Central Administrative Tribunal - Chandigarh
Sh. Veer Chand vs Union Of India Through ... on 14 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
CIRCUIT BENCH AT SHIMLA
.
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 542/HP/11
Sh. Veer Chand
S/o Late Sh. Shanker Dass
R/o Village Rouni, P.O. Dalash,
Tehsil Ani, District Kullu, H.P.
.Applicant.
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents
Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant.
Sh. D.R. Sharma, counsel for the
respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for
respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No .4.
ORDER
HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.`
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual controversy about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND)
MEMBER(J)
(KHUSHI RAM)
MEMBER(A)
Dated: September , 2011
`bss
CENTRAL ADMINISTRATIVE TRIBUNAL
CIRCUIT BENCH AT SHIMLA
.
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 543/HP/11
Sh. Ramesh Singh
S/o Sh. Kali Ram,
R/o Village Junidhar, P.O. Kansa Koti,
Tehsil Rohru, Distt. Shimla H.P.
..Applicant
Versus
1. Union of India through Chairman-cum-Managing Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 544/HP/2011
Sh. Joginder Singh
S/o Sh. Parma Ram
R/o village Serti, P.O. Shilaroo,
Tehsil Theog, Distt. Shimla H.P.
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 545/HP/2011
Sh. Bal Krishan Thakur
S/o Sh. Prem Chand
R/o Village Raghaon, P.O. Anandpur,
Tehsil & District Solan H.P.
Applicant
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 546/HP/2011
Sh. Jagdish Chand Rohal,
S/o Sh. Med Ram,
R/o Village Katoh, P.O. Kaithlighat,
Tehsil Kandaghat, Distt. Solan H.P.
Applicant
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 547/HP/2011
Sh. Het Ram,
S/o Sh. Seria Ram,
R/o VPO Mundu, Tehsil Theog,
Distt. Shimla, H.P.
Applicant
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 548/HP/2011
Sh. Prateek Kumar
S/o Sh. Paras Ram
R/o VPO Ghoond, Tehsil Theog, Distt. Shimla
..Applicant
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 549/HP/2011
Sh. Hem Chand
S/o Sh. Kesru Ram
R/o Village Shalapri, P.O. Mahog,
Tehsil Theog, Distt. Shimla H.P.
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 550/HP/2011
Sh. Ramesh Chand
S/o Sh. Chet Ram,
R/o Village Gharog, P.O. Nehra,
Tehsil & District Shimla, H.P.
Applicant
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&4.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 4, Shri Rajneesh Kumar, counsel for Respondent No.3 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 551/HP/2011
Sh. Ashish Kumar
S/o Sh. Prashar Ram
R/o VPO Nirmand, Tehsil Nirmand,
District Kullu H.P.
Applicant
Versus
1.Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&4.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 4, Shri Rajneesh Kumar, counsel for Respondent No.3 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 552/HP/2011
Sh. Sadh Ram
S/o Late Sh. Kesru Ram
R/o Village Gahan, P.O. Janjehli,
Tehsil Kumarsain, Distt. Shimla H.P.
Versus
1.Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
6. M/s Misao Security, 320 SFS Flats Pocket-I, Sector-I, Dwarkapuri, New Delhi.
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual controversy about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 553/HP/2011
Sh. Lekh Raj
S/o Late Sh. Daulat Ram
R/o Village & PO Bahli,
Tehsil Rampur, Distt. Shimla H.P.
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&4.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 4, Shri Rajneesh Kumar, counsel for Respondent No.3 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual controversy about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 554/HP/2011
Sh. Rajesh Kumar
S/o Sh. Kanwar Singh,
R/o Village Pikhadhar, P.O. Khadrala,
Tehsil Rohru, Distt. Shimla H.P.
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
..Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 555/HP/2011
Sh. Rajesh Kumar
S/o Late Sh. Deep Ram
R/o Surinder Building, Shadyana Road,
Theog, Tehsil Theog, Distt. Shimla H.P.
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 556/HP/2011
Sh. Roshan Lal
S/o Noya Ram
R/o Village Barkal, P.O. Deem,
Tehsil Nirmand, Distt. Kullu, H.P.
Applicant
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual controversy about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 557/HP/2011
Sh. Jagdish Chand
S/o Sh. Kandu Ram
R/o Village Bara, P.O. Kartot,
Tehsil Rampur, Distt. Shimla, H.P.
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd.
Shimla Telecom District, Block No. 35, SDA Complex,
Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 558/HP/2011
Sh. Mohan Lal
S/o Sh. Chaman Lal
R/o Village Chikri, P.O. Taklech,
Tehsil Rampur, Distt. Shimla, H.P.
Versus
1. Union of India through Chairman-cum-Managing
Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4. ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularisation of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss CENTRAL ADMINISTRATIVE TRIBUNAL CIRCUIT BENCH AT SHIMLA .
Dated: This 14th day of September, 2011.
Coram: Hon'ble Mr. Justice S.D. Anand, Member (J)
Honble Mr. Khushiram, Member (A)
OA. 541/HP/11
Sh. Amar Chand S/o Late Sh. Chaiti Ram
R/o Village P.O. Koyal Tehsil Nirmand
Distt. Kullu (H.P.)
.Applicant
Versus
1. Union of India through Chairman-cum-Managing Director, Bharat Sanchar Nigam Limited, N.Delhi.
2. The General Manager AGM, Bharat Sanchar Nigam Ltd. Shimla Telecom District, Block No. 35, SDA Complex, Kasumpati, Shimla-9, H.P.
3. M/s H.P. Ex. Service Men Corporation, Haripur, Distt. Hamirpur (H.P.)(through its Chairman).
4. M/s Equinox Guards & Security Services VPO Ambari Malan, District Kangra, H.P.
5. Sub Divisional Officer, BSNL Sub-Division, Theog, District Shimla (H.P.).
Respondents Present: Sh. Sandeep Chauhan, proxy counsel for Sh.
Rajesh Kosh, counsel for the applicant. Sh. D.R. Sharma, counsel for the respdts.1,2&5.
Sh. Rajneesh Kumar, proxy counsel for respdt.No.3.
Sh. G.S. Sathi, counsel for respdt.No.4.
ORDER HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
On the own showing of the applicant, he was engaged by Respondent No.2 (The General Manager/ AGM, Bharat Sanchar Nigam Ltd., Shimla Telecom District, Shimla) through Respondent No.3 (M/s H.P. Ex. Servicemen Corporation Haripur, Distt. Hamirpur (H.P.)
2. It is also the averment in the O.A. itself that Respondents 3 and 4 are Security Agencies who are the immediate employers of the applicant.
3. The applicant herein has applied for invalidation of the order dated 16.12.2010 (Annexure A-1) whereby withdrawl of services of 28 security guards deployed at BTSs in Shimla SSA has been ordered. The apprehension in the mind of the applicant is that the impugned order has come about as Respondent No.2 is inclined to engage security guards from the family of the land owners whose land has been acquired by the respondent department for installing the towers and the services of the applicant has been terminated to give undue advantage to the land owners.
4. The respondents have challenged the maintainability of the O.A. for the relief claimed by the applicant on an averment that he is not a direct employee under Respondent No.2 and he is, in fact, in the employment of the concerned security agency.
5. We have heard Shri Sandeep Chauhan, Advocate who appeared in proxy for Shri Rajesh Kosh, counsel for the applicant, Shri D.R.Sharma for Respondents for Respondents 1, 2 and 5, Shri Rajneesh Kumar, counsel for Respondent No.3 and Shri G.S.Sathi, counsel for Respondent No.4 and have perused the record.
6. The applicant cannot wish away the averments made by none else or other than himself in the course of the O.A. to the effect that he had not been directly engaged/ appointed by Respondent No.2. It is apparent from a perusal of the pleadings made in the O.A., that he was engaged by Respondent No.2, through Respondent No.3.
7. Insofar as the respondents are concerned, they have raised a precise plea qua maintainability of the O.A. by raising a plea that the applicant not having been engaged directly, the remedy available to him is to raise an Industrial dispute before the concerned Labour Court.
8. We find that the applicant deserves to be non-suited. The reasons therefor are as under.
9. The cue to the controversy is to be found in the view obtained by the Apex Court in RAM SINGH & OTHERS VS. UNION TERRITORY, CHANDIGARH & OTHERS : AIR 2004 SC 969. In that case, the Apex Court categorically held that in case of a factual averment about the nature of employment, the claim would be competent to be raised before the Industrial Adjudicator. The relevant observations made by the Apex Court in the context are extracted hereunder:-
16. Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment (sic) and the actual nature of the employment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator. .
20. Where the contract labour employed through different contractors for various jobs connected with sub-station set up to maintain electricity supply to Govt. medial College and Hospital which was maintained by department of engineering of Administration of Union Territory of Chandigarh made claims for regularization of their services, it was held that without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the contractor and the contract employees, no relief can be granted in appeal.
10. In the light of the foregoing discussion, we are of the considered view that this O.A. is not maintainable before this Tribunal. The applicant may have resort to the remedy available to him before the Industrial Tribunal.
11. Disposed of accordingly.
12. There shall be no order as to the costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND) MEMBER(J) (KHUSHI RAM) MEMBER(A) Dated: September , 2011 `bss 1