Delhi District Court
Through vs M/S Shri Sanatan Dharam Saraswati Bal ... on 22 May, 2023
Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati
Bal Mandir Senior Secondary School
LIR No.1172/2018
IN THE COURT OF SHRI TARUN YOGESH
PRESIDING OFFICER : LABOUR COURT - 08
ROUSE AVENUE DISTRICT COURTS : NEW DELHI
LIR No:1172/2018
CNR No. DLCT13-001779-2018
In the matter of
Shri Som Kumar
S/o Shri Nand Kishore
R/o X-156, Camp No.1, Nangloi,
New Delhi - 110041
Through:
Shri Gajraj Singh Tomar (General Secretary)
Pragatisheel Mazdoor Sangh (Regn. No.4522),
I-161, Karampura, New Delhi - 110015
....Workman
Versus
1. M/s Shri Sanatan Dharam Saraswati Bal Mandir
Senior Secondary School (Principal Employer)
Through its Principal Ms. Madhu Vaidh
Road No.70, West Punjabi Bagh,
New Delhi - 110026
2. M/s S. Detective Security of India (Contractor)
Through its Proprietor Shri S.K. Chauhan
T-695/E, Gali No.21, Prem Nagar Road,
New Delhi - 110008
.... Management
Date of institution : 23.05.2018
Date of Award : 22.05.2023
Page 1 of 16
Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati
Bal Mandir Senior Secondary School
LIR No.1172/2018
AWAR D
1. Reference under Section 10(1)(c) read with Section 12(5)
of the Industrial Disputes Act, 1947 has been received from Joint
Labour Commissioner, West District, F-Block, Karampura, New
Delhi setting out following dispute for adjudication by the Court:
"Whether the services of workman Shri
Som Kumar S/o Shri Nand Kishore have
been terminated illegally and/or
unjustifiably by the management; and if so,
to what relief is he entitled and what
directions are necessary in this respect?"
2. As averred in the claim, Shri Som Kumar engaged as
'Driver' w.e.f. February 2015 continued to work under direct
control and supervision of officials of M/s Shri Sanatan
Dharam Saraswati Bal Mandir Senior Secondary School till
his services were terminated by M/s S. Detective Security of
India at the behest of management no.1. It is submitted that
management No.2 was inducted by management No.1 for limited
purpose of disbursement of salary whereas services were
rendered to the principal employer and arrangement between
management No.1 and 2 was camouflage and sham for depriving
the workman of emoluments and status of regular employee in
violation of provisions of the I.D. Act. Unfair labour practice of
showing his name on the rolls of management No.2 without the
consent of workman was raised time and again followed by
Page 2 of 16
Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati
Bal Mandir Senior Secondary School
LIR No.1172/2018
complaint lodged with Labour Department, Karampura, New
Delhi on 14.12.2017 and services of Shri Som Kumar were
illegally terminated by management No.2 with malafide intention
to victimize the workman in violation of Section 25F and 25G of
I.D. Act without notice, memo, charge-sheet or enquiry.
3. Another complaint alleging illegal termination of service
was filed before Labour Inspector/Assistant Labour
Commissioner, Karampura, New Delhi on 27.12.2017 followed
by demand notice dated 08.01.2018 sent through Union which
was neither replied nor complied whereas settlement could not be
effected before Assistant Labour Commissioner/Conciliation
Officer, Karampura, Delhi leading of reference of dispute by the
Labour Office. It is submitted that workman having continuously
worked till termination of his services could not secure
alternative employment and is entitled to be reinstated with
continuity of service and other consequential benefits including
back wages.
4. Shri Sanatan Dharam Saraswati Bal Mandir Senior
Secondary School has filed written statement contesting the
claim by disputing employer-employee relation. It is submitted
that M/s S. Detective Security of India being Registered
Employer vide ESIC Code No.11001082900001001 and EPF
Code No.DL-40509 used to offer manpower and Shri Som
Kumar was engaged through the contractor on the basis of
agreement dated 27.07.2017 executed with management No.1 for
providing manpower through its employees as per the Rate
Page 3 of 16
Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati
Bal Mandir Senior Secondary School
LIR No.1172/2018
Schedule. It is submitted that claimant being employee of
management No.2 was allotted ESIC No.1114857070 and PF
facility vide DL-40509/253 which is evident from ESIC Identity
Certificate and management No.2 being employer is responsible
for compliance of all statutory provisions which was
communicated vide letter dated 15.12.2016.
5. Management No.2 on its part has stated about agreement
dated 01.07.2014 entered with management No.1 besides
claiming that Shri Som Kumar was working with management
No.1 prior to 'work contract' in favour of management No.2. It is
submitted that management No.1 being principal employer had
appointed workman in the post of driver before agreement for
'work contract' was executed with M/s S. Detective Security of
India and used to pay wages directly to the workman.
6. Following issues were settled on 08.02.2021 on the basis
of pleadings:
1) Whether there exists any relationship of employer and
employee in between the claimant/workman and the
managements as stated by managements in the
WS? ...OPW
2) Whether the workman is entitled for reinstatement
with full back wages and the other consequential
benefits as prayed for by the workman in his
statement of claim? ... OPW
3) Relief in terms of reference.
7. Shri Som Kumar having reiterated employment in the post
Page 4 of 16
Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati
Bal Mandir Senior Secondary School
LIR No.1172/2018
of driver with management No.1 has relied upon following
documents in his examination-in-chief recorded on 23.08.2022:
1) Copy of complaint dated 14.12.2017 addressed to
Assistant Labour Commissioner, Karampura, New
Delhi - Ex.WW1/1 (OSR);
2) Copy of complaint dated 27.12.2017 addressed to
Assistant Labour Commissioner, Karampura, New
Delhi - Ex.WW1/2 (OSR);
3) Office copy of demand notice dated 08.01.2018 -
Ex.WW1/3;
4) Original postal receipt - Ex.WW1/4 and Ex.WW1/5;
5) Office copy of statement of claim filed before
Conciliation Officer - Ex.WW1/6;
6) Copy of ESI Card - Mark 'A';
7) Copy of cheque - Mark 'B'.
8. Cross-examination of Shri Som Kumar was recorded and
workman's evidence was closed on 23.09.2022.
9. Shri Ashok Kumar Garg, Secretary, Samarth Siksha Samiti
(Regd.) North Zone examined as MW1 has relied upon following
documents in his examination-in-chief recorded on 22.11.2022:
1) Photocopy of claim filed under Minimum Wages Act,
1948 before Labour Commissioner, Karampura, Delhi -
Mark 'A'.
2) Photocopy of agreement dated 27.07.2017 between
management no.1 and 2 along with Rate Schedule-
Annexure 'A' & undertaking by contractor -
Page 5 of 16
Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati
Bal Mandir Senior Secondary School
LIR No.1172/2018
Annexure 'B' - Mark 'B' (five pages).
3) Copy of letter dated 03.11.2016 issued by management
No.2 to management No.1 - Ex. WW1/M2
4) Copy of ESIC Identity Certificate of claimant -
Ex.WW1/M1;
5) Photocopy of bills dated 31.03.2017 and 01.01.2018
raised by management No.2 against management No.1
- Mark 'C' (Colly two pages);
6) Photocopy of letter dated 15.12.2016 issued by
management No.2 to management No.1 - Mark 'D'.
10. Cross-examination of MW1 has been recorded on
16.01.2023 and 17.02.2023. No other witness has been examined
by management.
11. Shri Ajit Singh for workman has addressed submissions
urging reinstatement in service with all consequential benefits
including back wages by relying upon judgment of Hon'ble High
Court of Delhi delivered in The Management of Ashok Hotel
Vs. Their Workman and Ors. MANU/DE/0503/2013.
12. Ms. Priyanka Garg for management No.1 on her part has
urged for dismissal of claim in the absence of employer-
employee relation by adverting to Section 10 of the Contract
Labour (Regulation and Abolition) Act, 1970 and by relying
upon (i) Kamlesh Rai Vs. Presiding Officer Labour Court, 2003
(4) AWC 2800 of Hon'ble Allahabad High Court AND (ii)
Bharat Heavy Electricals Ltd. Vs. Mahender Prasad Jakhmola
and Ors. decided by Hon'ble Supreme Court of India on
Page 6 of 16
Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati
Bal Mandir Senior Secondary School
LIR No.1172/2018
20.02.2019.
13. I have considered their submissions and perused pleadings
and evidence adduced on judicial record.
14. Hon'ble High Court of Delhi in The Management of
Ashok Hotel Vs. Their Workman (Supra) was dealing with
petition assailing award whereby petitioner (management) was
directed to frame a policy and consider the case of 20 members
of respondent No.1 for regularization in service. The Award
passed by the industrial adjudicator was impugned before Hon'ble Court by referring to the law laid down by the Constitution Bench in Steel Authority of India Ltd. And Ors. Vs. National Union Waterfront Workers and Ors. Para-1 of the judgment of Hon'ble High Court of being relevant is extracted herein below:
"Learned counsel for the Petitioner contends that the impugned award is contrary to the law laid down by the Constitution Bench in Steal Authority of India Ltd. and others vs. National Union Waterfront Workers and others, 2001 (7) SCC 1 wherein it was held that for violation of Sections 7 and 12 of the Contract Labour (Regulation and Abolition) Act (in short the CLRA Act) action is provided under Sections 23 and 25 of the CLRA Act and the scope cannot be extended beyond it. As settled in International Airport Authority of India vs. International Air Cargo Workers' Union and another, 2009 (13) SCC 374 the industrial adjudicator can grant relief only if it is Page 7 of 16 Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School LIR No.1172/2018 found that the contract between the principal employer and the contractor is sham, nominal and merely a camouflage to deny employment to the employee and to hold that in fact direct employment exists, the following test are required to be applied, that is, who pays the salary, who has the power to remove/dismiss from service or initiate disciplinary action, who can tell the employee the way in which work should be done. In a case where it is not proved in the industrial adjudication that the contract was a sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise. Applying the test laid down by the Hon'ble Supreme Court there is nothing on record that the Petitioner paid salary to the members of the Respondent No.1. Further the Petitioner had no control over them as regards their dismissal etc. was concerned. The three tests laid down by the Hon'ble Supreme Court are in favour of the Petitioner. Thus the finding of the Tribunal that there exists an employer employee relationship is erroneous."
15. Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 reads as under:
"10 Prohibition of employment of contract labour. -
(1) Notwithstanding anything contained in this Act, the appropriate Government may, Page 8 of 16 Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School LIR No.1172/2018 after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as-
(a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment;
(b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation that is carried on in that establishment;
(c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;
(d) whether it is sufficient to employ considerable number of whole-time workmen.Page 9 of 16
Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School LIR No.1172/2018 Explanation. -If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final."
16. In International Airport Authority of India vs. International Air Cargo Workers' Union and another, 2009 (13) SCC 374 the Hon'ble Apex Court has held :
"In Gujarat Electricity Board, this Court held :
"..... the exclusive authority to decide whether the contract labour should be abolished or not is that of the appropriate Government under the said provision. It is further not disputed before us that the decision of the Government is final subject, of course, to the judicial review on the usual grounds. However, as stated earlier, the exclusive jurisdiction of the appropriate Government under Section 10 of the Act arises only where the labour contract is genuine and the question whether the contract is genuine, or not can be examined and adjudicated upon by the court or the industrial adjudicator, as the case may be. Hence in such cases, the workmen can make a grievance that there is no genuine contract and that they are in fact the employees of the principal employer.Page 10 of 16
Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School LIR No.1172/2018 If the contract is sham or not genuine, the workmen of the so called contractor can raise an industrial dispute for declaring that they were always the employees of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of Section 10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, the industrial adjudicator has to decide whether the contract is a sham or genuine. It is only if the adjudicator comes to the conclusion that the contract is a sham, that he will have jurisdiction to adjudicate the dispute. If, however, he comes to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of the contract labour under Section 10 of the Act and keep the dispute pending. However, he can do so if the dispute is espoused by the direct workmen of the principal employer. If the workmen of the principal employer have not espoused the dispute, the adjudicator, after coming to the conclusion that the contract is genuine, has to reject the reference, the dispute being not an industrial dispute within the meaning of Section 2(k) of the ID Act. He will not be competent to give any relief to the workmen of the erstwhile contractor even if the labour contract is Page 11 of 16 Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School LIR No.1172/2018 abolished by the appropriate Government under Section 10 of the Act."
17. Paras 9, 10 & 11 of Kamlesh Rai Vs. Presiding Officer Labour Court (Supra) being relevant are extracted below:
"9. Under Section 10 of the Act, the appropriate Government has the power to issue a notification for abolition of the contract labour, but there is no other competent authority under the Act which can deal with the subject. The labour adjudicator has also not been enclothed with the power to pass any order abolishing the contract labour. If the appropriate Government is satisfied and a notification is issued abolishing contract labour in the establishment, the natural corollary would be that from issuance of such a notification the principal employer shall not be permitted to have labour through a contractor but the question does arise that even if such a notification is issued whether the labourers supplied by the contractor can claim the privilege of absorption on permanent basis with the principal employer. The answer has to be in the negative because the statute does not provide for any such remedial measure. [Vide P. Karunakaran v. Chief Commercial Superintendent and Ors.. 1988 Lab IC 1346].
10. In fact the Act of 1970 has taken away the power of the State Government to refer Page 12 of 16 Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School LIR No.1172/2018 the industrial dispute relating to employment of contract labour to the Industrial Tribunal. [Vide Air France, New Delhi v. Industrial Tribunal Delhi and Anr., 1984 Lab IC 847 and Management Burmah Shell Oil Storage and Distribution Company of India Ltd. Madras v. Industrial Tribunal, Andhra Pradesh and Ors., 1975 Lab IC 165].
11. Section 30 of the Act, 1970 provides that the provisions of the Act would have an overriding effect over other provisions of law for the time being in force. Even otherwise the Act being a special Act would prevail over the general law i.e., the Industrial Disputes Act as the Act deals with the subject of contract labour and it had taken away the power of the Government which is enjoyed previously under Section 10 of the Industrial Disputes Act to refer the dispute relating to contract labour to the Industrial Tribunal. However, under the provisions of the Act, the appropriate Government, if it so desires can prohibit contract labour in any process by issuing required notification, [vide Delhi Cloth and General Mills Company Ltd. and Ors. v. State of Rajasthan, 1992 (65) FLR 847].
18. It is, therefore, necessary for the Labour Court to determine whether the contract between the principal employer and the labour contractor was genuine or not. In case it is not proved that the contract was a sham/nominal and camouflage, Page 13 of 16 Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School LIR No.1172/2018 then the question of directing the principal employer to absorb or regularize the services of contract labourer would not arise.
19. Shri Som Kumar upon being confronted with (i) ESIC Temporary Identity Certificate AND (ii) copy of letter dated 03.11.2016 of M/s S. Detective Security of India apropos EPF and ESIC facility provided to employees posted in the school has not disputed the documents. Relevant portion of cross- examination of WW1 recorded on 23.09.2022 is extracted below:
"Witness having seen from his ESIC card (produced by witness) submits that name of employer has been correctly mentioned therein though he has never worked with S. Detective Security of India. Document filed along with written statement be read as Ex.WW-1/M1. Witness having seen the card produced by him admits that date of issue is correctly mentioned as 07.08.2016."
"Witness has been shown copy of letter of contractor dated 03.11.2016 bearing his name at Point-A. Document be read as Ex.WW-1/M2. Workman having seen the document submits that he was not engaged through the contractor."
20. Shri Ashok Kumar Garg (MW1) on the other hand has relied upon agreement dated 27.07.2017 entered between Shri Sanatan Dharam Saraswati Bal Mandir AND M/s S. Detective Security of India w.r.t. execution and performance of obligations Page 14 of 16 Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School LIR No.1172/2018 by deploying Trained Security Guard, Sweeper, Aya, Peon, Driver, etc. filed along with Rate Schedule - Annexures 'A' and undertaking by the contractor - Annexure 'B'. MW1, in addition, has also relied upon (i) letter dated 03.11.2016 of M/s S. Detective Security of India addressed to the Principal giving details of employees - EPF number and insurance number AND
(ii) letter dated 15.12.2016 apropos 24 employees working under the company whose provident fund and ESIC contributions were being deposited as per government norms in their respective accounts.
21. Relevant portion of cross-examination of MW1 Shri Ashok Kumar Garg disputing control and supervision by the school management is extracted below:
"It is wrong to suggest that nature of work of driver is the permanent nature in the management.... It is wrong to suggest that workman used to work under the supervision and control of management. Vol. The contractor used to supervise the workman for everything, the school management would only take the specific service agreed as per agreement with the contractor from the workman."
22. It is, therefore, evident from pleadings and evidence adduced on judicial file that Shri Som Kumar was engaged by Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary Page 15 of 16 Shri Som Kumar Vs. M/s Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School LIR No.1172/2018 School through M/s S. Detective Security of India who used to pay him monthly salary in addition to regular contribution in his EPF and ESIC account.
23. Agreement between the Principal Employer and Contractor cannot be said to be sham/nominal/camouflage and workman Shri Som Kumar cannot seek absorption in permanent post of driver with Shri Sanatan Dharam Saraswati Bal Mandir Senior Secondary School.
24. FINDING: Issue No. 1 & 2 are therefore decided against the workman.
RELIEF
25. Statement of claim seeking reinstatement with continuity of service and other consequential benefits including back wages is dismissed.
26. Reference stands answered in aforesaid terms.
27. Copy of Award be sent to Joint Labour Commissioner, West District, F-Block, Karampura, New Delhi for publication.
28. Judicial file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT DATED: 22.05.2023 Digitally signed TARUN by TARUN YOGESH YOGESH Date: 2023.05.25 14:54:00 +0530 (TARUN YOGESH) PRESIDING OFFICER - LABOUR COURT-08 ROUSE AVENUE DISTRICT COURTS:
NEW DELHI Page 16 of 16