, WW23 Mukesh Kumar, have tendered their affidavit They lead their examined in chief through affidavit as WW1/A, WW2/A, WW3/A WW4/A,WW5/A, WW6/A, WW7/A,WW8/A WW9/A, WW10/A, WW11/A, WW12/A, WW13/A, WW14/A, WW15/A,WW16/A,WW17/A,WW18/A, WW19/A, WW20/A WW21/A WW22/A and WW23/A respectively. Workman Mahesh and Prem Chand have filed their affidavit in evidence but they did not appear for tendering the same.
6. Out of them WW2 Gyan Chand Prasad was also cross examined. however when the case was fixed for cross examination of the aforesaid workmen my Ld. Predecessor vide order dt. 13.01.2009 ordered to implead M/s Pivot Multifar Industrial Services Ltd respondent no.2 and carried out to workmen to file the amended statement of claim.
7. Amended statement of claim was filed by only 12 workman namely Sanjay Kr. Thakur, Ashwani, Devender Kr. ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 12 out of 52 Singh, Gyan Chand, Mukesh Kumar, Prem Chand, Rajinder Singh, Ramesh Mandal, Sanjay Kr. Prasad, Sita Ram, Subhash Bhardwaj & Uttam Kumar. The contents of amended statements of claim of all the workman were almost same except their designation,salary and date of appointment which were same as in the unamended statement of claim. In the amended statement of claim, workmen have stated that M1 has established its spare parts unit in the year, 1996 in which more than 80 workers were working. M2 is a firm which provide man power to the needy institution and the workmen were under the employment of the same but worked for M/s New Holland Tractors India Pvt. Ltd. during the whole period of job and work site new M/s New Holland Tractors India Pvt. Ltd. since their respective date of employment at their respective salary and post. Rest of the contents of statement of claim were almost same as in the unamended statement of claim (mentioned above in para 2 and 3) therefore same are not repeated here.
8. Amended written statement was filed by the M1. In its amended W.S. it is stated that since the workmen have admitted before the court on 13.01.09 that they were employee of M/s Pivot Multifar Industrial Services Ltd/M2 and the court ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 13 out of 52 allowed the claimants to implead M/s Pivot Multifar Industrial Services Ltd. as necessary party hence management no.1 is unnecessary party and to discharge a party as fresh. It is stated that even Mr. Ganesh manager of M2 appeared before the court on 23.09.08 and stated that M2 is ready to take back the workmen on duty but the workmen refused to go join the duty. Thus the workmen cannot be allowed to drag the management no.1 in this court proceedings. The claimants are liable to criminal prosecution for giving false statement on affidavit on07.08.2006 that they are employee of M1 as they have admitted on 13.01.2009 that they were employee of M2. Rest of the contents of WS of M1 were same as stated in its unamended written statement.
9. Written statement was also filed by management no.2. The management no.2 has taken the preliminary objection that the petition is barred u/s 10 of Contract Labour (Regulation and Abolition) Act 1970 and the rules framed in the said Act. As per section 10 of the ID Act every management is required to intimate Labour Inspector in the form 6A with in seven days of the commencement of contract worker. The management no.1 has not sought any such permission from competent authorities and has ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 14 out of 52 acted in clear violation of the provision of the Act. The work for which claimants were engage was of perennial and permanent nature and was not of casual nature and was available for indefinitely long time. The work in the establishment of the M1 was sufficient to employ a considerable number of whole time work. The work is being done through regular workman/employee in the management no.1. It is stated that management no.1 cannot engage and employ any contract labour and is debarred from engaging the contract labour. Therefore claimant cannot be termed as employee of M2. It is further stated that there is no relationship of workman and management and the workmen have never worked under M2. The M2 is not a license contractor and no license was taken or obtained in favour of M2 and as such present petition against M2 is not maintainable. It is further stated that the claimants are not employee of M2 for all intend and purposes management no.1 is the total incharge of all the books of the M2 and use to maintain the same. The management no.1 has engaged management no.2 for maintaining the ESI & PF account of the management no.1 for its employee and this was done only to save the tax and other liability which may arises legally against the ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 15 out of 52 management no.1. Management no.1 used to pay the certain amount to the management no.2 in the form of raising the bill for the said services. In fact there was no relationship of employer employee between the claimant and management no.2 and management no.2 cannot be term even as a contractor as it has no license to engaged more than 10 workers. Further it is stated that even the management no.2 has not sought any permission from the competent authority in the section 12 of the Contract Labour (Regulation and Abolition) Act to get done work on contract. Further it is stated that whatever has been done with regard to the PF and ESI etc. the same have bee done by the management no.1 under name of the management no2 to somehow bypass the provision of law which may attract its liability against the claimant. The same is only a paper work.
On merits the contents of statement of claim of workmen were denied. It is denied that management no.2 is a firm which provides the manpower to the needy institutions and the workmen were under the employment of the same but had worked for the management namely New Holland Tractors (India) Pvt. Ltd during whole of the period of his job at the work site of ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 16 out of 52 M1. Further it is denied that any complaint is pending against the M2 in the labour authority allegedly filed by the workmen. No legal notice was served by the workmen against the M2. Hence it is prayed that the claim petition be dismissed.
10. Joint replication was filed by the workmen to the written statement of the management no.2 denying all the contents of written statement of management no.2 as incorrect and reiterating contents of statement of claim as true and correct. It is denied that management no.1 has not sought any permission to engage contractor i.e. Management no.2. It is denied that the petition is barred u/s 12 of the contract labour (Regulation and Abolition) Act.
11. Written submission was filed by the management no. 1 to the written statement of the management no.2 in which the contents of the WS of management no.2 were denied. It is stated that the contract between the management no.1 and management no.2 was of principal to principal basis and so there was no requirement to taking any registration certificate under Contract Labour (Regulation and Abolition) Act 1970 by management no.1 and nor there is any requirement to send Form6A under said Act. ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 17 out of 52 Further it is stated that section 10 of the Contract Labour ( Regulation and Abolition) Act, 1970 does not bar the employment of contractual labour through contractor and even if there is violation of provision of said act, then it will attract penal provisions as prescribed under the said Act but will not change the status of management no.2 being employer for its employee. Further it is stated that the management no.2 was only engaged for distribution of spare parts. Further it is denied that M1 was incharge of all the books of M2. Further it is denied that respondent no.2 was engaged for maintaining PF and ESI record of M1 for its employee to save tax or liability. It is stated that M1 has its own employee and its own ESI and PF code number and maintaing the record of its employee. The M1 did not consider the M2 as its contractor but it had given contract to execute contractual job which was executed by M2. The M2 did not provided any labour to M1. It is further stated that M2 is a private limited company like M1 and is not supposed to commit any illegal act and it is just an effort to come out of liability of claimants.
12. Vide order dt. 27.10.10 following issues were framed ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 18 out of 52 as under:
1. Whether there was no relationship of employer and employee between the M1 and the workmen and if so, to what effect? OPM1
2. Whether the workmen are not covered under the definition of the workmen as mentioned in Section 2(S) of the Industrial Dispute Act and if so to what effect? OP M1
3. Whether the workmen were the employee of M/s Pivot Multifar Industrial Services Ltd. and if so, to what effect?
OP M1
4. Whether there was no relationship of employer and employee between the M2 & the workman and if so, to what effect? OP M2
5. Whether there was violation of provisions of section 10 &12 of Contract Labour (Regulation & Abolition) Act, 1070 by M1 and if so, to what effect? OPM2
6. Whether services of the workmen as mentioned in AnnexureA were terminated by the M1 or/and M2 illegally and/or unjustifiably and if so, to what effect? ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 19 out of 52
13. After completion of pleading case was against put up for workman evidence. In order to prove their case only 8 workmen have come forward to lead their evidence and who were examined as WW1 Uttam Kumar who led his evidence by way of affidavit Ex.WW1/B. He also relied upon documents which he filed earlier in his previous evidence i.e. PF slip Ex.WW1/1, ESI card as Ex.WW1/2, four envelop showing the workman received the said letters as Ex.WW1/3 to Ex.WW1/6 and photo copies of invoice and check list markA1, B1 & C1.
WW2 Gian Chand who led his evidence by way of affidavit Ex.WW2/B. He also relied upon documents which he filed earlier in his previous evidence i.e. PF slip Ex.WW2/1, ESI card as Ex.WW2/2, and photo copies of invoice and check list markA2 & B2.
WW4 Sanjay Kumar who led his evidence by way of affidavit Ex.WW4/B. He also relied upon documents which he filed earlier in his previous evidence i.e. PF slip Ex.WW4/1, ESI card as Ex.WW4/2.
WW9 Subhash Bharadwaj who led his evidence by way of affidavit Ex.WW9/B. He also relied upon documents which ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 20 out of 52 he filed earlier in his previous evidence i.e. Original pick slip Ex.WW9/1, original packing slip Ex.WW9/2 ESI & OPD ticket Ex.WW9/3.
WW11 Rajender Singh who led his evidence by way of affidavit Ex.WW11/B. He also relied upon documents which he filed earlier in his previous evidence i.e. Money order receipt Ex.WW11/1, ESI card as Ex.WW11/2, and photo copies LIC policy markA11, B11.
WW13 Devender Kumar Singh who led his evidence by way of affidavit Ex.WW13/B. He also relied upon documents which he filed earlier in his previous evidence i.e. Personal letter received at the address of the management Ex.WW13/1, ESI card as Ex.WW13/2 and invoice markA13, pick list B13 & C1.
WW14, Sita Ram who led his evidence by way of affidavit Ex.WW14/B. WW15 Uma Shankar Thakur who led his evidence by way of affidavit Ex.WW1/B. WW23 Mukesh Kumar who led his evidence by way of affidavit Ex.WW23/A. All the aforesaid witness were cross examined by the Smt. Manjula Upadhyay, Ld. AR for ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 21 out of 52 management.
14. On the other hand M1 examined Sh. Sanjay Tripathi as MW1 through an affidavit Ex.MW1/A. He was cross examined by Ld. ARW.
15. In between M2 (M/s Pivot Multifar Industrial Services Ltd) stopped appearing and vide order dt. 11.02.2014 M2 was proceeded exparte.
16. After completion of the evidence of both parties arguments were heard from Smt. Manjula Upadhyay, Ld. AR for management, however, no oral arguments were addressed by the Ld. AR for workman and only filed written arguments. I have heard the arguments and carefully gone through material placed on record.
17. As stated above issues have been framed twice first on 14.02.07 and secondly on 27.10.10, since the issue framed second time after amendment in statement of claim therefore, I shall decide the issue on 27.10.10 which was framed after amendment. My issue wise findings are as under.
Issue no.1 to 5 ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 22 out of 52
18. I shall decide all the issues no.1 to 5 together as same are inter related. The main issue from these no.1 to 5 is comes out as whether the workmen were employee of the management no.1 or management no.2. If claimants were not the employee of M1 than they cannot be workman qua M1.
19. The workmen in their preamended statement of claims as well as affidavits EXWW1/A to WW23/A which they filed prior to filing of amended statement of claims have deposed that they were employee of management no.1, whereas in their amended statement of claim, they have stated that they were employee of management no.2 but they had worked for M/s New Holland Tractor ( India) Pvt. Ltd. i.e. management no.1 during the period of their job at their work site.
20. The case of management no.1 both in pre amended written statement and amended written statement as well in the evidence of their witness i.e. MW1 is that the workmen were not the employee of M1 but they were employee's of M2 i.e. M/s Pivote Mulfar Industrial Services Ltd. whom M1 engaged on principal to principal basis for distribution of spare parts at their Delhi Office.
ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 23 out of 52
21. The management no.2 in its written statement has denied that the workman were their employees their main stand is that work of M1 was permanent and perennial in nature and since neither M2 have license for giving labour on contract nor management no.1 has any permission to engage labour on contract therefore, there is violation of provision contract labour (regulation & abolition) 1970. hence, the engaged of labour on contract is an illegal act of M1 therefore the workmen were employee of management no.1.
22. Since both the M1 and M2 have denied that the claimants are their employee, therefore, the workmen have to prove that they have any relationship of employeremployee with either M1 or M2 or both as held in case N.C. John Vs. Secretary Thodupuzha Taluk Shop and Commercial Establishment Workers Union and others 1973 Lab, IC 398, the Kerala High Court held that:
" the burden of proof being on the workmen to establish the employeremployee relationship and adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employeremployee relationship."
ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 24 out of 52 The following principles laid down by the Supreme Court in (2002) 3 SCC 25 Range Forest Officer Vs. S.T. Hadimani : "3............ in our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but his claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filling of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion that a workman had in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On the ground alone, the award is liable to be set aside."
In R.M. Yellatti Vs. Assistant Executive Engineer (2006)1 SCC 106. the Supreme Court observed as follows: "...........However, applying general principles and on reading the (aforesaid) judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 25 out of 52 had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of dailywaged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on facts of each case."
26. Applying the principles laid down in the above case by this Court, the evidence produced by the appellant has not been consistent. The appellant claims that the respondent did not work for 240 days. The respondent was a workman hired on a daily wage basis. So it is obvious, as this Court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls, etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the appellant employer to prove that he did not complete 240 days of service in the requisite period to constitute continuous service."
In Automobile Association of Upper India Vs ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 26 out of 52 PO.Labour Court 11 & Another 2006LLR 551 also it is held that :
"10. It is well settled that the primary burden of proof to establish a plea rests on a person so claiming. In this behalf reference can be appropriately made to the judicial pronouncement in State of Gujarat and Ors. v. Pratamsingh Narsinh Parmar 2004 LLR 351 (para 49) Nilgiri Coop. Marketing Society Ltd. v. State of Tamil Nadu; 2001 LLR 148 Dhyan Singh v. Raman Lal; 1996 Lab. I.C. 202 Swapan v. First Labour Court, West Bengal and 1973 Lab. I.C. 398 N.C. John v. TTS & CE Workers Union; Thus burden lies on a person claiming the establishment to be an industry to place positive facts before the court in this behalf. For this reason, the primary burden to establish the relationship of employment also lies on the workman who is claiming the same.
11. In this behalf, it was only if the respondent had discharged the onus and burden of proof cast on him and had placed some material on record to indicate that he had been employed by the petitioner that the petitioner would have been required to displace the case set up by the respondent by leading positive evidence.
12. In Manager, Reserve Bank of India v. S. Mani and Ors., it was held by the apex court that it is only if the initial burden of proof, which was on the workman, was discharged to some extent, that a finding can be returned in respect of the defense of the management. Furthermore, a plea having been set up by the workman, the initial burden of proof ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 27 out of 52 was on the workman to show that he had been employed by the petitioner in the claim capacity on the stated terms."
23. Since except claimants Uttam Kumar, Gian Chand, Sanjay Kumar, Subhash Bharadwaj, Rajender Singh, Devender Kumar Singh, Sita Ram, Uma Shankar Thakur and Mukesh Kumar other claimants have not either filed their claims or if file their claim did not led any evidence or if file their affidavit did not appear for crossexamination theirfore they have failed to their that they are employee of either M1 or M2.
24. Whereas claimants Uttam Kumar, Gian Chand, Sanjay Kumar, Subhash Bharadwaj, Rajender Singh, Devender Kumar Singh, Sita Ram, Uma Shankar Thakur and Mukesh Kumar in their respective pre amended statement of claim as well as first affidavit filed in evidence EXWW1/A to WW23/A which they filed before amendment in statement of claim have stated that they were employee of M1, however the claimants who filed amended statement and affidavit in evidence in their respective amended statement of claims as well in their examination in chief led through affidavit EXWW1/B to WW23/B respectively they ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 28 out of 52 changed their stand and stated that they were employee of M2 but had worked for management no.1 M/s New Holland Tractors (India) Pvt. Ltd. during the whole period of their job at their premises.
25. WW1 Uttam Kumar in his cross examination has admitted that he had relied upon two documents i.e. ESI card and PF slip which attached with his previous affidavit on 24.10.07. He admitted that he had no documents to show that he had ever been in the employment of M/s New Holland Tractor (India) Pvt. Ltd. He also admitted that the signatures on the wages register placed by the management in their documents bears his signature infront of his name on page no. 140 and also the wages register are for the period December, 2005 which bears name of M/s Pivot Multifar Industries Pvt. Ltd. He also admitted that E4/B1 Mohan Cooperative Industrial State is the warehouse where the stocks were being kept and some time if require repacking were done. He also admitted that he has no documents to show that he has been terminated by the M/s New Holland Tractor (India) Pvt. Ltd.
26. In his cross examination WW2 Gian Chand Prasad, has admitted that he was provided the ESI facilities by the M/s ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 29 out of 52 Pivot Multifar Industries Pvt. Ltd. and PF was also deducted by M/s Pivot Multifar Industries Pvt. Ltd. though he has denied that he was never employee of M/s New Holland Tractor (India) Pvt. Ltd. He had admitted that he had no documentary proof to establish the relationship with management no.1 i.e. M/s New Holland Tractor (India) Pvt. Ltd. In his cross examination held on 02.09.2008 he admitted that Pardeep Sharma used to get worked done from them though he vol. stated Devi Kalia also used to get work from them. It is important to note that as per WS of M1 Pardeep Sharma is Director of M2. He admitted that Pardeep Sharma was called at Labour office.
27. WW4 Sanjay Kumar in his cross examination has stated that his amended statement of claim bears description of his employment he has no other document of relationship and employment ESI Card and PF. He admitted that he has no document to show that relationship with M/s New Holland Tractor (India) Pvt. Ltd. He admitted that M/s Pivot Multifar Pvt. Ltd. was making payment of wages extending ESI & PF benefit. Though he voluntarily stated that they were working with M/s New Holland Tractor (India) Pvt. Ltd.
ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 30 out of 52
28. WW9 Subhash Bhardwaj have also admitted in his cross examination that M/s Pivot Multifar Pvt. Ltd. was making payment of wages and extending ESI and PF benefits and he has no document to show that he is employee of M1. He denied the suggestion that he was never employee of M1.
29. WW11 Rajender Singh in his cross examination has stated that he do not know what is written in the statement of claim and affidavit. Hence his affidavit cannot be read in evidence. Even otherwise he admitted that he and other claimant used to sign on the same salary sheet and document Ex. WW2/M1 which bears his signature and in column in front of his name and others name. He admitted that he has no document to show that relationship with M/s New Holland Tractor (India) Pvt. Ltd. He admitted that M/s Pivot Multifar Pvt. Ltd. was making payment of wages extending ESI & PF benefit.
30. WW13 Devinder Kumar Saingh has admitted in his crossexamination that the ESI Card EXWW13/2 provided to him bear code of M2. He also admitted that wage sheet of year 2002 to March 2005 EXWW2/M1bear his signature. He further admitted that he has no document to show that relationship with ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 31 out of 52 M/s New Holland Tractor (India) Pvt. Ltd.
31. WW14 Sita Ram and WW15 Uma Shankar and WW23 Mukesh Kumar has also admitted in their respective cross examination that the ESI Car provided to them bear code of M2 . They also admitted that wage sheet of year 2002 to March 2005 EXWW2/M1bear their signature. They further admitted that he has no document to show that relationship with M/s New Holland Tractor (India) Pvt. Ltd.
32. Thus from the testimony of the aforesaid witness it is evident that all the aforesaid claimants were appointed by management no.2 M/s Pivot Multifar Industrial Pvt. Ltd. and they were being provided the ESI and PF facilities by the management no.2 and they were signing on the wages sheet WW2/M1 from the year 2002 to 2005 issued by M/s Pivot Multifar Industrial Pvt. Ltd. for workers which prove that they were getting wages from the management no.2. Thus the claimants have admitted that they were being provided ESI and PF facilities by M2. Wage Sheets EXWW2/M1 proved that workman were being paid wages by M2. Wages record, ESI and PF record is the best proof of employment as held in the judgment of Automobile Association of Upper India ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 32 out of 52 vs P.O. Labour Court II and Anothers 2006LLR551 documents like salary slip, ESI & PF, leave record and ,muster role, attendance register and any document of similar kind is relevant document to prove the shift of employer employee. The relevant portion is reproduced as under :
"14. Engagement and appointment in service can be established directly by the existence and production of an appointment letter, a written agreement or by circumstantial evidence of incidental and ancillary records which would be in the nature of attendance register, salary registers, leave record, deposit of provident fund contribution and employees state insurance contributions etc. The same can be produced and proved by the workman or he can call upon and caused the same to be produced and proved by calling for witnesses who are required to produce and prove these records. The workman can even make an appropriate application calling upon the management to call such records in respect of his employment to be produced. In these circumstances, if the management then fails to produce such records, an adverse inference is liable to be drawn against the management and in favor of the workman. "
33. Thus from the testimony of claimants itself and documents filed by them it is proved that they were the employee of M2 and not of M1. Further MW1 Sh. Sanjay Tripathi through ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 33 out of 52 his affidavit Ex.MW1/A has categorically deposed that the management no.1 had established its factory in the Greater Noida and opened spare parts distribution offices at E4/B1 Mohan cooperative Industrial Estate which was functioning from 1997. The work of distribution was given to M/s Pivot Multifar Industrial Pvt. Ltd. on principal to principal basis and accordingly M2 was only carrying out the job of distribution of spare parts for which payment was made to them. M2 used to do the work through its own employee who were in its supervision and control. M2 comply with all provisions of labour law including PF and ESI and maintaining all the register and necessary documents and there had no employeremployee relationship between the M/s New Holland Tractors (India) Pvt Ltd and claimant.
In his cross examination also he has stated that the M2 was engaged for distributing spare parts though his warehouse. Nothing much has come out in his cross examination to disbelieve his testimony. No suggestion has been given to him that claimants were directly appointed by M1. Thus considering the admission of workmen in their amended statement of claim as well as in their respective affidavit that they were under the employment of M2 ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 34 out of 52 and the documents i.e. ESI and PF documents which prove that the said facility were being provided by M2 and wage register Ex.WW2/M1 and testimony of MW1 it is proved that the workers were employee of the M2 i.e. M/s Pivot Multifar Industrial Pvt. Ltd. and not of M1 i.e. M/s New Holland Tractors ( India) Pvt Ltd and they were engaged by M1 as contract labour through M2 thus claimants were employee's of M2 and not M1 and M1 has engaged them for distribution of work through contractor M2.
I am not agree with the contention of ld. ARM that M1 has engaged M2 on principles to principles basis and there was no relationship of principal employer and contractor between M1 & M2. No such agreement/ contract has been produced by the M1 that complete work of distribution of spare parts was handed over to the M2 and M1 has control over the distribution of spare parts. Nothing has been stated by the MW1 that on what terms and condition M2 was engaged. From the testimony of Workman and MW1 it appears that M1 has contracted with M2 to provide labour on contract for distribution of spare parts which also include packaging of spare parts at their work site which also strengthen my view that M1 and M2 was not acting on Principal to Principal ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 35 out of 52 basis but only labour on contract was provided by M2 to M1 at M1 premises to carry out distribution of spare parts of M1. Thus considering the admission of workmen in their amended statement of claim as well as in their respective affidavit and these documents i.e. ESI and PF documents, wages register and testimony of MW1 it is proved that the workers were employee of the management no.2 i.e. M/s Pivot Multifar Industrial Pvt. Ltd. and not of management no.1 i.e. M/s New Holland Tractors ( India) Pvt Ltd and they were engaged by M1 as contract labour through Contractor M2.
34. Ld. AR for workman has argued that from the testimony of workmen it is proved that claimants were working on the dictate official of management no.1 namely Dev Karan at the premises of management no.1 hence the workman were under the control and supervision of official of management no.1. Therefore, contract between management no.1 & 2 in sham and camouflage.
35. I am agree with the contention of Learned AR for management that this court has no jurisdiction to go into the issue as to whether or not the contracts entered into between the M1 and ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 36 out of 52 M2 were sham or camouflage, since no such dispute was raised by the claimants, no reference was made by the appropriate government in that respect. In Ashok Kumar & Ors. v. The State & Anr. in W.P.(C.) Nos.943842/2004 decided on 20.12.2006, MANU/DE/9807/2006. In this case, the learned Single Judge observed that no dispute had been raised about the contract being sham or a camouflage. The claim of the workmen was that they were direct employees of the management and did not claim that they were employees of the contractor. The Court observed:
"It is now settled law that where the workmen claim that the contract between principle employer and contractor was sham and camouflage, they have to raise an industrial dispute to that effect and it is industrial adjudicator who, after going through the evidence and the terms and conditions of the contract and other circumstances has to decide whether the contract between principal employer and the contractor was sham and camouflage".
In para 7 of the judgment, this Court further observed as follows:
"It is obvious that the workmen in this case did not raise correct dispute and did not approach the appropriate Government with the contentions that the contract was sham and camouflage or that the contract labour system should be abolished. They got referred a dispute that they were the employees of the ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 37 out of 52 management and were not being regularized. This claim was found false. The Labour Court had no alternative but to dismiss the claim. It is settled law that the Labour Court/Tribunals cannot travel beyond the terms of reference. If no reference had been made to the Labour Court for determining whether the contract was sham and camouflage, the Labour Court could not have entered into this issue and decided whether the contract was sham and camouflage".
Further in case B.S.N.L. versus Attar Singh & Ors. W.P.(C) 3150/2007 Date of Decision: 20.03.2013 decided by Hon'ble Mr. Justice Vipin Sanghi while relying upon Ashok Kumar (supra) has held that:
"28. Since no reference was made by the appropriate government on the issue of the validity of the contracts between the petitioner and the security agencies, the CGIT had no jurisdiction to examine the same. The decision in Ashok Kumar (supra) is clearly applicable in the facts of the present case. The approach of the CGIT, in the light of the aforesaid discussion, in declaring that the contracts between the petitioner and the security agencies were a sham or a camouflage is completely erroneous. The said issue did not arise for consideration of the CGIT. The non filing of documents or any evidence in this respect by the petitioner was clearly on account of the fact that the said issue was not even raised by the respondents. On the contrary, they had admitted the position, and it was their own case that they had been engaged through contractors.
ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 38 out of 52
29. It is also interesting to note that on the one hand, the CGIT has held the contracts to be sham and camouflage, while on the other hand, while answering the reference it has been held that the action of the petitioner management in terminating/disengaging the services of the workman "without complying with the provisions of ID Act, 1947 and non conferring of temporary status on them in accordance with the DOPTS Scheme of September 1993 and thereby non regularizing their services in terms of provisions of CL (R&A) Act, 1970, employed through Security Contractors viz. M/s Luxman Security Agency, M/s Keshav Security Services, M/s Anuradha Security Services is neither just nor fair nor legal. The management is directed to reinstate all the above named workmen applicants except S/Shri Mahesh (ID No.53/2004), Mukesh (ID No.56/2004) and Shri Amar Singh (ID No.90/2004) because these three workmen have not filed their affidavits along with 50% back wages w.e.f. 01.09.2002 and make payment of the entire arrears within two months from the date of publication of the award". (Emphasis supplied)
30. From the aforesaid, it would be seen that the CGIT has itself observed that these workmen were employed through security contractors, namely M/s. Luxman Security Agency, M/s Keshav Security Services, M/s. Anuradha Security Services. The question of invoking the provisions of CLRA Act would arise only if the services of the workmen were taken through labour contractors. The aforesaid declaration by the CGIT has embedded in it the declaration that the respondent workmen had been engaged through contractors. Therefore, there is no merit in the ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 39 out of 52 submission of the respondents that their case was that they had been directly engaged by the petitioner management or that they had, in fact, been engaged directly by the petitioner management. It was neither their case that they had been directly engaged by the petitioner management, nor was it so established by them on the record. Pertinently, they had not produced any letters of appointment issued by the petitioner appointing them as security guards. As aforesaid, the petitioner is a government corporation and it is absolutely unacceptable and unbelievable that persons to such vital positions - which involve trust and faith, would be appointed casually without even issuance of appointment letters.
31. A perusal of the impugned award shows that the same primarily proceeds on the basis that the contracts between the petitioner and the security agencies are sham and camouflage. As aforesaid, this finding has been rendered without jurisdiction. The CGIT was also swayed by the fact that the respondent workmen were able to establish that they had been working at the premises of the petitioner for a couple of years at least. That, by itself, could not have lead to the conclusion that the relationship of employeremployee existed between the parties. This is for the reason that the petitioner does not even dispute the fact that the respondent workmen were serving the petitioner at its facilities. However, the case of the petitioner is that they were serving through contractors, i.e. security agencies. Rendering of such contract labour would not make the respondents the workmen of the petitioner".
Thus, in view of the aforesaid judgements I held that ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 40 out of 52 this court has no jurisdiction to decide the issue that contract between M1 & M2 is shame and camouflage.
36. Even otherwise I am not agree with the said contention of Ld. AR for workman that claimants were working on the supervision and control of M1 official. The onus was upon the claimants to proved that contract between M1 and M2 was sham and camaflaudge. As far as control and supervision is concerned, in Workman of Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamilnadu 2004LLR351 it is observed that relevant factor for to test control and supervision are:
"37. The control test and the organization test, therefore, are not the only factors which can be said to decisive. With a view of elicit the answer, the Court is required to consider several factors which would have a bearing on the result :
(a) who is appointing authority; (b) who is the pay master;
(c) who can dismiss; (d) how long alternative service lasts;
(e) the extent of control and supervision; (f) the nature of the job, e.g. whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject.
In International Airport Authority vs. International Air Cargo Workers union and another 2009 (13) SCC374, further criteria has been provided regarding control and ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 41 out of 52 supervision. It is held that :
" The industrial adjudicator can grant the relief sought if it finds that contract between principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employer and that there is in fact a direct employment, by applying tests like: who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employee the way in which the work should be done, in short who has direction and control over the employee. But where there is no notification under section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the contract was sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by contractor, if the right to regulate employment is with the contractor, and the ultimate supervision and control lies with the contractor. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 42 out of 52 assigned/allotted to the principal employer or used otherwise. In short worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor."
37. Now applying the aforementioned tests it is evident that the test for deciding supervision and control is who has economic control i.e. who pays wages to workman, who has power to take disciplinary action against workman including terminating his service. Now reverting back to the case, from the evidence of MW1 and admission of the workman in their testimony and the documents proved by them it is proved that claimants were employed by M2 they were receiving wages from M2 and it is M2 who was providing PF and ESI facilities. Hence, the M2 was controlling the economic activity of the claimants. No where workmen have stated that M1 official have any power to take any disciplinary action against them. No suggestion has been given to MW1 that M1 can take any disciplinary action against them. ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 43 out of 52 Workman Ghanshyam has admitted that Pardeep Sharma used to get work from them though he stated that Dev Karia also used to get work from them. As per WS file by M1 Pardeep Sharma was Director of M2 thus official of M2 were supervising the work of claimant. Even if I admit that the workers were carrying out the work as per the direction of official of management no.1 even then it will not make claimant employee's of management no.1. namely Devi Karan as stated by all the workman in their testimony it work will not make claimants employee of management no.1. No suggestion has been given MW1 that M1& 2 are same firm or run by same owner/management or M2 is a bogus entity. Thus considering all the facts and circumstances I held that claimants have failed to proved that they were working under the supervision and control of official of M1.
38. As far as contention of Ld. ARW regarding violation of section 10 of CLRA Act by Managements is concern the section 10 of the above said Act authorize Govt. to prohibit employment of contract labour in any process, operation or other work in any establishment. The section 10 is reproduced as under: (1) Notwithstanding anything contained in this Act, the ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 44 out of 52 appropriate Government may, after consultation with the Central Board, or as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract Labour in any process, operation or other work in any establishment.
(2)xxxxxxxx
39. The onus was on the M2 who had taken said objection in written statement to proved that any notification has been issued by Govt. to engage contract labour in the process,operation of distribution/packaging of spare parts. But M2 has led no evidence at all as it become exparte where as claimants have not produced any notification in this regard thus they have failed to proved that section 10 of CLRA Act has been violated.
40. As far as another objection of M2 regarding violation of section 12 of the CLRA Act is concern M2 has stated in the WS that it has not obtained license to execute work through contract labour and thus executing of work be M1 through contract labour was illegal therefore claimants should be treated as employee of M1 and not its employee. Undoubtedly M1 has neither plaeded in WS nor has produced any license obtained by M2 u/s 12 of CLRA thus it is proved that M2 has violated the ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 45 out of 52 provision of section 12 of the Act by executing the work of distributing spare parts of M1 through contract labour. Similarly M1 has also not produced any registration certificate as required u/s 7 of the Act which entitle them to get work done through contractor and thus M1 has also violated the provision of section 7 of CLRA, Act. But I am not agree with the contention of Ld. ARW that since M1and M2 had not complied the provision of Contract Labour( Regulation and Abolition) Act thus their contract between M1 and M2 to engage M2 to execute work of distribution of spare parts through contract labour is illegal and claimant become employee of principal employer i.e. M1.
41. The section 7 and section 12 of the Act are reproduced as below:
(1) Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, by notification in the official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment:
Provided that the registering officer may entertain any such application for registration after expire of the period fixed in this behalf if the ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 46 out of 52 registering officer is satisfied that the applicant was prevented by sufficient cause from making the application in time.
2. xxxxxxxxxxx Section 12 Licensing of contractors.
1. with effect from such date as the appropriate Government may, by notification in the Official Gazette, appoint no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer.
2. xxxxxx
42. Thus from the section 7 and 12 it is evident that section 7 put obligation on principal employer who engage labour on contract through contract has to register itself and section 12 put obligation on contractors not to execute any work through contract labour without obtaining license. The CLRA, Act no where provide that non compliance of provisions of section 7 or 12 of Act make agreement to provide labour on contract illegal and the labour engage through such contract will automatically become employee of principal employer. Nowhere in the act it is mentioned that the agreement between principal employer and contractor will be invalid if the provision of section 7 & 12 are not ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 47 out of 52 complied by them. Only section 23 of the CLRA Act provides that in case contravention of the provisions of Act the violator of the provision of the act can be punished to fine or imprisonment or with both. Section 23 Contravention of provisions regarding employment of contract labour is read as under:
"....Whosoever contravenes any provision of this Act or of any rules made thereunder prohibiting, restricting or regulating the employment of contract labour, or contravenes any donition of a licence granted under this act, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both, and in the case of continuing contravention with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
43. Thus even after noncompliance of provision of the Act claimants do not become employee of M1. In this regard I relied upon Recent judgement our own High Court i.e. Sports Authority of India Versus Labour Commissioner, Delhi Admn. and Ors. W.P.(C) No. 5574/1999 dt. 12.03.14. In this case Hon,ble justice Sh. V. Kameshwar Rao while relying upon judgement of ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 48 out of 52 Steel Authority of India Ltd and Ors. Vs. National Union Water Front Workers and Others, 2001 (7) SCC 1 has held that even if violation of provision of section 7,10 and 12 of CLRA will not make employees of contractor as employee's of Principal employer. The relevant para no. 24 is reproduced as below;
"On a perusal of the aforesaid paragraphs, it is revealed that the Supreme Court in Steel Authority of India‟s case (supra) has set aside the notification dated December 09, 1976. That apart, it has inter alia held that prohibition of contract labour would not automatically lead to absorption of contract labour. It also held that the consequence of violation of Section 7 and 12 of the Contract Labour (Regulation and Abolition) Act, 1970 is explicitly provided under Section 23 and 25 of the said Act and absence of a registration/licence would not entail automatic absorption.
44. Hence, in these circumstances, I held that claimants Uttam Kumar, Gyan Chand Parsad, Sanjay Kumar,Subhash Bhardwaj, Rajinder Singh,Devinder Kumar Singh, Sita Ram, Uma Shankar Thakur and Mukesh Kumar has failed to proved that they can be treated as employee of M1 as M1 and M2 have not complied provision of section 7 or 12 of CLRA,Act.
45. Hence in view of aforesaid discussion I held that aforesaid claimants have failed to proved that they were employee ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 49 out of 52 of M1 rather they were employee of M2 hence they were also not the workman qua M1.
46. Since other claimants claimants either did not file the statement of claim or if file claim have not led any evidence or did not appear for cross examination hence they have also failed to proved that they are employee of M1 or M2.
47. Hence in view of aforesaid facts and circumstances I decide the issue no.1 to 5 as under:
Issue no.1 : There was no relationship of employer and employee between the M1 and the workmen.
Issue no.2 : The workmen are not covered under the definition of the workmen as mentioned in Section 2(S) of the Industrial Dispute Act qua the M1 as they were not the employee of M1 Issue no.3 : The workmen were the employee of M/s Pivot Multifar Industrial Services Ltd.
Issue no.4 : There was relationship of employer and employee between the M2 & the workman.
Issue no.5 : There was violation of provisions of section 10 &12 of Contract Labour (Regulation & Abolition) Act, 1070 by ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 50 out of 52 M1 but this violation do not make claimants /worlman employee's of M1.
Issue no.6 " Whether services of the workmen as mentioned in AnnexureA were terminated by the M1 or/and M2 illegally and/or unjustifiably and if so, to what effect "
48. Since claimants have failed to proved that they were employee of M1 hence no question of their termination by M1 arise hence they have failed to proved that they were illegally terminated by M1. As far as their illegal termination by M2 is arise since claimants neither in their statement of claim or in their evidence have stated that they were terminated by M2 hence they have failed to proved that they were illegally or unjustifiably terminated by M2. Issue no6 is decided accordingly against the workman.
RELIEF
49. In view of My finding of aforesaid issue I held that claimants are not entitle to any relief and their claims are hereby dismissed. Reference is answered accordingly. Copy of the award be sent to the Secretary (Labour), Government of National Capital ID No.312/14 Sanjay Kumar Vs. M/s New Holland Tractors (India) Pvt. Ltd. Page No. 51 out of 52 Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). File be consigned to record room.
Announced in the Open Court
on this 9th December, 2014
(SANJEEV KUMAR)
Presiding Officer, Labour Court,
Karkardooma Courts, Delhi.
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